The American Association of School Administrators has devoted an entire issue of The School Administrator to the issue of what is and isn't allowed in terms of religion and public schools. They've invited folks like Charles Haynes to write articles on the subject. Haynes' article contains much good advice:
When school leaders ask how they should handle religion in public schools, religious liberty attorney Oliver Thomas begins his answer with this advice: "The time to buy the fire truck is before the fire."
As simple as that may sound, it's actually a tough sell in many school districts across the nation. And I should know because Thomas, a former school board member in Tennessee, and I have spent much of the past 20 years trying to persuade school leaders to be pro-active on issues involving religion and religious liberty.
He's right, and this is a serious problem. Far too many administrators and teachers simply don't know even the most basic things about what is and isn't allowed in public schools in terms of religion. That's why we get situations coming up where some kid is told he can't hand out candy canes with bible verses attached to them, or can't read their Bible during lunch. In 1994 and again in 2000, the Department of Education tried to fix this by sending out a document to every public school in the nation explaining what the law says, but it appears that most schools didn't bother to do anything with it. As Haynes notes:
From northern California to southern Florida, we encounter far too many superintendents who are reluctant to touch religion with the proverbial 10-foot pole. Following the let-sleeping-dogs-lie approach to administration, they start to think about First Amendment solutions only after a fight breaks out. By then it's often too late to avert a bitter legal battle that divides the community and erodes support for public education.
Even school districts with "religion policies" buried somewhere on the shelf still get into trouble because nobody remembers what the policies say. Earlier this year we were invited to speak in a large Texas school district that is facing a lawsuit over how religion is treated in their schools. In the complaint, a number of parents charge (among other things) that their children were prohibited from sharing their faith during the school day. It turns out that all of the alleged violations would not have happened if teachers and administrators had followed existing district policy. But when we asked site administrators about those policies, no one knew about them, much less whether teachers were applying them properly.
I would bet that's the case in 90% of the schools around the country, probably more. He also provides an excellent example of what schools should do:
By contrast, the school district in Richardson, Texas, was smart enough to buy the fire truck before the fire. Under the leadership of Carolyn Bukhair, superintendent from 1996 through 2004, the district appointed a task force of parents, religious leaders and school staff to develop guidelines for religious practices that cover everything from student prayer to religion in the curriculum. Rather than reacting to a crisis or lawsuit, this superintendent acted out of her conviction that bringing stakeholders to the table and involving them in decision-making creates stronger public schools.
But Richardson's adoption of a comprehensive policy was only the beginning. Bukhair made sure the community was informed about the policies, administrators and teachers received in-service training on the issues and a process for dialogue was established. The task force became the Religious Practices Advisory Committee charged with addressing religion in the schools on an ongoing basis. Conflicts and challenges still come up in Richardson (that's inevitable in any school district), but the schools and community have a process and a forum for dealing with the issues without litigation and division.
If only that would happen more often. Haynes also points out that there are still some particular situations that haven't been resolved, and some controversy over the legal advice the Bush administration has given to schools:
Although the Bush-era guidance tracks much of what is found in the national agreements of the 1990s, watchdog groups such as Americans United for Separation of Church and State argue that the new guidelines go too far by endorsing student religious expression at school-sponsored events. Even though the lower courts are divided on where schools should draw the line on student religious speech at graduation and other school programs, the DOE now takes the position that school officials may not restrict students' religious (or anti-religious) speech if student speakers are selected by "genuinely neutral, evenhanded criteria" and students retain "primary control" over the content.
It's fair to say that the new DOE guidelines push in the direction of encouraging school officials to allow more student religious expression before captive audiences at school events and in classrooms. In the view of some civil liberties groups, the DOE is stating what it wants the law to be rather than where the law actually is under current Supreme Court rulings. Nevertheless, most First Amendment experts would probably agree that if the school creates a "free-speech forum" at school events, during which time students are free to express themselves religiously or otherwise, schools may not censor religious or anti-religious speech. Of course, many administrators will view this approach as risky since such a forum would have to be open to all kinds of speech, including speech critical of religion or the school.
This disagreement about how to handle student religious expression in front of a captive audience is a reminder that some questions about what the law requires in a public school are still contested. Nevertheless, most of the current DOE guidance as well as the earlier guidelines endorsed by many national groups reflect broad consensus on most issues involving religion in the schools. If translated into local policies and practices, these agreements can help school districts build trust and support in the wider community.
I actually agree with the DOE guidelines in regard to allowing religious speech even with a captive audience as long as the speakers were chosen according to some objective criteria and if the content of the speech is determined by the student and not the school (that's why I think that the school was wrong in the Britanny McCombs case). But that's a fairly unsettled legal question. Still, if schools would have some sort of coherent policy on those matters, they would avoid a lot of problems.
Unfortunately, not all the essays in the issue are as accurate as the one by Haynes. Colby May, an attorney with Pat Robertson's American Center for Law and Justice, has an article that contains a highly dishonest representation of the Kitzmiller ruling. He writes:
Many school leaders would be surprised to learn that the Supreme Court said the following about evolutionary theory in Edwards v. Aguillard in 1987: "We do not imply that a legislature could never require that scientific critiques of prevailing scientific theories be taught. . . . [T]eaching a variety of scientific theories about the origins of humankind to schoolchildren might be validly done with the clear secular intent of enhancing the effectiveness of science instruction."
In other words, the intent of educators is all-important in considering whether a particular decision relating to evolutionary theory will be upheld by the courts. While the Supreme Court held that a school may teach "a variety of scientific theories about the origins of humankind" if it has the "clear secular intent of enhancing the effectiveness of science instruction," schools may not alter the content of classroom instruction solely for the purpose of supporting or harming a particular religious view. An alleged religious motivation was the primary problem in the Pennsylvania court case.
This is a distortion both of Edwards and Kitzmiller. Intent was only one aspect of both cases, and a relatively small one (particularly in Kitzmiller. To claim that the "primary problem" in the Dover case was the "religious motivation" of the board is to ignore about 90% of the ruling and all of the voluminous detail it goes into regarding the effect prong and the endorsement test. May clearly implies that if the school board just didn't show a religious purpose, the policy would have been constitutional; the ruling very, very clearly shows how absurd that claim is.
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I would agree with you on the Britanny McCombs case if the school hadn't vetted and edited her speech. Doesn't that make it no longer a free speech forum as described by the DOE?
Don-
This is a point I made while discussing the case a few months ago: the school should not have vetted her speech. The school claims that the speech represents them because they had to approve the speech, but the fact that they approved the speech creates the very problem they purport to solve. When it involves student speech, the courts have said that you can prevent them from engaging in profanity and anything illegal (threats or libel, for example) because those are viewpoint-neutral, but that you cannot engage in viewpoint discrimination. Thus, the school should vet such speeches only for those things and not for the viewpoint expressed, which properly belongs to the individual.
Note that this applies only when graduation speakers are chosen by some objective criteria (such as valedictorian status) and not when, as at my high school, potential speakers had to submit a speech to the administration and they chose who got to speak. In that circumstance, the school choosing the speaker having seen the speech beforehand does make a stronger case that the content of the speech represents the viewpoint of the school and may change the legal result. But in the McCombs case, she was chosen because she was valedictorian and it was automatic.
Ok, I think I agree, but I'll have to let it slosh around in my head for a while to be sure. Anyway, I was pretty sure you had probably discussed it before but I appreciate the rehash for a new reader. Thanks.
I disagree with you about the DOE rulings when it comes to 'captive audience' type situations. If the school says that students must be at an event, then that event becomes a de facto school sponsored (school mandated even) event that must abide by the religious neutrality requirement. The only way to remain neutral (it seems) would be to review all speeches for content and rither remove any overt religious references, or make sure every group is allowed equal time.
Obviously, the first option is simpler (although I'd prefere to see the second!).
One of the annoying things about the Britanny McCombs case is that regardless of wether the school should or shouldn't have vetted her speech (and I think that is where we disagree), she agreed to the modified speech, then went on to ignore that agreement. I think at that point,t eh school was entirely justified in shutting her down.
It's like some xians who go out and get certified to be apharmacist just hoping to be able to deny someoen birth control pills. They seek out this kind of controversy, then scream persecution. But that's another can of worms.
Cheers.
Fastlane wrote:
Except that graduations are not required events. You can get your diploma without attending graduation. It's a voluntary ceremony.
Fastlane: I fail to see how a school event being mandatory strips away the free speech rights of the speeker. Admittedly, it brings into play the free speech rights of those forced to listen, but the balancing there still probably favors the speaker. In no sense does it give the imprimatur of government to the speeker, thus rendering it a state act.
As for Ms McCombs, I applaud her! After all, the School Board said, in effect, "You can give a speech about anything you want, except for the one thing that you want to speak about." She submitted four drafts, they shot them all down except for a heavily redacted version of the last. I don't think it was in any way duplicitous for her to give her original speech, and I think this is one of the few circumstances where a Christian should consider "duplicity." It is entirely analogous to the position of Peter and John in Acts 4:19-20. If faced with an unjust choice, there is no sin in chosing justice.
It's still school sponsored and school encouraged, and the "it's not technically required" thing is a distinction that would rarely make much of a difference-- especially in the case of something basic like a graduation ceremony. Something like a graduation ceremony or a football game may not be required, but it is still one of the public services of the school-- incorporating religious observance into these things basically makes exposure to religious observance a precondition for enjoying that public service, and by implication denies the public service to those students who wish to abstain from such things. This is not a fair trade.
(This, however, is just a nitpick specifically on the idea of differentiating "voluntary" and "required" events in this way, not a reflection specifically on the Britanny McCombs case. Looking up the McCombs case I would hardly say that her speech in any way constituted an observance or government endorsement of religion, and I personally find the idea of the school administration limiting Ms. McCombs' speech as they did far more troublesome than the idea of Ms. McCombs having made a religious reference in her speech would have been.)
Where "justice" apparently means prostytizing to an unsuspecting and unconsenting audience?
:/
The DOE is nuts. Its madness is the result of a deluded belief that all religions are equidistant from the truth, which no adherent to any major world religion actually believes.
Religious pluralism, as a long-term strategy for any government, is impossible to sustain as a standing policy across multiple generations in one nation. One religion will eventually try to overtake another, unless a limiting line is drawn and defended, whether manifested in ethnic, geographic or confessional separatist traits or some other type of clear cut discriminant.
Who draws the line? By definition the line is already drawn when religions do not converge. (And no major world religion is totally syncretistic.) The greater question is who is to hold the line? Should it be the State or some authoritative religious institution?
When it is the State (or its proxies, such as the DOE) that teaches Islam, for example, but refrains from teaching Christianity, Judaism or any other religion in its public schools, as is happening in California, or denies expression of any religion in the school campus insisting Secularism is to stand supreme above all other belief systems, it is acting absurdly.
What will finally convince us of this absurdity is population changes, when more Muslims, for instance, crowd out Jews in some region of the country or more Christians crowd out Muslims, etc., and the pushing begins for some people to keep to their side of the fence while the rest stay on their own side. It will start in the school playground. It's happened in France already. What should keep it from happening in the USA?
Coin wrote:
But just because an event or situation is school sponsored does not mean that an individual is forbidden from speaking about religion there. A school talent show is also school sponsored, but a student can still perform a religious song there because they choose the song and it represents them, not the school. The same is true of a homework assignment. If someone is required to write a paper on someone who has been a great influence on them and they write about Christ, the fact that the homework is school sponsored and required does not mean the individual's paper represents the school's position. School sponsorship simply is not the trigger point for an establishment clause problem; the trigger point is whether the content of the speech represents the opinions and beliefs of the student (as it does in all three examples here, including the graduation ceremony) or whether it represents the opinions and beliefs of the school itself.
Since when does being exposed to an opinion one doesn't like constitute a violation of anyone's rights? A graduation speaker could say any number of things that people in the audience might disagree with. They might, for example, take the opposite tact and say something like this:
"After graduation, I plan to spend my life fighting against anti-gay bigotry in any way I can. I am horrified that so many Americans use their religious beliefs as an excuse for hatred and discrimination against gays and I will do everything in my power to fight against such bigotry. And if you are one of those people who thinks that gay people are evil and should be discriminated against, I urge you to rethink your position and recognize that we are all human beings and no one should be dehumanized."
In that case, would you still be concerned about an "unsuspecting and unconsenting" audience being exposed to ideas they disagree with? I certainly wouldn't. No one has a "right" to never have anyone express an opinion they don't like, and there's no reason that religious opinions in this regard should be treated any differently than non-religious ones. If the content of the speech represents the opinions of the student, then whether it includes discussion of their religious beliefs just doesn't matter.
Great Silence Day-
I've read your comment several times now and it makes no sense to me whatsoever. I don't know what you mean by "religious pluralism" and why you claim that it's "impossible to sustain". As opposed to what? What do you suggest as an alternative, that one religion be imposed on everyone? That's the only alternative I can think of, and the answer is an emphatic no.
I agree completely.
Oh, I wasn't talking in terms of rights in that post. I was just saying, entirely regardless of what the rights of either McCombs or the audience were, she was being an inconsiderate asshole. She was quite probably being an asshole in a constitutionally protected manner. But she was being an asshole nonetheless.
I see a huge difference in a football game, which is an entirely voluntary event that has no impact on one's grades or graduation, and the graduation event, which some (but not all schools) make mandatory.
Graduation is a very important step in many people's lives. I was an atheist when I graduated and would have been rather annoyed if my school valedictorian had try to pull some shit like this twit did. And I don't care about what the message is WRT religion, it has no place at t ahigh school graduation ceremony.
We all know that if the valedictorian had been an outspoken atheist and had used the podium to say jeebus is imaginary all religions were myths, do you think the xian whiners would be coming to that persons defense? And while I might have chuckled had something like that actually happened, I'd still think that person was a twit for doing so in that situation.
Does your view change for those schools that make graduation ceremonies a requirement (or at least require rather heroic efforts to get out of in one doesn't want to attend)?
Cheers.
Fastlane wrote:
But the question here is not whether you'd be annoyed or not. I'm annoyed all the time by things other people say, but that doesn't mean they don't have a legal right to say them. Thinking that it "has no place" doesn't make it illegal.
No, I doubt most of the folks defending McCombs would defend someone making anti-religious statements during a valedictory speech. But I would. And their inconsistency doesn't mean I should be inconsistent as well. And again, thinking they're a twit doesn't mean it's illegal. You have to separate those two concepts. This is a legal, constitutional question, not a question of personal preference.
No, it doesn't. Because I don't believe that, even in a mandatory setting, one has a right not to be offended by something someone else says. A valedictorian could say a thousand things that someone in the audience might find offensive. But that just has nothing to do with whether they have a legal right to say it. If they are selected for reasons not related to the content of the speech, then the content of that speech represents them, not the school. And they have a right to say what they want to say, even if some in the audience find it offensive.