Law & Courts Federal File

Note Worthy

By Andrew Trotter — November 15, 2005 2 min read
  • Save to favorites
  • Print

While toiling toward his 1975 degree at Yale Law School, Judge Samuel A. Alito Jr. wrote his “note”—the heavily footnoted paper that is a major chore of a second-year law student—on U.S. Supreme Court decisions on school “released time,” or plans in which students are excused from public school to study religion.

The paper, which was published in the Yale Law Journal in May 1974, has now been added to the tea leaves being examined to predict how President Bush’s nominee for the seat of retiring Justice Sandra Day O’Connor might decide cases on religion—including those involving the public schools.

Released-time plans by states and school districts enrolled about 2 million students in 1948, Mr. Alito wrote, when the court’s decision in McCollum v. Board of Education struck down an Illinois district’s released-time plan, in which children took religion classes at their school during the school day.

Four years later, in Zorach v. Clauson, however, the court upheld a New York state released-time plan, in a 6-3 decision that has confounded lower courts and commentators for its inconsistency with McCollum.

The brunt of Mr. Alito’s paper was not to analyze the court’s twisting rationale on the issue but to show how behind-the-scenes brokering among the justices led to majority opinions with ambiguous language.

His prime example, drawn from his research in the archives of several justices, was a secret 1948 stipulation in which Justice Felix Frankfurter assured Justice Harold H. Burton that if he joined the majority in McCollum, Justice Frankfurter would keep as an “open question” the constitutionality of New York’s released-time plan, which Justice Burton viewed as constitutional.

Because of that agreement, “McCollum was a very tentative compromise reached only after painstaking negotiations” that resulted in “cosmetic” consensus, Mr. Alito wrote. “Virtually no time seems to have been spent discussing far-reaching establishment clause issues.”

That consensus was shattered when the court upheld the New York plan in Zorach, with Justice Frankfurter in dissent, Mr. Alito wrote.

Terry Jean Seligmann, a law professor and the director of legal research and writing at the University of Arkansas’ law school, in Fayetteville, Ark., called Judge Alito’s note “clear, well written, really well researched.”

“I also thought it was a brave kind of topic to pick, it kind of breaks the mold, and it involves a lot of historical material he handled very well,” she said.

Events

Special Education Webinar Reading, Dyslexia, and Equity: Best Practices for Addressing a Threefold Challenge
Learn about proven strategies for instruction and intervention that support students with dyslexia.
This content is provided by our sponsor. It is not written by and does not necessarily reflect the views of Education Week's editorial staff.
Sponsor
Personalized Learning Webinar
No Time to Waste: Individualized Instruction Will Drive Change
Targeted support and intervention can boost student achievement. Join us to explore tutoring’s role in accelerating the turnaround. 
Content provided by Varsity Tutors for Schools
Student Well-Being K-12 Essentials Forum Social-Emotional Learning: Making It Meaningful
Join us for this event with educators and experts on the damage the pandemic did to academic and social and emotional well-being.

EdWeek Top School Jobs

Teacher Jobs
Search over ten thousand teaching jobs nationwide — elementary, middle, high school and more.
View Jobs
Principal Jobs
Find hundreds of jobs for principals, assistant principals, and other school leadership roles.
View Jobs
Administrator Jobs
Over a thousand district-level jobs: superintendents, directors, more.
View Jobs
Support Staff Jobs
Search thousands of jobs, from paraprofessionals to counselors and more.
View Jobs

Read Next

Law & Courts Georgia Educators Plan to Sue Over the State's 'Divisive Concepts' Law
Georgia's could be the sixth lawsuit to challenge state laws limiting classroom discussion of race and racism.
3 min read
Image of a pending lawsuit.
gesrey/iStock/Getty
Law & Courts As a Skeptical Supreme Court Weighs Race in College Admissions, 'Brown' Looms Large
The cases heard Monday involve Harvard and the University of North Carolina, but a decision could be felt in K-12 education.
8 min read
Members of the NAACP Youth and College division rally outside the U.S. Supreme Court as justices heard oral arguments on two cases on whether colleges and universities can continue to consider race as a factor in admissions decisions Oct. 31, 2022.
Members of the NAACP Youth and College division rally outside the U.S. Supreme Court as justices hear oral arguments on whether colleges and universities can continue to consider race as a factor in admissions.
Francis Chung/E&E News/POLITICO via AP Images
Law & Courts 4 Things to Know About the Affirmative Action Showdown Before the Supreme Court
The justices on Monday weigh the use of race in admissions at Harvard and the University of North Carolina, with K-12 implications.
9 min read
supreme court SOC
Getty
Law & Courts What Do 'Parents' Rights' Mean Legally for Schools, Anyway?
Conservatives rely on century-old U.S. Supreme Court precedents but want to bolster parental rights with a constitutional amendment.
9 min read
A protester holds signs at a Moms for Liberty rally at the state Capitol in Harrisburg, Pa., on Oct. 9, 2021. About 100 people attended the rally to protest mask and vaccine mandates.
A protester holds signs at a Moms for Liberty rally at the state Capitol in Harrisburg, Pa., October 2021 protesting mask and vaccine mandates.
Paul Weaver/Sipa via AP Images