Religion in the Schools: A Flurry of Court Decisions Has Only Deepened the Fog Surrounding Battles over Religion in Public Schools

Article excerpt

Nearly every religion has a version of the Golden Rule: Do unto others as you would have them do unto you.

Yet, school districts find themselves increasingly confronted by individuals and organizations that use religion aggressively--wielding it like a sword to poke others whose behavior or beliefs fall short of their spiritual standard. In the opposite corner are groups like Americans United for Separation of Church and State and the American Civil Liberties Union that file lawsuits to prevent religion in schools.

The clash has widespread legal implications. Religiously motivated people can cloak themselves in the First Amendment's free exercise clause and then bolster their claim by adding a First Amendment free speech right. School districts, by contrast, often see a Constitutional duty to be neutral--which translates to strenuously avoiding favoritism toward a single group, or religion in general.

Sixteen words from the First Amendment to the U.S. Constitution are the guide: "Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof." That phrase has been interpreted to represent an intentional design by the nation's founders to ensure that religion is a matter of personal conscience. Therefore, school districts may not use their power to unfairly persuade, and citizens hold the right to freely express beliefs or to reject religion entirely. Some observers describe the idea as the right to be free from religion.

If only it were that simple.

Because the U.S. Constitution is involved, conflicts about schools and religion are decided in federal court. But, instead of creating bright-line rules that give educators clear boundaries about what is and isn't permissible, litigation has produced a barrage of contradictory rulings. The resulting hodgepodge has created massive confusion in its wake and forces educators to parse fine-point distinctions that can tie top flight lawyers in knots.

Establishment v. free exercise

In the last decade, courts have more readily viewed religious speech (e.g., clothing, flyers, and symbols) the same as any other kind of speech and dubbed neutrality efforts as discrimination against religion. When Establishment Clause concerns are pitted against the First Amendment Free Exercise Clause in combination with "free speech" rights, the free exercise/free speech twosome usually wins. The U.S. Constitution's Establishment Clause cautions school systems (as government entities) against embracing religion, while the Free Exercise Clause gives individuals the right to express religious devotion. The First Amendment free speech right forbids government from squelching unpopular, dissenting or, in this case, religious speech.

These rulings by federal judges have emboldened religious advocates to rely on the courts to advance their perspective. Quickest into the fray are a variety of vocal and well-funded religious organizations that actively seek cases where courts can approve of a cozier relationship between schools and religion.

No disrespect intended toward those who make devoutness a part of their daily life. True believers are often sincere and well-meaning individuals who want to see their views reinforced in the classroom or seek an unimpeded opportunity to convince others to believe likewise.

The flip side is that school districts and building officials have the responsibility of maintaining neutrality by creating an environment that allows believers and nonbelievers to coexist without one having to endorse or adhere to the other's beliefs.

Sorting it all out, however, can leave a teacher, superintendent, or board member quite flummoxed. With little consistency in the law, educators are forced to make on-the-spot judgments--and to hope for the best when the lawsuit comes.

Districts on the defense

Trouble can arrive from many different directions. …