鈥淪eparation of church and state is dead,鈥� says Martha McCarthy, professor of education law and policy at Indiana University Bloomington. From increased state aid for religious schools to the U.S. Education Department鈥檚 controversial prayer guide鈥攁n overview of legally acceptable instances when students may pray in school that, according to critics, pushes the parameters of the law鈥擬cCarthy observes a trend toward increasing religious accommodation. Others disagree: 鈥淚t all depends on what you take that vague metaphor to mean,鈥� says UCLA law Professor Eugene Volokh. 鈥淚f you mean that the state may not throw its weight behind religion, then separation of church and state is alive and well. If you interpret it to mean that nothing religious should be allowed on public property, that principle is dead, and good riddance to it.鈥�
At issue is the Establishment Clause, the first 16 words of the First Amendment, which prohibits the government from advancing or inhibiting religion. For something that sounds so simple, this directive has caused a lot of recent confusion on school campuses鈥攁nd in the courts.
SWEET JUSTICE
Case:Westfield High School L.I.F.E. Club v. Westfield Public 69传媒
Specifics: In December 2002, six students at Westfield High School in western Massachusetts requested permission to pass out candy canes with a card containing a prayer and an explanation of the sweet鈥檚 purported religious origins. The administration refused and meted out one-day suspensions when the students, members of a Bible club, distributed the candy between classes anyway. The students filed suit, claiming that school policy prohibiting distribution of printed material on school grounds without administrators鈥� permission violated their free expression rights.
Arguments: Jeffrey Pyle of the Massachusetts ACLU, which filed a friend-of-the-court brief, called the situation 鈥渁 tempest in a teapot鈥� because 鈥渞easoning about something small like candy canes can be used to censor something much more important.鈥�
Outcome: Rejecting the school鈥檚 claim that the Establishment Clause required it to regulate students鈥� religious speech, federal Judge Frank Freedman declared the school policy unconstitutional.
Significance: Rick Garnett, associate professor of law at the University of Notre Dame, observes that many people, including school officials, hold the mistaken conception that 鈥渘o religious stuff may ever be spoken on public property.鈥� Increasingly, the courts are deciding that the Establishment Clause does not apply to personal speech, even on public grounds.
FIT TO BE TILED
Case:Fleming v. Jefferson County School District
Specifics: As part of the post-shooting restoration process at Columbine High School in Littleton, Colorado, administrators encouraged families and community members to paint decorative tiles for display in the school鈥檚 hallways. To the dismay of some parents who submitted tiles bearing Bible verses, crosses, and the names of slain children, administrators barred tiles with religious symbols or direct references to the shootings. Several parents sued the district in October 1999, claiming the ban violated their rights to free speech and exercise of religion.
Arguments: John Whitehead of the Rutherford Institute, the conservative legal organization that represented the parents, argued that by inviting community members to participate in the art project, the school 鈥渙pened a public forum, and once they do that, they can鈥檛 discriminate on the basis of content.鈥�
Outcome: The 10th U.S. Circuit Court of Appeals ruled 3-0 in August 2002 that the tile project constituted 鈥渟chool-sponsored speech.鈥� Therefore, administrators had the authority to censor tiles they found 鈥渙bjectionable,鈥� including those with religious content.
Significance: When a school expresses its own views鈥攅ven when it uses other people to do so, as Columbine High School did鈥攖he school has a right to control what it says, Volokh states.
READING THE BANS
Case:Counts v. Cedarville School District
Specifics: Following a parent鈥檚 complaint that the Harry Potter books promote witchcraft and disrespect toward authority, in June 2002 the Cedarville, Arkansas, school board voted to remove the books from library shelves and require written parental permission before students could check them out. Billy Ray and Mary Nell Counts, whose daughter attends a Cedarville school, filed suit in federal court challenging the board鈥檚 decision.
Arguments: A dozen national groups and author Judy Blume filed a friend- of-the-court brief supporting the Counts. Barry Lynn, executive director of Americans United for Separation of Church and State, emphasized that school boards 鈥渃annot use a religious motive to keep people from a book that is otherwise suitable.鈥�
Outcome: In April 2003, U.S. District Judge Jimm Hendren ruled that the school board鈥檚 policy violated students鈥� First Amendment rights. He found no evidence to corroborate the board鈥檚 claim that the books were encouraging disobedience among students and ordered Harry Potter back to the library shelves.
Significance: McCarthy says this case resembles religious groups鈥� previous challenges to sex education and evolution studies, which they claim violate the Establishment Clause by promoting antitheistic religious beliefs. The courts, however, tend to view such content as 鈥渞eligiously neutral.鈥�
PRACTICE MAKES IMPERFECT
Case:Eklund v. Byron Union School District
Specifics: The Excelsior School of Byron, near Oakland, California, offers a 7th grade world history course that includes a unit on Islam. In June 2002, the Thomas More Law Center, representing four children and their parents, charged that the school violated the Establishment Clause by using taxpayer dollars to teach students how to practice Islam. The Center claims that students had to memorize Islamic prayers, chant praise to Allah, and fast during lunch.
Arguments: Byron School District鈥檚 attorney, Linda Lye, emphasizes that several factual allegations in the case are under dispute. The district maintains that the teacher鈥檚 role-playing exercises were 鈥渃reative, interactive methods accepted as best practices for teaching social studies at that [grade] level鈥� and 鈥渄id not have students engage in religious or devotional practices.鈥�
Outcome: Oral arguments for a summary judgment will be heard in December.
Significance: Cornell University law Professor Gary Simson explains that while teaching about religion in public schools is legal, the line between academic teaching about religion and devotional teaching of religion remains controversial. The court must decide whether the school 鈥渃onveys an impression of endorsing religion,鈥� a decision that hinges on the specifics of the case.
鈥擫illian Hsu
