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.