Alito's Student Note

The Yale Law Journal has posted Alito's student note here.  It's on an interesting and very relevant subject: the Establishment Clause. 

In particular, the note addresses two Supreme Court decisions from half a century ago that remain good law even today--McCollum (1948) and Zorach (1952).  Both cases purport to apply the Establishment Clause to assess the constitutionality of "released time" policies, time public schools give off to their students to participate in religious instruction.  McCollum finds an Establishment Clause violation; Zorach finds none.  Scholars have expended much ink on the differences between the two cases because Zorach claims not to be overruling McCollum. 

To be sure, it isn't especially hard to find differences (though Alito complicates the story in the paper).  As a recent Second Circuit decision held (in applying Zorach and McCollum to find constitutional a "released time" policy currently in place under New York law):  "The Zorach Court found that New York's 'released time' program did not violate the Establishment Clause because, unlike the program at issue in McCollum, (1) no religious instruction took place inside public school classrooms; (2) no expenditure of public funds supported the program; and (3) the public school did not promote the instruction beyond simply collecting permission slips from parents.  In Zorach, the Court found no constitutional violation because the schools only adjusted 'their schedules to accommodate the religious needs of the people.'"  Pierce v. Sullivan W. Ctr. Sch. Dist, 379 F.3d 56 (2d Cir. 2004) (citing Zorach).  Ultimately, in Pierce, the Second Circuit applied Zorach to uphold a "release time" policy even though the Jewish and atheist children were forced to sit in classrooms with no programming while their Christian classmates were walked across the street to churches to get religious instruction and were brought back into their classrooms with religious materials and candy--and the seeming endorsement of the school.

What does any of this have to do with Alito's note?  Alito's paper actually helpfully explains Zorach and McCollum as part of a larger effort of the Supreme Court to make sense of the Establishment Clause.  Why does that matter, you ask?  Because it means that "released time" policies are not sui generis categories under the Establishment Clause--and they are ripe for revisiting under current doctrine (as confused as it may be).  Zorach, read as a case purely about "released time," ultimately blesses many contemporary forms of "released time" programs that might not pass constitutional muster if challenged under more current Establishment Clause doctrine.  Yet, courts faced with "released time" policies invariably look to Zorach and McCollum instead of to more generally applicable Establishment Clause tests.  Perhaps Alito's paper will help courts feel more comfortable seeing Zorach and McCollum for what they are: inchoate efforts to start devising an Establishment Clause jurisprudence, not a final statement on the constitutionality of "released time" policies.  Contemporary "released time" policies should, if Alito is right, be evaluated as run-of-the-mill Establishment Clause inquiries and get no special immunity through Zorach.

Not that Alito, who seems to have sympathies with the religionists, would necessarily read his own student work that way.  But if his Note gets more attention, we might be able to do away with the special protection afforded "released time" policies.  And that's something for secularists to welcome.