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July 01, 2006

Religion and Education: Consensus and Conflict

by Richard T. Foltin

It should be no surprise that the debate over the proper relationship between church and state is most heated in the context of our educational system and that the lion’s share of church-state litigation arises in this area. Schools are, after all, the institutions chiefly charged with educating and socializing the next generation, with parents, educators, and society at large intensely interested in the specifics of what is to be taught and, as crucially, in the morals and world views that underlie that teaching.

Long before the recent changes on the U.S. Supreme Court, the common wisdom had been that the Court is “in play” in this area of the law. With the ascension of Chief Justice John Roberts and Associate Justice Samuel Alito to the high Court, and more changes expected, major shifts in the Court’s approach to church-state cases may occur soon, with possible reversals, or at least limiting interpretations, of cases previously decided on 5–4 or 6–3 votes.

No one can predict with certainty how the recast Supreme Court will decide church-state jurisprudence in the education arena. Even after decades of litigation, some crucial questions never have been resolved. At the same time, clarity exists, at least for now, on other issues. That clarity, supported by consensus among some unexpected partners, belies the claims of those who assert either that the courts have declared public schools “religion-free zones” or that the law is so murky that school officials cannot know what is legally permissible.

In 1995, thirty-five religious and public policy organizations spanning the ideological, religious, and political spectrum, from the National Association of Evangelicals to the Religious Action Center of Reform Judaism, developed a joint statement reflecting their assessment of then-current law on religious exercise in the public schools. In that statement—issued under the title of Religion in the Public Schools: A Joint Statement of Current Law (April 1995)—these organizations proclaimed that they shared a “commitment to both the freedom of religious practice and to the separation of church and state such freedom requires” as well as to the need to provide much-needed clarification for parents, educators, and students. These groups concluded that public perceptions of church-state law, and conflicts over where the lines between church and state should be drawn, often were premised on misconceptions of what church-state separation requires. The group rebutted, for example, “urban myths” that the Bible may not be studied in a public school classroom or that a student may be prohibited from saying grace before (or after) meals, even as they agreed that the Bible may not be taught for its religious truth as part of a public school curriculum and that public schools have no business directing a student whether or how to pray.

The statement was issued more than a decade ago, and a substantially similar set of guidelines was afforded the imprimatur of the U.S. Department of Education. Nevertheless, Charles Haynes, of the Freedom Forum’s First Amendment Center, recently expressed concern that the biggest threat to religious liberty in our public schools is that most school districts still do not have religious liberty policies and practices that reflect the First Amendment and do not take advantage of the “safe harbor” created by the national consensus that has developed around several issues in this area. It is out of ignorance of the First Amendment and the law, he asserts, that most of the lawsuits and fights arise; when “people in the pews” do not know how much can and is being done to uphold religious freedom in schools, or when administrators fail to uphold those freedoms, they are susceptible to claims that religion is either being suppressed or promoted.

To be sure, clarifying existing law is no cure-all for all of the church-state challenges facing public schools. There are those who seek to use the schools and curricula to push their particular religious views, regardless of courts’ decisions. These advocates of religious triumphalism would enlist the state as a promulgator of the faith and regard as discrimination any steps taken to ensure that public schools (or other state institutions) do not become agents of proselytization. There also are those who are suspicious of or hostile to any showing of faith in a school setting and would deny even reasonable accommodation to teachers or students whose faiths require them, for instance, to wear certain clothing, such as a headscarf.

And numerous unresolved areas of law remain contentious. At what point, for example, does a student’s school- time religious expression make classmates a captive audience? When does offering Bible electives amount to promotion of a religious perspective?

The chief areas of both consensus and contention today draw upon the notion that separation most appropriately requires the state to be “evenhanded” with respect to religion in those instances in which the government arguably is simply making its facilities available forprivate religious speech on the same basis as other forms of speech. The Supreme Court long ago upheld the right of college students and, later, high school students to have religious clubs meet on public premises if other types of clubs are allowed to meet there—even as opponents argued that doing so would create an appearance of government endorsement of religion or open the door to coercive peer pressures.

In contrast, the most contentious areas, already in flux before the advent of the Roberts Court, are those involving the application of the “evenhandedness” principle to other aspects of church- state law, including public funding issues. In the view of some, this approach is inappropriate in that context as it is not enough to treat the Free Exercise and Establishment Clauses of the First Amendment as merely equal protection provisions for religion; the protection of religious liberty requires both denying religious institutions certain relationships with the state that secular institutions enjoy and not burdening religious institutions and interests in the same ways as secular institutions and interests. Nevertheless, in recent years, the Court has been moving toward application of the evenhandedness approach in just that fashion.

Teaching About Religion

As the 1995 consensus statement of diverse religious groups reflected, teaching about religion in an objective, academic fashion—for example, by informing students at an appropriate age level about the basic tenets of world faiths in a course on comparative religion—is perfectly constitutional. Indeed, as the Supreme Court has noted in a much-quoted passage, “one’s education is not complete without a study of comparative religion or the history of religion and its relationship to the advancement of civilization.” School District of Ambington Township, Pa. v. Schempp, 374 U.S. 203, 225 (1963).

But, as the consensus statement also reflected, there is an important difference between teaching about religion in order to educate in a neutral and age-appropriate fashion, say in a “Bible as literature” program, and the teaching of religion in a fashion that amounts to endorsement, or even indoctrination. Of course, to use an apt phrase, the devil is in the details. While consensus curricula for teaching about religion in general, and the Bible in particular, have been developed, there remains an ongoing struggle in many school districts over where to draw the lines and, in some places, sadly, even over whether to abide by seemingly clear judicial limitations.

That these controversies continue to stir deep passions is evident in recent litigation over how public schools may deal with theories about the “origin of life,” an issue commanding sustained public attention since opponents of the theory of evolution challenged its teaching in the public schools in the Scopes “monkey trial” of the 1920s. Notwithstanding the notoriety of this controversy, courts long have dealt with origin-of-life issues within a paradigm that contrasts teaching religion per se with teaching about religion. Time and again, the courts have found that “creation science” and “intelligent design” are not true scientific theories, but matters of religious faith, and therefore may not be taught as science in public schools, even to provide “balance” to the teaching of evolution. In December 2005, a federal district judge ruled that the Dover, Pennsylvania, school board’s inclusion of intelligent design in the high school science curriculum amounted to an unconstitutional endorsement of religion. (Nothing in the ruling precludes teaching about the biblical account of creation as part of elective courses in, say, literature or comparative religion.)

Before the Dover decision, a federal district court in Georgia ruled against another school district’s requirement that the teaching of evolution be accompanied by a disclaimer that evolution is just “theory,” not “fact.” A reasonable observer, the court concluded, would understand the implication of the disclaimer—evolution is singled out as an alternative theory consonant with a particular faith perspective—to be an endorsement of religion.

School Prayer

In the case of Engel v.Vitale, 370 U.S. 421 (1962), the Warren Court struck down a New York statute providing for recitation of a state-prepared prayer in public schools. “When the power, prestige, and financial support of government is placed behind a particular religious belief, the indirect coercive pressure upon religious minorities to conform to the prevailing officially approved religion is plain,” the Court said. Id. at 431. That decision, and a ruling the next year prohibiting the reading of the Bible at the beginning of the school day, surely rank among the most controversial that the Court ever has rendered. At the time they were issued, the decisions were denounced as antireligious, anti-Christian, and un-American, and there were widespread calls to “Impeach Earl Warren.”

Ever since, some school districts have been instituting clearly illegal official prayers, and suits periodically have been brought to challenge these practices. Nevertheless, as indicated in the 1995 consensus statement, it generally is accepted that individuals have the right to pray in school as long as they do not disrupt normal school activity, but that organized school prayer is inherently coercive. Repeated efforts in Congress to amend the First Amendment to permit organized school prayer have failed, and the courts have not shown any appetite to revisit this jurisprudence. Most recently, in 2003, the Supreme Court declined to consider an appeal of a federal appellate court’s finding that the Virginia Military Institute’s practice of holding daily organized supper prayers “plainly coerced [cadets into] participating in a religious exercise.” Mellen v. Bunting, 327 F.3d 355, 371 (4th Cir. 2003), reh’g and reh’g en banc denied, 341 F.3d 312 (4th Cir. 2003), cert. denied, 541 U.S. 1019 (2004).

If the law seems settled, it is less clear whether the message of these cases has been taken to heart as broadly as one would hope. In 2005, after reports emerged that U.S. Air Force Academy cadets belonging to minority religions had been subjected to intimidation by some Christian cadets and officials, the Air Force issued an investigative report and a set of guidelines on religious freedom (revised in February 2006) that, among other things, allow chaplains to pray as they see fit in voluntary, private worship services but require public and ceremonial prayer to be nonsectarian. In response to this modest effort to respect religious pluralism, the House of Representatives approved a provision last May that appeared calculated to allow chaplains to invoke the name of Jesus in prayer, even at public meetings and ceremonies at which attendance may be mandatory for service members of all faiths. The proposal reflected an astonishing misunderstanding of—even disregard for—the First Amendment’s religious liberty protections. In September, Senate- House conferees stripped the problematic provision out of the bill but took the occasion to direct the Air Force to set aside the religious freedom guidelines—a good-faith effort by the armed forces to deal with religious accommodation and religious expression—in favor of the status quo before any guidelines had been adopted.

Prayer at Public School Ceremonies

Opponents of prayer at public school–sponsored graduation ceremonies, athletic events, and other ceremonies, whether initiated and led by faculty, clergy, or students themselves, argue that such observances raise the same specter of coercion and seeming government endorsement as prayer in other school settings unless confined to private and truly voluntary events. To date, when the Supreme Court has spoken on the issue, it has accepted this line of reasoning to some extent. Nevertheless, the constitutional dimensions of prayer at such events remain murky as compared to the law on school prayer because of the many situations that the Court has not yet addressed.

In its decision in Lee v. Weisman, 505 U.S. 577 (1992), the Court held that a rabbi’s benediction at an essentially mandatory public school graduation violated the Establishment Clause. Similarly, in a 2000 decision, the Court held, 6–3, that school officials may not invite or encourage students to engage in vocal prayer at assemblies and school-sponsored athletic events, even if nonparticipating students are not harassed or coerced and there is no official school participation or supervision. The Court rejected the assertion that a religious message delivered by a school-chosen speaker on a school-owned athletic field, carrying with it a message of government endorsement, was private speech. In addition, the Court has let stand a number of lower-court decisions striking down school policies permitting “truly voluntary” student prayer at school assemblies and school-sponsored athletic events, even when attendance at those events was voluntary, and even when the prayer was nonsectarian and not proselytizing.

The Court has not ruled, however, on other variations on this theme, such as the permissibility of student-initiated and -delivered invocations at graduation ceremonies. Reflecting this uncertainty, in an apparent effort to avoid the Weisman strictures, many schools now delegate the decision-making authority over the content of graduation addresses to students. Lower federal courts have reached different conclusions on the issue. In Texas, students chosen to deliver a speech at graduation may call on other attendees to join them in prayer; in Pennsylvania, students may not.

Equal Access

In the Equal Access Act of 1984, Congress directed public secondary schools that allow some noncurricular student groups to meet on school premises during “noninstructional time” to permit equal access to the facilities to other student groups that wished to meet for religious, political, philosophical, or other purposes. Proponents asserted that the act’s language simply followed the principle established by the Supreme Court several years earlier that a student religious club is entitled to use the facilities of a state university on the same basis as any other student club. In 1990, the Court upheld the act over objections that it opened the door to misuse by missionary churches or religious cults that could use student religious clubs to proselytize students. The equal access principle also was invoked successfully in 1993, when the Court held that Long Island public school officials had to grant an evangelical church access to a school auditorium after school hours for the purpose of showing a religious film series concerning family values and child rearing.

Although the predicted abuses and coercion of students through misuse of religious clubs have not materialized, concerns remain about the potential reach of the evenhandedness principle. In Good News Club v. Milford Central School, 533 U.S. 98 (2001), the Supreme Court held that a New York school district that had denied a youth club the use of an elementary school’s premises for meeting on a regular basis immediately after school hours had violated the club’s free speech rights. The Court rejected arguments that children would perceive the school to be endorsing the club and that the club’s activities were “mere religious worship divorced from any teaching of moral values,” id. at 112 n.4, but did not indicate whether the latter finding would have made a difference in the decision.

The Court’s chance to make that determination may soon arise. A federal district court found last year that once public school premises are made available as a community meeting place, public school officials cannot bar a group intending to use the space for “mere religious worship.” The case is on appeal.

These developments raise the questions of whether the Court will set any limits on viewing religious expression through the free speech prism, even if there is a palpable risk of coercion— when doing so creates the perception of a “symbolic union” of the institutions of religion and government thatthe Court once sought to avoid.

Government Aid to Parochial Schools

Whatever consensus may exist concerning aspects of religious expression in public schools, it is difficult to find such common ground as to the law regarding public funding of religious schools.

Opponents of such funding contend that the diversion of funds from public to parochial schools, whether direct or indirect, violates the Establishment Clause. For a time, the Supreme Court seemed to agree, holding that, while there were circumstances in which public funds constituted a constitutionally permissible benefit to private school students (such as the provision of school busing), taxpayer dollars could not be used to benefit the religious institutions they attended, and that vouchers provided to private school students were impermissible if their effect would be to funnel substantial amounts of taxpayer dollars to religious schools.

In 2002, however, in the landmark decision of Zelman v. Simmons-Harris, 536 U.S. 639, the Court upheld, 5–4, Cleveland’s school voucher program, which allows parents to use vouchers for private schools or tutors. The Court reasoned that parents who chose to use vouchers for private school were exercising independent choice, the program did not specifically promote selection of religious schools, and “genuine [nonreligious] options” existed for parents who wanted to use vouchers to send their children to better schools. The Court emphasized, however, that the approved program limited participation to schools that did not engage in religious discrimination and did not provide for direct aid to religious schools.

The Zelman Court’s distinguishing of the upheld program from one providing direct aid to a religious school is a reflection of the Court’s historic view that religious institutions must at times be treated singularly, not just evenhandedly. But the ground under that approach is eroding. In Mitchell v. Helms, 530 U.S. 793 (2000), the Court greatly eased the circumstances under which government may provide direct, in-kind assistance (in this case, computers) to a religious school, without the intermediary of parental choice. Four justices who participated in Mitchell signaled that they would have gone even further in breaking down barriers to government assistance to religious schools. One of the five who would not have done so, Justice Sandra Day O’Connor, is of course no longer on the Court.

It may be that the government need not be strictly evenhanded in terms of funding religious institutions, even if it is allowed to be. In Locke v. Davey, 540 U.S. 712 (2004), the Court upheld as constitutional, by a vote of 7–2, the state of Washington’s decision that students majoring in “theology” were ineligible for a state-funded university scholarship program pursuant to a state constitutional provision that prohibits public money from being “applied to any religious worship, exercise or instruction.” Some have read this case to indicate that the First Amendment does not require government to finance religious activities the same way it funds secular ones and that the states accordingly have a right to maintain a stricter separation than that required by the federal Constitution.

The notion that the Establishment Clause, as well as the Free Exercise Clause, should be read robustly long has been understood as a protection of members of minority faiths from the encroachments of untethered majoritarianism, as well as a means to safeguard the autonomy of religious institutions from undue state interference and guard against the danger of religions seeking access to the levers of government power. The ongoing evolution of church- state doctrine in the context of religion and education is a mixed bag, creating reason for concern about the implications for those protections, but not unrelievedly so.

And the actions of administrators on the ground—whether at the school district level or in the classroom— make a huge difference in how well religious pluralism is respected in our educational institutions. Just as there are scofflaw school districts that seek to evade the edicts of the courts on school prayer or teaching about religion, there are others like the Steamboat Springs School District in Colorado, which has developed proactive policies and procedures directed at assuring that its public schools “neither endorse any particular religion or religion in general . . . nor impinge upon any person’s freedom to exercise his or her religion.”

In his much-cited “The Spirit of Liberty” address, delivered at a New York City “I Am an American Day” ceremony in May 1944, Judge Learned Hand observed, “Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can save it; no constitution, no law, no court can even do much to help it.” LEARNED HAND, THE SPIRIT OF LIBERTY 190 (3d ed. Irving Dilliard ed. 1960). Perhaps the most important indicator of the prospects for a healthy interaction of religion and education will turn as much on the discretionary actions of school administrators, and on the respect that teachers, administrators, parents, and students have for one another, as on any of the rulings of our courts.

As published in Human Rights, Summer 2006, Volume 33, Number 3, p.12-16.

Richard T. Foltin

Richard T. Foltin is legislative director and counsel at the American Jewish Committee in Washington, D.C., and a cochair of the First Amendment Rights Committee of the ABA Section of Individual Rights and Responsibilities.