Commentary: Legal View: Students' religious speech at issue again

By Charles C. Haynes The Daily Record Newswire Just when First Amendment principles seem to be working in public education, new fights over student religious speech threaten to reignite culture-war battles in schools across the country. It's little known that many public schools made significant progress toward getting religion right over the past decade. Thanks to consensus guidelines supported by advocacy groups from left to right, I have found that constitutionally protected student religious expression is way up in schools -- and unconstitutional school promotion of religion is way down. If schools now backslide into litigation and shouting matches, administrators who ignore (or misinterpret) the law have only themselves to blame. On one side of the religion-in-schools fault line, some school officials are too quick to censor student religious expression on the basis of a mistaken understanding of "separation of church and state." Last month, for example, parents in Cresco, Pa., filed a lawsuit challenging a local school's refusal to allow a fifth-grader to give classmates an invitation to a church Christmas party. The school district, it turns out, has a misguided policy barring student speech that "seeks to establish the supremacy of a particular religious denomination, sect, or point of view." Children, however, are not the government. Students should be free to express their faith -- including a conviction that their religion is the best or truest -- as long as they don't disrupt the school or interfere with the rights of others. If kids can hand our fliers about secular activities, then they can hand out fliers about faith-based events. On the other side of the divide, some administrators are still living in the 1950s, when many public schools freely promoted the majority faith. They either didn't get the Supreme Court memo about ending government endorsement of religion in schools, or they choose to ignore what the law requires of schools under the First Amendment. Consider the elementary school principal in Baltimore whose worries about high-stakes testing led her to call on a Higher Power. On March 5, the principal sponsored her second-annual prayer service "to ask God to bless our school to pass the MSA [Maryland School Assessments]." What this principal apparently doesn't understand is that school officials represent the state -- not the church. When carrying out their duties as administrators and teachers, they aren't free to take sides in religion. Of course, teachers may -- indeed must -- teach about religions as part of a good education. But they may neither inculcate nor denigrate any religion. These are easy cases. But sometimes First Amendment bright lines are difficult to draw, and that's when courts play an essential role in sorting out the facts and applying constitutional principles fairly. Case in point is a lawsuit filed March 24 by a high school student against a school district near San Diego. According to the student, school officials suspended him for talking about his Christian faith and barred him from bringing his Bible to school. At first blush, this sounds like another overreaction by administrators who think the First Amendment prohibits student religious expression during the school day. But the school district (run by a school board dominated by religious conservatives) claims that the student wasn't suspended for religious speech, but for interrupting class as part of a pattern of disruptive behavior. And, they add, he was never told not to bring his Bible to school. The truth is for a court to decide after weighing the evidence. But whatever the outcome, the case illustrates that sometimes it's difficult to determine the difference between protected and disruptive student religious expression. Lawsuits, however, should be a last resort, not the first recourse. Most disputes, like the current conflicts in Cresco and Baltimore, can be avoided if administrators understand and uphold the law. A good starting point would be for school officials to commit to memory former Justice Sandra Day O'Connor's famous description of the difference "between government speech endorsing religion, which the Establishment Clause forbids, and private speech endorsing religion, which the Free Speech and Free Exercise Clauses protect" (Board of Education of Westside Community Schools v. Mergens, 1990). Since blackboards are going the way of mimeograph machines, I would make school officials tweet that 100 times after school. ---------- Charles C. Haynes is director of the Religious Freedom Education Project at the Newseum, 555 Pennsylvania Ave., N.W., Washington, D.C., 20001. Web: firstamendmentcenter.org. He can be reached at chaynes@freedomforum.org. Published: Thu, Apr 14, 2011