Law & Courts Federal File

Note Worthy

By Andrew Trotter — November 15, 2005 2 min read

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.

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