RELIGION IN PUBLIC SCHOOLS (Update 1)

Despite several Supreme Court decisions on religion in public schools, conflict in this area has proliferated in recent years. One example is the discord that persists over the teaching of evolution. In epperson v. arkansas (1968) the Court struck down a statute prohibiting the teaching of evolution. In Edwards v. Aguillard (1987) the Court invalidated a Louisiana statute requiring that "creation science" be given equal exposure in public schools where evolution is taught. (Among other things, creation science teaches that plants and animals were created substantially as they now exist.) The majority reasoned that the statute was intended to promote the biblical version of creation or to hamper the teaching of evolution for religious reasons. However, the Court did not hold that teaching creationism is unconstitutional.

In several cases, religious parents have tried to turn the Court's expansive interpretation of the establishment clause to their advantage by alleging that public schools were unconstitutionally establishing a religion of secular humanism. Although the Supreme Court has not tackled this issue, the lower federal courts have uniformly rejected these claims. These results seem appropriate. The Supreme Court has stated that nontheistic faiths, including secular humanism, can qualify as first amendment religions. However, if secular humanism is defined narrowly enough to be a specific religion, the public schools are not establishing it, for they promote no particular dogma or rituals. In contrast, if secular humanism is defined broadly enough to include the education given in public schools, it ceases to be a religion for First Amendment purposes. A contrary conclusion would impel the untenable result that virtually any secular enthusiasm, such as music, art, or sports, would be considered a religion and thus barred from the public schools.

This conclusion does not end all controversy, however; parents often charge that teaching in public schools is inimical to their religious beliefs and therefore violates their right to free exercise of religion. The Supreme Court has not yet dealt with this issue, and its pronouncements elsewhere offer little guidance. The Court has often stated that a substantial burden of free exercise can be justified only by a compelling state interest pursued by the least restrictive means. Public schools have denied that their teaching burdens free exercise at all because their teaching is secular, not religious; children need not accept what is taught, and children are not compelled to attend public schools, but are free to attend private schools. Dissatisfied parents reply that free exercise is burdened if children are taught that their religion is wrong, although the children do not have to profess acceptance of the schools' teaching, and although others consider the issues in question secular. These parents stress that young impressionable children may not understand that they are free to reject the school's teaching or may be too intimidated to express their disagreement. They also argue that the option of attending private schools is too expensive to remove the burden on free exercise.

Even if the curriculum does burden free exercise, public schools claim a compelling state interest in giving all children this education. Most observers concede that states have an interest in teaching basic skills such as reading and writing. However, it is debatable how important the state's interest is in other areas, including moral values and sex education. If a public school does burden free exercise without compelling justification, some accommodation of the religious students may be necessary as a remedy. Many school systems excuse students from certain programs to which they have religious objections, and some schools provide students with alternative instruction. The latter approach can be expensive and administratively burdensome; the former may prevent the child from obtaining essential skills. Suggestions that children be given vouchers to attend private schools, meanwhile, have been attacked as both violative of the establishment clause and destructive of the objectives of public education.

The legal need for accommodation may no longer be as pressing as it once was, however. The Supreme Court recently indicated in employment division, department of human resources of oregon v. smith (1990) that it has abandoned the "compelling state interest" standard. If the Court adheres to this position, public schools would not be constitutionally required to show a compelling reason for subjecting children to teaching that is hostile to their religion.

In addition to controversies over school curriculum, disputes have also multiplied over the use of public school facilities by student religious groups. In widmar v. vincent (1981), the Supreme Court insisted that public university facilities generally available to student groups and speakers also be open to student religious groups. In 1984, Congress tried to extend this principle to secondary schools by adopting the Equal Access Act, which forbids public secondary schools from discriminating on the basis of the content of speech when affording student groups access to school facilities outside school hours. However, the school may not sponsor, and school employees may not participate in, student religious groups.

Some critics believed that the act was unconstitutional because of the possibility that school employees would become involved and that students would perceive the provision of facilities to student religious groups as endorsing religion. The Court disagreed in board of education of westside community schools v. mergens (1990), holding that the act did not violate the establishment clause.

Although the Court has repeatedly struck down daily school prayers, many schools have included prayers or benedictions in special school events. The Supreme Court has upheld the opening of legislative sessions with prayers in marsh v. chambers (1983), but the differences in the public school context have persuaded some lower courts that the practice cannot be permitted there.

The Supreme Court has said that public schools may study the Bible as literature and history, but not for devotional purposes. This has required lower courts to decide case by case whether particular programs meet this standard or improperly include religious indoctrination.

Public school teachers occasionally endorse or criticize religious beliefs in the classroom. Courts generally have tried to distinguish between teachers' statements of their own beliefs, which are permissible and protected by the rights of free speech and free exercise, and propagandizing, which infringes on both the students' right of free exercise and the establishment clause. Lower courts have also upheld regulations against teachers' regularly wearing distinctively religious garb.

George W. Dent
(1992)

Bibliography

Dent, George W. 1988 Religious Children, Secular Schools.

Southern California Law Review 61:863–941. Strossen, Nadine 1986 "Secular Humanism" and "Scientific Creationism": Proposed Standards for Reviving Curricular Decisions Affecting Students' Religious Freedom. Ohio State Law Journal 47:333–407.