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8/1/2008 - August 2008 SLI Educational Update - Summary of Testimony Before the U.S. Commission on Civil Rights Public Briefing "Religious Freedom in Alabama Public Schools"



To: SLI Supporters

Date: August 2008

From: A. Eric Johnston

Re: Summary of Testimony Before the U.S. Commission on Civil Rights Public Briefing “Religious Freedom in Alabama Public Schools”

On April 29, 2008, three attorneys appeared before a panel of the U.S. Commission on Civil Rights to provide information on the status of religious freedom in public schools in Alabama. The hearing was held at the historic Sixteenth Street Baptist Church in Birmingham, Alabama, a symbol of the destructiveness of discrimination. An ACLU affiliated attorney, a Liberty Council affiliated attorney and a Southeast Law Institute affiliated attorney presented statements and then answered questions from the panel. For approximately two hours there was a give and take session which resulted in a very clear presentation to the panel that there is religious discrimination in Alabama public schools. Also, SLI provided evidence of discrimination against nonpublic schools, specifically church schools, in the administration of various laws against them. Our full report can be found at our website: www.southeastlawinstitute.org. This Update highlights some of our report.

While public education was predominant until the second half of the Twentieth Century, at that time nonpublic education became a choice available to parents. This was due in large part to the restrictions of religious speech and activities in public schools as a result of 1960s and later U.S. Supreme Court Cases. See Engle v. Vitale, 370 U.S. 421 (1962) (removing 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).

At the same time, the U.S. Supreme Court provided protection to other constitutional rights. For example, it recognized parents’ rights to choice of education in Meyer v. Nebraska, 262 U.S. 390 (1923) (religious school); Pierce v. Society of Sisters of the Holy Names of Jesus and Mary, 368 U.S. 510 (1925) (religious or military schools); and Wisconsin v. Yoder, 406 U.S. 205 (1972) (religious school). In Tinker v. Des Moines Ind. Comm. School Dist.. 393 U.S. 503 (1969), the court held that students do not “shed their constitutional rights of freedom of speech . . . at the schoolhouse gate.” But then, there were cases like Wallace v. Jaffree, 472 U.S. 38 (1985), which prohibited even silent prayer in public schools.

This mixture of cases seemed to take away religious freedom in public schools and drive students to nonpublic schools. This confusion was compounded by the infamous Lemon Test developed in Lemon v. Kurtzman, 403 U.S. 608 (1971) which provided a very subjective test that could be and was used by federal courts to prohibit virtually any type of public school religious activity.

Flowing from these cases was a long period of protracted litigation around the country in which SLI participated and which finally in the late 1990s resulted in decisions which began to recognize the free exercise of religion of students in public schools. While the United States Supreme Court has still not clearly articulated all of the guidelines concerning what public school students may do, Alabama is controlled by the 11th Circuit Court of Appeals which ruled in Chandler v. James, 180 F.3d 1254 (11th Cir. 1999) and Chandler v. Seigelman, 230 F.3d 1313 (11th Cir. 2000) that students have a right to religious speech and activity in schools which cannot be abridged.

Yet, discrimination continues. Our testimony was that many 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. We explained that examples of continuing discrimination include students sharing religious aspects of Christmas, religious themed book reports, prayer at athletic events, and, the biggest problem, restrictions on valedictorians’ reference to God, religion and faith in their graduation speeches.

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

Those who believe religious rights are being violated are not seeking to reestablish religion in public schools. No one is requesting a return to required prayer or religious activities, Bible study, or teacher led devotionals. Rather, we are trying to protect free exercise rights of students so that religion is not completely left out of public school discourse. 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 beliefs in public schools.

The only way to protect religious rights is for public school officials, both participants in public schools and administrators of regulations for nonpublic schools, to be informed of constitutional and legal requirements and be permitted to properly carryout their activities of protecting religious freedom without fear of lawsuits from those who seek to remove religious speech and activity. If they do not, legal action against them must follow. We encouraged the Commission to review our evidence and to use federal laws against discrimination to protect these rights.

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