Religious speech in school: religion or speech?

Thou shalt not preach.

My previous post discusses the tension between the Establishment Clause and the Free-Exercise Clause in the First Amendment.  In the school context, much of the tension centers on what public school educators can or cannot do.  But a couple of recent cases involving religious speech demonstrate that the tension exists for students as well.

Unlike with teachers, who are state employees, student religious speech normally does not trigger the Establishment Clause concern that the state is endorsing an official religion.  Nonetheless, in recent years, controversies and lawsuits have sprung up around the country concerning whether schools may prevent students from reciting prayers, singing religious hymns, or offering other expressions of religion at school-sponsored events.  In nearly all of these cases, courts have upheld the powers of the schools to regulate student conduct. 

Some of the cases seem almost comically petty.  A Wisconsin student who planned to sing a hymn at graduation was told, for example, that she would have to use “he,” “him,” or “his,” instead of “God” in the lyrics.  A New Jersey school district banned religious music entirely at the school holiday concert, a decision challenged by parents but upheld by the 3rd circuit.

A pair of cases about graduation speeches have received a lot of media attention, and both were recently denied cert by the Supreme Court.  In McComb v. Crehan, a Las Vegas high school valedictorian sought to use her valedictory speech to discuss how her christian faith helped her to succeed in school.  The school nixed portions of her draft speech as “proselytizing.”  Brittany McComb decided to deliver the speech anyway, and the school turned off her microphone at graduation.  McComb then brought suit against the school district, alleging a violation of her First Amendment rights.

A district court in Nevada denied the school’s motion to dismiss the case based on the pleadings, essentially ruling that McComb could go forward on her suit.  But the 9th Circuit reversed and upheld the school’s actions.

In a similar case, Colorado valedictorian Erica Corder also veered from her prepared text into proselytization of her Christian faith.  She actually succeeded in delivering the entire speech.  But the school principal refused to grant her diploma until she wrote a letter acknowledging that the speech was her personal view.  Corder’s suit against the school district, therefore, dealt not only with unlawfully censored speech but also unlawfully compelled speech.  The suit has been similarly dismissed by the 10th Circuit.

Although the two circuit courts reached the same results, they rested their reasoning on different grounds: one primarily on religion, and the other primarily on speech.  This highlights a problem with student religious speech in school — should it be analyzed under the Establishment Clause rubric, or the Free Speech Clause?

In the 9th Circuit, the issue was analyzed as one of religion, perhaps in part because there is clear caselaw that students have no right to proselytize in a school-sponsored event.  Neither party disputed that the school officials had the power to control and censor student speech in such a setting.  The main issues were factual: whether the student speech was in fact proselytizing and whether the school official retained primary control over the graduation speech.

The 10th Circuit, however, did not have such clear precedents, and instead rested its ruling on an analysis of prior Supreme Court student free-speech cases.  In doing so, the 10th Circuit ruling nearly completely ignores the “religion” aspect of the case and treats the student’s religious speech as any other types of speech.

Although the 10th Circuit arrives at the same conclusion as the 9th Circuit, such an approach has its risks. Student speech cases typically rely on a kind of in loco parentis authority that the school has to regulate behavior of the students in order to satisfy educational and disciplinary goals.  In its opinion, the 10th Circuit strained to explain what type of “educational” goals the school achieved by censoring religious speech.

The fact of the matter is, a school’s decision to censor religious speech is not the same as its decision to censor sexual, or lewd, or incendiary speech.  It should not rest on a discretionary judgment about the consequences of the speech, but should stem from a legitimate concern that such speech may be seen as endorsed by the school in violation of the Establishment Clause.

Thus, prohibiting this type of speech, at least in a school-sponsored event where schools retain primary control of the content, is not optional and a judgment call, it is constitutionally required.  Religious speech in school is not just speech, it is religion.

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An Amendment divided against itself

Can't they teach?

Oregon may be changing its laws regarding a teacher’s right to wear religious clothing in school. This got me thinking about the tension between two Clauses that deal with religion in the First Amendment of the U.S. Constitution.

The Establishment Clause of the First Amendment prohibits federal and state governments from making laws “respecting an establishment of religion.”  It has been used in “separation of church and state” cases such as prohibiting prominent religious displays on public property.  The Free Exercise Clause of the First Amendment, on the other hand, enjoins Congress and state governments from making laws “prohibiting the free exercise” of religion.

The requirements of the two Clauses thus pose a dilemma for teachers, who are state employees.  Can a religious teacher freely fulfill her religious duty by donning religious attire while on the job?

I am genuinely conflicted on this question.  On the one hand, Oregon’s blanket ban — which prohibits teachers from displaying any type of religious symbol, large or small —  seems too extreme and likely to have undesirable effects.  It is difficult to see why a teacher should not wear a cross or a star of David on her neck or a kippah on his head.  And so what, if she shows up to class in a burqa?  In this day and age, wouldn’t it simply be a lesson in tolerance and respect for her students?

I strongly suspect that such a ban discourages Muslim, orthodox Jews, and devout Christians from applying for teaching positions.  Alas, this may very well have been the original intention of the ban.

But on the other hand, the ban is rooted in the psychologically astute observation that teachers are authority figures, charged with molding young minds.  The ban expresses a concern that when a teacher displays her religious preference, or her preference for religion over non-religion, it would be viewed as an expression of not just private preference, but a preference by the state.

The ban also implicitly endorses an idea that the Establishment Clause seems to endorse: that religion is a private matter that belongs in the private sphere, undisturbed by the powers of the State, but that public spaces, such as schools, should be left secular and neutral.

France, which bans all displays of religious symbols in its schools for students as well as teachers, is one prominent supporter of this idea.  The French idea of laicite, which promotes secularism in civil society and governmental affairs, is strikingly similar to the American idea of the separation of church and state.

The problem, of course, is that the ideas of laicite and the separation of church and state both overlook religion’s tendency to obliterate the boundaries of the private and the public.  A religious command is usually a total command that has no regard for whether the person is acting as a state employee or as a private person.  This is partly what makes religion potentially problematic for civil society.  But it also means that any pretense for “neutrality” in the public space is really a triumph of secularism over religion.  The neutrality necessarily imposes limits and burdens on the rights to “freely exercise” religion, which may violate our constitutional commitment to freedom of religion.

So which of the Clauses should win?  I am leaning towards freedom over neutrality, for now.  It seems that what we are really worried about is not religious clothing and symbols, but a teacher using his position of authority to actively  promote his religious viewpoint.  The total ban seems overly broad, and we should fashion better regulation to deal with the real problem.

What do you think, dear readers?  Please voice your opinion by voting in the poll below.  I would love to hear your comments as well.

The God problem with the Pledge of Allegiance

Freely choosing to pledge?

Ten-year-old Will Phillips refused to say the Pledge of Allegiance on the ground that we as a country still discriminate against gays and lesbians, and therefore do not have “freedom and justice for all.”  (See his adorable CNN interview here.)  Phillips did not mention this, but another portion of the Pledge of Allegiance seems far more problematic to me.  It is the portion that declares that the United States is “one nation, under God.”

The original Pledge did not include the phrase “under God.”  That phrase was officially added in 1954 by Congress and approved by Eisenhower after intense lobbying by the Knights of Columbus and several prominent clergymen.  Although the Supreme Court had ruled in 1943 in the case of West Virginia State Board of Education v. Barnette that public school children could not be compelled to say the Pledge of Allegiance, the Court rested its ruling on the freedom of expression prong of the First Amendment (after all, the phrase “under God” was not yet incorporated into the Pledge in 1943).  The Barnette opinion also did not prohibit the Pledge from being said in public schools.  Therefore, the Pledge, even after the inclusion of the phrase “under God,” remained an “optional” part of most school children’s morning ritual.

As might be expected, the phrase has been the subject of much controversy, protest, and litigation.  In 2004, the Supreme Court heard a suit brought by Michael Newdow, an atheist and attorney who objected on behalf of his daughter to the inclusion of the phrase in the Pledge.  The 9th Circuit sided with Newdow and ruled that the phrase endorsed religion and therefore violated the Establishment Clause, but the Supreme Court dodged the issue by dismissing the case on a procedural ground.  Newdow, it found, had no standing to bring the suit because he was not a custodial parent of his daughter.

A new round of lawsuit is being brought in California, this time by three families who are represented by Newdow and who presumably do not have the standing problem.  A district court in California has ruled that the Pledge does violate the Constitution.  The case, styled Newdow v. Carey, was argued before the 9th Circuit in 2007 and is awaiting judgment.  (Hear the recording of the oral arguments here.)  Whatever the judgment, it is certain that the case will petition for certiorari.

Conservative members of Congress are concerned enough about the possibility that the Supreme Court would side with Newdow that a bill passed the House in 2005 that would strip the Supreme Court and most federal courts of jurisdiction to consider the issue.  The bill died when the Senate declined to take up the issue.

The supporters of the Pledge are in a curious position.  On the one hand, they argue that the voluntary recitation of the Pledge does not violate the Establishment Clause because the recitation is mainly a “patriotic exercise,” and that any mention of God is merely incidental and only raised for historical reasons.  (The attorney for the government, for example, argued at one point during oral argument that God is not a religious figure, to the puzzlement of Judge Reinhardt.)

But the ardent refusal by the school district to take the phrase out of the Pledge, and the anger and disdain expressed against Newdow and his supporters during the lawsuit (Newdow received quite a few death threats), belie the argument that any mention of God in the Pledge is merely incidental.  Most proponents of the inclusion of the phrase, unsurprisingly, take the belief that we are a nation “under God” quite seriously.

Finally, does the voluntariness of the recitation of the Pledge save its constitutionality? I think the reaction of some of Phillips’s classmates in the past week counters that argument quite nicely.  Is it coercive to begin each day by asking impressionable young children to stand up in a roomful of other children and declare their loyalty to the flag while also affirming that the nation is, in fact, “under God?”  How many times does Phillips have to be called ugly names to prove that, yes, it is?

Religious schools and church-state relations

church and stateAs is well known, the First Amendment to the U.S. Constitution provides, among other things, that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof”. This is usually understood to mean, in Jefferson’s words, that there should be a “wall of separation” between the church and the state. Of course, Jefferson meant that the wall would only apply to the national government and not state government, who did have established religions (for example Massachusetts, Connecticut, New Hampshire, and Maryland). However, the practice of having state established religions discontinued, and definitely died out with the passage of the Fourteenth Amendment.

Today, however, it can’t be said that there is a “wall of separation” between religion and government.  The Supreme Court has allowed a few cracks in that wall. Here are just three examples. In Everson v. Board of Education, the Court held that reimbursements for transportation even to students of private religious schools do not violate the Establishment Clause. And in Simmons v. Zelman-Harris the Court ruled that disbursement of federal funds to local educational agencies which lent educational materials and equipment to public and private schools to implement secular, neutral and non-ideological programs, even though some of them are given to Catholic schools is constitutional as well.  Finally, in Agostini v. Felton, the Court held that public school teachers can instruct at religious schools so long as material is secular in nature.

In all these cases the Court has insisted that there be no excessive entanglement government and religion, and, as long as this condition was kept (along with other requirements), then the allocation of funds and resources to religious schools is constitutional. The flip side of this separation, of course,  is that government doesn’t have a say over the management of these schools.

Of course, this doesn’t have to be the case. One can ask the question why isn’t it the case that as long as federal (or state) funds are given to religious schools, government shouldn’t have more of a say in how these schools are run. If, as Greta suggested, education should be considered a basic right, perhaps we should be more inclined to increase state regulation on private religious schools. The problem here is that this type of involvement can create exactly the difficulties the Framers sought to avoid.

Consider this recent British Case. A 12 year old boy, son to a Jewish father and a Jewish convert mother, applied to the Jewish Free School. The school, like other parochial institutions, is partially funded by the British government. And yet, British law allows the school to decide on admissions based on criteria decided by a designated religious authority. Those criteria have denied the boy admission, since, per the school, the mother did not undergo an orthodox Jewish conversion, but a progressive one. Thus, per orthodox rules, the boy is not considered a Jew and thus was not admitted.

The parents sued, and though they lost, the appeals court reversed and held that the test of whether someone is Jewish — whether one’s mother is Jewish — was discriminatory, no matter what the rationale was. Further, the court held that the school did not use a religious distinction because its decision rested on the status of the child’s mother and hence it was an ethnic test, which is illegal. The court said that “The requirement that if a pupil is to qualify for admission his mother must be Jewish, whether by descent or conversion, is a test of ethnicity which contravenes the Race Relations Act”. It concluded by saying that the admissions criteria must depend not on family ties on “faith. However defined”.

The ruling, which has been appealed to the Supreme Court, has rattled the Jewish community in Britain. The case is problematic on many grounds. We can talk about the usual problem of judicial overreach, but more importantly, there is the problem of a secular authority attempting to determine something which is clearly the purview of religious doctrine. Of course, the rationale for intervening is the fact of public financing. If public monies are used, why shouldn’t the larger community have a say on who gets admitted?

The problem, I think, lies with this dichotomy, this either-or thinking that once there is some state involvement then everything is up for grabs and is fair game. To be sure, I don’t know what the appropriate balance is, though my sense is that, at least politically, it would have been better for the court not to intervene and let this vexing issue be resolved inside the Jewish community. Legally, it’s hard for me to see why this is an “ethnic” issue and not also, or mainly, a “religious” one.

Be that as it may, my point is that the U.S. model is not the only one available to us. At present, there is very little regulation over the management and content being taught at religious schools. But with the increased allocation of funds, more regulation might be expected. And that might lead us to grapple with far more complicated questions than books and busing. Increased regulation necessarily means, then, making decisions on religious dogma in the name of constitutional principles. Currently, this opens up more problems than it purports to solve.