Are the Freedoms of Speech and Religion Meant To Be Mutually Exclusive?

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The Battle Ground school district in Washington State recently faced the dilemma of whether to allow students to meet in the morning before classes for Bible study. There certainly was no harm in such a meeting, and school facilities were available to students for other activities.

Yet, was it constitutional? It was difficult for school officials there to decide. The U.S. Supreme Court decision 22 years ago in Engle v. Vitale, which banned government-prescribed prayer in the classroom, did not deal specifically with the question before the Battle Ground district.

Many school administrators across the country now face a similar problem. Some allow voluntary, student-initiated speech while others, fearing court suits based on the establishment clause of the First Amendment, prohibit students from doing anything of a religious nature. Generally, school officials act not from malice toward religion, but from uncertainty and conflicting legal advice on the issue.

Decisions in federal courts have contributed to the confusion. Brandon v. Guilderland, a 1981 district-court ruling, prohibited extracurricular religious discussion. Later that same year, the U.S. Supreme Court, in Widmar v. Vincent, held that individual students may meet in publicly supported colleges and universities for religious purposes so long as those meetings are voluntary, student-initiated, and do not show state endorsement of the participants' beliefs. Indeed, the Court said that the free-speech clause of the First Amendment actually requires that student religious groups be given "equal access" to school facilities.

Since then, the lower courts have followed no discernible course, with the latest decision (in a case that originated in Little Axe, Okla.) declaring religious gatherings constitutionally permissible after school, but not before school.

While the Court in the Widmar case affirmed the religious-speech rights of students, others say the Court's reasoning does not apply to students below the college level. (In a footnote in the decision, the Justices noted that because college students are "less impressionable than younger students," they would be able to make the distinction between the availability of a meeting place and institutional support of religion.)

Little wonder the Battle Ground school officials are in a quandary. If they are to err, they prefer to err on the side of caution--and that's what they and many school districts have done in banning student religious groups altogether. Without federal clarification, school authorities will have no direction on how to handle the troubling questions that surround this issue.

First, we should ask whether constitutional rights are being denied to students who wish to practice their faith? Professor Laurence H. Tribe, a constitutional scholar at Harvard University, recently told a Congressional subcommittee: "Indeed, for public school authorities ... to discriminate on the basis of religious content of the speech at such meetings would, in my view, constitute a violation of the right of free speech and free exercise of religion of the students involved."

Second, given the lack of consistency from school district to school district, are we creating an administrative nightmare for local officials? Schools and federal courts have differing ideas on whether students can voluntarily meet to discuss their faith. We all want administrative matters kept at the local level, but I suspect that local officials would welcome guidance on this issue.

Third, and most troubling, are we allowing government hostility toward religion? Our founding fathers, notably Thomas Jefferson, agonized over finding the proper balance between protecting freedom of speech and prohibiting government establishment of religion. As Senator Mark O. Hatfield has asked, "How can we adequately protect the right of our people to be free from having an alien religious practice forced upon their children by governmental action, but at the same time allow them to freely exercise their own religion without government hostility?"

If government is to be neutral, it cannot mandate or prescribe prayer, but it also must not ban the voluntary assembly of individuals for religious reasons.

The time has come for Congress to act. Senator Hatfield and I have sponsored legislation to extend to secondary schools the principle of "equal access" that the Supreme Court established in the Widmar decision.

Under our bill, if a public secondary school makes its facilities available for student-initiated, non-religious extracurricular activities, it must provide the same treatment to student groups wishing to meet for religious study or discussion.

Our equal-access bill contains a number of protections to explicitly prohibit state control or sponsorship of any prayer or other religious activity, and to ensure that such gatherings are voluntary, student-initiated, and occur during non-instructional periods. The bill has passed in the House Education and Labor Committee and should come up for consideration by the full House this month.

Not surprisingly, the measure has its critics. The American Civil Liberties Union has charged, among other things, that the bill is a backdoor approach to the school-prayer issue, would give preferred status to religious groups, discriminates against minority religions or smaller gatherings, and may be unconstitutional.

But this is not school prayer, which Senator Hatfield and I both oppose, and no preferential treatment would be permitted for any particular group, regardless of its makeup or size. In fact, the bill removes any hint of discrimination.

The Battle Ground school district avoided entering the church and state controversy by denying students access to its facilities for religious meetings. But do they risk violating other sacred constitutional precepts--the free-exercise and the free-speech clauses of the First Amendment--at the same time?

There is no way of knowing until the Supreme Court takes a case that will result in a definitive opinion on this issue. Until then, Congress can relieve school administrators of their dilemma by passing the equal-access bill, thus assuring government neutrality toward religion.

Vol. 03, Issue 33, Page 21

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