March 5, 1975
Representative Maurice A. Olson
State Capitol Building
Pierre, South Dakota 57501
OFFICIAL OPINION NO. 75-43
Whether or not a school can allow an empty classroom to be used for religious instruction during released time
Dear Representative Olson:
You have requested an official opinion from this office as to whether or not a school can allow an empty classroom to be used for religious instruction during released time.
It is my opinion that a school can not legally allow released time classes to meet in vacant classrooms in the public school.
At 79 ALR 2 1150, 1163 there is an extensive discussion of the subject of use of school buildings for a religious purpose. One of the most recent cases there discussed is the case of State Board of Education v. Board of Education of Netcong, 262 A. 2d 21 (1970). Affirmed 270 A. 2d 412 (1970), cert denied 401 U.S. 1Ol3.
In the Netcong case, the school board implemented a permissive attendance "period for the free exercise of religion" prior to the opening of school. At this "period" a volunteer would conduct a meditation based on the chaplain's remarks from the Congressional Record. This was held to violate the constitutional prohibition against the establishment of religion.
Upon appeal to the New Jersey Supreme Court, the lower court's decision was affirmed. The Supreme Court could see no meaningful difference between the program under review and the programs which the United States Supreme Court had held to violate the establishment clause of the first amendment in Engel v. Vitale, 370 U.S. 421, 82 S. Ct. 1201, 8 L. Ed. 2d 601 (1962), and School District of Abington Township v. Schemp, 374 U.S. 203, 83 S. Ct. 1560, 10 L. Ed. 2d 844 (1963).
The decision of the New Jersey Supreme Court in Netcong was appealed to the United States Supreme Court. The appeal was denied, 401 U.S. 1Ol3.
Based on the foregoing authorities and arguments I am of the opinion that the answer to your question is NO.
Respectfully submitted,
WILLIAM J. JANKLOW
ATTORNEY GENERAL
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