Human Rights Heroes: First Amendment Freedom in Schools—Those Who Stand for Church-State Separation

Vol. 33 No. 3

By

Penny Wakefield, vice-chair of the IRR Section's Bill of Rights Project and a former director of the Section, is a human rights lawyer in Washington, D.C.

We are a nation of believers in our constitutional rights and our ability to exercise them. We have government offices to enforce civil rights, public defenders and pro bono lawyers to protect defendants’ rights, and innumerable national and local nongovernmental watchdog organizations to help preserve individual rights. Often, these offices and organizations become the public face of cases in which individual liberties are at stake.

Every so often, however, and perhaps most often in instances involving freedom of—or freedom from—religion in public schools, an individual emerges as the embodiment of a case. Motivated by deep personal conviction that a wrong has occurred, and believing unwaveringly that the Bill of Rights exists to prevent such wrongs, a person steps forward, alone, to assert his or her constitutional rights in the community, regardless of the personal costs.

Lisa Herdahl is one such person. Ellory Schempp and his father, Edward, are others. School District of Abington Township v. Schempp, 347 U.S. 203 (1963). Before them came Vashti McCollum. McCollum v. Board of Education, 333 U.S. 203 (1948). Joann Bell and Lucille McCord also have stood up. Bell v. Little Ax Independent School District, 766 F.2d 1391 (10th Cir. 1985). More recently were Deborah Weisman and her father, Daniel. Lee v. Weisman, 505 U.S. 577 (1992). And—tellingly—“Jane and John Doe” of Santa Fe, Texas. S anta Fe Independent School District v. Doe, 530 U.S. 290 (2000). These individuals, and the many others like them whose names are part of the lore and law of First Amendment school cases, are human rights heroes whose insistence on community adherence to constitutional principles demonstrates the power of individual faith in our Bill of Rights guarantees.

Herdahl v. Pontotoc County School District, 933 F. Supp. 582 (N.D. Miss. 1996), is particularly noteworthy because of the five young children involved. The Herdahl family moved from Wisconsin to Ecru, Mississippi, in 1994. Herdahl and her husband began new jobs there, and five of their six children began classes in public schools. The children soon became uncomfortable in their new environment, however. Baptized as Lutherans, they were not opposed to religious practice or unfamiliar with prayer. But the student-led prayers broadcast into all the classrooms at the opening of the school days, the Bible classes during school days, and the prayers before lunch and school activities, all with a fundamentalist Christian message, were part of the daily routine that the children felt pressured to accept.

After discussing the situation with her children, Herdahl contacted classroom teachers, school administrators, the school board, and the school district superintendent to object to these practices. All dismissed her objections summarily. The prayers and Bible studies were long-standing traditions in the community, she was told, and only she and her children objected to them. If her children did not like them, they simply could not listen or could leave the room. To illustrate the point, one teacher placed earphones on the seven-year-old Herdahl child’s head during prayer readings.

Believing that the Establishment Clause of the First Amendment meant that their objections should be taken seriously and should lead to changes in school practices, the Herdahl family sued. They paid a heavy price for their convictions. Like children in other cases before and after theirs, the Herdahl children were by turns intimidated, harassed, and ostracized by their classmates. They were called “devil worshippers” and worse. The parents, like other parents in other school cases, suffered death threats, firebombings, and the loss of their jobs. Yet, despite all they suffered, the children supported continuation of the suit, and the family persisted.

And with help from the American Civil Liberties Union and People for the American Way, among others, the Herdahls won. Underscoring the reason for the Establishment Clause, Judge Neal Biggers of the U.S. District Court for the Northern District of Mississippi wrote, “The Bill of Rights was created to protect the minority from tyranny by the majority. . . . To say that the majority should prevail simply because of its numbers is to forget the purpose of the Bill of Rights.” Id. at 585–86.

Later asked whether the result was worth the costs, Herdahl explained, “If kids are not taught tolerance towards religion, towards race—anything that’s different . . . what is happening to us is exactly what’s going to happen to them.”

Herdahl’s message to her children is a lesson for all of us.

As published in Human Rights, Summer 2006, Vol. 33, No. 3, p.24-25.

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