STATE EX REL. HOLT v. THOMPSON, 66 Wis.2d 659 (1975)

225 N.W.2d 678

Supreme Court of Wisconsin.
No. State 160.Argued January 2, 1975. —
Decided February 5, 1975.

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ORIGINAL ACTION for mandamus. Writ denied.

Original action for writ of mandamus brought by Carol Holt and others, all residents of the state of Wisconsin, against Barbara Thompson, state superintendent of public instruction, challenging the constitutionality of sec. 118.155, Stats., the “released time for religious instruction” act, created by ch. 161, Laws of 1973, published January 30, 1974, providing:

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“118.155 Released time for religious instruction.
(1) Any school board shall, without approval of the state superintendent, permit pupils with written permission of a parent or guardian to be absent from school at least 60 minutes but not more than 180 minutes per week to obtain religious instruction outside the school during the required school period. The, supervisor of such religious instruction shall report monthly, to the principal of the school regularly attended, the names of the pupils who attended such weekly religious instruction. The school board may deny the privilege of released time to pupils who absent themselves from such religious instruction after requesting the privilege. The time period, or periods, allotted for the pupil to be absent from school for the purpose of religious instruction shall be determined by the school board.

“(2) Any transportation to religious instruction or from religious instruction to the public school shall be the responsibility of the parents or of the organization sponsoring the religious instruction.

“(3) The school district shall be released from all liability for a pupil who is absent from school in accordance with sub. (1).”

For the petitioners there were briefs and oral argument by Manny S. Brown of Racine.

For the respondent the cause was argued by John William Calhoun, assistant attorney general, with whom on the brief was Bronson C. La Follette, attorney general.

There was a brief amicus curiae filed by Robert G. Bramscher of Kenosha for the Wisconsin Civil Liberties Union.

ROBERT W. HANSEN, J.

Does our state’s released time for religious instruction statute[1] violate the establishment of religion clause in the first amendment to the federal constitution?[2] If it does not, does it violate the

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without due process of law provision in the fourteenth amendment?[3] If it does not, does it violate the freedom of worship section of our state constitution?[4] Three questions here asked, and three to be answered.

The first amendment.

In dealing with any claim that constitutional assurances of the first amendment are invaded by a state statute, we are bound by the results and interpretations given that amendment by the decisions of the United States Supreme Court.[5] There are numerous such decisions dealing with the establishment of religion and free exercise thereof clauses in the first amendment,[6] most of them involving

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the relationship between religion and education.[7] Review and application of these high court rulings have been facilitated by that court’s dividing such cases into two separate and distinct categories: (1) “those dealing with religious activities within the public schools,” and (2) “those involving public aid in varying forms to sectarian educational institutions.”[8] The footnotes and case citations accompanying this categorization clearly place released time for religious instruction statutes into the first category of cases, not the second.[9] As to released time statutes and their constitutional validity, the recen Nyquist decision cites and refers to two prior decisions, the McCollum Case[10] and the Zorach Case.[11]

In McCollum, there was presented to the high court an Illinois “released time” program under which the board of education permitted pupils to attend religious instruction classes conducted during regular school hour in the public school buildings by teachers furnished by an association of churches. In Zorach, four years later, the high court had before it a released time for public

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instruction plan in New York state under which, with written permission of the parents required, the religious classes were conducted elsewhere than in the public school buildings, with nonparticipating pupils remaining in the public school buildings. McCollum held the religion classes, conducted inside the public school buildings, to violate the establishment of religion clause in the first amendment. Zorach held the New York program, with the religious instruction conducted elsewhere than in the public school buildings, to be constitutionally valid. In Zorach, the high court made the distinction between the two cases, and the basis for it, crystal clear:

“This `released time’ program [the New York plan] involves neither religious instruction in public school classrooms nor the expenditure of public funds. All costs, including the application blanks, are paid by the religious organizations. The case is therefore unlike McCollum Board of Education, 333 U.S. 203, which involved `released time’ program from Illinois. In that case the classrooms were turned over to religious instructors. We accordingly held that the program violated the First”[12]
Amendment . . . .”[12]

In the statutorily mandated plan before us, the classes for religious instruction are to be conducted elsewhere than in the public school buildings, so it is Zorach, no McCollum, that controls. In point of fact, the Wisconsin plan and procedure is very nearly an exact carbon copy of the New York State plan approved in Zorach. Under both programs, the public schools release students during the school day so that they may leave the school buildings and school grounds and go to religious centers for religious instruction. Under both programs, a student is released on written request or permission of his parents. Under both programs, those not released stay in the classrooms. Under both programs, the responsibility for

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attendance at the religion classes is on the religious organizations involved, with reports of attendance at the religious schools to be filed with the school authorities. Under the New York plan, such attendance reports were to be made weekly; in Wisconsin they are to be made monthly. Such reports, weekly or monthly, do not relate to the parents’ permission or to the pupil’s decision to go or forego going to the outside religious instruction classes. They are directed solely at not establishing a third option, to wit: electing to attend the outside classes and heading, instead, to the local pool hall.[13] Under both programs, the time allotted is limited — under the New York plan to one hour per week; under the Wisconsin plan to at least sixty minutes, but not more than 180 minutes per week. The Wisconsin plan provides that the time period or periods allotted for the classes in religious instruction shall be determined by the school board. This insures orderly scheduling, and the same end is served by the provision, under both programs, that, where more than one religious school is conducted, the hour of release shall be the same for all religious schools. Under both programs, there is no expenditure of public funds involved other than the minor expense of filing attendance reports, a smaller item under the Wisconsin plan because such reports are monthly, not weekly as under the New York plan. Nor do we see any relatedness between released

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time for religious instruction and statutes providing for distribution of state funds to local school districts as state aids.[14] To conclude the comparing, we hold the Wisconsin plan or program, set forth in sec. 118.155, Stats., to be identical with the New York plan, promulgated by its state commissioner of education[15] and upheld as constitutionally antiseptic in Zorach.

With the fact situations essentially the same, and the interpretation there given the first amendment controlling, the doctrine of stare decisis requires that we here follow Zorach and find no constitutional invalidity, on first amendment grounds, in our state’s released time for religious instruction statute. However, petitioners, and particularly an amicus curiae brief filed in this case, suggest that Zorach may no longer be good or controlling law, having been replaced by the three-pronged test of the Tilton Case.[16] That test, as stated in the subsequent Nyquist decision, holds that: “. . . to pass muster under the Establishment Clause the law in question, first, must reflect a clearly secular legislative purpose, . . . second, must have a primary effect that neither advances nor inhibits

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religion, . . . and, third, must avoid excessive government entanglement with religion . . . .”[17]

There are at least three sound and solid reasons for rejecting the suggestion that the United States Supreme Court, in Tilton, sub silentio, withdrew or overrule Zorach without mentioning the fact that it was doing so. (1) Tilton itself rejects the idea of a “single constitutional caliper” to be applied to all situations, and makes clear that any analysis in the field of first amendment challenges “must begin with a consideration of the cumulative criteria developed over many years and applying to a wide range of governmental action.”[18] As to cases involving released time for religious instruction programs McCollum and Zorach are the ones among the cumulative criteria that are applicable. (2) In 1973, two years after Tilton, the Nyquist decision repeats that any first amendment “tests or criteria should be `viewed as guidelines’ within which to consider `the cumulative criteria developed over many years.'”[19] And Nyquist

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cites and refers to McCollum and Zorach, these being the only two cases cited as providing guidelines for released time for religious instruction cases.[20] The 1952 case o Zorach would hardly have been given such citation and attention in the 1973 Nyquist decision if it had, during the intervening years, been abandoned or overturned. (3) In Nyquist, the United States Supreme Court went further to place all of its religion-education precedents in two categories: the first, “dealing with religious activities within the public schools,” and the second, “involving public aid in varying forms to sectarian educational institutions.”[21] Zorach held that a released time program, nearly identical to the one now before us, “. . . involves neither religious instruction in public school classrooms nor the expenditure of public funds . . . .”[22] The Nyquist
categorization reaffirms the Zorach conclusion that, where neither religious instruction in the public school classrooms nor the expenditure of public funds are involved, there is no conflict with the establishment of religion clause of the first amendment.

With Zorach holding that the exact type of released time program now before us is not subject to successful first amendment challenge, and that decision being here controlling, it is not necessary to take up, one by one, the three-pronged test, first stated in Tilton[23] and since

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restated in Nyquist.[24] However, for the sake of completeness only, we note that, in the light of Zorach, it is clear that no prong of the test pierces the constitutionality of the Wisconsin released time statute. (1) As to reflecting a clearly secular purpose, the first prong of the test,[25] Zorach held that the New York released time program, which parallels sec. 118.155, Stats., meant only that “. . . the public schools do no more than accommodate their schedules to a program of outside religious instruction . . . .”[26]
Seeing any problem present as “one of degree,”[27] it held that McCollum cannot be expanded or the first amendment stretched to mean that “public institutions can make no adjustments of their schedules to accommodate the religious needs of the people.”[28]
(2) As to the second prong, having a primary effect that neither advances nor inhibits religion,[29] the goal is that of “ensuring governmental neutrality in matters of religion,”[30]
and Zorach found exactly such neutrality in

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the New York released time for religious instruction program before it,[31] stressing that “No one is forced to go to the religious classroom and no religious exercise or instruction is brought to the classrooms of the public schools.”[32]
(3) For the third prong, that excessive entanglement with religion is to be avoided,[33] the only continuing contact or interaction of public schools and the religious groups conducting religious instruction classes would be as to the monthly reports required as to actual attendance of students requesting released time. In Zorach, the high court noted the argument made that the “. . . public

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school teachers police [the program], keeping tab on students who are released, . . .”[34] but included the contention among others not given weight as being “. . . of no concern here . . . .”[35] In a case in this court, dealing with state aids to a dental college in a church-related university,[36] our court made clear that “excessive entanglement,” as used in first amendment cases, “. . . is not a matter of those accounting reports or budgetary controls,”[37] specifically holding that some “. . . audit-type protection against fiscal misdirection of funds can accompany any contract or grant even in this sensitive area . . . .”[38] Weekly or monthly reports on attendance, intended and serving to prevent abuse by pupils of released time permissions, represent even less entanglement than do the accounting reports or budgetary controls above referred to. In the light of Zorach, the tests or guidelines in Tilton or Nyquist are here met.

The fourteenth amendment.

Petitioners try another shell in the shotgun, claiming that the Wisconsin released time for religious instruction statute (sec. 118.155, Stats.) violates the equal protection clause of the fourteenth amendment to the United States Constitution.[39] This type of shell is of the birdshot variety, carrying only a short distance but scattering pellets over a broadened area. Much of the argument as to denial of equal protection deals with the lack of merit or wisdom of legislative enactment of the released time program. Views, pro or con, on the merits of the program,

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the high court in Zorach held, are “not germane to the narrow constitutional issue presented.”[40] Petitioners’ brief on this point terms the released time program, mandated by the statute, to be “. . . an unconstitutional bargain using public tax money with a local church authority in violation of the law of the land . . . .” That repeats, in slightly altered language, the conclusion urged as to establishment of religion clause applicability. When Zorach struck it down, finding no use of public moneys involved in this type of released time program,[41]
that interpretation of what is being done cannot be revived or brought back to life on a fourteenth amendment challenge. The arguments advanced include a claim that an element of improper or suspect classification is involved in permitting students who desire so to do and who have parental permission so to do, to leave the school for religious instruction elsewhere, while others will be remaining in the classroom.[42] This contention is close kin to the contention, raised by petitioners in Zorach, that “. . . the classroom activities come to a halt while the students who are released for religious instruction are

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on leave . . . .”[43] If it has fourteenth amendment implications when raised here, it had the same implications when raised there. When the argument was rejected i Zorach, it is impossible to find that the high court was saying that the contentions raised by petitioners had no validity as far as the establishment of religion clause is concerned, but might have merit and substance insofar as the equal protection clause of the fourteenth amendment is concerned. This conclusion is mandated particularly since the court majority in Zorach, after listing arguments that “. . . largely concern the wisdom of the system, its efficiency from an educational point of view, . . .” said firmly “. . . our problem reduces itself to whether New York by this system has either prohibited the `free exercise’ of religion or has made a law `respecting an establishment of religion’ within the meaning of the First Amendment.”[44] Zorach must be read as thus defining the area of court concern, as well as determining the issues raised, particularly since the first amendment is made applicable to the states through the fourteenth amendment.[45] If we were to apply the constitutional tests for a proper classification under the equal protection clause, we could hardly begin with petitioners’ conclusion that “. . . students who remain in class are denied the right to a free and public education supported by everyone’s taxes without disruption of their schedules, classes, or programs.” There is nowhere in the Wisconsin released time statute any provision for an interruption in the studies of the nonparticipating students. Nor could we use, in testing the classification involved, petitioners’ claim that, “Those who are excused are a special class of students who are accorded a special

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privilege on account of their religion and because their parents requested of the board that they be accorded this special status . . . .” That is not the Zorach conclusion as to what takes place under a released time program such as we have here. Instead, the Zorach decision concludes that: “. . . The teacher in other words cooperates in a religious program to the extent of making it possible for her students to participate in it,”[46] adding, “Whether she does it occasionally for a few students, regularly for one, or pursuant to a systematized program designed to further the religious needs of all the students does not alter the character of the act.”[47] Zorach makes clear that when the state “. . . cooperates with religious authorities by adjusting the schedule of public events to sectarian needs, it follows the best of our traditions, . . .”[48] firmly holding that: “. . . To hold that it may not would be to find in the Constitution a requirement that the government show a callous indifference to religious groups . . . .”[49] We read Zorach as holding that there is no such requirement in the first amendment, the fourteenth amendment or anywhere in the federal constitution. We find controlling the Zorach conclusion, earlier referred to, that the state can “. . . suspend its operations as to those who want to repair to their religious sanctuary for worship or instruction . . . .”[50] Of the Wisconsin statute, as the high court said of the New York program, “No more than that is undertaken here.”

The Wisconsin Constitution.

With Zorach found to be controlling, and the Wisconsin released time for religious instruction statute held

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not to be violative of the establishment of religion or equal protection clauses of the United States Constitution, there remains petitioners’ contention that that statute, sec. 118.155, Stats., violates art. I, sec. 18, of the Wisconsin Constitution. This is the freedom of worship section of our state constitution and includes language more specific than the terser establishment of religion and free exercise thereof clauses in the first amendment of the federal constitution. However, of the difference in wording, this court has recently held: “. . . While words used may differ, both the federal and state constitutional provisions relating to freedom of religion are intended and operate to serve the same dual purpose of prohibiting the `establishment’ of religion and protecting the `free exercise’ of religion. . . .”[51] As to freedom of worship, sec. 18 provides: “The right of every man to worship. Almighty God according to the dictates of his own conscience shall never be infringed; . . .” The released time statute accommodates, rather than restricts the right of students, with parental permission, to, in the words o Zorach, “. . . repair to their religious sanctuary for worship or instruction . . . .”[52] As to establishment of religion, sec. 18 provides: “. . . nor shall any man be compelled to attend, erect or support any place of worship, or to maintain any ministry, against his consent . . . .” Under the released time statute, as Zorach
notes, “. . . A student need not take religious instruction. He is left to his own desires as to the manner or time of his religious devotions, if any.”[53] While monthly attendance reports are to be furnished to the schools, these reports function solely to assure the right under the statute of the school board to deny the privilege of

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released time to pupils who absent themselves from such religious instruction after requesting such privilege. It is not truancy, but deception, that is aimed at. Compulsion to attend is not, initially or subsequently, a part of the program. As to free exercise thereof, sec. 18 provides: “. . . nor shall any control of, or interference with, the rights of conscience be permitted. . . .” With permission of the parents and election of the students required, no element of interference with rights of individual conscience is involved in the released time program under the statute. As to establishment of religion, sec. 18 provides, “. . . nor shall . . . any preference be given by law to any religious establishment or modes of worship . . . .” With the challenge being to the law on its face, our decision does not include the possible situations that may arise, each to be “properly evaluated if and when challenges arise.”[54] As to establishment of religion, sec. 18 provides: “. . . nor shall any money be drawn from the treasury for the benefit of religious societies, or religious or theological seminaries.” We follo Zorach in finding no use or expenditure of public funds involved in the type of released time program established by the Wisconsin statute. As to each of the individual assurances and proscriptions of art. I, sec. 18, of the Wisconsin Constitution, we find no impingement

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as to any one or all by the released time statute, sec. 118.155, Stats.

Additionally, it must be given consideration that in April of 1972, by vote of the electorate, there was added to the Wisconsin Constitution an amendment to art. X, sec. 3, providing that “. . . the legislature by law may, for the purpose of religious instruction outside the district schools, authorize the release of students during regular school hours.” While this would not block successful challenge on the ground of violation of provisions of the United States Constitution made applicable to the states, it does render inappropriate the claim that what was specifically authorized by constitutional amendment offends the document to which the authorization was added. Sec. 118.155, Stats., does require, rather than merely authorize, the granting of released time for religious instruction to students where the parents have given their written permission. Petitioners see this distinction as creating an infringement upon inherent powers of a school board, set forth in art. X, sec. 3, of the state constitution. If this position is correct, mandatory statutes that would fall would include those relating to curriculum requirements,[55] special observance days,[56]
textbooks,[57] safety requirements,[58] school fences,[59] and, possibly, even required certification of teachers.[60] Sec. 120.13, sets out the powers of a district school board, listing what such board “may” do. Sec. 120.12, lists the duties of a district school board, listing what such board “shall” do. We see no problem of either constitutional dimension or legislative construction involved

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in the establishment, by the use of the word “shall,” of a released time program as a duty rather than as a power of a local school board.

So we conclude that the released time for religious instruction statute (sec. 118.155, Wis. Stats.) does not violate (1) the establishment of religion clause of the first amendment to the United States Constitution; (2) the equal protection clause of the fourteenth amendment to the United States Constitution; or (3) the freedom of worship or district school sections of the Wisconsin Constitution. So holding, we deny the issuance of the requested writ of mandamus.

By the Court. — Petition for writ of mandamus is denied.