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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In some communities, advocacy groups have already approached schools to discuss the guidelines, Hutton says. But he believes many others will become aware only if a school is actually threatened with a funding loss.Skip to next paragraph
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When it comes to the new guidelines, "Somebody somewhere will make a mistake," says Bruce Hunter, director of government relations for the American Association of School Administrators in Arlington, Va. With 3 million teachers and 90,000 public schools, he predicts, "It's bound to happen."
It may have happened already. In Las Vegas, the Clark County Schools already had in place a policy permitting students to include religious material at ceremonies like graduation. But this spring, the school board voted to change the policy to bring it more fully in line with the Bush administration's religious guidelines, despite the school system's location within the Ninth Circuit Court - a court that has ruled against such speech at school ceremonies.
Sheila Moulton, president of the Clark County school board, says she is comfortable with the board's decision. "We wanted the students to have some freedom to mention a deity - not in a proselytizing way - but to express gratitude," she says.
Ms. Moulton says she's confident students will not say anything that could make any listener uncomfortable - or trigger a lawsuit. "It wouldn't be appropriate to give a prayer. Our students wouldn't do that," she says.
But the American Civil Liberties Union of Nevada has already filed a suit against the school district. "We don't have to wait for anything to happen," says Allen Lichtenstein, general counsel of the ACLU of Nevada. "If they have an unconstitutional policy, that's sufficient for a suit."
Meanwhile in Agawam, Superintendent Czajowski worries that despite her best efforts she will face graduation on June 8 without any kind of policy in place governing the possibility of student-initiated prayer at the ceremony.
"It takes time and funding to research law, form committees, and pay attorneys," she says. "We're being asked to implement laws without extra resources and funding. And if you do it too hastily, you could end up in court."
That prospect is only too real, says Professor Zirkel. Even before NCLB, he says, "You already had the materials for fire in place. Now you've added the fuel. I smell smoke."
It's one of the most delicate balancing acts in all of US constitutional law: the conflict between the right of public school families to practice their own religion and their equally imperative right not to be imposed upon by the beliefs of others.
The cases heard by the US Supreme Court on the topic tend to pit "accommodationists" (those who stress freedom of expression and hope to see public schools accommodate religion) against separationists (those concerned with maintaining strict division between church and state).
The court's 1963 ruling in Abington v. Schempp was an early victory for separationists, forbidding the reading of the Lord's Prayer and Bible verses as part of opening exercises in public schools.
Subsequent rulings on the use of religious material at school ceremonies have been consistent. In 1992, the high court ruled again in Lee v. Weisman against allowing a religious benediction at a Rhode Island graduation, and in 2000 against student- initiated prayer at a Texas football game in Santa Fe Independent School District v. Doe.
But, in 2001, accommodationists scored a victory in the Good News Bible Club v. Milford Central School when the Supreme Court ruled that a Bible club had the same right as any other extracurricular group to meet on school grounds.
In one unusual move, the Supreme Court revisited the same religion-in-school issue twice. In 1985, the court heard Aguilar v. Felton, a case debating the right of parochial schools in New York to receive Federal Title I services, and in a split decision concluded that separation of church and state was the imperative concern.
But, in 1997, the court heard Agostini v. Felton - the same case - and in a split decision took an accommodationist stand.
"It's very rare for the court to revisit the same issue only 12 years later," says Perry Zirkel, professor of education and law at Lehigh University in Bethlehem, Pa. What it demonstrates, he says, "is exactly how ambivalent we are on this issue."