Way back in February of last year, I posted about
Alabama's attempt at a Student Religious Liberties Act (then enumerated as
HB-281). Well, it seems the powers that be, are at it again according to
Amanda Scott. In a semi-private correspondence she writes:
Some of you may recall that last September Representative Steve McMillan and Senator Gerald Dial planned to co-sponsor 'Alabama Religious Liberties Act' which contained a provision that explicitly allowed school personnel to participate in prayer and religious activities with students. I wrote a letter to Mr. McMillan and Mr. Dial urging them to rescind their sponsorship of the bill because the provision violated the Establishment Clause of the First Amendment. Mr. McMillan wrote back, thanking me for my research and saying that he would weigh my rationale.
Last night I wrote back to Mr. McMillan asking him for an update on the status of the bill. He said that the bill was pre-filed by other legislators and that he was no longer a co-sponsor. He told me that I could request a public hearing with the Committee Chair. He directed his Legislative Assistant to forward me a copy of the bill. After reading it, I noticed that the portion was no longer in the bill, and there were some provisions explicitly allowing school districts to disclaim endorsement of religious activities. Although the sponsors of the bill are clearly pandering to their religious voting bloc, it is at least reassuring that one legislator partly took what I said into consideration.
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I highlight what Amanda writes for two reasons. First she is an
award winning, bright young woman doing amazing advocacy work in regards to Separation of Church and State (SOCAS) issues as well as equity laws targeting public accommodation. Think about it, how many 21-year-olds do you know that even have a clue as to what the "No Religious Test Clause of Article VI" even is?
What impresses about Amanda, who first came into the national spotlight just last year due to her activism against Mobile County's "In God We Trust" plaque, is despite all the
hate and
threats of death, she had
this to say:
"I tried to be respectful in my testimony and my interview, but I was met with hateful comments and messages from members of the local community attacking my personal character and even my physical appearance.
,,,
"I will not allow the hatred to discourage me from continuing to defend the constitutional principle of the separation of church and state and the civil rights of atheists here in the city of Mobile and the state of Alabama," she said.
We could all learn something from her personal example as well as what she accomplished, "it is at least reassuring that one legislator partly took what I said into consideration." It is a small step, but one that is in the right direction. Just imagine what could be accomplished if each of us had a victory such as Amanda's, bills such as
HB-1 would never make it to the legislative floor to even be considered.
__
So lets have a look at what
HB-1 is all about, which is the second reason I highlight Amanda's information.
If one were to go back to late 2013 - early 2014 we had a wave of mini-RFRAs (Religious Freedom Restoration Acts) explode on to the political scene. Also called "Turn the Gays Away Bills" states such as Idaho, Kansas, South Dakota, Tennessee, Mississippi, and Arizona tried their hand at legalizing discrimination. It was the fiasco surrounding Arizona's SB-1062 that brought the spotlight to bear on these pieces of legislation and the
power(s) behind them.
Cornerstone in Idaho, the Kansas Family Policy Council, and the Center for Arizona Policy, which supports the bill there, are all part of a network of 38 state “family policy councils” pressing for these laws under the umbrella of Citizen Link, the advocacy arm of the conservative Christian powerhouse Focus on the Family. Citizen Link says its aim is to “help citizens understand and passionately engage in policy issues relevant to families from a foundation firmly established in a biblical worldview.”
One of the off-shoots to hit the scene, Student Religious Liberties Acts, "legislation that push for government sponsored and promoted prayer in the public school classrooms." In other words, one big waste of time and money,
HB 281 claims to allow religious student expression in public school classrooms, but actually is unnecessary and potentially harmful. Students can already observe their religion as long as it isn’t coercive or disrupt the school’s educational mission and activities.
According to
Americans United for Separation of Church and State (AU):
HB 281 crosses that line. If passed, it would allow students to use the classroom to proselytize to fellow students. The bill doesn’t differentiate between personal observance, which is allowable, and outward promotion and proselytization of religion, which is blatantly unconstitutional.
Again, students are a captive audience required to be in school by law. This bill would inevitably cause certain students to feel like outsiders for what they believe in their very own classroom. A public school is not a place where people should feel coerced into certain beliefs or made to feel uncomfortable if they are a minority religion.
Although AU was writing in regards to HB-281, the 2014 version of HB-1, the wording of this year incarnation is identical - for comparison see
HB-281 (the 2014 version) versus
HB-1 (the 2015 version). I think it would be safe to assume that AU's criticism would be the same for both.
To break down AU's criticism further,,,
Allow religious student expression in public school classrooms:
In
Tinker v. Des Moines (393 U.S. 503, 1969), two important points were made in the Court's opinion on the case.
- It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate. (at 506)
- In order for the State in the person of school officials to justify prohibition of a particular expression of opinion, it must be able to show that its action was caused by something more than a mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint. Certainly where there is no finding and no showing that engaging in the forbidden conduct would "materially and substantially interfere with the requirements of appropriate discipline in the operation of the school," the prohibition cannot be sustained. (at 509, citations omitted)
In other words, a student's right to expression is already protected although with some caveats. For example,
Bethel School District v. Fraser (1986),
Hazelwood v. Kuhlmeier (1988),
Morse v. Frederick (2007).
On the other hand, the Court has repeatedly emphasized the need for affirming the comprehensive authority of the States and of school officials, consistent with fundamental constitutional safeguards, to prescribe and control conduct in the schools. Our problem lies in the area where students in the exercise of First Amendment rights collide with the rules of the school authorities. (at 507, citations omitted)
Students can already observe their religion as long as it isn’t coercive or disrupt the school’s educational mission and activities.
This area of concern is laid out quite clearly in
20 U.S.C. § 4071:
It shall be unlawful for any public secondary school which receives Federal financial assistance and which has a limited open forum to deny equal access or a fair opportunity to, or discriminate against, any students who wish to conduct a meeting within that limited open forum on the basis of the religious, political, philosophical, or other content of the speech at such meetings.
As long as it meets the Fair opportunity criteria:
Schools shall be deemed to offer a fair opportunity to students who wish to conduct a meeting within its limited open forum if such school uniformly provides that--
(1) the meeting is voluntary and student-initiated;
(2) there is no sponsorship of the meeting by the school, the government, or its agents or employees;
(3) employees or agents of the school or government are present at religious meetings only in a nonparticipatory capacity;
(4) the meeting does not materially and substantially interfere with the orderly conduct of educational activities within the school; and
(5) nonschool persons may not direct, conduct, control, or regularly attend activities of student groups.
It would allow students to use the classroom to proselytize to fellow students.
In 2003,
Walz v. Egg Harbor Twp. Bd. of Educ., 342 F.3d 271, 279–81 (3d Cir. ) hit the news. It is the "Candy Cane case" that began in 1998. [Not to be confused with
Morgan v. Swanson in regards to incidents occurring in the Plano Independent School District.]
In their ruling, the Court concluded:
In short, Daniel Walz was not attempting to exercise a right to personal religious observance in response to a class assignment or activity. His mother's stated purpose was to promote a religious message through the channel of a benign classroom activity. In the context of its classroom holiday parties, the school's restrictions on this expression were designed to prevent proselytizing speech that, if permitted, would be at cross-purposes with its educational goal and could appear to bear the school's seal of approval. Given its valid educational purpose, the school's action here was appropriate,,, (at 43, citations omitted)
[See also -
Busch v. Marple Newtown Sch. Dist., 567 F.3d 89, 99 (3d Cir. 2009): "Plaintiffs, who are mother and son, bring free speech, establishment, and equal protection claims against Defendants, who are school officials and the school district. These claims stem from an elementary school’s restriction of the mother’s effort to read aloud from scripture to students in her son’s kindergarten classroom as part of a curricular “show and tell”- type activity. The District Court granted summary judgment in favor of Defendants on all claims. We will affirm."
Lassonde v. Pleasanton Unified Sch. Dist., 320 F.3d 979, 983–85 (9th Cir. 2003): "Plaintiff Nicholas Lassonde brings this action under 42 U.S.C. § 1983, alleging that school officials violated his First Amendment rights by censoring sectarian, proselytizing portions of a speech that Plaintiff gave at his high school graduation ceremony. The district court granted summary judgment in favor of Defendants, concluding that the school officials' acts were necessary to avoid violating the Establishment Clause. We affirm."]
The bill doesn’t differentiate between personal observance, which is allowable, and outward promotion and proselytization of religion, which is blatantly unconstitutional.
This area of First Amendment law gets very tricky and really sticky. Following the Tinker decision in 1969 and up until the early 1980s, there were numerous cases decided in favor of student expression and against administrative censorship.
Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 278 (1988) changed that in some regards. [Some now refer to a Tinker test and a Hazlewood test as both are "
considered landmarks for defining student right[s] to expression in public schools. While subsequent courts have varied significantly on when the
Hazelwood decision applies, the case remains a strong precedent in how student speech is regulated."]
First Amendment rights of students in the public schools are not automatically coextensive with the rights of adults in other settings, and must be applied in light of the special characteristics of the school environment. A school need not tolerate student speech that is inconsistent with its basic educational mission, even though the government could not censor similar speech outside the school. (at 260)
,,,
The standard for determining when a school may punish student expression that happens to occur on school premises is not the standard for determining when a school may refuse to lend its name and resources to the dissemination of student expression. Educators do not offend the First Amendment by exercising editorial control over the style and content of student speech in school-sponsored expressive activities, so long as their actions are reasonably related to legitimate pedagogical concerns. (at 261, citations omitted)
In other words, the Court held that the First Amendment did not require schools to affirmatively promote particular types of student speech. The issue with HB-1, by throwing in a very lame disclaimer, they attempt to skirt this issue.
In order to ensure that a school district does not discriminate against a student's publicly stated voluntary expression of a religious viewpoint, if any, and to eliminate any actual or perceived affirmative school sponsorship or attribution to the school district of a student's expression of a religious viewpoint, if any, each school district shall adopt a policy governing voluntary religious expression in its schools.
HB-1 does not differentiate between student expression - personal
observance of religion - and student expression that constitutes
school endorsed and coerced proselytizing a particular view. For example, in both
Walz v. Egg Harbor and
Busch v. Marple (see above) the moms had very captive audiences. Any one of the parents associated with either case, could have taken the mom's actions as being endorsed by the school as it was an in-class school activity.
Both
Edwards v. Aguillard, 482 U.S. 578, 584 (1987):
Families entrust public schools with the education of their children, but condition their trust on the understanding that the classroom will not purposely be used to advance religious views that may conflict with the private beliefs of the student and his or her family. Students in such institutions are impressionable, and their attendance is involuntary...The State exerts great authority and coercive power through mandatory attendance requirements, and because of the students' emulation of teachers as role models and the children's susceptibility to peer pressure,,,
and
Lee v. Weisman 505 U.S. 577, 587 (1992):
The principle that government may accommodate the free exercise of religion does not supersede the fundamental limitations imposed by the Establishment Clause. It is beyond dispute that, at a minimum, the Constitution guarantees that government may not coerce anyone to support or participate in religion or its exercise, or otherwise act in a way which "establishes a [state] religion or religious faith, or tends to do so."(citations omitted)
opine on these points of contention.
Students are a captive audience required to be in school by law.
As we have observed before, there are heightened concerns with protecting freedom of conscience from subtle coercive pressure in the elementary and secondary public schools. Our decisions in Engel v. Vitale, 370 U. S. 421 (1962), and School Dist. of Abington recognize, among other things, that prayer exercises in public schools carry a particular risk of indirect coercion. The concern may not be limited to the context of schools, but it is most pronounced there. What to most believers may seem nothing more than a reasonable request that the nonbeliever respect their religious practices, in a school context may appear to the nonbeliever or dissenter to be an attempt to employ the machinery of the State to enforce a religious orthodoxy. (at 592, citations omitted)
Further, Justice Blackmun emphasized, "our decisions have gone beyond prohibiting coercion, however, because the Court has recognized that 'the fullest possible scope of religious liberty,' entails more than freedom from coercion." (at 606, citation omitted) In other words the
government is powerless to place its imprimatur on any
religious activity.
This bill would inevitably cause certain students to feel like outsiders for what they believe in their very own classroom.
In
Lynch v. Donnelly 465 U.S. 668 (1984), Justice O’Connor in her concurring opinion clarifying how the Establishment Clause should be read, offered this bit of insight in regards to being an insider/outsider:
The Establishment Clause prohibits government from making adherence to a religion relevant in any way to a person's standing in the political community. Government can run afoul of that prohibition…[by] endorsement or disapproval of religion. Endorsement sends a message to nonadherents that they are outsiders, not full members of the political community, and an accompanying message to adherents that they are insiders, favored members of the political community.
A good illustration of this exact point, the young boy in the Sabine Parish school district in Louisiana
who was told, "this is the Bible belt" you should "change" your faith
or transfer to another district school where "there are more Asians,"
by school administration all because of his Buddhist beliefs.
A public school is not a place where people should feel coerced into certain beliefs or made to feel uncomfortable if they are a minority religion.
Going back to
Busch v. Marple, this issue is touched upon a s well as the age of the student audience:
In the elementary school classroom, “the appropriateness of student expression depends on several factors, including the type of speech, the age of the locutor and audience, the school's control over the activity in which the expression occurs, and whether the school solicits individual views from students during the activity.” As we have explained, “the age of the students bears an important inverse relationship to the degree and kind of control a school may exercise: as a general matter, the younger the students, the more control a school may exercise.” “While secondary school students are mature enough and are likely to understand that a school does not endorse or support speech that it merely permits on a nondiscriminatory basis, kindergartners and first graders are different.” For elementary school students, “the line between school-endorsed speech and merely allowable speech is blurred, not only for the young, impressionable students but also for their parents who trust the school to confine organized activities to legitimate and pedagogically-based goals.”
Restrictions on speech during a school's organized, curricular activities are within the school's legitimate area of control because they help create the structured environment in which the school imparts basic social, behavioral, and academic lessons. The curricular standards applied during these activities, “especially those that occur in kindergarten and first grade, when children are most impressionable, should not be lightly overturned.”
,,,
Likewise, when parents participate in an elementary school's curricular activities, the school may impose the same requirement-that they refrain from promoting specific messages in class. The school's pedagogical considerations are present, and are perhaps heightened, when a parent is the speaker because parents, much like teachers, are typically held in high regard and viewed as authoritative by young children. By inviting participation in curricular activities, educators do not cede control over the message and content of the subject matter presented in the classroom. Were teachers or school administrators required to do so, individual students or parents could use the classroom to promote any message in the guise of a pedagogically approved curricular activity. (at II B, citations omitted)
As one can see just by my little exploration (and there are hundreds more cases that deal specifically with the free speech, establishment, and equal protection issues) the precedent has been set in regards to what is acceptable and what is not concerning religiosity in the public school setting. This bill as presented does nothing to protect a students religious liberty, it already is protected.
Justice Burger I believed summed up the issue well in his opinion of
Lynch v. Donnelly, when he penned, "[t]he Establishment Clause,,,is not a
precise, detailed provision in a legal code capable of ready
application. The purpose of the Establishment Clause 'was to state an
objective, not to write a statute.'" Alabama might learn a thing or two if they actually read the rulings already on the books before wasting more time and money.
This history may help explain why the Court consistently has declined to take a rigid, absolutist view of the Establishment Clause. We have refused "to construe the Religion Clauses with a literalness that would undermine the ultimate constitutional objective as illuminated by history." In our modern, complex society, whose traditions and constitutional underpinnings rest on and encourage diversity and pluralism in all areas, an absolutist approach in applying the Establishment Clause is simplistic, and has been uniformly rejected by the Court.
Rather than mechanically invalidating all governmental conduct or statutes that confer benefits or give special recognition to religion in general or to one faith -- as an absolutist approach would dictate -- the Court has scrutinized challenged legislation or official conduct to determine whether, in reality, it establishes a religion or religious faith, or tends to do so. Joseph Story wrote a century and a half ago:
"The real object of the [First] Amendment was . . . to prevent any national ecclesiastical establishment, which should give to an hierarchy the exclusive patronage of the national government."
In each case, the inquiry calls for line-drawing; no fixed, per se rule can be framed. The Establishment Clause, like the Due Process Clauses, is not a precise, detailed provision in a legal code capable of ready application. The purpose of the Establishment Clause "was to state an objective, not to write a statute." The line between permissible relationships and those barred by the Clause can no more be straight and unwavering than due process can be defined in a single stroke or phrase or test. The Clause erects a "blurred, indistinct, and variable barrier depending on all the circumstances of a particular relationship." (at 678,679 citations omitted)
