Education Bill Prompts First Amendment Concerns

By Erik W. Robelen — May 03, 2000 4 min read
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While heated debates over flexibility and accountability are attracting the most attention as Congress seeks to pass major K-12 education legislation this year, a side battle has emerged over civil liberties and religion in public schools.

An education bill up for consideration by the House in coming weeks includes Republican-crafted provisions on school prayer, public funding for religious organizations, and Internet filters that present some “very serious First Amendment concerns,” argued Elliott M. Mincberg, the legal director for People for the American Way, a Washington-based liberal advocacy group.

Some 20 education and related organizations, including the National PTA and both national teachers’ unions joined PFAW in sending a letter expressing that view last month to members of the House Education and the Workforce Committee.

The bill, HR 4141, was approved by that committee April 13 on a largely party-line vote. It is the last in a series of bills the panel has considered to reauthorize the Elementary and Secondary Education Act, the main federal law in precollegiate education.

The school-prayer provision would deny federal education aid to any state or district “which has a policy of denying or which effectively prevents participation in constitutionally protected prayer in public schools by individuals on a voluntary basis.”

In their April 5 letter, the 20 groups said that language “would rashly breach the constitutional wall of separation between church and state.”

Charles C. Haynes, a senior scholar at The Freedom Forum First Amendment Center, based at Vanderbilt University, who has worked extensively with schools on religious matters, also criticized the measure, describing it as “unduly alarmist.”

Mr. Haynes said the language does not specify what is meant by constitutionally protected prayer, which in some instances has led to conflicting federal court rulings about prayers during graduation ceremonies and sporting events. In late March, the U.S. Supreme Court heard oral arguments in a case on student-led prayer at high school football games. (“Court Hears Arguments in Prayer Case,” April 5, 2000.)

“At school-sponsored events, when is student-led prayer constitutional and when isn’t it?” Mr. Haynes said. “We don’t have one answer to that.”

But an aide to Republicans on the education committee argued that the measure was “very modest,” noting that identical language was approved by the House during the 1994 ESEA reauthorization with bipartisan backing.

That language, also championed in the Senate by Sen. Jesse Helms, R-N.C., was ultimately stripped out during final House-Senate negotiations. It was replaced by a softer requirement that the Department of Education cut off funds only if a federal court had determined that a state or district had violated a federal court order on school prayer.

“That’s too big of a hurdle,” said the aide, who asked not to be named. “There obviously are questionable practices taking place in different parts of the country. ... We need to send a message from the federal level” about voluntary school prayer.

Michael Cohen, the Education Department’s assistant secretary for elementary and secondary education, said he was worried, however, about the role such a provision would demand of his agency. “It requires the secretary of education to become a de facto member of the Supreme Court,” he said.

‘Charitable Choice’

Another religion-related provision in HR 4141 concerns what proponents call “charitable choice,” which would allow education aid under the Safe and Drug-Free Schools and Communities program to go directly to churches or other religious organizations to provide services in schools. Similar aid for social services was allowed under the 1996 welfare-reform law, but the new proposal would create the first application in a school setting.

Critics object on the grounds that the measure would direct funding to organizations that are not constrained by anti-discrimination laws in their hiring practices. In addition, even though the bill would explicitly prohibit such groups from proselytizing in schools, some worry about the potential for church-state conflicts.

"[T]he integrated nature of much of the curriculum and the lack of choice available to the children served make that attempt impractical at best,” the organizations critical of the GOP proposals wrote in their letter.

Democratic attempts to address those groups’ concerns about prayer and charitable choice during committee deliberations last month were defeated, mostly along party lines.

Beyond religion-related measures, HR 4141 would also require schools that receive ESEA technology aid to use devices that filter or block out child pornography and material that is “obscene” or “harmful to minors” on computers accessible to minors.

“The provision represents yet another unwarranted federal intrusion into an issue that is best addressed by parents and local decisionmakers,” the education groups argue in their letter.

Critics also argue that the filtering technology is imperfect and in some cases may block out material that is educationally useful.

But Jennifer A. Marshall, the director of education policy at the Family Research Council, a Washington-based conservative group, maintains that the measure makes sense.

“The federal government should not be subsidizing access to” obscene material, she said. “They can choose not to take this federal money.”

It’s unclear how big a role the civil liberties and religious issues will play in the ESEA reauthorization process.

The Senate’s reauthorization bill does not currently include any of the provisions at issue, and Mr. Cohen of the Education Department noted that the Clinton administration had more fundamental concerns with the Republican ESEA bills that would likely prompt a presidential veto.

The Republicans’ approach would reject many of President Clinton’s core priorities, he said, such as class-size reduction and school construction.

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A version of this article appeared in the May 03, 2000 edition of Education Week as Education Bill Prompts First Amendment Concerns


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