Ed Brayton is a journalist, commentator and speaker. He is the co-founder and president of 
Last week I noted a lawsuit against Cobb County schools over their disparate treatment of a religious group using school facilities. As expected, the school quickly gave in and settled the suit, as they should have. The law is crystal clear on this issue. I really don't understand why so many schools seem to have a difficult time following the law.
Meanwhile, yet another school can't seem to figure out the Equal Access Act. The Alliance Defense Fund has filed suit against a New York school district that refuses to recognize a student Bible club.
For more than four months, Lindenhurst High School officials have repeatedly refused to grant official recognition to the club because of its religious nature. A number of other non-curriculum-related, student-led clubs--including the Gay-Straight Alliance, Key Club, and Chess Club--have received official recognition and are entitled to certain benefits and privileges.The school district is not permitting members of the Bible club to use classrooms to meet on the same basis as other clubs. Instead, they were forced to apply for facility access as a local community organization. As a result, the Bible Club has yet to hold its first meeting while other clubs are freely meeting on campus.
"The Bible club is entitled to the same recognition and benefits as other student-led clubs on campus," said ADF Litigation Counsel Joshua Bolinger. "It is unconstitutional for school officials to deny students their First Amendment rights simply because they are religious."
Again, these are not difficult calls to make. I really wish more school administrators would take the time to understand the law. This sort of thing just feeds that fake martyr complex we see so often.
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Either these school administrators have incompetent attorneys or they just ignore their legal advice.
Posted by: SLC | February 8, 2009 9:27 AM
I suspect that the problem is that the school administrators think that they already do understand the law. There is a popular misconception, probably coming from a misunderstanding of the case law banning official public school prayer, that schools aren't supposed to do anything that could be construed as supporting religion.
Posted by: J. J. Ramsey | February 8, 2009 9:42 AM
The school administrators simply don't ask. did some work for the firm that represents the school system, and almost all of the questions we received were about compliance with I.D.E.A. (disabled children), No Child Left Behind, and procedures for mandatory testing. So J.J.Ramsey is correct: No thought goes into it and individual Principal makes a judgment call based upon fear of Establishment Clause violations.
Oh, we had a whole lot of trouble with search and seizure issues too. Principals don't know anything about that, either.
Posted by: kehrsam | February 8, 2009 10:41 AM
Re the question begged - why do so many school administrators get something so simple so continuously wrong?
While I am not in the education industry, I am in an industry that requires heavy usage of legal counsel - real estate development. I continuously see people make decisions that are obviously wrong-headed and contrary to standard legal advice. It's my observation that the three primary causes are:
1) An inflated view of themselves coupled to a case of cognitive dissonance, where they believe they have adequate reading comprehension and critical thinking skills when in fact they possess neither and get the advice wrong since it would require they discard their preconceived perspective where they instead opt for confirmation bias (they warp the advice to fit their previous perspective).
For some reason, large institutional cultures often develop people that think it is weak to seek advice or change a previously communicated position. The old adage, "don't let your ego get in the way of your position" applies here.
2) Their legal counsel provides flippant advice in an area where counsel is mundanely ignorant and that advice is wrong-headed. It's common when talking to some lawyers that they feel pressured to position themselves as knowing everything there is about the law - an absurd position to take, but not uncommon. Just like a good general practioner in the medical industry will refer patients to specialists under certain conditions, it's imperative that one's general counsel on matters of law do the same and seek advice from functional experts in that field. You'd be amazed at how many times I've received initial legal advice contrary to the law when I initiated my research but prior to coming to a conclusion after exhausting such a search.
This reminds me of the old Clint Eastwood line as Harry Callahan in Magnum Force, "A man's got to know his limitations", if you want the line delivered with a squint, here it is: http://www.youtube.com/watch?v=cZNlraF0xec
3) With schools I suspect a third element. Ideology consistent with one's peers trumps knowledge. I've observed numerous examples of "Liars for Jesus" both on the right, and in this case, a potential example on the secular left. It often seems at the time it's better to defend the community dogma as a signal of fealty than to do the right thing, in hindsight that of course appears idiotic but many people are unable to think past the end of their nose, and that nose is often firmly rooted in someone's ass.
Posted by: Michael Heath | February 8, 2009 11:07 AM
The answer is quite simple. To feed their martyr complex, the religious right is perpetuating the myth that religion is completely banned from schools. That message is far louder and repeated far more often than the real requirements are communicated to school officials. They hear the myth on their TVs, on their radios, in their mail, and most importantly, from their clergy, all on a weekly or even daily basis. They receive the real message once a year - if they even bother to read it. And the reality is nuanced - this is permitted, that is prohibited. People don't like nuance, if for no other reason than it requires them to think. Given this overwhelming influx of false information from trusted sources, coupled with the distaste for nuance, there are two easy routes for them to take:
1. Trust their sources that all religion is banned, and ban it completely.
2. Rebel against the "evil libruls," and do everything they can to encourage religion.
Posted by: W. Kevin Vicklund | February 8, 2009 11:41 AM
There are thousands of school districts in the United States, most of them small, many very small, where the superintendent is also a principal and sometimes a teacher. They are under-resourced and over-worked, and they are forced to make quasi-legal rulings all the time. Expecting them all to get everything right every time is expecting too much.
In this case, school administration was wrong, they got spanked, and they corrected their error quickly. What more could we ask? It's not like they persisted with a blatantly illegal policy against legal advice and settled constitutional law in a quixotic battle to the death or receivership. Cut them some slack.
Posted by: Enkidu | February 8, 2009 12:57 PM
I think W. Kevin Vicklund has it far more right than Michael Heath's #3 point. These people are confused because a powerful, well-funded, and strident group of would-be martyrs has actively promoted (for years and years) the notion that court decisions have made it illegal to have any sort of religion-related activity take place anywhere connected with schools at any time and any place. It's natural that they're confused.
Posted by: QrazyQat | February 8, 2009 1:00 PM
QrazyQat - Kevin's point and my last point are not mutually exclusive, both conditions could be prevalent, you don't have to chose one and disqualify the other. Ed has posted a couple of blog posts supportive of both Kevin's observations as well as mine.
I too greatly appreciated Kevin's point as well and wished I'd made it in addition to my others. In fact Kevin's point is another example of my biggest societal pet peeve; the cost we incur by rewarding liars rather than aggressively socially ostracizing those that lie so outcomes like Kevin refers to are minimal to non-existent. I feel so strongly on this I've respectfully disagreed with Ed that our slander and libel laws are too modest when it comes to civil suits.
Posted by: Michael Heath | February 8, 2009 1:48 PM
I think W. Kevin Vicklund is exactly right, at least about some of these people. I frequently hear this notion that the government is trying to prohibit all religion in all forms in all public spaces. I suppose that now and then a school principal who has heard this would act on it.
Here is the inverse of the situation Ed describes:
Just two nights ago, a friend of mine was expressing concerns that she, as a neighborhood civic club president, might be violating the law in having accepted a couple of years ago the offer of a local church to use its recreation hall for the neighborhood civic club meetings. The hall is a different building from the church, and the only requirements the church has is that no alcoholic drinks be served and that the civic club confine itself to those activities that are legal for its non-profit status. No one attends the meeting as a church representative, and no religious material is handed out.
A neighborhood couple had identified themselves as non-Christian and demanded that the club meetings be moved to the local gym. The club had originally met there, but the noise from the basketball games made it impossible to have speakers.
Her comments drew angry responses from others present about how the government was trying to force them to abandon their Christian beliefs and values, and would next require the civic club to stop opening with a prayer.
I suggested to the president that while the couple appeared to have no real legal basis for demanding that the club move its meetings, that if the couple decided to file suit about the prayers the club would lose. The president said she had consulted a lawyer who said the same thing. Apparently the lawyer suggested that she be proactive and switch the prayer to a moment of silence.
I'd be glad for any feedback. Does that sound like a correct reading of the law to everyone else?
Posted by: JuliaL | February 8, 2009 1:50 PM
Michael also makes good points. I was making very broad generalizations in my comment. It's a combination of his points, my points, and other points not yet discussed. It's not that I am more "right" than Michael, it's just that my point may be a bigger factor. May.
Posted by: W. Kevin Vicklund | February 8, 2009 2:08 PM
JuliaL: Is the "civics club" a governmental body receiving public funds? If not, there are no 1st Amendment issues at all. Even if they are, in some instances they could agree to open with a prayer: Congress does it all the time.
Holding public meetings, voting precincts, etc in a church has been repeatedly held to not be a violation. So I'm unclear on exactly what is happening here, other than the Satanist couple seem to have a problem. ;-)
Aside: I know you only said, "non-Christian," but what else could they be?
Posted by: kehrsam | February 8, 2009 2:22 PM
With the foreknowledge that I have no formal legal training:
From my knowledge of the existing precedents, it sounds like the meeting place is okay, although a compromise might be reached where not all meetings are held on church property.
The prayer issue is more problematic. Setting aside the question of whether the decision was right, Marsh v. Chambers established that, if done right, an opening prayer is permissible. I'd have to know more about how the prayer is conducted to be certain. Is it sectarian, or always the same person? Or do they have a process where they get a variety of local clergy to come in? A moment of silence is a very good compromise, but may not be necessary. Can you tell us more?
I emphasize that I am discussing the is, not the ought.
Posted by: W. Kevin Vicklund | February 8, 2009 2:23 PM
It's my understanding that Cobb County is not a small district at all. In fact, if I remember correctly, it's a suburb of Atlanta and one of the largest districts in Georgia.
It's also the same school board that, a few years ago, tried to put evolution "warning labels" on their biology textbooks. A Penn and Teller's Bullshit! episode actually has some footage of one of their school board meetings where they approved an anti-evolution resolution. This was not some well-meaning rubes just trying to do the best they could and accidentally supporting a religious right agenda.
And Cobb county DID quixotically pursue a blatantly unconstitutional policy and DID fight a losing battle and DID get sued and they DID lose badly. The Cobb County warning labels were a big kerfuffle.
So, anyways, you're wrong.
Posted by: Wes | February 8, 2009 2:30 PM
Wes: Your conclusion is backward. Since Cobb County did lose that case, does that not explain why a system Principal would misunderstand how the rules work and started discriminating against religion, rather than in favor. And that as soon as the central administration found out, they immediately set things right.
Are you really claiming that somethig bad happened in the way they handled this case and that they are still bad actors based on the prior error?
Posted by: kehrsam | February 8, 2009 2:37 PM
kehrsam,
While the civic clubs in our city are not governmental bodies exactly, they do have charters for very specific areas. The civic club is considered to be speaking for the neighborhood in general when it appears before the Planning Commission, City Council, etc. Any person not sent by the civic club to speak is taken to be speaking for him/herself alone. So the civic clubs are indeed an active and relatively powerful part of the political process here. They sometimes get government money to help with public events, such as the annual "Clean Sweep"; and city employees are available to help with newsletters, which the city prints and mails.
The neighborhood I'm speaking of (where "neighborhood" means area covered by a single civic club charter) adjoins mine. In these two neighborhoods of I think no more than 1500 total homes, there are ten churches. While the couple identified themselves only as "non-Christian" I suspect it's worse than Satanist; they may in fact be---------atheist.
W. Kevin, I'm not entirely sure how their prayer process works. Our civic club also has always begun with a prayer. We don't have anyone special come in to do the prayers; it's always just whoever is present who is willing to do it. I'm the president right now, and I'd certainly be willing to have that two minutes taken by someone of a non-Christian religion, or have it be a thoughtful presentation by an Atheist. To the best of my knowledge, however, everyone who attends is either actively Christian or just ambiguously non-religious. No one has ever complained.
Posted by: JuliaL | February 8, 2009 2:55 PM
But not this time. They were wrong, they were spanked, and they folded. I call that progress.
My point was that with thousands of school districts run by people without specialized training in every aspect of law, there will be stupid mistakes. I'd not want to be judged on my mistakes without factoring in how I handled them after they were pointed out to me.
Posted by: Enkidu | February 8, 2009 2:56 PM
JuliaL: It sounds like your civic club can do just about anything it wants without triggering an Establishment Clause violation. The fact that you receive occasional government assistance aside, no rational person would confuse the actions of your group with endorsement by the local government. So I still don't understand the legal advice you reported in your first post.
That being said, were someone to turn the group into a Prayer Meeting, someone might challenge your support from the city, but that suit would be against the city, not your group. Yours appears to be a voluntary association that can do whatever you want.
As for your couple, change the "Prayer" to an "Invocation" and invite them to deliver the next one with some choice quotes from Voltaire or Robert Ingersoll. Since you always appear to be so rational and evenhanded, I would think even militant atheists should be mollified.
Posted by: kehrsam | February 8, 2009 3:32 PM
Julia,
As has been mentioned, the use of the church facility is perfectly legal in the manner in which you described it. State and federal funds have been used to establish programs that are run out of religious facilities for years. As long as the actual program is not tied to religious activities, then it passes. You could have someone argue the prayer, but as long as it was well documented that the moment was available for religious and non-religious alike, it too would be legal. Of course these statements of "legal" would be based on the assumption that your organization has actual government standing, which, as kehrsam and others have pointed out, is far from obvious.
You could get a weird judge to rule against you, or some bizarre technicality could be used (again likely with a weird judge), but that could happen in almost any case.
The only grounds I can see for denying the club would be if they failed to properly complete their required charter/constitution and/or failed to have a faculty coordinator. Otherwise, as Ed said, this is open and shut, administration screwed up.
Posted by: dogmeatib | February 8, 2009 4:28 PM
kehrsam,
Thanks much! Very helpful ideas.
Posted by: JuliaL | February 8, 2009 4:30 PM
dogmeatib,
Thanks for your input. I appreciate the insight.
Posted by: JuliaL | February 8, 2009 4:32 PM
Establishment Clause may still apply. From the description, these civic clubs may qualify as quasi-governmental bodies, in which case the 14th Amendment kicks in. Hard to tell. Kehrsam' suggestion is a good solution (although "invocation" still sounds like "prayer" to my ears, but I'm not sure what a better word is, maybe saying "prayer or invocation" to imply there's a difference?)
In any case, this way on the fringe and is certainly not clear-cut.
Posted by: W. Kevin Vicklund | February 8, 2009 5:26 PM
I wasn't trying to make a Michael vs. Kevin thing, just that I thought Kevin's point was right on the money -- and critically important to remember, because we're faced with a lot of these things "everybody knows" even though they're not true because the rightwing noise machine has been pushing them hard for decades now (many people's entire lives they've heard this stuff). And while I think Michael's other points were good, his #3 was not. It might be in some rare cases that this would be the reason, but mighty darned rare. Kevin's point, that people have been deliberately misled for decades -- in many cases all their lives -- by a loud and insistent campaign designed to mislead, is OTOH a very common problem.
Posted by: QrazyQat | February 8, 2009 10:54 PM
When I was in school, I certainly perceived all the school clubs as being endorsed by the school. I think the other students did, too. It is also my understanding that schools usually pay the faculty advisors of student clubs a bonus stipend. Does this mean my tax money has to go to paying teachers extra to run religion clubs that students perceive as being endorsed by the school?
Maybe this stuff is "crystal clear" to lawyers who have studied the case law, but these decisions don't appear to be the obvious result of a general principle of religious freedom; the distinctions seem quite arbitrary.
Posted by: unclear | February 9, 2009 10:37 AM
unclear:
I don't see how you can perceive school clubs as being "endorsed" by the school -- they have a chess club, does that mean that the school is "endorsing" chess over other board games?
And I think you're misunderstanding the purpose of faculty advisers: In my experience, they are only there to oversee and occasionally direct the activities of a club, primarily to ensure that they don't use the time to misbehave, and to ensure that the club has a representative among the faculty, to make sure their voice is heard. (and I don't believe they get paid extra, but I could be completely wrong).
Posted by: Sean Micheal | February 9, 2009 5:31 PM
Sean Michael: In most jurisdictions, teachers who volunteer for sponsorship duty receive a little extra pay. What unclear is missing is that this is done on an entirely religion-free basis: The kids decide what student-led groups are to be set up, the school merely provides a staff member to be in charge of the things the group needs, where these are roughly the same for a religious club as for a secular club. The clubs are set up and organized by the kids: Whether the group is secular or religious is irrelevant.
Posted by: kehrsam | February 9, 2009 10:57 PM
kehrsam:
Ah, I see. Thank you.
Posted by: Sean Michael | February 10, 2009 12:27 AM
Sean Michael:
At my school, the chess club was run by a teacher who actively promoted chess during his math class and tried hard to draft students into the club. Many other teachers did the same for their clubs. I did not view the school as necessarily promoting chess over other board games, but the teacher explicitly promoted chess as a good activity for developing mathematical thinking, promoting one of the goals of the school. Likewise, the gay-straight alliance (another of the groups that my school had in common with this one) promoted my school's goal of diversity.
kehrsam:
Thank you for clearing that up; I didn't realize that "student-led" meant these groups were actually set up and organized by the kids. At my school, the clubs technically had student officers, but the teachers made all the actual decisions, and I don't remember any cases of students starting new clubs. If it's really the case that any group of students can form a club at this school, and receive an appointed faculty advisor, then things are much more open at this school than I imagined possible. Is this common?
Posted by: unclear | February 10, 2009 10:18 AM