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NEW YORK

New York

New York is one of several states that requires school boards to release students to participate in religious instruction. This statute opens the door for Released Time in every school district in the state. Released Time programs should be operating in every school in the state to ensure that students are able to take advantage of their right under state law to participate in religious instruction.

In addition, any Released Time program would also need to ensure compliance with the court approved guidepost for Released Time programs. These include:

1) The school cannot fund the Released Time program, other than de minimis administrative costs (such as the costs of a school board approving a local Released Time policy).

2) Released Time programs cannot take place on school premises; and

3) Student participation in Released Time programs must be voluntary. There cannot be any coercion on the part of any school official.

However, these three points are not exclusive. One should conduct thorough research on the latest state and federal laws and court decisions to determine if there are any updated guidelines for a Released Time program to follow.

General Information

N.Y. Educ. Law § 3210(b)(i)

“Absence for religious observance and education shall be permitted under rules that the commissioner shall establish.”

Statutes

N.Y. Comp. Codes R. & Regs. tit. 8, § 109.2

(a) Absence of a pupil from school during school hours for religious observance and education to be had outside the school building and grounds will be excused upon the request in writing signed by the parent or guardian of the pupil.

(b) The courses in religious observance and education must be maintained and operated by or under the control of duly constituted religious bodies.

(c) Pupils must be registered for the courses and a copy of the registration filed with the local public school authorities.

(d) Reports of attendance of pupils upon such courses shall be filed with the principal at the end of each semester.

(e) Such absence for a released time program, grades K-12, shall be for not more than one hour each week at the close of either the morning or afternoon session, or both, at a time to be fixed by the local school authorities; provided that the time designated for each separate unit, the primary grades (K-3), intermediate grades (4-6), junior high school grades (7-9), and senior high school grades (10-12), shall be the same for all pupils in that unit in each separate school. Notwithstanding the foregoing, a board of education, in its discretion, may permit pupils in the various units which are departmentalized to be released for not more than one hour a week in groups that may include less than whole units at such times and upon such conditions as such board of education may deem proper; in no event may any pupil be released for more than one hour a week. In the event that more than one school for religious observance and education is maintained in any district, the hours for absence in each particular public elementary or secondary school unit in such district shall be the same for all such religious schools.

(f) A board of education may establish an optional program for high school students in grades 9-12 to permit a student with written approval of parent or guardian to enroll in a course in religion in a registered nonpublic high school. Enrollment in a course of this nature shall be subject to the prior approval by the public high school principal with respect to course schedule, pupil attendance and reporting of pupil achievement. Absence to attend such a course may be excused for the number of periods per week that the course is scheduled in the nonpublic school, provided that the excused absences are at the beginning or close of a public school session and are mutually agreed upon by the school officials.”

New York City Dept. of Education, Regulation of the Chancellor No. A-630 (June 29, 2009) available at PDF https://www.schools.nyc.gov/docs/default-source/default-document-library/a-630-english

“A. Released Time for Religious Education/Instruction

In accordance with the Regulations of the New York State Commissioner of

Education (CR 109.2), the New York City Department of Education has designated the last hour of the instructional day on Wednesdays for “released time” for religious instruction/education.

The absence of an authorized student from school during school hours to attend a program of religious instruction/education outside the school building and grounds will be excused. The program of religious instruction must be maintained and operated by or under the control of a duly constituted religious body.

1. Parent responsibilities:

  1. Each parent requesting released time for the purpose of religious instruction must submit a signed, written authorization for the release of their child from school and a copy of the student’s registration in the religious instruction program. The signed, written authorization must identify the religious institution and location at which the instruction will be provided.
  2. Parents must notify school personnel when they withdraw their children from released time programs.
  3. Parents must make alternate arrangements when school sessions are abbreviated and students are dismissed early.
  4. Parents must obtain a report of their children’s released time attendance for each semester from the religious institution and give it to the principal no later than the last day of school for that semester.

2. School Responsibilities:

Schools shall:

  1. Upon receipt of a signed, written authorization and a copy of the student’s registration in the religious instruction program in accordance with Section I.A.1.a above from the parent, release the student for the last hour of the instructional day on Wednesdays, to participate in a program of religious instruction. The signed authorization and student registration in the religious instruction program are to be kept on file at the school.
  2. Institute a system for reminding pupils and teachers that released time dismissal is approaching. Such dismissal shall take place in accordance with regularly established school policies. School officials must make every effort to ensure prompt dismissal.
  3. Not unreasonably exclude children who attend released time programs for religious instruction from participation in after-school programs by reason of late arrival from their religious instruction programs.
  4. Not penalize students academically for attendance at released time programs for religious instruction.
  5. Plan carefully for those students who do not participate in the released time program, and must ensure that educationally significant programs are provided for them.
  6. Not be responsible for ensuring the attendance of students at the released time programs. Public school personnel shall not respond to inquiries regarding the absence of students from religious instruction, and shall make available no information regarding the student, except as permitted by Chancellor’s Regulation A-820.
  7. Ensure that solicitation of students for participation in released time programs for religious instruction does not take place on or near school facilities. Furthermore, no announcements of any kind regarding released time programs will be made in school.
  8. Maintain attendance reports of pupils enrolled in released time programs filed with the school at the end of each semester pursuant to Section I.A.1.d above.

Regulations

Attorney General

None.

Lewis v. Graves, 156 N.E. 663 (1927)

In Lewis v. Graves, a White Plains Released Time program was upheld as valid under the N.Y. Constitutional provision prohibiting funding of religious schools and under the general attendance statute. The White Plains plan allowed students to be excused during the last half hour of the day, once each week. Written consent of parents was required; and no public funds were used to implement the program. At the time, no Released Time statutes or regulations had been enacted.

Lewis v. Spaulding, 85 NYS 2d 582 (1948)

In Lewis v. Spaulding, the New York City Released Time program, similar to the current NYC plan, was held to be valid. The NYC plan, in contrast to the Champaign, Illinois plan struck down in McCollum v. Board of Education, was ruled to be constitutional and not in violation of the First Amendment prohibiting the making of any law respecting the establishment of religion. The constitutionality of each Released Time program, however, must be tested by the factual aspects of the particular programs under scrutiny.

Pierce v. Sullivan West Central School District, 379 F.3d 56 (2d Cir 2004)

In Pierce, the 2nd Circuit Court of Appeals held that New York’s Education Law provision allowing “released time” from public schools for religious instruction did not violate Establishment Clause as implemented by school district. The local program did not use public funds or involve on-site religious instruction, the program was purely voluntary, and there was no specific coercion or pressure brought to bear on non-participants by school officials.

In McCreary v. Stone, 739 F.2d 716 (2d Cir. 1984), the Second Circuit Court of Appeals referenced Zorach v. Clauson as standing for the proposition that a “program allowing release of students during school hours for religious instruction” did not violate the Establishment Clause of the First Amendment. Id. at 726. Similarly, in Katcoff v. March, 755 F.2d 223 (2d. Cir. 1985), the Second Circuit cited Zorach as “upholding school released time program for religious instruction outside [the] city’s school system.” Id. at 233.

The rulings of the 2nd Circuit Court of Appeals are binding precedent on Connecticut, New York, and Vermont.

Case Law