Can an Arkansas public school excuse a student during the school day to attend off-campus religious instruction with parental permission?
Subject
Whether Arkansas public schools may adopt a "released time" attendance policy that excuses a student during the school day to attend an off-campus course in religious moral instruction taught by an independent entity, at the request of the student's parent or legal guardian, and what limits would apply to such a policy.
Plain-English summary
Senator Hammer asked the Attorney General about released-time religious instruction. The legislature considered HB1139 in 2025 to require Arkansas schools to allow it, but the bill died in committee. So the question became: even without the bill, can a school district decide on its own to permit it?
AG Griffin says yes. Section 6-18-209(a) of the Arkansas Code gives school districts a broad grant of authority to "adopt attendance policies." That language is not narrowly cabined; it covers attendance-related decisions generally. Districts already use it to set excused-absence rules for illness, religious holidays, and exceptional circumstances. The same authority lets a district adopt a policy excusing students for off-campus religious instruction, with parental permission.
But the answer comes with three limits.
First, the Free Exercise Clause of the First Amendment. Generally, a neutral law of general applicability does not violate Free Exercise. A released-time policy that allows but does not compel students to attend religious instruction would likely be a neutral, generally applicable accommodation rather than a Free Exercise problem.
Second, the Establishment Clause. The U.S. Supreme Court in Kennedy v. Bremerton (2022) discarded the Lemon test and the endorsement test, replacing them with a historical-practices and coercion-focused inquiry. The Eighth Circuit applies a two-part test: is the practice consistent with historical practices, and is it impermissibly coercive as historically understood? The opinion identifies six "hallmarks of religious establishment" the framers sought to prohibit (drawing from Justice Gorsuch's Shurtleff concurrence). A purely voluntary released-time policy that does not control religious doctrine or personnel, mandate attendance, punish dissenters, restrict political participation, fund the established church, or vest civil functions in it should survive Establishment Clause review. The U.S. Supreme Court in Zorach v. Clauson (1952) approved a similar New York released-time program, and that historical pedigree helps.
Third, Arkansas's school-funding rule at A.C.A. § 6-17-2403(c). Public schools and open-enrollment public charter schools must provide 178 days or 1,068 hours of on-site, in-person instruction per year to be eligible for certain state funding. The opinion notes that this Office has previously opined there are no exceptions, including for "alternative methods of instruction." So a released-time policy must not reduce the total amount of on-site instruction below the statutory threshold. In practice, that puts a hard ceiling on how many hours a week a school can excuse for off-campus religious instruction.
The opinion does not opine on whether any specific released-time program would survive these tests, because that depends on facts. But it does say school districts have the legal authority to adopt the policy, subject to the three guardrails.
What this means for you
If you are a school district superintendent or board member considering a released-time policy
You have authority under § 6-18-209(a) to adopt one. Three things to build in: (a) participation must be voluntary; the policy should make clear no student is required to attend or required to abstain, (b) the school should not control the religious content, the religious instructor, or the curriculum offered by the independent entity (this avoids the "control over doctrine and personnel" hallmark), and (c) the released time must fit inside, not on top of, the 1,068-hour calendar. Map out the schedule before approving the policy so you do not accidentally fall under the funding-eligibility threshold.
If you are a school district attorney
Three statutory anchors and one constitutional anchor are in play. The statutory grant of authority is § 6-18-209(a). The "no excused absences for political protest" prohibition at § 6-18-237(a) is not implicated by religious released time. The on-site instruction requirement at § 6-17-2403(c) is the binding ceiling. Constitutionally, draft the policy with the Kennedy v. Bremerton framework in mind: historical practices and coercion. The Zorach v. Clauson precedent (1952) is directly on point and helpful for the historical-practices prong. Watch for any policy detail that could read as coercion, such as identifying non-participating students, holding non-participating students in uninstructed study halls, or offering preferential treatment to participants.
If you are a parent or legal guardian wanting to enroll your child
Whether your school participates is a local school board decision; the AG opinion concludes the legal authority exists, not that any particular district has to use it. If your district has not adopted a policy, you can ask the school board to consider one, citing this AG opinion as confirmation that districts have the legal authority to do so. If you have a specific religious provider in mind, the policy will likely require pickup and drop-off, parental consent, and tracking how those hours interact with the school's attendance calendar.
If you run an off-campus religious education program
Coordinate with the school district before promoting the program to families. The district's policy will likely set the framework: how attendance is recorded, who is responsible for the student during released time, transportation logistics, and what counts toward the school's instruction calendar. The constitutional risk is small for a privately funded, voluntary program that operates off school premises and does not use district resources, but the school district will want documentation that participation is genuinely voluntary.
If you are a non-participating student or family
Released-time programs by design exist alongside the regular school day for students whose families do not opt in. The AG opinion's "voluntariness" guardrail is meant for you: the school should not mark non-participants in any way that pressures participation. If you observe what feels like coercion, the Establishment Clause analysis turns on whether the practice is coercive as historically understood.
Background and statutory framework
A.C.A. § 6-18-209(a) is the statutory hook. It authorizes school districts to "adopt attendance policies" without limiting the subject matter. The opinion treats this as a broad delegation, citing Wickham v. State for the principle that statutes are construed to read just as they read, with words given their ordinary meaning. School districts already exercise this authority to set rules on illness, religious holidays, and exceptional circumstances. The opinion's bottom line is that a policy excusing a student for off-campus religious instruction at a parent's request fits comfortably inside the same delegation.
The opinion lists three constraints.
The Free Exercise Clause requires that a government practice be neutral and generally applicable. Kennedy v. Bremerton confirmed that the Free Exercise Clause protects not only inward beliefs but also the right to live out faith in daily life through performance of (or abstention from) physical acts. A policy that allows but does not compel participation in religious instruction would likely fall on the safe side. The opinion cites Zorach v. Clauson for the proposition that releasing students for religious instruction does not, on its own, raise serious Free Exercise issues.
The Establishment Clause is the harder constraint. Kennedy explicitly retired the Lemon test and the endorsement test. The Eighth Circuit's New Doe Child #1 case applies a two-part test: is the practice consistent with historical practices and standards, and is it impermissibly coercive as historically understood? If history shows that the specific practice is permitted, the inquiry can stop there.
The opinion identifies six "hallmarks of religious establishments the framers sought to prohibit": (1) government control over doctrine and personnel, (2) state-mandated attendance and punishment for non-participation, (3) state-sanctioned punishment of dissenting churches and individuals, (4) restrictions on dissenters' political participation, (5) financial support for the established church, often preferring it over others, and (6) civil functions carried out by the established church, often with monopoly control. Justice Gorsuch's Shurtleff concurrence is the source. Kennedy cited it favorably.
A.C.A. § 6-17-2403(c) is the practical ceiling. Public schools and open-enrollment public charter schools must provide 178 days or 1,068 hours of on-site, in-person instruction to be eligible for certain state funding. The opinion notes that this Office, in Op. 2023-053, opined there are no exceptions, including for "alternative methods of instruction" used during emergency closures. So a released-time policy must not eat into the 1,068-hour budget.
The opinion also flags A.C.A. § 6-18-237(a), which prohibits public school districts and open-enrollment public charter schools from granting excused absences for purposes of political protest. That prohibition is not at issue here, but the opinion mentions it to show that some attendance-policy subject matter is, in fact, restricted by statute.
The Arkansas Religious Freedom Restoration Act (A.C.A. §§ 16-123-401 through 16-123-407) and the Arkansas Constitution may also apply, but the opinion does not analyze them in detail because Arkansas courts would likely follow federal precedent on these issues.
Common questions
Did the Arkansas legislature pass a law requiring schools to allow released-time religious instruction?
No. HB1139 of 2025 would have required schools to allow students to receive privately provided religious education for one to five hours a week, but it died in committee. The opinion addresses what schools may do on their own authority without that legislation.
Can a school district require students to attend the off-campus religious instruction?
No, and a policy that did so would have serious Establishment Clause problems. The AG's analysis assumes a voluntary released-time policy. State-mandated attendance is one of the six historical hallmarks of religious establishment that the Establishment Clause was designed to prohibit.
What happens to students who don't participate?
That is part of what makes the constitutional analysis fact-specific. The school must not coerce or pressure non-participation. Practical implementations typically keep non-participating students in regular instruction; what the school cannot do is single out non-participants in a way that would feel like punishment for not participating in religious activity.
Can a school use district funds to pay for the religious instruction?
The opinion does not address that directly, but it would raise issues. Item 5 of the historical hallmarks is "financial support for the established church." A released-time policy where the religious instruction is funded by the families or the religious organization, not the school, fits the Zorach pattern. If the district paid for the program, the Establishment Clause analysis would tilt heavier.
How many hours per week can the school excuse for religious instruction?
Whatever fits inside the 1,068-hour annual on-site instruction floor at § 6-17-2403(c). The opinion notes there are currently no exceptions to that requirement. So if your full school year provides 1,200 hours of on-site instruction, you have ~132 hours of headroom for released time before you fall below the statutory minimum and risk losing certain state funding.
What about A.C.A. § 6-18-237(a), the political protest exception?
It does not apply to religious released time. Section 6-18-237(a) specifically prohibits excused absences for political protest. The opinion mentions it to show that some kinds of attendance policies are statutorily off-limits, but religious released time is not among them.
Does the Arkansas Constitution add any extra restrictions beyond the federal Constitution?
The opinion notes Arkansas Constitution provisions and the Arkansas Religious Freedom Restoration Act (A.C.A. §§ 16-123-401 through 16-123-407) would also apply, but predicts an Arkansas court would follow federal precedent on these issues. So the federal Free Exercise and Establishment Clause framework is the relevant one in practice.
Did the U.S. Supreme Court approve released-time religious instruction historically?
Yes. Zorach v. Clauson, 343 U.S. 306 (1952), upheld a New York City released-time program where public school students were excused to attend religious instruction off-campus during the school day. The opinion cites Zorach for the proposition that this kind of accommodation does not raise a serious Free Exercise issue and is consistent with longstanding historical practice.
Has Kennedy v. Bremerton changed the analysis?
Yes, in important ways. Kennedy retired the Lemon test and the endorsement test that schools have used for decades to evaluate policies touching on religion. The new framework is historical practices plus coercion. For released-time policies, the historical pedigree from Zorach is favorable. The coercion analysis turns on whether the school practice has any of the six hallmarks of religious establishment.
Citations
- Arkansas statutes: A.C.A. § 6-18-209(a) (school district authority to adopt attendance policies); § 6-18-237(a) (no excused absences for political protest); § 6-17-2403(c) (178 days or 1,068 hours of on-site, in-person instruction); §§ 16-123-401 through 16-123-407 (Arkansas Religious Freedom Restoration Act).
- Federal constitutional cases on Free Exercise: Kennedy v. Bremerton Sch. Dist., 597 U.S. 507 (2022); Emp. Div., Dep't of Human Resources of Ore. v. Smith, 494 U.S. 872 (1990); Zorach v. Clauson, 343 U.S. 306 (1952); Good News Club v. Milford Cent. Sch., 533 U.S. 98 (2001); Espinoza v. Mont. Dep't of Rev., 591 U.S. 464 (2020).
- Federal constitutional cases on the Establishment Clause: Everson v. Bd. of Ed. of Ewing Twp., 330 U.S. 1 (1947); Town of Greece, N.Y. v. Galloway, 572 U.S. 565 (2014); Lemon v. Kurtzman, 403 U.S. 602 (1971) (retired); Shurtleff v. City of Boston, 596 U.S. 243 (2022); New Doe Child #1 v. United States, 901 F.3d 1015 (8th Cir. 2018); Firewalker-Fields v. Lee, 58 F.4th 104 (4th Cir. 2023); Hilsenrath ex rel. C.H. v. Sch. Dist. of Chathams, 136 F.4th 484 (3d Cir. 2025).
- Statutory interpretation: Wickham v. State, 2009 Ark. 357, 324 S.W.3d 344 (2009).
- Prior AG opinions referenced: Op. 2023-053 (no exceptions to on-site instruction requirement); Op. 2025-092, 2017-088, 2007-308 (AG not a fact-finder); Op. 2015-098 (history of Establishment Clause cases).
Source
Original opinion text
BOB R. BROOKS JR. JUSTICE BUILDING
101 WEST CAPITOL AVENUE
LITTLE ROCK, ARKANSAS 72201
Opinion No. 2025-067
March 10, 2026
The Honorable Kim Hammer
State Senator
1201 Military Road PMB 285
Benton, Arkansas 72015
Dear Senator Hammer:
You report that "House Bill 1139 of 2025 proposed policies that would have required Arkansas schools to allow students to receive privately provided religious education for one to five hours a week during the school day." Although "HB1139 died in committee," you have asked the following questions:
- Does Arkansas law allow a public school to grant the request of a parent, legal guardian, or person standing in loco parentis who wishes an enrolled student to attend a course in religious moral instruction taught by an independent entity off campus during the school day?
Brief response: Yes. Under a plain reading of A.C.A. § 6-18-209(a), school districts have authority to "adopt attendance policies" for their schools. The statute does not limit that authority to any specific types of attendance-related decisions.
- If the answer to the first question is yes, what limits, if any, would apply to such a policy if adopted by a public school?
Brief response: As discussed more fully below, there are at least three limitations a school district should consider in adopting a policy as described in Question 1.
DISCUSSION
Question 1: Does Arkansas law allow a public school to grant the request of a parent, legal guardian, or person standing in loco parentis who wishes an enrolled student to attend a course in religious moral instruction taught by an independent entity off campus during the school day?
Yes. Under a plain reading of A.C.A. § 6-18-209(a), school districts have authority to "adopt attendance policies" for their schools. The statute does not limit that authority to any specific types of attendance-related decisions. For instance, many school districts allow students to be excused from school for health or illness reasons, but the number of days allowed can vary by school district. And some school districts allow excused absences for holidays observed by the student's faith or exceptional circumstances.
Rather, A.C.A. § 6-18-209(a) is a broad grant of authority that encompasses allowing "an enrolled student to attend a course in religious moral instruction taught by an independent entity off campus during the school day" with permission from the student's parent, legal guardian, or person standing in loco parentis.
Question 2: If the answer to the first question is yes, what limits, if any, would apply to such a policy if adopted by a public school?
While local counsel is in the best position to advise a school district on the application of its attendance policies, the following is an outline of three limitations relevant to the policy described in Question 1.
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Free Exercise Clause. Under the First Amendment to the U.S. Constitution, "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." The U.S. Supreme Court has explained that "[t]he Clause protects not only the right to harbor religious beliefs inwardly and secretly[, but] perhaps its most important work [is] protecting the ability of those who hold religious beliefs of all kinds to live out their faiths in daily life through 'the performance of (or abstention from) physical acts.'" Generally, a government action or policy that is a "neutral law of general applicability" does not violate the Free Exercise Clause. If the government action or policy is not neutral and generally applicable, then "the government [must] satisfy 'strict scrutiny' by demonstrating its course was justified by a compelling state interest and was narrowly tailored in pursuit of that interest." Attendance policies that allow students to choose, but do not compel them, to engage in independent, religious moral instruction would likely not violate the Free Exercise Clause.
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Establishment Clause. Additionally, the Establishment Clause of the First Amendment "requires the state to be a neutral in its relations with groups of religious believers and non-believers." This area of law has been complicated because the U.S. Supreme Court has used multiple tests through the years to determine if a violation has occurred. Now, it has implicitly and explicitly abandoned those tests, instead "instruct[ing] that the Establishment Clause must be interpreted by reference to historical practices and understanding." To effect that approach, the Eighth Circuit has employed the following two-part standard: First, is the action or practice constitutional when considered with historical practices and standards? Second, is the action or practice impermissibly coercive as historically understood? "This two-fold analysis is complementary: historical practices often reveal what the Establishment Clause was originally understood to permit, while attention to coercion highlights what it has long been understood to prohibit." The root of the analysis is thus determining whether the state law implicates the "hallmarks of religious establishments the framers sought to prohibit when they adopted the First Amendment."
The six hallmarks of religious establishment are (1) government control "over the doctrine and personnel of the established church," (2) state-mandated "attendance in the established church" and punishment "for failing to participate," (3) state-sanctioned punishment of "dissenting churches and individuals for their religious exercise," (4) restrictions on religious dissenters' "political participation," (5) "financial support for the established church, often in a way that preferred the established denomination over other churches," and (6) "civil functions" being carried out by "the established church," often with "monopoly" control over that function.
The Court has explained that "the Establishment Clause must be interpreted by reference to historical practices and understandings." In other words, "[a]n analysis focused on original meaning and history … has long represented the rule … within the Court's Establishment Clause jurisprudence." And if "'history shows that the specific practice is permitted,' [the court] typically need go no further; the Establishment Clause claim fails." But if there is no history for the action or policy, then a court should "look to the historical understanding of the Establishment Clause as informed by other relevant practices."
That historical understanding then informs whether the practice or policy is impermissibly coercive. "[C]onsistent with a historically sensitive understanding of the Establishment Clause," the government may not "make a religious observance compulsory," meaning it cannot "coerce anyone to attend church, nor may it force its citizens to engage in a formal religious exercise." This type of "coercion" was among the foremost hallmarks of religious establishments the framers sought to prohibit when they adopted the First Amendment."
Finally, while "[m]embers of th[e] [Supreme] Court have sometimes disagreed on what exactly qualifies as impermissible coercion in light of the original meaning of the Establishment Clause," the Court appears to be coalescing around the six hallmarks quoted above. To go beyond that list, a plaintiff would need to prove "a set of facts that would have historically been understood as an establishment of religion." Although I am not a factfinder when issuing opinions, an attendance policy that has no element of the religious hallmarks of establishment should survive constitutional scrutiny under the Establishment Clause.
- "On-site, in-person instruction" requirements. Finally, under A.C.A. § 6-17-2403(c), public school districts and open-enrollment public charter schools must provide 178 days or 1,068 hours of "on-site, in-person instruction" to students each school year to be eligible for certain state funding. As this Office has previously opined, there are currently no exceptions to this requirement. A school adopting a released-time policy must therefore ensure that such a program does not reduce the total amount of on-site instruction below statutorily mandated thresholds.
Assistant Attorney General Jodie Keener prepared this opinion, which I hereby approve.
Sincerely,
TIM GRIFFIN
Attorney General