Is Religious Speech a Protected Right

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The case is called Lisa Bender v. The Williamsport School District, and a couple of years from now, if it goes up to the U.S. Supreme Court, the issues raised by Ms. Bender and other high-school students who brought this suit will be debated fiercely throughout the land. This past May, when the federal district court's decision came down in Scranton, Pa., the clerk's office had to field an unprecedented number of requests for copies of the decision from all kinds of places. The White House asked for several and the Justice Department wanted some; so did the American Civil Liberties Union and the offices of a number of Congressmen. And there were insistent calls from lawyers on various sides of the often fog-enshrouded church-state ramparts.

At The New York Times, excitement ran so high that a feverishly confusing headline ran on the story: "U.S. Judge Allows Prayer in School.'' Though technically accurate, the headline was so incomplete as to be misleading. This decision does not restore to the schools the kind of official prayer that Ronald Reagan believes is essential if the new generation is to stand up to the prospect of nuclear war. The prayer in this case is not mandated by school officials. It does not take place during regular classroom hours. There is no endorsement of this religious speech by the school. On the contrary, the prayer is wholly voluntary, initiated entirely by those students who choose to become involved in this sort of extracurricular activity. But it does take place in the school building, and that's why the case came to court.

The case has been appealed to the U.S. Court of Appeals for the Third Circuit. Its indication of the presence of prayer in some nook or cranny of a public-school building led to the expectation that the ACLU would join in that appeal. The decision in Lisa Bender v. The Williamsport School District supports the religious freedom of high-school students, but for years the ACLU has been trying to permanently expel God from the public-school systems of the nation.

In his decision, Chief Judge Willam J. Nealon of the Middle District of Pennsylvania noted that this case "implicates a constitutional conflict of the highest order. ... The students argue that the 'First Amendment' requires the school to grant them the permission they seek. The school district argues that the 'First Amendment' bars it from granting such permission." The students point to their right to freedom of speech and freedom to exercise their religion. The school says that the Establishment Clause of the First Amendment bars the state--including its schools--from sponsoring or favoring any religion.

So what are the undisputed facts? In September 1981, a number of students at the Williamsport Area High School asked if they could form a club that would meet during the school's activity period (between 7:57 A.M. and 8:27 A.M. on Tuesdays and Thursdays). There are more than 25 student clubs in the school. Among those permitted to meet are groups devoted to sports, journalism, theater, government, social service, language, and music. The criterion for these voluntary groups, as set by the school, is that "they promote the intellectual, physical, and social development of students."

The students asking permission to start a religious club wanted to call it Petros (The Rock) and said it would be a nondenominational prayer fellowship. Participation would be voluntary and open to all students. Its members would engage in scripture reading, discussion, prayer, and other activities of interest to the group.

These young people were so eager to enjoy their right of assembly that they were willing to make various concessions to dampen any fears that they might insidiously take advantage of the club period to seduce impressionable students to take a leap into faith. The students stipulated, for instance, that they were willing to do without mention of their club in the yearbook. Nor would they complain if news of their club were never reported in the school paper. And God forbid, as it were, that they should ever ask to use the school's public-address system to announce the dates and times of their meetings.

In short, these students were willing to sit in the back of the school bus just so long as they could get on board.

Well, Petros had one meeting, but then its members were told they could meet no more until higher officials in the school district were consulted. Finally, they were told the club would have to disband because its presence was in contempt of the First Amendment's Establishment Clause. Significantly, says Chief Judge Nealon's decision in the case, "No student or organization previously has been denied the opportunity to participate in the activity period."

What are the precedents? From the Supreme Court, there is one very close to the facts in this case. The University of Missouri at Kansas City provides meeting space for more than 100 student groups, but in 1977 university officials banished one of those clubs because its members were all evangelical Christians and Christianity was what they talked about in the club. They were denied the use of school facilities, the university explained, because of a rule prohibiting the use of any building for religious worship or religious teaching. It was a state university, so any religious carryings-on in a school building would violate the Establishment Clause.

In 1981, in Widmar v. Vincent, the Supreme Court disagreed with the university. In an 8-to-1 vote, the Justices held that once the state had set up a "public forum"--allowing the 100 or so student clubs to meet in university facilities--it was unconstitutional to exclude a group solely because of the content of its speech. Whatever kind of speech it is, including religious, the Court said the government is out of line when it regulates what anyone says in this setting.

As for the argument that religious speech on school premises--even if student-initiated in a student club--would make it look as if the state university endorsed that religion, the Court scoffed. "An open forum in a public university," it said, "does not confer any imprimatur of state approval on religious sects or practices. As the court of appeals quite aptly states, such a policy 'would no more commit the university ... to religious goals,' than it is 'now committed to the goals of Students for a Democratic Society, the Young Socialist Alliance,' or any other group eligible to use its facilities."

There was one caveat. In a footnote to the Widmar decision, the Supreme Court said: "University students are, of course, young adults. They are less impressionable than younger students and should be able to appreciate that the university policy is one of neutrality to religion."

Some lower courts took this to mean that high-school students, still being "impressionable," cannot be exposed to religious speech in the school building, even when that speech comes from their peers rather than from school officials and takes place in an open public forum of entirely voluntary student groups.

Since then, the Supreme Court has refused to review any cases by which it might extend Widmar to high-school students. A leading civil-liberties lawyer thinks that the Williamsport case may be the case that will make clear the First Amendment right of voluntary student religious clubs to meet in public high schools. "The facts of the case," said the lawyer, "are very strong, and if it goes up, I think the decision will be affirmed."

One of Lisa Bender's lawyers told me that he fervently hoped his victory would be appealed. "We want to go up to the Supreme Court," he said. "We're convinced we can win. You're involved with the ACLU Please, urge them to appeal."

Fearful of what may happen in the appellate courts with a case as strong for the other side as this one, the ACLU, however, has decided not to appeal. This decision was made in spite of the fact that last April, by a narrow margin, the national board of the ACLU adopted this remarkably crabbed statement on the issue:

"The persistent, widespread, and continuing efforts to evade the Establishment Clause in public elementary and secondary schools, and the vulnerability of elementary and secondary students to the consequences of official and unofficial attempts to promote religious activities and to divide and identify students on the basis of their religious beliefs and affiliations make virtually all so-called non-government-sponsored religious activities so suspect as to cause us to oppose such activities as violations of the Establishment Clause."

On the matter of the "impressionability," and therefore dangerous vulnerability to religion, of high-school students, Judge Nealon wrote in Lisa Bender v. Williamsport School District: "While [high-school students] are not yet adults, they should not be treated as infants." And he quoted a Second Circuit Court of Appeals decision (James v. Board of Education): "I would be foolish to shield our children from political debate and issues until the eve of their venture into the voting booth. Schools must play an essential role in preparing their students to think and analyze and to recognize the demagogue."

If it is foolish to shield our children from political debate and issues, is it wise to keep them ignorant of religious debate and issues so that they cannot recognize religious demagogues? More to the point, is it constitutional to shield those students who want to become involved?

Under the set of facts presented to him in this case, Judge Nealon came to the conclusion that the Williamsport Area School District had violated the free-speech rights of the plaintiffs in the case--not their rights to free exercise of religion. These students, he said, "are free to worship together as they please before and after the school day and on weekends in a church or any other suitable place."

But as for that section of the First Amendment that deals with free speech, the judge emphasized that once the school had established a "public forum"--allowing voluntary student organizations to meet on the premises--it could not exclude any one of them solely because of the content of the speech involved. And, he added, it had no patience with those, including some civil libertarians, who claim that prayer is dangerously different from just sitting and talking about religion. Said Judge Nealon: "Any argument that religious worship and prayer, as distinguished from discussion of religious matters, is not speech protected by the First Amendment must fail."

But whether prayer or not, those students had fully intended to exercise religious speech. On school premises, doesn't that alone support and promote religion? Said Judge Nealon: "Any advancement of religion would come from the students themselves, and this the Establishment Clause does not bar, it being a limitation on government conduct rather than on individual activity." As the judge himself says, however, his ruling--while significant--"will not be free from doubt unless and until the Supreme Court clarifies two very important areas of the law. The extent to which there can be a 'forum' for students in our high schools and the status of prayer in those institutions when initiated by students acting independently of outside influences."

Still, as if for comfort while waiting to see what happens up high, Judge Nealon ends his 45-page decision with a quote from Chief Justice Warren Burger (Walz v. Tax Commission) that includes two briskly apposite views by former Justices William O. Douglas and John Harlan.

Justice Douglas: "The First Amendment ... does not say that in every and all respects there shall be a separation of church and state. We sponsor an attitude on the part of government that shows no partiality to any one group and that lets each flourish according to the zeal of its adherents and the appeal of its dogma."

Justice Harlan: "[The constitutional neutrality imposed on us] is not so narrow a channel that the slightest deviation from an absolutely straight course leads to condemnation."

It depends on who's doing the condemning. The most unyielding spokesman for the ACLU on the question of drumming all religious speech, voluntary or otherwise, out of the public schools is the Rev. W.W. Finlator, a long-time minister of Southern Baptist Churches in North Carolina and a vice-president and member of the national board of directors of the ACLU Testifying for the ACLU in Congress about the perils of letting religious speech sneak into schools through student groups, he warned: "We further remind the committee that in these religious concerns we are dealing with public schools where heat and light and furniture are provided at public expense."

By contrast with the generous spirit of this true believer, Judge Nealon observed that "the mere fact that a small portion of public funds would be expended for the lighting of the facility to be used by Petros does not, standing alone, indicate that the primary effect of an equal-access policy would be to advance religion."

The case, however, and all the others that involve students voluntarily asserting their religious concerns in the public schools, is not limited to the tension between the free-exercise clause and the Establishment Clause. It also very much concerns our commitment to pluralism--not in rhetoric but in real school life.

For instance, the ACLU has used some inadvertently revealing terms in its policy statement opposing even nongovernment-sponsored religious activities in public schools. The ACLU is fearful of court decisions like Judge Nealon's "dividing" students and "identifying" them on the basis of religion.

What the ACLU actually endorses, then, is homogenizing the young in the school building, at least insofar as religion is concerned. It just wouldn't do for a child's peers to know he or she comes from a distinctively different religious background, and most disturbingly, that he or she is so proud of that background that he or she wants to talk about it in school.

John Stuart Mill wrote in On Liberty that state-sponsored education ''is a mere contrivance for molding people to be exactly like one another: And as the mold in which it casts them is that which pleases the predominant power in the government, whether this be a monarch, a priesthood, an aristocracy, or the majority of the existing generation, in proportion as it is efficient and successful, it establishes a despotism over the mind. ..."

In many areas--student press and assembly rights, symbolic speech--the ACLU has been proving that Mill's analysis is not inescapable. But when it comes to religious speech, the ACLU would indeed prefer public-school students to be "exactly like one another."

This article is reprinted by permission of Inquiry magazine. Copyright 1983, Inquiry.

Vol. 03, Issue 04, Page 24, 19

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