Law & Courts

Separation Anxiety

September 01, 2003 5 min read
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“Separation of church and state is dead,” 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’s controversial prayer guide—an overview of legally acceptable instances when students may pray in school that, according to critics, pushes the parameters of the law—McCarthy observes a trend toward increasing religious accommodation. Others disagree: “It all depends on what you take that vague metaphor to mean,” says UCLA law Professor Eugene Volokh. “If 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.”

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—and in the courts.


Case:Westfield High School L.I.F.E. Club v. Westfield Public Schools

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’s 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’ permission violated their free expression rights.

Arguments: Jeffrey Pyle of the Massachusetts ACLU, which filed a friend-of-the-court brief, called the situation “a tempest in a teapot” because “reasoning about something small like candy canes can be used to censor something much more important.”

Outcome: Rejecting the school’s claim that the Establishment Clause required it to regulate students’ 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 “no religious stuff may ever be spoken on public property.” Increasingly, the courts are deciding that the Establishment Clause does not apply to personal speech, even on public grounds.


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’s 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 “opened a public forum, and once they do that, they can’t discriminate on the basis of content.”

Outcome: The 10th U.S. Circuit Court of Appeals ruled 3-0 in August 2002 that the tile project constituted “school-sponsored speech.” Therefore, administrators had the authority to censor tiles they found “objectionable,” including those with religious content.

Significance: When a school expresses its own views—even when it uses other people to do so, as Columbine High School did—the school has a right to control what it says, Volokh states.


Case:Counts v. Cedarville School District

Specifics: Following a parent’s 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’s 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 “cannot use a religious motive to keep people from a book that is otherwise suitable.”

Outcome: In April 2003, U.S. District Judge Jimm Hendren ruled that the school board’s policy violated students’ First Amendment rights. He found no evidence to corroborate the board’s 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’ 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 “religiously neutral.”


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’s attorney, Linda Lye, emphasizes that several factual allegations in the case are under dispute. The district maintains that the teacher’s role-playing exercises were “creative, interactive methods accepted as best practices for teaching social studies at that [grade] level” and “did not have students engage in religious or devotional practices.”

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 “conveys an impression of endorsing religion,” a decision that hinges on the specifics of the case.

—Lillian Hsu

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