The recent decision of the Supreme Court in the case of Zorach v. Clauson affirms the constitutionality of the New York City program for releasing pupils from public schools so that they may attend religious education classes held outside of school property. The pupils are released upon the written request of their parents, and those not released from school remain in their classrooms. Regulations under which the program is conducted prohibit comment by school officials on attendance. Plaintiffs, who were taxpayers and parents of children attending the public schools, unsuccessfully contended that the program was a violation of the First Amendment as included within the Fourteenth Amendment on the ground that it was a prohibited "establishment of religion" as defined in the McCollum case. The Supreme Court through Justice Douglas, in upholding the New York program, distinguished the McCollum case upon the ground that the Illinois released time program therein found invalid took place within the school buildings, whereas the New York program was carried on outside of school property. Justices Frankfurter, Black, and Jackson, dissenting, thought the New York program unconstitutional in view of the McCollum case.

In the McCollum case, the Supreme Court defined "establishment of religion" in terms so sweeping that virtually any religious education program could be included within the definition. In the voluminous comment which followed that case, two extreme positions were evident. Extreme opponents of released time seized upon the expression "wall of separation between Church and State" as being a formula prohibiting any and every type of religious education which might utilize public school funds or time. Extreme proponents of released time, on the other hand, equated "secularist" with "socialist" and "atheist," even to the extent of suggesting that the Supreme Court itself violated the Constitution by establishing a "religion without a church." The Supreme Court, however, seems to have decided the Zorach case by a process of balancing the interests involved in public and sectarian education. The scope of this comment is limited to showing the nature and propriety of this relative measure of an "establishment of religion."