A very helpful church-state resource for teachers

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:<blockquote>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. . ..</blockquote>

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,</i> 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<blockquote>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.</blockquote>

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,</i> 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<blockquote>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.</blockquote>

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.