EOL 469: Legal Basis of Educational Practice
David M. Stone, University Laboratory High School, Urbana, IL USA
Public School Policy Development Primer:
Religious-based Objection to Course Content and Materials
Introduction
This paper introduces many of the historical legal decisions which shape United States public school policy. Though it may often seem annoying and time consuming to deal with many of these concerns, it is essential that education professionals be cognizant of landmark Federal Supreme Court decisions which specifically mandate legally acceptable and unacceptable behaviors. It is also essential that teachers be able to share their knowledge and communicate effectively with parties who believe their specific religion-based rights granted by the U.S. constitution are being violated by existing school policies and actions within individual classrooms.
Religious freedom is one main reason for the founding of our country. The concept of ideological and religious freedom remains as strong today as it was at the time of the founding of the United States. The founding fathers left their homelands for a country which promised freedoms well beyond those available to the masses during the times of early U.S. immigration. Representatives at the Constitutional Convention in Philadelphia (1787) intentionally avoided making strong statements regarding religion due to a firm belief that religious provisions were unnecessary to preserve religious liberty. This omission was not taken lightly by six states, who went on to propose amendments guaranteeing religious freedom. In fact, two states refused to ratify the document until a Bill of Rights, including religious freedom, was adopted. In 1789, a compilation of modifications and amendments were assembled, which included the statements we collectively call the First Amendment to the United States Constitution (Alexander and Alexander, 1998).
The pertinent section of the First Amendment that refers to religion simply states: "Congress shall make no law respecting the establishment of religion, or prohibiting the free exercise thereof." The first part of the statement is commonly known as the "establishment" clause, while the the second part is known as the "free exercise" clause. Though intended to be clear, concise and decisive in its presentation of the two clauses, the potential for individual interpretation based on individual biases and ephemeral passions continues to allow for impassioned argument to this day. It is the balancing of these two clauses that makes the analysis of religious freedom questions difficult for teachers, administrators and legal professionals. Often a situation which seems clearly consistent with the establishment clause is not nearly so consistent with the free exercise clause, and vice versa (Braun, 1996). The United States Supreme Court has stated that these clauses require each of the individual states to pursue a course of complete neutrality in all state funded agencies, including public school systems (School Law, Section 23:1, 1994).
Federal Legal Parameters
Virtually every religious-based objection to course content and materials centers around the First Amendment to the United States Constitution. Two tests have been used in determination of whether an action violates the establishment clause or the free exercise clause. Each is outlined below:
The Lemon Test
In 1971, Lemon v. Kurtzman, led to the development of a legal test known today as the "Lemon Test", which is used to determine whether a government action is constitutional under the establishment clause. The Lemon Test requires that government actions must satisfy the following requirements to be considered constitutional: 1) the action must have a secular purpose, 2) its primary effect must neither advance nor inhibit religion, and 3) the action must not cause excessive entanglement with religion. Assuming all three conditions are satisfied, the government action is deemed to not be in violation of the establishment clause and therefore that action cannot be considered unconstitutional. The Lemon Test has been under attack in recent Supreme Court decisions. It has not been formally abandoned, however, and no new test has been developed or is in development to replace it (Braun, Section 14:20, 1996, Alexander and Alexander, 1998).
The Free Exercise Test
The Free Exercise Test is "measured by balancing the state's compelling interest in providing public education against the right of the parent, student or employee to to freely exercise or practice his religion." As such, the test involves subjective determination of sincerity of the religious belief that is in conflict with the government (i.e. school) action. Recent cases in which student rights were determined to be violated involved withdrawl of Amish students from public school systems (Wisconsin v. Yoder) and male Native American students retaining long hair which violated district dress code (Alabama and Coushatta Tribes of Texas v. Trustees of Big Sandy). However, in Mozert v. Hawkins a federal court of appeals made clear that "the right to exercise one's religion freely is not burdened simply by mandating one to be exposed to ideas with which the person disagrees" (School Law, Section 23:3, 1994).
A number of Supreme Court decisions at the federal level serve as reference legal cases in current legislative disputes, and serve as a legal skeleton as to acceptable and unacceptable actions for all public schools throughout the United States. Areas of clear Federal Supreme Court decision include: 1) exposure to materials and ideologies which conflict with individual religious beliefs, 2) removal of textbooks/library books based on conflicts with specific religious ideologies, 3) balancing of existing secular curriculum with religion-based ideologies, and 4) teacher proselytizing of individual religious beliefs.
Exposure to materials and ideologies which conflict with student religious beliefs
Exposure to materials and ideologies which conflict with individual religious beliefs does not violate students constitutional rights nor does it place an unconstitutional burden on their free exercise of religion. Therefore, according to the U.S .Court of Appeals, Sixth Circuit, this exposure does not violate the Free Exercise Clause. In Mozert v. Hawkins (1987), that court ruled that a group of fundamentalist Christian students in Tennessee had to participate in classroom use of a basic reading series which exposed students to competing ideas and philosophies, some of which were contrary to the students' religious beliefs (Deskbook Encyclopedia of American School Law, p. 59, 1996). This ruling reversed a lower court's decision to allow those students to opt out of a reading curriculum because of their objection to the textbooks used. The U.S. Court of Appeals, Sixth Circuit held that "the students were merely being exposed to the materials and were not compelled to either do an act that violated their religious convictions or communicate an acceptance of a particular idea or affirm a belief" (School Law, Section 23:10, 1994). These decisions set precedent such that it is difficult to successfully challenge texts and their associated content on the basis of violating the free exercise clause.
Removal of textbooks which conflict with student/community religious beliefs
School boards are not obligated to remove educational materials because of the religious objection of students' parents. A 1987 Alabama case, Smith v Board of Commissioners of Mobile County, centered around a number of students' parents who were concerned that 44 textbooks taught the religion of "secular humanism" and therefore violated the establishment clause. A lower court ordered the removal of the books. The United States Court of Appeals, Eleventh Circuit, held that "the state of Alabama's purpose in selecting "certain textbooks to instill in public school children important educational, social, and other values outweighed any possible interference with the rights of parents who objected to the material contained in the textbooks." The Court of Appeals continued on, stating that "if school districts are precluded from including material in books that is offensive to any particular religious belief, there would be very little that could be taught in the public schools" (School Law, Section 23:21, 1994).
Balancing of existing curriculum with religious-based ideologies
Public schools do not have the right to balance their curriculum by requiring religious theories dealing with particular areas of curriculum when nonreligious theories are presented. Any attempt to do so is considered unconstitutional endorsement of religion. The legal case on which this statement is based, Edwards v. Aguillard, occurred in response to Louisiana's 1981 "Balanced Treatment for Creation-Science and Evolution- Science in Public School Instruction Act." The act required that curriculum guides be developed and research services supplied for creation science, but not for evolution. Initially presented as an act to promote academic freedom, it dealt unfairly with teachers in that it provided for sanctions against teachers who did not teach creation-science, but did not provide sanctions for teachers who did not teach evolution in their classrooms (School Law, Section 23:22, 1994, Deskbook Encyclopedia of American School Law, pp. 57 - 58, 1996).
Teacher proselytizing
Teachers may not proselytize in their public school classrooms. The above-mentioned case, Edwards v Aguillard, made clear the constitutional-based expectation that proselyting personal religious beliefs is completely unacceptable (Deskbook Encyclopedia of American School Law, p. 70, 1996). Teacher proselytizing violates each of the three prongs of the Lemon Test in that 1) proselytizing does not have a secular purpose, 2) its primary effect is to advance religion, and 3) proselytizing causes excessive entanglement with religion. Proselytizing fails each component of the test, clearly violating the establishment clause.
State Legal Parameters: Illinois School Law
Because the two clauses making up the First Amendment are both explicit and national in scope, it is expected that public schools will comply with separation of church and state as presented above. The 1996 Illinois School Law Survey, the regularly updated legal handbook of public school administrators and public school boards, is explicit regarding the above mentioned cases, and also provides the following regarding the option of being excluded from two specific activities and curriculum areas, sex education and disease instruction, based on religious grounds:
Additionally section 14:230 of the Illinois School Law Survey states, "Even if a teacher has religious objections to the teaching of evolution they may be required to do so and should be directed not to discuss the Biblical view of the subject with his students."
Clearly, the above-mentioned sections must be taken into consideration in the development of school or district policy regarding religious-based objection to course content and materials. At the same time, the legislature provides broad authority to school boards to make curricular decisions in the schools, ranging from determining the content of the curriculum, choosing textbooks and regulation of instruction. Parental opportunity to opt of specific classes and curricula are controlled by statutes 5/27-9.1 and 5/27-11.
Salient Education Issues In Policy Development and Communication
According to Section 14:210 of the Illinois School Law Survey, parental objections to curriculum content on the grounds that a student's participation violates the child's free exercise of religion are common. As in the development of policy for any area of public school endeavor, it is essential that communication be straightforward and consistent, and that the requirement of compliance to both state and federal laws be considered from the outset. Though brief summaries of specific cases do not need to be made part of policy statements, it may be appropriate and prudent to have this information available to the public because public policy and law must be based on legally cognizable claim and pre-existing law
At the same time, the legislature allows districts some degree of leniency in allowing parents the option of having their child opt out of specific reading and discussion of certain topics, though any significant deviation requires further policy development and elaboration. The position of the district becomes even more precarious and subject to potential litigation the further the school deviates from established case law. Further, Section 14:210 states explicitly that "a school can defend by allowing the child to opt out of the objectionable part of the curriculum (by substitution)." Options to opt out of selected areas of potential religious conflict are commonplace. Interpreting even more broadly than offering the opt-out option for those whose religious beliefs conflict with curriculum, states such as New York allow the option for districts to consider allowing students to forgo the study of certain portions of the district's curriculum which conflict with their philosophical or religious beliefs. Some school boards permit students to opt out of entire required classes where dissection is required (Section 14:48 , School Law, 1994). The state of Illinois, however, does not broadly interpret the opt-out option for individuals whose non-religious philosophies are compromised by participating in specific classroom activities or discussions.
It is advisable that legal counsel be involved throughout the policy development period. It is essential that districts which are liberal in their allowance of opting out of standard curricula be proactive in their establishment of opting-out policy and that the new policy be developed incorporating due process provisions at each level of the opting out process. In all cases it is essential that legal counsel thoroughly examine the policy document prior to its introduction to the public. Upon completion of the policy document and its incorporation into district policy handbooks, it is essential that teachers and administrators be made aware of its existence. Just as importantly, teachers should be flexible enough to anticipate, reasonably accommodate and head off situations which might potentially develop into litigious situations. For example, anatomy teachers might anticipate the possibility of substituting fetal pig dissection specimens with preserved rats for their Muslim students who have religion-based objections to handling pigs or pig body parts. Finally, it is essential that school administrations share information each school year with teachers of students who have religious-based waivers which allow for opting-out of discussions and presentations dealing with specific classroom topics. This prior information will allow those teachers adequate opportunity to modify assignments and speak with students prior to the onset of activities and discussions considered optional for those students. These actions prevent the students from being inadvertently placed in situations which compromise student and family beliefs, and significantly reduce the potential for conflict and litigation.
Bibliography
Alexander, Kern and Alexander, M. David, American Public School Law, West/Wadsworth, 4th ed., 1998. ISBN 0-314-20334-6.
Braun, Brian A., Illinois School Law Survey, Illinois Association of School Boards, Springfield , IL, USA, 4th ed., 1996. ISBN 1-880331-07-1.
Deskbook Encyclopedia of American School Law, Data Research, Inc., Rosemount, MN, USA, 1996. ISBN 0-939675-52-8, ISSN 1058-4919.
School Law, New York State School Boards Association and New York State Bar Association, 25th ed., 1994. ISBN 1-56452-046-3.
The School Code of Illinois/1996, West Publishing Company, St. Paul, MN, USA.
Created 10/24/99. Last modified 10/28/99.