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Religion-free zone?
America's public schools are in a bind. A new law requires them to allow 'religious expression' on school grounds - or risk losing federal funds. But they risk a lawsuit if they do.
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The Bush administration guidelines cover much of the same ground - but with a few significant differences.
One is the way they treat the question of "religious expression" at assemblies. While the Clinton guidelines stressed that "the right of religious expression in school does not include the right to have a 'captive audience' listen," the Bush guidelines draw a different conclusion.
They acknowledge that prayer or religious speech initiated by school officials would be illegal but then assert that "the speech of students who choose to express themselves through religious means such as prayer is not attributable to the state, and therefore may not be restricted because of its religious content."
But that advice is not consistent with some recent court rulings, say legal experts, and could be dangerous for school systems if they assume that by relying on the guidelines they'll be in accord with the law.
"The [Bush] guidelines gloss over some real splits in court readings, and that can really mislead administrators," says Tom Hutton, attorney for the National School Board Association in Alexandria, Va. "Court decisions really vary on these things - notably prayer at graduations."
The Ninth Circuit Court of Appeals, he points out, recently reaffirmed that a school must prevent a captive audience from being exposed to prayer.
"The Bush administration has given a selective slant and then said, 'Now if you don't follow this you won't get funding,' " says Perry Zirkel, professor of law and education at Lehigh University in Bethlehem, Pa. "Legally, politically, and morally, they've pushed school administrators out onto a dangerous limb."
The Bush guidelines also support the right of public school teachers to participate in religious activities on school grounds - an area that the Clinton guidelines don't touch and that has met with mixed reaction in US courts.
Both the Clinton and Bush guidelines support the right of students to include religious material in their homework and art assignments, although the Clinton guidelines are more cautious here. This is another area where court decisions vary.
But the big difference between the Clinton and Bush conclusions, some point out, is that the Clinton guidelines don't threaten a loss of funding.
And yet, argue some observers, the right to freedom of speech granted under the First Amendment of the US Constitution is so widely ignored by school administrators when it comes to religion that the funding threat was the only way to make them sit up and take notice.
"This is probably a necessary step to ask schools to take the First Amendment more seriously," says Charles Haynes, senior scholar at the First Amendment Center at the Freedom Forum in Alexandria, Va.
Although the Education Department under Clinton went to some expense to get the guidelines into the hands of all school administrators, Mr. Haynes says, "The sad fact is that most superintendents and administrators simply ignored them."
He points to a survey his group conducted in 2001 after the Clinton guidelines had been circulated that showed 40 percent of school administrators and 70 percent of teachers said they were not familiar with them.
