6/18/2008 - Statement of A. Eric Johnston, General Counsel - U.S. Commission on Civil Rights Public Briefing - Religious Freedom in Alabama Public Schools

STATEMENT

OF A. ERIC JOHNSTON, GENERAL COUNSEL

U.S. Commission on Civil Rights Public Briefing

Religious Freedom in Alabama Public Schools

April 29, 2008

Summary

This statement addresses the history of religious freedom and its application in Alabama schools. It covers public schools, as well as, nonpublic schools, since both types of education are permitted and since state authorities regulate both.

While public education was predominant until the second half of the Twentieth Century, at that time nonpublic education became a choice available to parents. One of the principal reasons for the rise of nonpublic education was the restrictions of religious speech and activities in public schools as a result of 1960s United States Supreme Court cases. While nonpublic education can be in many forms, the one of primary concern here is church schools.

The United States Supreme Court in the important cases of Meyer, Pierce and Yoder protected the parents’ liberty interest guaranteed by the Fourteenth Amendment to decide where their children would attend school. As a result of these cases and interference by public authorities, in 1982, the Alabama Legislature passed a statute excepting church schools from regulation.

Religious freedom issues faced by students in public school are usually speech related, while issues in the nonpublic schools are activities related. The Tinker case of 1969 clearly established that students do not shed their constitutional rights of speech at the schoolhouse gate. This was modified by subsequent court decisions.

From the 1960s through the 1980s there were many court decisions which emphasized application of the Establishment Clause. Virtually all student speech of a religious nature was prohibited. Seemingly, the First Amendment Free Exercise Clause no longer existed.

After a period of protracted litigation, finally by the late 1990s, a number of cases had matriculated to the point that free exercise rights were observed. There has been no conclusive decisions by the United States Supreme Court that determine the extent to which student religious speech may take place. The Chandler cases in Alabama, decided by the 11th Circuit Court of Appeals, provide significant guidance for students and offer protection of free exercise rights.

The Alabama Religious Freedom Amendment and the federal No Child Left Behind laws adopt these free exercise protections.

Yet, school officials remain somehow ignorant of or indifferent to these protections. Perhaps, it is largely due to fear of lawsuits by those who seek to eradicate religious influence from the public square, particularly public schools.

As a result, public school officials are quick to limit students’ religious rights. Students must therefore be quick to protect their rights. We have many examples of this taking place in the State of Alabama.

In the nonpublic school context, church schools are allowed to exercise their religious activities. However, state policies on transfer from nonpublic to public schools and other regulation cause a significant burden on the parental choice of religious based education. Perhaps, this is also due to ignorance, but may be as well due to jealousy.

All forms of education must be permitted to coexist. All forms of education must be constitutionally conducted, particularly when dealing with fundamental rights such as the rights of religion and speech.

There is a misconception that those who seek religious liberty in public schools or in the education process want to restore Bible reading, prayer and other required religious activities. That is not true. There are several reasons it is not true.

First, there was a time in America when the consensus was Christian activities in the education process were the norm. This is principally so because most citizens were, at least in name, Christians. There was some conflict between Catholics and Protestants over versions of the Bible. However, generally speaking, Christian based activities in public schools were the norm.

The United States Supreme Court rulings in the 1960s, which removed Bible and prayer from public schools, were a cold wakeup call to most of us who were living within the consensus. Perhaps, the timing was not right for those court decisions. However, during the last part of the Twentieth Century, the evolution of religion in America has seen a significant influx of different faiths and many persons choose not to exercise any religious faith.

There was injustice done by the federal courts in applying the Establishment Clause, primarily through the Lemon test. Rather than remove required religious practices, which would be violations of the Establishment Clause, the courts began to remove every vestige of religion. This violated the free exercise rights of students. It is still so even today and there are questions remaining about prayers given by valedictorians, prayers before sporting events and other religious activities that occur during school time.

Through the last part of the Twentieth Century, court decisions, scholarly articles, debates, and other inquiries have put the issue of religious rights in public schools into a clearer perspective. Those of us who believe religious rights are being violated are not seeking to re-establish religion in public schools. Rather, we are trying to protect free exercise rights of students so that religion is not completely left out of public school discourse.

The history of America as a nation is based largely on Christian precepts and principles. To forcibly remove religion from the public square, even including the right to be public in one’s religious activities, is unconstitutional. It simply goes too far. Just as we are accused of going too far by trying to re-establish required religious activities, it goes too far to completely remove religious freedom.

Therefore, we must be at a turning point. We must realize that established religion in public schools is not proper, but we must have respect for those who wish to exercise their religious rights in public schools.

The best example to illustrate this is one of religious comments by the valedictorian of the senior class of a public high school. The present standard is for school officials to review students’ speeches and remove any religious reference. When students have included a religious statement in their address, officials have sometimes turned off the public address system. School officials should not approve the speech and they should not censor any religious reference. The spiritual part of a human being is significant and is intertwined with his mental and physical makeup. It is not an Establishment Clause issue for a student to speak of a religious facet of his development, but to deny him that right is a violation of his Free Exercise Clause. This very issue is yet undecided in public schools.

The only way to protect religious rights is for public school officials, both participants in public schools and administrators of regulations concerning nonpublic schools, to be informed of constitutional and legal requirements and be permitted to properly carryout their duties of protecting religious freedom without fear of lawsuits from those who seek to remove all religious speech and activity from the public square.

Introduction

The protection of religious rights in public and nonpublic schools is a continuing process. We never come to a point where it can be said that religious rights are protected and that schools or officials consistently are acting within the law.

The laws of Alabama permit several types of public and nonpublic education. Public education would be provided through the schools operated by counties and municipalities. Each has a local board of education.

Nonpublic schools include church schools, parochial schools, private secular schools, boarding schools, home schools, and several variations of the foregoing. Depending on the type of nonpublic school, there are degrees of regulation.

Public education was almost universal during the first part of the Twentieth Century. During the second part of the Twentieth Century, nonpublic schools increased. There were probably two separate reasons for this. One was as a result of United States Supreme Court cases removing religious activities from public schools. The other was whites who set up “segregation academies” to avoid federal court orders requiring integration. We agree with the basis for the former, but not the latter.

From the 1960s until today, there continues to be an evolution in types and availability of schools. For example, the newest ideas about schools are school choice and federal programs dealing with No Child Left Behind permitting children to transfer from one school district to another because of academic concerns.

In all of these contexts, the religious rights of students must be protected. Principally due to the United States Supreme Court decisions in the 1960s, the enforcement of the Establishment Clause of the First Amendment has resulted in a significant restriction on students’ religious rights in both public and nonpublic schools. Because the state has an interest in educating tomorrow’s leaders, there must be some regulation. However, some regulations that restrict students’ religious rights are improper.

Not only are these improper, but it remains a continuous problem which must be addressed over and over again in a significant climate of uncertainty. Threats to public school boards of lawsuits based on questionable Establishment Clause jurisprudence usually cause the school boards to abandon protection of their students’ religious rights in favor of creating a secularized environment.

On October 23, 1995, I provided testimony to the United States House of Representatives Committee on the Judiciary, Subcommittee on the Constitution. That testimony was given in support of an amendment being considered to the United States Constitution which would have more clearly articulated the protection of the Free Exercise Clause. At that time, the tension between the Establishment Clause and the Free Exercise Clause had diminished to the point that the Free Exercise Clause seemed to be useless. The Employment Division v. Smith case, infra, seemed to further diminish religious protection. While there have been improvements since that time, we still must be mindful of threats to religious freedom in schools. A copy of the testimony is attached as Exhibit “A.”

There is no claim that we require schools to promote or teach religion. That is a misinformed idea of many opponents of religious activity in public places. This idea has led to much of the litigation that has resulted in improperly restrictive court decisions under the Establishment Clause. In fact, many decisions should have utilized the Free Exercise Clause to protect the rights of students. For example, Chandler v. Seigelman, 230 F.3d 1313, 1316 (11th Cir. 2000), reviewed a district court injunction of Alabama public school students’ rights saying:

In Chander I, we were asked to review an injunction which assumed that virtually any religious speech in schools is attributable to the State . . . . We held this injunction was overbroad to the extent that it equated all student religious speech in any public context at school with State speech. In so doing, it eliminated any possibility of private student religious speech under any circumstances other than silently or behind closed doors. This the Constitution neither requires nor permits. The Establishment Clause does not require the elimination of private speech endorsing religion in public places. The Free Exercise Clause does not permit the State to confine religious speech to whispers or banish it to broom closets. If it did, the exercise of one’s religion would not be free at all. (Emphasis the court’s.)

We do not advocate that any school official, teacher or otherwise, promote or instruct religious activities or prayer, conduct religious activities of any description, teach Bible or religion, or do any other thing of that nature. We do, however, expect public school officials to recognize students’ free exercise rights to engage in religious activities during certain times in the public school process.

Similarly, we expect state authorities to recognize parental choice of education when nonpublic education is chosen. The state authorities should not have the authority to place burdensome regulations on nonpublic education which deny religious rights.

Choice of Education

In all states, public education is available as a matter of right to citizens. While the provision of a public education is not a fundamental right protected under the Constitution, it is a legislatively given right. Most parents choose public education as the type of education for their children. This is principally so because public schools are located in every community and, in most places, they are available without charge. Consequently, the actions of public school officials concerning students’ religious rights are significant in the public school context.

Parents also have the right to choose nonpublic education. Nonpublic education is available in most communities, in various forms. Parents must usually pay for nonpublic education. Religious activities are permitted, however public policies that regulate nonpublic education can burden religious rights.

As in many states, Alabama had a cognizable growth of religious based education. In recognition of the rights explained below in Meyer, Pierce and Yoder, in 1982 the Alabama Legislature promulgated a number of laws recognizing the right of parents to make a choice for church school education. While public schools are required of the State of Alabama under Article XIV, Section 256, 1901 Constitution of Alabama, church schools are permitted as an educational choice as defined in Section 16-28-1, 1975 Code of Alabama. Parents choose nonpublic education for many reasons which might include a desire for religious based education, college preparation, a different educational environment, to escape zoned public education for scholastic, safety or other reasons, or the appeal of a particular nonpublic program.

The rights of parents to control the education of their children was first explicitly stated in Meyer v. Nebraska, 262 U.S. 390 (1923), when the United States Supreme Court found a parents’ liberty interest guaranteed by the Fourteenth Amendment to be violated when a parochial school was denied the right to teach a foreign language to its students. Saying that “it is the natural duty of the parent to give his children education suitable to their station in life” (id. at 400), the court found that the Nebraska legislature had “attempted materially to interfere with . . . the power of parents to control the education of their own.” Id. at 401.

Relying on Meyer, very soon thereafter the United States Supreme Court addressed the parents’ particular choice of educational method in Pierce v. Society of Sisters of the Holy Names of Jesus and Mary, 268 U.S. 510 (1925). An Oregon law required children to attend only public school. A religious school and a military academy challenged the law. The religious school offered a uniquely religious education (Id. at 532), while the military school offered a uniquely military education. Id. at 533. The schools challenged the state law on the basis that it contravened a liberty right guaranteed by the Fourteenth Amendment. This right was enunciated by the court:

Under the doctrine of Meyer . . . we think it entirely plain that the Act of 1922 unreasonably interferes with the liberty of parents and guardians to direct the upbringing and education of children under their control . . . The fundamental theory of liberty upon which all governments in this Union repose excludes any general power of the state to standardize its children by forcing them to accept instruction from public teachers only. The child is not the mere creature of the state; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations.”

Id. at 534.

American history demonstrates education in early America was nonpublic, viz., basically church and home schooling, or was public, but in the sense that it was controlled by parents. Despite the establishment of town schools, parents were so prominently involved in their children’s education that it was often difficult to distinguish “home” from “school.”[1] Public education, that is education provided through state support and control, increased to the point that by the Twentieth Century, it was the predominant method of education and had become a most important function of the state. Wisconsin v. Yoder, 406 U.S. 205, 213 (1972). Nonpublic education, primarily in the nature of private preparatory or Catholic parochial schools coexisted. Religious based or church schools began to appear in the 1960s as an important alternative choice of educational method due to the court decisions in the 1960s that removed many religious influences from public schools. See Engle v. Vitale, 370 U.S. 421 (1962) (removing daily prayer); Abington School District v. Schempp, 374 U.S. 203 (1963) (removing Bible reading and the Lord’s Prayer); Epperson v. Arkansas, 393 U.S. 97 (1968) (holding unconstitutional anti-evolution statute); Stone v. Graham, 449 U.S. 39 (1980) (removing the Ten Commandments).

Students’ Rights in Public Schools

Students’ rights in public schools were first significantly addressed in Tinker v. De Moines Ind. Community School District, 393 U.S. 503 (1969). From this case arose the well known saying that students do not “. . . shed their constitutional rights of freedom of speech or expression at the schoolhouse gate.” 393 U.S. at 506

However, in Hazelwood School District v. Kuhlmeier, 484 U.S. 260 (1988) the Supreme Court held that schools have a legitimate pedagogical interest in regulating certain speech. Importantly, free exercise rights of religion and free speech go hand in hand. Usually, the issues faced in public school context are speech related, while the issues in nonpublic context are related to activities.

The State of Alabama has been a leader in protecting religious liberty in public schools. The first well known case is Wallace v. Jaffree, 472 U.S. 38 (1985). That case dealt with first prescribed prayer in the public school and then a moment of meditation. The Supreme Court properly recognized the prescribed prayer would violate the Establishment Clause, but we disagree with the opinion that even a period of meditation is unconstitutional.

There were additional Supreme Court cases which were significant in addressing students’ religious rights in public schools. The Equal Access Act, 20 U.S.C. § 4071 was held constitutional in Board of Education v. Mergens, 110 S.Ct. 2356 (1990). This permitted during and after school religious clubs to meet. Another case would be Lee v. Weisman, 505 U.S. 577 (1992) which prohibited clergy-given prayer at a public school graduation. The case of Lemon v. Kurtzman, 403 U.S. 608 (1971) was the basis for many adverse rulings on religious rights in public schools. The infamous Lemon test requires government action to have a secular purpose, the primary effect neither advancing nor prohibiting religion, and not fostering excessive government entanglement with religion. The test is subjective and is very often difficult to apply.

For approximately three decades litigation continued over students’ religious rights. Finally, two cases that affect Alabama were decided recognizing religious free exercise rights. In Chandler v. James, 180 F.3d 1254 (11th Cir. 1999) (Chandler I) student initiated speech was permitted and “must be without oversight, without supervision, subject only to the same reasonable time, place and manner restrictions as all other student speech in school.” Then the United States Supreme Court decided Sante Fe Independent School District v. Doe, 530 U.S. 290 (2000), holding a public school could not develop a plan to sponsor school prayer. The 11th Circuit reviewed Doe and issued a second opinion in Chandler. In Chandler v. Seigelman, 230 F.3d 1313 (11th Cir. 2000) (Chandler II), the court reiterated that “so long as the prayer is genuinely student-initiated, and not the product of any school policy which actively or surreptitiously encourages it, the speech is private and it is protected . . . .”

The application of these cases and laws is easier said than achieved. As a result of the Chandler decisions then Alabama Attorney General Bill Pryor issued a memorandum on July 21, 2000 outlining what religious activities are permitted in schools. This memorandum, attached to this statement as Exhibit “B,” is an excellent summary of the rights that are permitted public school students. Yet, there are many instances when these rights are violated. Examples of these instances are listed in Exhibit “C” attached hereto.

In addition to those guidelines the No Child Left Behind Act (amending Section 9424 of the Elementary and Secondary Education Act of 1965) required the Secretary of Education to issue guidance on constitutionally protected prayer in public, elementary and secondary schools. This law permits prayer during non-instructional time, organized prayer groups and activities, school employees prayer, moments of silence, accommodations of prayer during instructional time, religious expression and prayer in class assignments, student assemblies and extracurricular events, prayer at graduation and baccalaureate ceremonies.

Finally, the Alabama Religious Freedom Amendment, Article I, Section 3.01 (Amendment 622), Alabama Constitution of 1901, recompiled (“ARFA”), provides protection for free exercise of religion rights. When the U.S. Supreme Court decided Employment Division v. Smith, 494 U.S. 872 (1990), it appeared to diminish free exercise protection. The court required a hybrid test for protecting free exercise rights. In other words, you had to have not only a religious issue involved but some other constitutionally protected issue. To remedy this, Congress passed the Religious Freedom Restoration Act of 1993, 42 U.S.C. § 2000bb, which was held unconstitutional by the United States Supreme Court in City of Boerne, 521 U.S. 507 (1997), but leaving open the suggestion that states could have similar laws.

Accordingly, Alabama passed ARFA which reinstated the compelling interest test that had been stricken down in Smith. The test requires that before the state can restrict a religious right it must have a compelling interest and then it must achieve it in the least restrictive or burdensome way. This provides significant protection to free exercise rights.

Students Rights in Nonpublic Schools

Students rights in nonpublic schools are handled differently than in public schools. Almost without exception, nonpublic school authorities would not be governed by constitutional constraints. Because they are not state actors, they are not subject to the Constitution.

Parents choose nonpublic education because of the various additional freedoms that are available in the nonpublic context. For example, religious schools can be run as religious schools with the study of the Bible or other religious materials without interference by the state. Discipline and other matters can be administered differently than in public schools.

However, it is the regulation of nonpublic schools by public school authorities and related laws that may burden free exercise of religion rights. The state has an interest in seeing that all children are educated. Therefore, truancy laws are valid exercises of the state’s police power.

Section 16-28-1, 1975 Code of Alabama, makes an exception for regulation of church schools due in respect of First Amendment concerns. However, truancy laws still apply.

If nonpublic schools were operating in a vacuum, there would be no interface with other education alternatives. That is not the case. There must be regulation within the law to permit the cooperation of public and nonpublic education. Issues arise when there is transfer from a nonpublic to a public school, and vice versa. There are issues of grades, academic achievement, degrees, qualifications for college, etcetera.

The history prior to the 1982 church school law in Alabama was based on interference by state authorities with church schools. State authorities attempted to regulate the activities of church schools. Consequently, the statute was passed.

In the following years, there have been a number of instances where issues of church school regulation came up. These appeared in new laws such as criminal background checks, regulations on transfer between schools, special education services to special needs children, and other normal and necessary regulations. Examples of problems that were encountered in these areas are included on Exhibit “C” attached hereto.

Conclusion

In spite of these significant developments and numerous laws and regulations meant to protect free exercise rights, students’ rights are still in peril. The decades of litigation moving from Establishment Clause burdens to Free Exercise Clause freedoms has resulted in significant improvement of students’ rights. Viewed in light of the first part of the Twentieth Century where free exercise rights were basically unburdened and sometimes to the extent that there were Establishment Clause violations, circumstances of today seem more restricted. However, we have been moving in a right direction. The momentum could slow or stop at anytime.

Judge Brevard Hand found in his trial decision of Jaffree v. Board of Schools Com’rs of Mobile County, 554 F. Supp. 1104, 1129, fn. 41 (D.C. Ala. 1983), that Christian religion was the religion that had been singled out more than any other religion for discrimination in the education process. A review of the many Circuit Courts of Appeal and Supreme Court cases during the last half of the Twentieth Century reveals that it is usually Christian religion at the center of the dispute. This is probably so merely because Christianity has been the dominant religion in America. The early Establishment Clause cases were related to Christian religious activities, simply because there were more Christian educators and students involved in the process. At the same time, many disagree with the Judeo Christian heritage of America because of what they see to be restrictive mores on society.

American society is different today than it was fifty years ago. There are more religions practiced in America. The First Amendment permits free exercise of all those religions without restriction of any. It must be reemphasized that any efforts to defend religious freedom through the cases mentioned above have been to protect free exercise rights and not to establish any state religion. That misconception shall not be perpetuated.

Yet, our constant vigilance must be to continue the momentum of these efforts. Attached as Exhibit “C” is a statement of selected anecdotal circumstances we have addressed. These are only a few of the many frequent inquiries we receive. These demonstrate a burden on students’ rights, although the circumstances often appear to be routine or mundane. Any trifling with our rights must be addressed.

In the end, it appears the incidents result usually from ignorance and fear. We do not believe that malice is often the motivation. By ignorance, we mean school officials are not properly taught and reviewed on respecting students’ religious rights. By fear, we mean the fear of threat from litigation organizations that seek to eradicate religious presence from the public square. A program of continuing education for school officials on the important constitutional rights of students, whether it be religion, speech due process, or other fundamental rights, would help address the ongoing problems.

For avoiding problems in nonpublic education, state authorities, both in the administrative offices of the Board of Education and in the legislative process, must recognize the need to protect the First Amendment free exercise rights of students and parents. Laws and regulations that would impact church schools must be written to permit those schools to operate without unconstitutional state interference.

AEJ/pmm

[1] Lawrence Cremin, American Education: The Colonial Experience, 1607-1783 (New York: Harper and Rox, 1970), p. 192. Also see, William T. Davis, History of the Town of Plymouth (Philadelphia: J.W. Lewis & Co., 1885), p. 52.

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