A very helpful church-state resource for teachers

Posted 3 November 2004 by Timothy Sandefur

↗ The current version of this post is on the live site: https://pandasthumb.org/archives/2004/11/a-very-helpful.html

Reader KeithB pointed out this excellent statement on the current state of the law regarding religion in the schools. It should be required reading for every teacher and school administrator in every government school. There are two minor things that should probably be clarified.

First, the statement refers only to federal, and not to state laws. Some states have laws that go farther than the federal rules on these issues. For instance, California has laws protecting student expression in public schools beyond the federal requirements. Teachers should take care to respect these laws as well.

Secondly, I think Item 8 is slightly misleading in three ways. First, it says:

Schools must carefully steer between the claims of student speakers who assert a right to express themselves on religious subjects and the asserted rights of student listeners to be free of unwelcome religious persuasion in a public school classroom. . ..

Well, sort of. Student listeners do not have a right to be free from unwelcome persuasion--because no listener ever has the right to be free from persuasion. They have the right not to listen, of course, but they do not have the right to stop another person from expressing himself, on the basis of being "free from persuasion." If the school opens a forum for student expression, the First Amendment does not create a heckler's veto for silencing people whose "persuasion" they don't want to hear. Cases like Santa Fe v. Doe, 530 U.S. 290 (2000) or Lee v. Weismann, 505 U.S. 577 (1992), might be misinterpreted as standing for a "right to be free from religious persuasion," but they do not stand for that proposition. These cases say that government schools may not put their official government authority behind a religious statement. But that does not mean that students, or anyone, has a "right" to silence a student out of a desire not to be persuaded.

Also, Item 8 says

b. If a class assignment calls for an oral presentation on a subject of the student's choosing, and, for example, the student responds by conducting a religious service, the school has the right--as well as the duty--to prevent itself from being used as a church. Other students are not voluntarily in attendance and cannot be forced to become an unwilling congregation.

Again, it's true that the school has the duty to prevent itself from being used as a church. But the school cannot single out religious statements and censor them out of a desire to avoid becoming a church. As the Supreme Court has held in Rosenberger v. Rector of the University of Virginia, 515 U.S. 819 (1995), and many other cases, once the school opens a public forum for student expression, it may not silence religious statements simply to avoid becoming a church. It must avoid becoming a church in some other way--perhaps by a disclaimer saying "the expression of student opinion in this oral presentation does not represent the opinions of this school. . ."--or maybe out of common sense. Nobody with common sense would think that a student's oral presentation about his religion is a government-endorsed statement.

Finally, Item 8 says

c. Teachers may rule out-of-order religious remarks that are irrelevant to the subject at hand. In a discussion of Hamlet's sanity, for example, a student may not interject views on creationism.

This is true, but it has nothing to do with the Establishment Clause. That Clause is not violated if a student makes a creationist comment in a discussion of Hamlet. (In fact, the Establishment Clause is probably never violated merely by a student defending creationism.) But a teacher always retains the authority to keep students from making comments that are irrelevant to the subject at hand, and the First Amendment is neither here nor there in that regard.

These are, however, minor errors in an otherwise excellent statement that teachers should probably all learn by heart.

19 Comments

Great White Wonder · 3 November 2004

But the school cannot single out religious statements and censor them out of a desire to avoid becoming a church.

Sure, but can a school single out religious statements and censor them out of a desire to avoid becoming a breeding ground for ignorant bigots (like the southern US)? I say yes they can and I don't really care what Chief Justice Scalia thinks.

a Creationist Troll, apparently · 3 November 2004

GWW: Doesn't the US constitution enshrine the right for people to become ignorant bigots if they choose to? That was how I had always mentally excused the behaviour of US citizens.

More seriously, your comment is silly and dangerous - I trust it was a polemic reaction rather than a thought out position. Freedom of speech entitles you to seek to persuade people that their opinions are those of ignorant bigots - but who decides what opinions to censor? The majority (like in Nazi Germany)? If so what happens to minorities? A political elite (like in Soviet Russia)? Or (as I suspect you would answer) an intellectual elite? Do you not know that the whole idea of (modern) democracy isn't to ensure that the right idea dominates - it's to ensure that wrong ideas can get voted out. That's why there are so many checks and balances. As soon as you start to place overriding authority in the hands of any elite - whether it's a High Court that can reinterpret laws as it chooses, a handful of like-minded media tycoons, or federal authorities - you are basically scrapping all the protections that the founding fathers worked so hard to put into place.

Interestingly, freedom of speech is actually a reformation (i.e. protestant) Christian heritage.

Engineer-Poet · 3 November 2004

Doesn't the US constitution enshrine the right for people to become ignorant bigots if they choose to?
— a Creationist Troll, apparently

It doesn't seem to allow any room for schools to make people that way on purpose, on religious grounds (pi = 3.0 as specified by 2 Chronicles chapter 4 v. 1-2?) or otherwise. (Hmph. The censor-system is banning my e-mail address because it contains the questionable content "yahoo dot com". Neither will it allow me to omit it. How gauche.)

Scott · 3 November 2004

Troll,

"Interestingly, freedom of speech is actually a reformation (i.e. protestant) Christian heritage"

If you want to make this kind of statement, please, by all means, back it up with sources supporting
your statement.

Great White Wonder · 3 November 2004

More seriously, your comment is silly and dangerous - I trust it was a polemic reaction rather than a thought out position. Freedom of speech entitles you to seek to persuade people that their opinions are those of ignorant bigots - but who decides what opinions to censor?

Dangerous? I'm in no mood to laugh right now. I'm not talking about "opinions". I'm talking about the expression of religious beliefs in public schools which are tantamount to saying that "hey gay person, you must be mentally ill to act the way you do because you're going to suffer miserable pain in hell for all eternity." Please tell me what part of that "opinion" merits protection in a public school, Troll, and why. See if you can do it without invoking Soviet Communists or Nazis (neither of whom were particular friendly towards gays, as I recall). As for your repeated reference to "elites", the "founders" weren't worried about "elites". Among other concerns, they were worried about an ignorant majority subverting the Constitution and creating a theocratic state.

RBH · 3 November 2004

GWW wrote

As for your repeated reference to "elites", the "founders" weren't worried about "elites". Among other concerns, they were worried about an ignorant majority subverting the Constitution and creating a theocratic state.

Prescient of them, no? RBH

KeithB · 3 November 2004

I should point out that I found this on Ed Brayton's blog a few months back.

It is also ironic, that the ACLU would be one of the first groups to support a student that had been illegally prevented from witnessing on campus.

steve · 3 November 2004

The ACLU regularly defends religious and conservative people. Remember Rush Limbaugh? Ryan Green? Thomas Road Baptist Church? I'm a member of the ACLU, and it happens all the time. They seldom get any credit, and each time it makes the news (not very often), I hear, 'well, that's unusual'. Conservatives just attack them because the stand against coercive prayer. I just wish people would learn about the ACLU before badmouthing it. That's a futile hope.

Flint · 3 November 2004

steve:

I'm not a member of the ACLU. Usually, I agree with the positions they take. However, I have read about multiple cases where the ACLU was representing both sides! Has this actually happened?

I enjoy finding cases there ACLU is defending religious faith and posting them on frothing right-wing sites. The usually reply is to accuse the news story of being a hoax.

Tom Curtis · 3 November 2004

GWW:

I'm not talking about "opinions". I'm talking about the expression of religious beliefs in public schools which are tantamount to saying that "hey gay person, you must be mentally ill to act the way you do because you're going to suffer miserable pain in hell for all eternity." Please tell me what part of that "opinion" merits protection in a public school, Troll, and why. See if you can do it without invoking Soviet Communists or Nazis (neither of whom were particular friendly towards gays, as I recall).

I assume that it is legal for the government to tell smokers they are smoking themsevles into an early grave. It is a straight forward case that smoking has adverse health effects, and presumably the government and others have the right to warn others of that fact. But from (some) Christian perspectives, being gay has a straight forward adverse effect on the person who is gay, ie, they will burn in hell. Unless you can find some non-discriminatory way of distinguishing between the two cases, I do not see how you can permit the first case without admitting the second case. I can think of two ways you might want to argue a difference: a) The smoking case is a factual claim, where-as the going to hell case is a non-factual claim; or b) We know the smoking case based on emperical evidence, where-as the going to hell case is based on non-emperical "evidence". I do not think (a) is sufficient because: 1) It is merely false that gays will burn in hell, not non-factual. That is, it it the type of claim that could be true, but as it happens is not. 2) Any argument to the effect that the claim is non-factual will necessarily appeal to metaphysical principles that Christians reject on religious grounds. As such, it amounts to religious discrimination to require Christians to reject the factuality of their claim on that basis. But (b) is also inadequate for restricting the Christian's right to use "revelation" in forming their beliefs would again restrict their freedom of religion. Consequently, I do not think you can justify a blanket prohibition on Christian's saying that some group or person is going to hell. ON THE OTHER HAND, I think a school could prevent students from repeatedly telling a fellow student with leukemia that he was going to die etc., on the ground that it was taunting or harassment. Similar behaviour of Christian's to gays would also constitute taunting or harassment, and could also be prohibited. Now, just for fun, I noticed that several states have just banned gay marriages. That represents a banning of the state recognising the permanence and depth of a gay couples relationship in the same way as they would recognise a straight couples relationship. As it is impossible to establish a relevant difference between the two cases without appeal to specifically religious metaphysical assumptions, it seems to me that that ban is an establishment of religion. US governments can either recognise all marriages, including gay marriages; or they must recognise none. Otherwise they are acting to establish particular religious beliefs as socially normative.

steve · 3 November 2004

I'm not a member of the ACLU. Usually, I agree with the positions they take. However, I have read about multiple cases where the ACLU was representing both sides! Has this actually happened?

I haven't seen that, but it may have happened. Their religious cases tend to fall in one of two categories. Either an institution is squelching an individual's ability to freely do their religious obligations, for example, a school telling a student they can't wair a necklace with a cross on it. Or an institution is imposing a religious ceremony on people, for example, making a christian prayer part of some official proceeding like a graduation. This is usually the one that makes the news, because christians try this all the time.

I enjoy finding cases there ACLU is defending religious faith and posting them on frothing right-wing sites. The usually reply is to accuse the news story of being a hoax.

The ACLU is mostly a homogeneous group of volunteers, and rarely, they take an extreme case, and the Right really makes hay with that. This very moment they're involved in hundreds of cases. How many will you hear about? One or two weird ones. But I love them. They work long hours, usually for free, to preserve important individual rights.

Timothy Sandefur · 4 November 2004

Mr. Curtis makes an intriguing argument about the anti-gay marriage initiatives being establishments of religion. Unfortunately, I think the argument is just too complicated for the courts to be willing to take hold of. A stronger argument is a straightforward equal protection challenge under the Fourteenth Amendment. In Romer v. Evans, 517 U.S. 620 (1996), the Supreme Court struck down Colorado's "Amendment 2," which prohibited the state from extending special benefits to homosexuals. The Court held that this violated the Equal Protection Clause of the Fourteenth Amendment because

the amendment seems inexplicable by anything but animus toward the class that it affects; it lacks a rational relationship to legitimate state interests . . . . It identifies persons by a single trait and then denies them protection across the board. The resulting disqualification of a class of persons from the right to seek specific protection from the law is unprecedented in our jurisprudence . . . .

The Court seemed to hold that laws which are motivated solely by animus toward a disfavored group lack even a rational basis---which is the lowest level of constitutional review---and are therefore unconstitutional. I would expect this to be the basis of a lawsuit against at least one of these state initiatives banning gay marriage. Whether it would be successful or not, I don't know. I'd be surprised if the Supreme Court was willing to go that far, although I think it ought to. Flint writes "I have read about multiple cases where the ACLU was representing both sides! Has this actually happened?" Literally speaking, I really doubt it, since it would likely be a violation of professional responsibility rules for a law firm to represent both sides in a dispute. However, as I pointed out on my own blog not long ago, the ACLU has, unfortunately, occasionally betrayed even principles of free speech for which it once stood. Still, for the most part, I think they do fine work, and I admire much of what they do.

Tom Curtis · 5 November 2004

I am glad you liked my argument. I do not doubt the equal protection clause would be a better basis for challenging anti gay marriage legislation; nor that the current Supreme Court is unlikely to rule such legislation unconstitutional on any grounds.

However, I disagree with your criticism of the ACLU. The ACLU's brief is not to defend freedom of speech, but rather to defend all the civil liberties of US citizens, of which one is freedom of speech. Necessarily, a rights based system with multiple rights results in occasions when those rights conflict - and hence in which one right must be balanced of against another. The manner of balancing must depend on the purpose of particular rights, and on how central to a particular right a case is.

I take it as clear cut that the "right" of a racist employee to harrass his subordinates is not central to the purpose of the right to free speech. Given that it is constitutional to legislate against discriminatory employment practises, the ACLU chose the right side of the case.

Timothy Sandefur · 5 November 2004

Rights, properly understood, do not conflict, but are "compossible," meaning that any two individuals using their rights must be able to do so without conflict. When one alleges that two rights are conflicting, the reality is that one of these "rights" is not a right at all. See generally Tom G. Palmer, Saving Rights Theory From Its Friends, in Individual rights Reconsidered 35 (T. Machan ed. 2001). As Palmer illustrates,

[C]onsider a product of this general approach to rights, the Universal Declaration of Human Rights adopted by the United Nations in 1948. According to Article 24, Everyone has the right to rest and leisure, including reasonable limitation of working hours and periodic holidays with pay. And according to Article 25, Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age, or other lack of livelihood in circumstances beyond his control. Let us say that Bill needs medical care and necessary social services and Janet is a doctor. If Bill has the right to Janet's services (Article 25), but Janet has the right to rest, leisure, reasonable working hours, and periodic holidays with pay (Article 25) and those conflict (as they surely do on occasions), whose rights will be realized?

Id. at 47. In the Aguilar case, one side alleged a right to free speech---which is a right, because it asks nothing of anyone else except to be left alone---and the other alleged a right to be free from hearing another person say upsetting things. This latter claim means, the "right" to force another person not to speak. Such a right is not consistent with the freedom of speech, or even of bodily integrity; in fact, there is no such right, because there is no moral justification for forcing another not to speak. The Aguilar case was thus not a "conflict" between two "rights," but an instance where the ACLU endorsed censorship of a sort of expression which it (understandably) found distasteful. There is no "purpose of the right to free speech," beyond the fact that people have that right. If a person must use his rights only for socially-determined "purposes," then they are not rights at all, but mere licenses, or permissions. Finally, racial epithets uttered by employees are not "discriminatory employment practises." They are unpleasant utterances which people should shun and criticize, but which the speaker has the right to utter if he chooses. While the ACLU is right to find racial epithets revolting, they were wrong to claim that the First Amendment allows the government to prohibit expression.

Tom Curtis · 6 November 2004

I think it is necessary to distinguish between moral rights and legal rights. Legal rights, by their nature, are granted by custom, judicial decision or legislation. That is, they are social consequences of the decisions of other members of your society, and are subject to any constraints your society places upon them. Thus, in the United States, the right of free speech does not extend to the right to racially abuse and harrass subordinates at the place of work. This is established by the case you criticise. Legal rights are composable in that in cases of conflict, the courts decision determines a limit on one right (or both) so that no conflict exists. But then by that fact alone, you cannot legitemately argue that the "right" not to be racially abused does not exist because it is not composable with free speech. The courts decision makes the rights compossible by establishing the limits on the rights.

In the more interesting case of ethical rights they must either be restricted in scope, or (if there is more than one right) because they must be compossible, they do not exist. That is, it is not possible to have a system of more than one unrestricted right without conflict between them - so no such rights exist. In practise, all rights systems are restricted rights. Thus, the US government exists (supposedly) to protect its citizens inalienable rights to life, liberty and the pursuit of happiness. Yet the US government imprisons some of its citizens, and executes others. Clearly the rights to life and liberty are not unrestricted rights - and in fact can be alienated by certain criminal acts. Your argument presupposes, however, that the right to free speech is unrestricted. If it is not unrestricted, there will be circumstances in which the right does not protect particular types of speech acts in particular circumstances. Without that premise, it cannot be presumed a priori that racist speech (for example) is always protected, and hence from compossibility, that there is no right to not be abused racially.

Given that "rights" must be restricted to exist, there must be some method independant of the right to determine which right should be restricted in given circumstances. For socially granted "rights", we can reffer to the purpose in granting that right. (This applies to all legal rights.) For basic ethical rights, we can reffer to the basis of the right.

Finally, racial epithets by an employee in the execution of the employee's duty are properly considered to be the actions of the employer, and so constitute racially discriminatory employment practises. The employee acts as an agent of the employer, and when so acting, the employees actions are contrued as the actions of the employer except when the employer explicitly distances itself from the actions, either by prohibition, disciplinary action, or explicit disclaimer. This legal fiction is necessary so that employees can enter contractual relationships on behalf of their employer, or issue comands on behalf of their employer to subordinate staff. Along with the benefits come the disadvantage of potentially being caught out by actions of the employee - as Avis was in this case.

Timothy Sandefur · 6 November 2004

This conversation has drifted too far from the original point. I'll carry on the discussion at Freespace, where readers are welcome to email me with their comments.

Tom Curtis · 7 November 2004

I agree we have got of the original point. However, your discussion seriously misrepresents my case. I have attempted to clarrify my argument at my blog. A future installment may discuss natural rights in more detail.

Timothy Sandefur · 8 November 2004

I stand by my statements.

a Creationist Troll, apparently · 8 November 2004

So we have creationists arguing for freedom of speech, and non-creationists arguing for restriction of speech. Scary!