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Show ''s-'- s 'IHt bUN, 8, 1979, February Paged THE NEWS, February 8, 1979, Page 4 Am you Cowed? ' operation of release time religious instruction might interfere with the students,- - because no free exercise of religion of in evidence of entanglements was presented. By contrast,-Plaintiffthe Lanner case presented evidence of extensive entanglements between Defendants and the LDS Church in the Operation of the program at issue there. These entanglements were and ire at least as extensive, if not more extensive, than those considered in the McCullom decision to give rise to interference with students' right to the free exercise of religion. Mr. Justice Frankfurter, in his concurring opinion in McCullom explains why such entanglements (in McCullom, the use of school classrooms for. release time religious instruction) are inherently coercive in nature: This is the sixth m a strits of tight articles by Snow CoUegt and tho Utah Endowmtnt for tht Humanities. The articles are being used by students at Snow as discussion material for a Philosophy class. The public is invited to attend these discussionsfree of charge on Thursday evenings at 7:30 p.m. in the Little Theater in the Noyes Building. These articles will precede the discussions by one week. LANNER vs. WIMMER Challenge to the operation of the LDS Release Time Program in Logan, Utah. Statement by Kathryn Collard, Plaintiffs attorney. BACKGROUND ' InLannervs. Wimmer, Plaintiffs, taxpayers and parents of children who were attending or will attend public secondary schools in Logan, Utah, sued the Logan City School Board and certain of its officers and employees, hereinafter Defendants , to enjoin their operation of the LDS Release Time Program of religious instruction as part of the regular school program for ninth grade students of Logan Junior High School and students of Logan High School, asserting that Defendants operation of the program, under the facts and circumstances alleged, established religion and interfered with the free exercise of religion, in violation of the First Amendment to the United States Constitution and parallel provisions of the Utah Constitution. Plaintiffs asked the federal court to prevent Defendants from operating the program altogether, or, in the alternative, to preclude Defendants from engaging in numerous practices which had the effect of advancing religion" and involving the school system in "excessive entanglements" with the LDS Church in the operation of the program. Religious education so conducted on school time and property is patently woven into the working scheme of the school. The Champaign arrangement thus presents powerful elerhdntf of inherent pressure by the school system in the interest of religious sects. The fact that this power has not been used to discriminate is beside the point. Separation is a requirement to abstain from fusing functions of government and of religious sects, hot merely to treat them all equally. That a child is offered an alternative may reduce the constraint; it does not eliminate the operation of influence by the school in matters sacred to conscience and outside the school's domain. The law of limitation operates, and is not an outstanding characteristic of children. The result is an obvious pressure upon children to attend . . . Defendants denied that the "Old Testament" and "New Testament" e ! Although this proposition was of doubtful merit when announced in ' Zbrach for the reasons discussed under Point 1 hereof, it is certainly much more tenable under the facts of Zorach than when applied to the evidence presented in Lanner. In Zorach the Supreme Court held that thie only act of the school in relation to the conduct of the release time program of religious instruction there, was the school's passive release of students to attend religious instruction courses at locations away from the school. In Lanner, however, the Court acknowledged that the evidence demonstrated that Defendants assistance to the LDS Church irrthe operation of the program in several particulars was so gross as to amount to an "establishment of religion. Speaking for the majority in Zorach, Justice Douglas notes that the result in that case might have been different if evidence of the school' s involvement in the program went beyond mere release of children from their secular studies. He states: . . . .If in fact coercion were used, if it were established that any one at more of the teachers were using their office to persuade or force students to take religious instruction, a wholly different case would be presented. Subsequent to the filing of the original complaint by Plaintiffs, the Uuh Sate Board of Education moved to intervene, which motion was granted. Thereafter, Plaintiffs filed an amended complaint against all , the Defendanu, including the Uuh Sate Board of Education, in which amended complaint three new claims were asserted, namely: 4. The operation of the LDS released time program by Defendanu was committed by them under color of sate law and pursuant to an organized plan and conspiracy to subject Plaintiffs and others similarly situated to the deprivations of privileges and immunities sfetvred to them by the Constitutions and laws of the United Sutes and the Sate of Uuh in violation of Title 42, U.S.C., Sections 1981, 1985 and 1985. 5. "The operation of the LDS released time program by the Defendanu as aforesaid violates the provisions of Section U.C.A (1955), as amended. The Defendanu denied that they or any of them at any rim operated or mainuined "a program of religious instruction as a part of the regular school curriculum" in the Logan School District. They further denied that the operation of the LDS seminary program by the LDS Church is in any way violative of the First Amendment to the t Constitution of the United Sutes or of any provision of the Constitution cake free exercise the of with Since "coercion' interfering religion may or laws of the Sute of Uuh. the form of persuasion as indicated by Justice Douglas, certainly Defendanu further denied that the accepunce of credit for courses Defendants practices in Tanner at allowing students to receive in Bible by LDS seminary or the Presbyterian seminary on a academic credit for their completion of "Old Testament" or "New Uught the from those private schools, in the same manner as Testament" courses, and of allowing students to meet eligibility transfer of credit credit is accepted on transfer from any public or private school, is in and for honor roll, studentbody sports requirements ' violation of either federal or sute law. elections, must be viewed as powerful means of persuading students to that The Defendanu mainuined Court further this shoulid,refuse to enroll in the LDS Release Time Program courses. Moreover, there was or nondenominational nature of the no discussion in the Zorach decision concerning how "excessive inquire into the denominational Bible courses Uught by the LDS seminary. entanglements" between the school system and churches in the ... ' I1 : POINTI ' 1 PROGRAM OF. THE LOGAN SCHOOL THE RELEASED-TIMDISTRICT DOES NOT OFFEND THE ESTABLISHMENT CLAUSE OF THE riRST AMENDMENT. . , y . Veleased-timprogram substantially identical to the program of the Logan School District has been determined constitutional by the Unites States Supreme Court in Zorach v. Clauson, the controlling ' ' authority ia this case. A. A e . ' I ' t ' e T The green thumb of the financial world. U.S. Savings Bonds. With every Bond you buy, you plant the seed for your own future. And you help keep America strong. Bonds are an easy way to save for most anything. Whether its a college education or a memorable family vacation. Even a down payment on a new house. Savings Bonds will help you harvest the future. And while theyre growing for you, your Bonds are helping the U.S.A. Cause every time you buy a Bond, you take stock in America. So buy Bonds today through the Payroll Savings Plan at work. Theyre the automatic way to make your money grow and keep America growing too. E Bonds pay 6 interest when held to maturity of 5 years the first year) . Interest is not subject to state or local income taxes, and federal tax may be deferred until redemption. (42 The recognition of credit for Bible study is constitutional under the Lemon test. To refuse to recognize credit from private religious institutions because courses are or might be religious would be a violation of the free exercise of religion of transferring studenU. The recognition of such credit is properly for the students benefit, not the Seminary. No "aid flows to the LDS Church. A. The granting of credit has the secular purposes of furthering educational opportunities, promoting diversity in education and promoting fundamental concepu of American culture and society. B. The granting of credit does not "advance religion." The district should grant credit for Bible if it is to allow credit for courses which conflict with religion in order to properly remain "neutral." The issue of whether government must recognize and give credit to religious church education has been decided in cases involving full-tim- e credit from termed impermissible administrative enunglemena between the schools. There is no basis to distinguish released-tim- e Logan schools and the LDS seminary and that the granting of credit for full-tim- e parochial school credit. does not involve After making C. Recognition of credit from released-tim- e religious studies violated the First Amendment. inquiry and investigation regarding the American Civil Liberties "excessive entanglements." No more "enunglement" is involved Union s claims and after requesting arid receiving a legal opinion from here than is necessary for recognition and transfer of credit from any the attorney for the Urah School BcAards Association, Mr. Blair, other public or private institution. O ( ) V Superintendent, responded to the American Civil Liberties Union chairman that the released time activities did not violate the First Amendment of the Constitution or the policies of the Uuh Sate Board of Education. However, Mr. Blair further wrote to the school principals and reminded them that they should continue to follow the Sate Board guidelines. It was not until December 14, 1976, that Plaintiff Lanner First complained that the nature of the courses was "denominational" and an indoctrination in the LDS religion. In response to this allegation. Defendant Blair visited with Reverend Minor Bruner of the Presbyterian seminary and Mr. Jack Kidd, area coordinator for the LDS seminaries, and discussed with each of them separately for approximately one hour the respective course offerings. Mr. Blair briefly examined the materials presented by each and generally ascertained that the subject matter being Uught was the Bible. Thereafter Mr. Blair indicated to Mr. Lanner that the School Board did not accept the latter's assessment of the LDS program nor his opinions of the law. On Sunday, March IS, 1977, the American Civil Liberties Union of Utah placed an advertisement in the local newspaper seeking support from persons willing to permit their names to be used as plaintiffs in an action already prepared by the American Civil Liberties Union to be Tiled against the Logan School District. Plaintiff John Scherting responded to this advertisement and conucted the American Civil Liberties Union office in Salt Lake City. He was thereafter conracted by Plaintiff Lanner. Mr. Scherting testified that though he had had concern regarding the propriety of the LDS seminary program for a long time, he had never investigated it or done anything about it Upon being assured by Mr. Lanner that he would not have to bear any costs or expenses of the litigation, Scherting agreed to become a plaintiff with Mr. and Mrs. Lanner. Mr. Lanner likewise testified that he had been assured by the American Civil Liberties Union that he and Mrs. Lanner would not be personally liable for any of the cotu and expenses of the litigation and would be relieved of all personal liability therefor. On March 17, 1977, the action was filed by the American Civil Liberties Union through the named Plaintiffs against the members of the Logan Board of Education, the Logan School Superintendent and 2. Plaintiffs Free Exercise Claim the principals of the Logan High School and the Logan Junior High In rejecting Plaintiffs' claim that Defendants' operation of the LDS School. Plaintiffs original complaint alleged that: Release Time Program interfered with the right of 1. The Logan Board of Education operates and mainuins "a children to the free exercise of religion, the Court relies on the decision program of religious instruction' offered by the Church of Jesus Christ of the United States Supreme Court in Zorach for the proposition that of Latter-daSaints as a part of the regular school curriculum. 2. The operation of the LDS released time program by the ... No suggestion is made that Defendants, or the authorities of Defendants violates the First Amendment to the Constitution of the . either seminary or public school have used any coercion to force United Sutes in that it constitutes an unlawful "esubiishment of unwilling students into seminary courses. On the contrary, the religion. public school doors remain open for classes for 5. The operation of the LDS released time program by the students. The program is conducted without noticeable effect on Defendanu violates Article I, Section 4, and Article X, Sections 1,12-an' the remainder of the students. IS, of the Constitution of the Sate of Uuh. I ROBIN MICKELSON, Agent A recent case in the United States District Court for the District of Utah (Ronald M . Lanner, et al, v. The Board of Education for the City of Logan, et al, and The Utah Sate Board of Education, Defendant in has sought to abolish "released Intervention, Civil No. NC77-0025- ) time" for students in high school and junior high school to participate and be involved in the LDS seminary program, together with abolishment of the recognition by the schools of not to exceed two credits toward graduation for a student who has studied the Bible in the seminary program and transfers such credit to the high school. In order to discuss this case, it is necessary to give a brief background leading up to the filing of the action: On October 14, 1976, the chairman of the local chapter of the American Civil Liberties Union, Plaintiff Ronald Lanner, wrote to the president of the Logan School Board and complained of what were ' Southern Agency . e 1. "Release time" programs of the type involved in Lanner should be declared to constitute a per se violation of the First Amendment. In deciding that Defendants' practice of "releasing" students to attend LDS Release Time Program courses which the Court found to be religious in nature, does not alone "advance religion so as to constitute a per se violation of the Establishment Clause of the First Amendment, the Court in Lanner perpetuates the legal fiction upon which the Zorach decision was predicated that the only action of the school consisted in " releasing' students who wished to participate in religious studies from their compulsory duty to attend school. Indeed, K I was expressly upheld in Zorach, the Defendants' operation of the LDS Release Time Program, at least in the particulars found by the Court to 1. Released time has valid secular purposes. have constituted an "establishment of religion" should also have been 2. The primary effect of the released-timprogram does not advance found to interfere with the free exercise of religion of religion. Since no funds or direct aid is given to the seminaries by the school district, any benefit is purely indirect and incidental. Public students, in violation of the First Amendment. school cooperation is completely passive. 5. The program does not involve an impermissible amount of LANNER vs. WIMMER Challenge to the operation of the LDS govemmenul entanglements with religion. The First Amendment Release Time Program in Logan, Utah. Statement by Arthur H. does not require absolute separation. Some cooperation between Nielsen, Defendants attorney. religion and government is necessary. Interactions between Logan School District and the LDS Seminary in no wise suggest excessive The maintenance of the seminary which affords opportunity for high entanglement between school district and seminary. school students in the State of Utah to study the Bible on a released time basis from the Public School System does not offend the doctrine POINT n of Separation of Church and State; nor does the granting of credit on a transfer from the seminary by the public schools for such study of the THE GRANTING OF CREDIT FOR LDS SEMINARY CLASSES HAS A Bible violate the provisions of the First Amendment of the DOES NOT PRIMARILY ADVANCE SECULAR PURPOSE, Constitution, as made applicable to the sates by the Fourteenth RELIGION AND DOES NOT INVOLVE EXCESSIVE ENTANGLEAmendment to the United Sates Constitution. MENTS. COMMENTS ON THE COURTS DECISION it might be conceded ttjgt if Defendants simply afforded all children Release time" a period during or at the end of the school day when all students were excuffi to participate in any studies or activities they desired, that Defendants would not be engaged in the "advancement of religion' . But this is not the type of program that was at issue either in Lanner or Zorach. In each case, the schools involved not only "released those children who wished to participate in religious instruction, but refused to release students who did not wish to attend religious instruction and compelled them to continue in their secular studies. This practice of conditioning release from school and secular studies upon students' attendance and participation in religious instruction inherently and obviously "advances religion" by telling students, in effect, that the school is willing to excuse them from their own secular studies on the condition that they participate in religious instruction and that those students who do not participate will be forced to remain in school. That Defendants depend upon the of children who do not participate in the program as a factor of inducing participation of children in such programs is evident from Defendants' refusal to adopt a system in which all children are released from school during a certain period of the day to participate in whatever studies they desire, which system would allow students to pursue a wide range of studies and accommodate the desire of some parents to have their children participate in religious instruction. Considering the undisputed evidence that Defendants refused to release students who did not participate in religious instruction and compelled them to perform their secular studies while releasing children who participated in the program from such obligations, the conclusion of the Court in Lanner that the Defendants operation of the program must be seen as having "a primary effect which is simply the innocuous diminution of the number of children in school at a certain time of the day "must be questioned. In my view. Defendants' practice of releasing students from secular studies upon the condition that they participate in religious instruction provides a powerful incentive to students to engage in such studies which advance religion in a manner prohibited by the First Amendment, and all programs that operate on such principle should be declared to constitute a per se violation of the First Amendment. M A program of released-timfor religious instruction was held not to be a violation of the First Amendment of the Constitution in Zorach v. Clauson, 545 U.S. 506 (1952). Defendants submit that the Supreme Court's decision in Zorach is dispositive of the issue of constitutionality of released-time- . Subsequent opinions of the Court reaffirm the sects will thus have validity of the principle suted in Zorach. The program found The children belonging to inculcated in them a feeling of separation when the school should constitutional in Zorach is substantially identical in iu major features i be a training ground for habits of community or they will have re- to the released-tim- e program as presently operating in the Logan ligious instruction in a faith which is not that of their parents. Aa a School District. The Court in Zorach held such programs of religious result, the public school system of Champaign actively furthers education to be constitutional. Zorach v.- Clauson controls this case. inculcation in the religious tenants of some faiths, and in the process sharpens the consciousness of children committed to its care. B. Released-tim- e religious education is constitutional under the test of Lemon v. Kurtzman: These are consequences amenable to statistics. But they are pre- three-pa- rt The released-tim- e program as practiced in the Logan School District cisely those consequences which the Constitution was directed when it prohibited the Government common to all from becoming is constitutional under the requirements of Lemon v. Kurtzman, 405 embroiled, however innocently, in the destructive religious con- U.S. 602 (1971). The case of Smith v. Smith, 525 F.2d 121 (4th Cir. flicts which the history of this country records some dark pages. 1975), cert. den. 96 S.Ct. 856 (1976), has held a program virtually identical to Logan School Districts released-tim- e program to be Plaintiffs submit that under the Court's decision in McCullom which constitutional under Lemon. LDS Release Time Program courses were religious or sectarian, and contended that such courses objectively presented the Bible as history and taught students morals and citizenship through the use of Bible stories. Defendants admitted that the other two courses comprising the program "Church History and Doctrine" and "Book of Mormon" for which students did not receive academic credit, were religious and sectarian in nature. Defendants denied that they assisted in the operation of the program or were entangled in its operations, beyond releasing students who wished to participate in the program from their regular school work. trial, Judge Clarence A. Brimmer of the United Following a States District Court of Wyoming, issued a opinion in which he held that all of the courses in the LDS Release Time Program were religious and sectarian in nature, and that several aspects of the Defendants operation of the program violated the Establishment Clause of the First Amendment. Although the Court did not require Defendants to cease and desist from their operation of the program, the Court did order Defendants to cease and desist from the following practices: (1) having students or other school personnel gather attendance records from program courses; (2) recognizing attendance in any of the program courses in satisfaction of any school requirements for attendance or to make a student eligible for interschool sports, honor roll, or studentbody elections; (5) counting attendance in program courses for the purpose of "Average Daily Attendance' for the purpose of receiving funds from the State of Utah; and (4) awarding academic credit to Logan High School students for their completion of the Old Testament" and "New Testament" courses. The Court also held that the 1969 policy of the Defendant Utah State Board of Education allowing the award of academic credit upon completion of Bible history courses entitled "Old Testament" and "New Testament was unconstitutional and violated the Establishment Clause of the First Amendment. The Court, however, rejected Plaintiff's claim that Defendants' operation of the LDS Release Time Program interfered with the "free exercise of religion" of students who did not participate in the program. Z I In the pvnt, however, the Court shotild determine, to considet- the matter. Defendants denied that the prograim of instruction and study of the Biblein the LDS seminary is "mainly denominational' or otherwise in violstion of the policy guidelines of the Uuh Sute Board ' of Education. ' The Court dismissed Plaintiffs' claim described in paragraph 4 above at the conclusion of the Plaintiffs' case and it was not a matter of serious dispute. However, the other matters were submitted to the Court and decided by it. In support of theft position, Defendanu made , , the following points: , , , Take . stock m America, public service ol this publication and The AdvertisinQ Council. A ail! POINT III I THE COURT SHOULD REFUSE TO INQUIRE INTO THE NATURE OF LDS SEMINARY CLASSES FOR WHICH CREDIT IS ACCEPTED AND SHOULD NOT IMPOSE UPON DEFENDANTS THE DUTY TO DO SO. Any inquiry into the nature of LDS Seminary course materials and the Seminary instructor's teaching of the class are a violation of the free exercise of religion by the teacher and the studenu. The Court cannot constitutionally require Defendants to remove all traces of denominationalism before credit is recognized. ' POINT IV FOR BIBLE AND THE ENTIRE PROGRAM OF RELEASED-TIMRELIGIOUS INSTRUCTION SHOULD NOT BE ENJOINED IF SOME PLAINTIFF'S FACET OF THE PROGRAM VIOLATES CONSTITUTIONAL RIGHTS. ' Released time for religious instruction is constitutional. If this Court finds any specific practice of the LDS release-tim- e program unconstitutional, it should declare only that specific practice to be program. impermissible and not the entire release-tim- e POINT V t POLICY OF THE STATE BOARD OF THE RELEASED-TIM- E EDUCATION IS NOT AN ESTABLISHMENT OF RELIGION UNDER THE FIRST AMENDMENT. Plaintiffs have not shown any basis for the suggestion that the Uuh State Board of Education policy statemenu (1949 or 1969) are unconstitutional. The policy sutements are generally more restrictive than the constitutional sundards of Zorach and Lemon. POINT VI THE FEDERAL DISTRICT COURT SHOULD ABSTAIN FROM RULING ON THE QUESTION OF WHETHER LOGAN SCHOOL DISTRICT IS COMPLYING OR WHETHER IT MUST COMPLY WITH STATE BOARD POLICY. Whether the Old or New Tesument Bible courses are "mainly denominational' ' is an issue involving only the interpreution of a state policy. If the real substance of Plaintiff's case is only a sute claim, this Court should properly refuse pendent jurisdiction and dismiss the sute claim. POINT VII . - 1 THE NAMED, PLAINTIFFS INTEREST. ARE NOT THE REAL PARTIES IN The American Civil Liberties Union, not the Lanners or Mr. Scherting, is the real Plaintiff and is responsible for prosecuting this action. Mr. and Mrs. Lanner's involvement herein is limited to acting as officers of tlje local chapter of the ACLU. Mr. Scherting ia only a named Plaintiff through soliciution by the Salt Lake Office of ACLU. All of the named Plaintiffs have been assured by the ACLU that they will have no personal financial obligation or alternate financial liability if they appear as Plaintiffs. This certainly ''amacks" of champerty and maintenance. , , 4 t . 1100 -- 1300 square feet ,vV V Appliances Fully carpeted Full basement 2 and 3 bedrooms CONCLUSION D&D The Court has issued iu opinion which in gubstance susuins and permiu released time but rejecu the rigl&qf the studenu to have recognized in the public schools for-hstudy of the Bible, The case is still before the Court on post judgment motions 46 that ' i . the matter has aot yet been fully adjudicated y f- v M V . e - 3p: i tjf r f f t f fr it Contracting t 5293995 or 529-762- 2 9 i i e t 4 ribtf I b v a |