Evening star., 1948-06-22
No Law But =: Prepossessions'
Supreme Court Ruling in Nc Coum Case Seen Denying
the "Free Exercise" of Religion

| u
Editors Note: The tollosOing editorial
| from the American Bar Association Jour-
nal for June is reprinted by permission as
an important contribution to the NATION
ptde discussion OF the decision interdicting
religious instruction in the public schools OF
CHAMPAIGN, ILL.,, handed do,on by the ST.
preme Court, March 3D.
In our May issue We commented on what
appears to be tendency in the Supreme
Court to invalidate under the First and Four
teenth Amendments State laws and State law
enforcement measures which have worked well
In the States for many years and have long
been upheld as valid under the same consti-
tutional provisions, by the highest courts of
law in the States. We here comment on
another propensity. instanced by the decision
in Illinois ex rel McCollum VS.. Board Of Edu-
cation ("the Champaign County school case").
decided on March 8, to invalidate and pro-
scribe local and State practices embedded in
our society by many years of experience" not
expressly contained in State statutes although
carried on under their authority and expressly
upheld by the State courts as valid under the
constitutional provisions now held to outlaw
them
In the McCollum case, Mr.. Justice Jackson,
who concurred with the eight-to-one majority
in reversing the Supreme Court of Illinois,
wrote that: "It is idle to pretend that this
task is one for which we can find in the
Constitution one word to help us as judges
to decide where the secular ends and the
sectarian begins in education. Nor can we
find guidance in any other legal source 1t is
matter on which we can find no law but
our own prepossessions." He avowed that:
1--WE should place some bounds on the de-
for: :v,to r,ifn lnco1 ccho hot
we are empowered or willing to entertain
And Mr.. Justice Reed, who alone dissented.
warned that: This court cannot be too
cautious in upsetting practices embedded in
our society by many years Of experience. "A
State is entitled to have great leeway in its
legislation when dealing with the important
social problems Of its population. definite
violation Of legislative limits must be estab-
lished. = Devotion to the great principle Of
religious liberty should not lead us into rigid
Interpretation of the constitutional guarantee
that conflicts with accepted habits of our
people"
The McCollum case may be one Of those
fateful decisions which is ignored at the time
and regretted in the future. 1t deserves thor
ough consideration now. The people should
have the assistance Of lawyers in coming to
an understanding Of its effect and Implications
The latent consequences Of the ruling could
hardly be overemphasized. It is pronounce
ment by our Supreme Court on q fundamental
principle, not only of national policy but of
our civilization and way OF life. The Journal
wishes to assist in analy1ng the case and to
the extent of available space, invites discus
sion OF its import.
Mandamus C0ercing School Board.
Statutes of the State of Illinois were in
IT, nS
cation law required attendance at schools
within specified ages and gave to district
boards of education supervisory powers over
the use of public school buildings. What was
done and permitted by the Champaign board,
in agreement with accredited representatives
OF different religious faiths, was held to vio-
late the First Amendment, extended by the
Fourteenth Amendment to apply to State leg
islation. What the courts were asked by the
petitioner appellant to do was not an inVali-
dating of any State law but the granting of
a writ of msndamus telling the local school
board what it should and should not do.
Interested members of the Jewish, Roman
Catholic and Protestant faiths in the school
district had formed voluntary association
called the champaign Council on Religious
Education They obtained permission from
the Board Of Education to offer classes in re-
ligious instruction to public school pupils.
Glasses were made up Of pupils whose parents
had signed printed cards asking that their
children be permitted to attend. Such classes
met once week in the regular school rooms
Of the school building. The council employed
the religious teachers at no expense to the
school authorities, but the instructors were
subject to the approval and supervision Of the
SUPERINTENDENT Of schools. The classes were
taught in separate groups by Protestant teach
ers, Catholic priests and Jewish rabbi Stu
dents who did not choose to take the religious
instruction went to some other room in the
building to pursue their secular studies. Stu
dents present at any Of the religious classes
were released for that time from secular study.
Accordingly, reports of their presence Or abb
sence at religious classes were made to secular
teachers. No coercion, discrimination or
favoritism for any one religious faith or sect
was shown. The challenge was of any reli-
gious teaching at all on school property and
during schcol-in the religious faith chosen by
parents or pupils with freedom for any to
stay away.
The plaintiff, an avowed atheist, asked that
the court order the Board of Education to
adopt and enforce rules and regulations pro-
l,ibiting all instruction in and teaching of all
religious education in all public schools in
Champaign District No. II and in all public
school houses and buildings in said district"
She asked the court to ban "every form OF
teaching which suggests or srecognizes that
there is a God." She specified the prescribing
of the teaching or reading of any parts of
the Scriptures, including the Twenty-third
Psalm TWO hundred years ago woman like
Mrs. McCoum would have been prosecuted as
an infidel and hereto. Today she sought and
obtained the aid Of a judicial decree to suppress
the teaching which was the very genesis of
the freedom which she exercises for herself by
trying to take it from others.
Religious Teaching Widely Permitted.
The best available figures of the United
States Once of Education and the National
Education Association show that at least