Can an Arkansas public school excuse a student during the school day to attend off-campus religious instruction with parental permission?

Plain-English summary

Senator Hammer asked whether an Arkansas public school may excuse a student, at a parent or guardian's request, to attend religious instruction taught by an independent entity off campus during the school day. The Attorney General answered yes: A.C.A. § 6-18-209(a) broadly authorizes school districts to adopt attendance policies. A 2025 bill that would have required such policies did not pass, but the opinion says districts may choose to adopt one under existing law.

The opinion identifies three limits to consider: the federal Free Exercise Clause, the Establishment Clause, and Arkansas's on-site instruction requirement. Participation should be voluntary rather than compelled. The constitutional result for a particular policy depends on its facts. For certain state funding, A.C.A. § 6-17-2403(c) requires districts and open-enrollment charter schools to provide 178 days or 1,068 hours of on-site, in-person instruction each school year. The Attorney General says there are currently no exceptions and a released-time policy must not reduce instruction below the statutory threshold. He supplies no calculation of hours available for any district.

What this means for you

If you are on a school board

A district may adopt an attendance policy covering a parent's request for off-campus religious instruction. Ask local counsel to review voluntariness, the policy's constitutional details, and the district's on-site instruction calendar. Check compliance with the statutory days-or-hours requirement rather than relying on a generic allowance of released time.

If you are a parent or guardian

The opinion recognizes district authority to adopt a released-time policy; it does not require your school to offer one. Ask your district what its adopted attendance policy permits and how the proposed absence would be handled.

If you provide off-campus instruction

The opinion assumes instruction by an independent entity off campus at a parent's or guardian's request. A district must evaluate its own attendance policy and keep the on-site instruction it provides above the statutory minimum for the relevant funding.

Common questions

Did HB1139 make released-time instruction mandatory?
No. The opinion says the 2025 bill died in committee. It addresses authority under existing attendance-policy law.

How many hours per week may a student be released?
The opinion gives no weekly figure or school-specific calculation. It identifies a statewide requirement of 178 days or 1,068 hours of on-site, in-person instruction for certain funding and says a policy must not lower instruction below that threshold.

Does the opinion approve every released-time policy?
No. It says local counsel should advise on the particular policy, and its constitutional analysis depends on voluntariness and the policy's facts.

Background and statutory framework

A.C.A. § 6-18-209(a) authorizes districts to adopt attendance policies. The Attorney General says that grant is broad enough to permit the described off-campus instruction at a parent's, guardian's, or in-loco-parentis caregiver's request. The opinion discusses federal Free Exercise and Establishment Clause constraints and A.C.A. § 6-17-2403(c)'s 178-days-or-1,068-hours on-site instruction requirement. It does not calculate spare hours or approve a particular district schedule.

Source

• Official opinion search: https://arkansasag.gov/divisions/opinions-foia/attorney-general-opinions-search/ (Opinion No. 2025-067; PDF consulted for full text and footnotes).

Original opinion text

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:

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?

   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.

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?

   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?
BOB R. BROOKS JR. JUSTICE BUILDING
101 WEST CAPITOL AVENUE
LITTLE ROCK, ARKANSAS 72201

The Honorable Kim Hammer
State Senator
Opinion No. 2025-067
Page 2

Yes. Under a plain reading of A.C.A. § 6-18-209(a), school districts have authority to “adopt attendance policies” for their schools. 1 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. 2 And some school districts allow excused absences for holidays observed by the student’s faith or exceptional circumstances. 3

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. 4

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.

1. 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.” 5

1
Wickham v. State, 2009 Ark. 357, 5, 324 S.W.3d 344, 347 (2009) (“When reviewing issues of statutory interpretation, we are mindful that the first rule in considering the meaning and effect of a statute is to construe it just as it reads, giving the words their ordinary and usually accepted meaning in common language”). 2 E.g., Bentonville Schools Board of Education Policy Manual 2025-2026 4.7 – Absences, https://go.boarddocs.com/ar/bentonville/Board.nsf/goto?open&id=DHQK9F5024A9# (last visited Mar. 10, 2026) (5 absences without medical documentation); Hot Springs School District Board of Education Policies and Student Handbook 2025-2026 4.7 – Absences, https://hssd.community.diligentoneplatform.com/home/policies/ policydoc/98162820-26ec-4afc-a13e-09a21cab4e6e (last visited Mar. 10, 2026) (6 absences without medical documentation); Pulaski County Special School District Board of Education Board Policies 2025-2026 4.7 – Absences, https://www.pcssd.org/page/section-4-students#4_7 (last visited Mar. 10, 2026) (6 absences without medical documentation). 3 E.g., Bentonville Schools Board of Education Policy Manual 2025-2026 4.7 – Absences, https://go.boarddocs.com/ar/bentonville/Board.nsf/goto?open&id=DHQK9F5024A9# (last visited Mar. 10, 2026); Hot Springs School District Board of Education Policies and Student Handbook 2025-2026 4.7 – Absences, https://hssd.community.diligentoneplatform.com/home/policies/policydoc/98162820-26ec-4afc-a13e-09a21cab4e6e (last visited Mar. 10, 2026); Pulaski County Special School District Board of Education Board Policies 2025-2026 4.7 – Absences, https://www.pcssd.org/page/section-4-students#4_7 (last visited Mar. 10, 2026). 4 Note that there are some limitations on public schools’ authority that are not at issue here. See A.C.A. § 6-18-237(a) (prohibiting “[a] public school district or an open-enrollment public charter school” from “grant[ing] excused absences for purposes of political protest”). 5 (Emphasis added). Although this opinion focuses on the U.S. Constitution, the Arkansas Constitution and Arkansas’s Religious Freedom Restoration Act, A.C.A. §§ 16-123-401 through 16-123-407, would also apply. The opinion does

The Honorable Kim Hammer
State Senator
Opinion No. 2025-067
Page 3

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.’” 6 Generally, a government action or policy that is a “neutral law of general applicability” does not violate the Free Exercise Clause. 7 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.” 8 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. 9

2. 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.” 10 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. 11 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.” 12 To effect that approach, the

not discuss the latter, however, because an Arkansas court would likely follow federal precedent on the issues discussed herein. 6 Kennedy v. Bremerton Sch. Dist., 597 U.S. 507, 523 (2022) (quoting Emp. Div., Dep’t. of Hum. Res. of Ore. v. Smith, 494 U.S. 872, 877 (1990)). 7 Emp. Div., Dep’t of Human Resources of Ore. v. Smith, 494 U.S. 872, 879 (1990) (holding that “the right of free exercise does not relieve an individual of the obligation to comply with a ‘valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes)’”) (internal citations omitted). 8 Kennedy, 597 U.S. at 525 (internal quotations omitted).
9
Cf. Zorach v. Clauson, 343 U.S. 306, 311 (1952) (calling it “obtuse reasoning to inject any issue of the ‘free exercise’ of religion” related to a law that allowed schools to release students to receive religious instruction); Good News Club v. Milford Cent. Sch., 533 U.S. 98, 114 (“In distinguishing between indoctrination that is attributable to the State and indoctrination that is not, the Court has consistently turned to the principle of neutrality, upholding aid that is offered to a broad range of groups or persons without regard to their religion.”) (cleaned up) (emphasis in original); Espinoza v. Mont. Dep’t of Rev., 591 U.S. 464, 485 (2020) (“As noted, this Court has repeatedly upheld government programs that spend taxpayer funds on equal aid to religious observers and organizations, particularly when the link between government and religion is attenuated by private choices.”). 10 Everson v. Bd. of Ed. of Ewing Twp., 330 U.S. 1, 18 (1947) (“That Amendment requires the state to be a neutral in its relations with groups of religious believers and non-believers; it does not require the state to be their adversary. State power is no more to be used so as to handicap religions, than it is to favor them.”). 11 Opinion No. 2015-098 provides a history of cases before the U.S. Supreme Court relating to the Establishment Clause through Town of Greece, N.Y. v. Galloway, 572 U.S. 565 (2014). 12 Kennedy, 597 U.S. at 535 (citation modified); Galloway, 572 U.S. at 576.

The Honorable Kim Hammer
State Senator
Opinion No. 2025-067
Page 4

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? 13 “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.” 14 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.” 15

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. 16

The Court has explained that “the Establishment Clause must be interpreted by reference to historical practices and understandings.” 17 In other words, “[a]n analysis focused on original meaning and history … has long represented the rule … within the Court’s Establishment Clause jurisprudence.” 18 And if “‘history shows that the specific practice is permitted,’ [the court] typically need go no further; the Establishment Clause claim fails.” 19 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.” 20

That historical understanding then informs whether the practice or policy is impermissibly coercive. “[C]onsistent with a historically sensitive understanding of the Establishment Clause,”

13
New Doe Child #1 v. United States, 901 F.3d 1015, 1020 (8th Cir. 2018).
14
Id.
15
Kennedy, 597 U.S. at 537.
16
Shurtleff v. City of Boston, 596 U.S. 243, 286 (2022) (Gorsuch, J., concurring) (identifying the six hallmarks of religious establishment), cited with approval in Kennedy, 597 U.S. at 537 n.5. 17 Galloway, 572 U.S. at 576 (internal quotations omitted).
18
Kennedy, 597 U.S. at 536 (internal citations and quotations omitted). The Court also noted that “[i]n place of Lemon
[v. Kurtzman, 403 U.S. 602 (1971)] and the endorsement test, this Court has instructed that the Establishment Clause must be interpreted by reference to historical practices and understandings.” Id. at 535 (quoting Galloway, 572 U.S. at 576) (internal quotations omitted). 19 New Doe Child #1, 901 F.3d at 1021 (quoting Galloway, 572 U.S. at 577).
20
Id.

The Honorable Kim Hammer
State Senator
Opinion No. 2025-067
Page 5

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.”21 This type of “coercion” was among the foremost hallmarks of religious establishments the framers sought to prohibit when they adopted the First Amendment.” 22

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. 23 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.” 24 Although I am not a factfinder when issuing opinions, 25 an attendance policy that has no element of the religious hallmarks of establishment should survive constitutional scrutiny under the Establishment Clause.

3. “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. 26 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

21
Kennedy, 597 U.S. at 537 (citations omitted).
22
Id.
23
Id. at 537 & n.5 (favorably citing Justice Gorsuch’s Shurtleff concurrence as discussing the “historical hallmarks of an established religion”). 24 Firewalker-Fields v. Lee, 58 F.4th 104, 123 n.7 (4th Cir. 2023); see also Hilsenrath ex rel. C.H. v. Sch. Dist. of Chathams, 136 F.4th 484, 491 (3d Cir. 2025), cert. denied, No. 25-256, 2025 WL 3506995 (U.S. Dec. 8, 2025). 25 See Ark. Att’y Gen. Ops. 2025-092, 2017-088, 2007-308.
26
Ark. Att’y Gen. Op. 2023-053 (opining that “alternative methods of instruction” when the school district is closed due to exceptional or emergency circumstances do not count toward the requirements of A.C.A. § 6-17-2403(c)).