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Religion, Democracy and the Public Schools

Published online by Cambridge University Press:  25 September 2015

Michael J. Davis
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In the six decades since it began adjudicating issues involving religion and K-12 education, the United States Supreme Court has issued numerous opinions on various aspects of that relationship. Several of the Court's viewpoints have changed over time. It explicitly reversed itself on the constitutionality of using publicly-paid specialists in parochial schools, and dramatically changed its perspective on public funds flowing to those institutions. But the Court has never wavered on issues regarding religious activities in public schools—it has struck down every policy or program it has chosen to review. No opinion was unanimous, and rationales changed. But no result has diverged from the Court's original perspective that the Establishment Clause's brightest line ran just outside the public school grounds.

This piece begins with first doctrinal, then policy reviews of the Court's nine school prayer decisions. Parts I and II analyze the decisions as constitutional doctrine, dividing them along parallel lines of time and quality. In Part I, I show that the holdings and rationales of the Court's early school prayer decisions are both sound and commendable as constitutional doctrine. Part II takes a longer look at the remaining later decisions however, and reveals a struggling Court often relying on specious, fabricated or a priori reasoning to reach the apparently inevitable, but questionable, conclusion of unconstitutionality. Part III takes up the effects of the Court's decisions on social and political policy. I argue that the early decisions, though controversial, freed America from a past of sectarian domination, while the later decisions helped sow the seeds of several related and unhappy developments, especially ones promoting the very religious divisions they purported to guard against.

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Articles
Information
Journal of Law and Religion , Volume 25 , Issue 1 , 2009 , pp. 33 - 56
Copyright
Copyright © Center for the Study of Law and Religion at Emory University 2009

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References

1. Compare Agostini v. Felton, 521 U.S. 203 (1997) with Aguilar v. Felson, 473 U.S. 402 (1985).

2. Compare Zelman v. Simmons-Harris, 536 U.S. 639 (2002) with Comm. for Public Educ. & Religious Liberty v. Nyquist, 413 U.S. 756 (1973).

3. The number includes two decisions involving curricular content (Epperson and Agiiillard infra), but excludes two regarding equal access of student or community religious groups to public school facilities (Lamb's Chapel v. Ctr. Moriches Union Free Sch. Dist., 508 U.S. 384; Bd. of Educ. v. Mergens, 496 U.S. 226 (1990)).

4. As I will describe, I was not only an observer but a legal and community participant in this history.

5. McCollum v. Bd. of Educ, 333 U.S. 203 (1948).

6. True to its early view that compulsion is not a necessary aspect of an Establishment violation, the Court never references the opt-out provision.

7. Engel v. Vitale, 370 U.S. 421 (1962).

8. Sch. Dist. of Abington Township v. Schempp, 374 U.S. 203, 205 (1963).

9. Id.

10. Murray v. Curlett, 179 A.2d 698 (Md. 1962).

11. Only Schempp directly addresses the point:

The Free Exercise Clause … purpose is to secure religious liberty in the individual by prohibiting any invasions thereof by civil authority. Hence it is necessary in a free exercise case for one to show the coercive effect of the enactment. … The distinction between the two clauses is apparent—a violation of the Free Exercise Clause is predicated on coercion while the Establishment Clause violation need not be so attended. 374 U.S. at 223.

12. Id. at 246, 299.

13. Stone v. Graham, 449 U.S. 39 (1980).

14. Id. at 43.

15. Conkle, Daniel O., The Establishment Clause and Religious Expression in Governmental Settings: Four Variables in Search of a Standard, W. Va. L. Rev. 315, 328 (2007)Google Scholar.

16. McCollum, 333 U.S., at 212.

17. Compare McCreary County v. ACLU of Ky., 545 U.S. 844 (2005) with Van Orden v. Perry, 545 U.S. 677 (2005).

19. Epperson v. Ark., 393 U.S. 97 (1968).

20. Wallace v. Jaffree, 472 U.S. 38 (1985).

21. Edwards v. Aguillard, 482 U.S. 578 (1987).

22. Lee v. Weisman, 505 U.S. 577 (1992).

23. Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290 (2000).

23. See Lee, 505 U.S. at 632-36 (Scalia, J., dissenting).

24. Id. at 581.

25. See id. at 631-36 (Scalia, J., dissenting).

26. Epperson, 393 U.S. 97, 107-08 (1968); Edwards, 482 U.S. 578, 573 (1987).

27. Epperson, 393 U.S., at 107.

28. Aguillard, 482 U.S., at 587.

29. See, e.g., Perry, Michael J., Religion in Politics: Constitutional Moral Perspectives (1977)Google Scholar; Laycock, Douglas, The Underlying Unity of Separation and Neutrality, 46 Emory L.J. 43, 47 (1997)Google Scholar.

30. Aguillard, 482 U.S., at 627-33 (Scalia, J., dissenting).

31. Laycock, Douglas, Freedom of Speech That Is Both Religious and Political, 29 U.C. Davis L. Rev. 793 (1996)Google Scholar.

32. Aguillard, 482 U.S., at 636-37 (Scalia, J., dissenting).

33. Id. at 615.

34. Kitzmiller v. Dover Area Sch. Dist., 400 F.Supp.2d 707 (M.D. Pa. 2005).

35. Id. at 714.

36. Id. at 765.

37. Id.

38. Id. at 718.

39. Gould, Stephen Jay, Justice Scalia's Misunderstanding, Nat. Hist. 96, 14–21 (1987)Google Scholar.

40. Id.

41. Santa Fe Indep. Sch. Dist., 530 U.S. 290.

42. Conkle, supra note 15.

43. Santa Fe Indep. Sch. Dist., 530 U.S. at 304-13.

44. Id. at 318 (Rehnquist, C.J., dissenting).

45. Id. at 310.

46. Schempp, 374 U.S. 203, at 310.

47. The states were Alabama, Arizona, Arkansas, Florida, Georgia, Idaho, Kansas, Louisiana, Maine, Mississippi, New Hampshire, New Jersey, New Mexico, North Carolina, Rhode Island, South Carolina, South Dakota and Tennessee. See Brief and Appendix for Attorney General of Maryland, Murray v. Curlett (U.S. Nov. 30, 1963) (No. 119).

48. There are, of course, “exceptions and arrangements” for parents who do not wish their children to participate. School Standards and Framework Act, § 70-71, ch. 31 (1998).

49. See the United States Department of State's Annual Report on International Religious Freedom (2007), available at www.state.gov/g/drl/rls/irf/2007.

50. Even that attempt to make all children “better” through the Bible, the Lord's Prayer, and adding “under God” to the daily Pledge failed more often than the Court suspected. 1 was raised Catholic in a small Protestant-dominated town where we “did it all” every morning. At first I was a bit confused about whether to say the extra words that someone added to the Lord's Prayer I knew, but soon enough I worked that out—I don't remember how—and just went with the flow. And as far as 1 knew, so did the few other Catholics, Jehovah's Witnesses, Assembly of God kids, and the one Jewish boy. At some early point, it all became pointless, a dull, unmemorable way to begin each school day. All of which augers toward the early Court's position that coercion is not a necessary element in an Establishment violation.

51. Alley, Robert S., School Prayer: The Court, the Congress, and the First Amendment 118–20 (Prometheus Books 1994)Google Scholar.

52. Id. at 127-56 (1964), 157-68 (1966), 169-86 (1971) & 187-219 (Reagan years).

53. Id. at 169-80.

54. Id. at 220-33.

55. Id. at 187-214.

56. Merrill, Thomas W., The Making of the Second Rehnquist Court: A Preliminary Analysis, 47 St. Louis U. L.J. 569, 580 (2003)Google Scholar; Applebome, Peter, Religious Right Intensifies Campaign for Bush, N.Y. Times, 10 31, 1992, at 1Google Scholar.

57. Special Report: The Triumph of the Religious Right—American Values, Economist, 11 13, 2004, at 29Google Scholar.

58. Keeping it local, one good exposition of this phenomenon is Frank's, Thomas popular book, Thomas Frank, What's the Matter with Kansas?: How Conservatives Won the Heart of America (Metropolitan Books 2004)Google Scholar.

59. These Protestant crosscurrents collided with … the Engel decision. Denominational and National Council [of Churches] leaders firmly supported the Court and so testified. Simultaneously, there was a strong grass roots resistance that found a voice in Billy Graham and Norman Vincent Peale. But uncompromising Protestant fundamentalism … would find more dependable leadership among a cadre of television preachers who loathed accommodation with the mainstream Protestants.

Alley, supra note 50, at 222.

60. Conservative Churches Grew Fastest in 1990s, Report Says, N.Y. Times, 09 18, 2002, available at http://www.nytimes.com/2002/09/18/us/conservative-churches-grew-fastest-in-1990-s-report-says.html?scp=1&sq=conservative+churches+grew+fastest&st=nytGoogle Scholar. The story reports on a decennial study, “Religious Congregations and Membership: 2000,” considered by scholars as the most comprehensive assessment of denominational populations and shifts. The 2000 Report showed an 18% increase in two principal conservative Protestant sects during the 1990s and double-digit diminutions in such mainline sects as Presbyterian and United Church of Christ. And, of course, many fundamentalist churches are non-denominational.

61. Autumn Burke, Why Homeschooling is on the Rise, About.Com, http://homeschooling.about.com/od/gettingstarted/a/homeschoolrise.htm (last visited Nov. 7, 2009).

62. Planty, M., et al., U.S. Dept. of Educ., The Condition of Education 2009, at 14 (NCES 2009-081), available at http://nces.ed.gov/programs/coe/2009/pdf/6_2009.pdfGoogle Scholar.

63. Gefter, Amanda, Home-Schooling Special: Preach Your Children Well, New Scientist, 11 9, 2006, available at http://richarddawkins.net/article,297,Home-schooling-special-Preach-your-children-well,Amanda-Gefter-NewScientistcomGoogle Scholar.

64. Lines, Patricia M., Homeschooling: An Overview for Educational Policymakers (U.S. Dep't of Educ., Working Paper No. 4, 01 2007)Google Scholar.

65. National Center for Education Statistics, The Condition of Education 14 (2009), available at http://nces.ed.gov/pubs2009/2009081.pdfGoogle Scholar.

66. Burke, supra note 60.

67. McCollum, 333 U.S. 203, 216 (Frankfurter, J. dissenting).

68. Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1 (2004).

69. Santa Fe Indep. Sch. Dist., 530 U.S. 290; Edwards, 482 U.S. 578.

70. Lyndon Johnson was the last Democrat to win Kansas's electoral votes.

71. Belluck, Pam, Board for Kansas Deletes Evolution from Curriculum, N.Y. Times, 08 12, 1999, at 1Google Scholar.

72. In fact, one member supporting the changes was supposedly a “moderate” who decided for undisclosed reasons to cast the marginal vote with the anti-evolutionists.

73. Kan. Stat. Ann. § 72–7513 (2008)Google Scholar.

74. Id.

75. Sera, Erwin, Acting Out on Behalf of Evolution, Lawrence J.-World, 07 13, 2000, at 1Google Scholar.

76. Beem, Kate, New Plan Softens Evolution Standards, Kan. City Star, 08 9, 1999, at A1Google Scholar. Rothschild, Scott, Evolution hearings show scope of cultural divisions, Lawrence J.World, 05 4, 2005, available at http://www2.1jworld.com/news/2005/may/04/evolution_hearings_show/Google Scholar.

77. The discussion took place between the ACLU and Stinson, Mag & Fizzell during the summer of 2000. 1 was Of Counsel to the firm at the time and would have been the lead attorney.

78. There is no obvious group nomenclature for those supporting the amended Standards. Terms such as “religious right” or “social conservative” are far too broad, and “pro-Intelligent Design” or “pro-Creationism” may or may not be accurate. The group would probably object to “anti-evolutionists” as well because of their alleged “support” for micro-evolution. But it seems the fairest of several bad choices.

79. Much of the following description of the back and forth of the decade-long battle over the statewide testing standards comes from my own observations, notes, file, and (declining) participation. Some of the events were covered by the national press, including the New York Times, the Los Angeles Times, and NPR. Some were covered only locally, if at all. The best sources for additional information include the archives of the Topeka Capital, the Kansas City Star, and the Lawrence Journal-World. Other helpful cites include www.kcfs.org (Kansas scientists), www.tv.ku.news (University of Kansas), www.talkorigins.org (private website of a close observer of the 2005 hearings).

80. Krebs, Jack, Kansas Evolution Hearings: Summary of the Background to the Kansas “Science Hearings” at 05, 2005, July 1, 2005, www.talkorigins.org/faqs/Kansas/evolutionhearings.htmlGoogle Scholar.

81. Kansas Citizens for Science, Resolution Concerning The “Science Hearings,” 03 8, 2005, www.kcfs.org/standards05/KCFS.resolution.htmlGoogle Scholar.

82. The Talk Origins Archive: Exploring the Creation/Evolution Controversy, Summary of the Background to the Kansas Science Hearings of May, 2005, 07 1, 2005, http://talkorigins.org/faqs/kansas/evolutionhearings.htmlGoogle Scholar.

83. See, e.g., Wilgoren, Jodi, In Kansas, Darwinism Goes on Trial Once More, N.Y. Times, 05 6, 2005, at A15Google Scholar; Huffsetter, P.J., Evolution Isn't A Natural Selection Here, Los Angeles Times, 05 6, 2005Google Scholar.

84. Hanna, John, Education Board to Revisit Debate over Evolution, Lawrence J.-World, 02 11, 2007, at 1, http:/www.washingtonpost.com/wp-dyn/content/article/2005/11/08/AR2005110801211.htmlGoogle Scholar.

85. Brown, Jim, Official Cries Foul as Liberals Take Over Kansas Board, 08 14, 2006, http://www.gopusa.com/news/2006/august/0814_kansas_educationp.shtmlGoogle Scholar.

86. Associated Press, Kansas Board Boosts Evolution Education: Guidelines Backed by Conservatives Skeptical of Darwin Repealed, 02 14, 2007, http://www.msnbc.com/id/17132925Google Scholar.

87. Manning, Carl, Gay Candidate Loses in Board of Ed Contest: Campbell leading Meissner for 4th District Seat, Lawrence J.-World, 11 5, 2008, available at http://www2.1jworld.com/news/2008/nov/05/gay_candidate_loses_board_ed_contest/Google Scholar.

88. Whether this classification includes the Pledge of Allegiance will determine the outcome of that eventual decision. Justices Rehnquist and O'Connor's argument that it is primarily a “patriotic exercise, not a religious one” seems to make sense. But neither will be there when the matter is finally decided. Newdow, 542 U.S. 1,31, (Rehnquist, C.J., concurring).

89. These are chronicled in an excellent new article by Carrington, Paul, Freeedom to Err: The Idea of Natural Selection in Politics, Schools and Courts, 17 Wm. & Mary Bill Rts. J. 1, 31–35 (2008)Google Scholar.

90. Kitzmiller, 400 F.Supp.2d 707.

91. By the time Judge Jones's opinion was issued, the Dover voters had cashiered all eight members of the school board who had supported the policy at issue.