Constitutional Constraints and
Other Legal Limits
IN CONTRAST TO the chapters on evolution, creationism, and intelligent design, the discussions of history, economics, literature, morals, civics, and comparative religion do not clearly distinguish between what schools should do and the constitutional limits of what they may do. We now turn to those limits and to legal restraints on the expression of teachers that do not directly concern the curriculum—in particular, dress regulations.
When a writer analyzes constitutional limits, he normally describes the relevant constitutional tests and suggests how they apply to the subject at hand. The broad constitutional tests for the Establishment Clause are now, as chapter 1 explains, in a kind of limbo. The threefold standard of Lemon v. Kurtzman1— secular purpose, no primary effect of promoting or inhibiting religion, no excessive entanglement—has not been abandoned in an opinion of the Court, yet most of the justices have expressed their dissatisfaction with its use as a comprehensive test for all establishment cases. Whether the state is or is not endorsing a religion has proved the critical inquiry for displays on public property,2 and that approach has obvious relevance for whether teaching that purports to be about religion has become the teaching of religious truth. Subtle coercion figured as a central element when the Court has reviewed graduation prayers.3
Whatever the exact formulation of a constitutional test, the crucial issue for teaching about religion is whether or not the school or teachers are presenting religious propositions— positive or negative—as true or sound. This may well be viewed as an inquiry about endorsement and its opposite, condemnation or disapproval.4 Schools can use individual books that take