Does god belong in public schools?

Does God Belong in Public Schools?

Volumn , Issue , 2009, Pages

  Greenawalt, Kent ^a  

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References (531)

1. Warren A. Nord, Religion and American Education 65 (Chapel Hill: Univ. of North Carolina Pr., 1995. William C. Bower, Church and State in Education 23-24 (Chicago: Univ. of Chicago Pr., 1944), wrote that the church controlled education in the middle and northern colonies. In the South, charity schools were sponsored by the English Society for the Propagation of the Gospel in Foreign Parts. See also Harry M. Ward, Colonial America: 1607-1763 325 (Englewood Cliffs, N.J.: Prentice Hall, 1991). According to Rosemary C. Salomone, Visions of Schooling: Conscience, Community, and Common Education 18 (New Haven: Yale Univ. Pr., 2000), schools generally were supported to some degree by tax revenues. But see Carl Kaestle, Pillars of the Republic: Common Schools and American Society, 1780-1860, at 4 (New York: Hill and Wang, 1983) ("Nowhere was schooling entirely tax supported or compulsory"). As Stephen Macedo has noted, "The vast majority of Americans throughout the eighteenth century worked on family farms and lived in rural areas." Stephen Macedo, Diversity and Distrust: Civic Education in a Multicultural Democracy 46 (Cambridge: Harvard Univ. Pr., 2002). New York and Boston each had fewer than fifteen thousand residents in 1755, and Philadelphia, the largest city, had only twenty thousand. Id.
2. Id. at 47-48.
3. Id. at 48-49.
4. Id. at 51.
5. Id. at 52-53.
6. Id. at 53.
7. John C. Jeffries Jr., and James E. Ryan, "A Political History of the Establishment Clause," 100 Mich. L. Rev. 279, 303 (2001)
8. have written, "[T]he shift in origin of nineteenth-century immigration from Ireland to central and southern Europe reinforced the racial element in anti- Catholic animosity." See also Richard Morgan, The Supreme Court and Religion 47 (New York: Free Press, 1972).
9. Id., relying on Ruth Miller Elson, Guardians of Tradition: American Schoolbooks of the Nineteenth Century 17-19, 21, 24 (Lincoln: Univ. of Nebraska Pr., 1964).
10. Id. at 61.
11. Id., referring to a study by Dan Fleming, "Religion in American History Textbooks: Were the 'Good Old Days' of Textbooks Really So Good?" 18 Religion and Public Education 79, 85, 100 (1991).
12. Horace Mann, Twelfth Annual Report 116-17 (1848), quoted in Raymond Culver, Horace Mann and Religion in the Massachusetts Public Schools 252 (New Haven: Yale Univ. Pr., 1929).
13. See id. at 67-72.
14. According to Justice Brennan, concurring in Abington Township v. Schempp, 374 U.S. 203, 275 (1963): "The last quarter of the nineteenth century found the courts beginning to question the constitutionality of public school religious exercises." And in 1910 the Illinois Supreme Court said, "The truths of the Bible are the truths of religion, which do not come within the province of the public school." People ex rel. Ring v. Board of Education, 245 Ill. 334, 349, 92 N.E. 251, 256. But, prior to Schempp, most state courts continued to sustain Bible reading.
15. Donald E. Boles, The Bible, Religion, and the Public Schools 58-99 (Ames: Iowa State Univ. Pr., 1961)
16. Joseph W. Harrison, "The Bible, the Constitution, and Public Education," 29 Tenn. L. Rev. 363, 381-85 (1962).
17. Id. at 39.
18. Id. at 78.
19. Salomone, id. at 178-79, describes the pendulum swinging back and forth in response to historical events and social movements.
20. Patricia Alberg Graham, "Educational Reform-Why Now?" 146, no. 3, Proceedings of the American Philosophical Society 256, 257-60 (2000).
21. A Nation at Risk was a 1983 report of the U.S. Department of Education's National Commission on Excellence in Education. It strongly recommended greater concentration on academic subjects, accompanied by higher and measurable standards of academic performance. A similar emphasis is contained in the 'No Child Left Behind Act of 2001,' Public Law 110 of the 107th Cong., signed by President Bush on Jan. 8, 2002.
22. Meyer v. Nebraska, 262 U.S. 380 (1923).
23. Pierce v. Society of Sisters, 268 U.S. 510 (1925).
24. Everson v. Board of Education, 330 U.S. 1.
25. McCollum v. Board of Education, 333 U.S. 203 (1948).
26. Zorach v. Clauson, 343 U.S. 306 (1952). My father, Kenneth W. Greenawalt, was counsel for Zorach.
27. Engel v. Vitale, 370 U.S. 421 (1962).
28. Schempp, 374 U.S. at 203.
29. Schempp, 374 U.S. at 225. See also id. at 300 (Brennan, J., concurring), and id. at 306 (Goldberg, J., concurring).
30. Id. at 222.
31. The Court did not address the possibility that teaching "ordinary subjects" could advance or inhibit religion, an issue we shall address in chapter 5 and succeeding chapters.
32. Lemon v. Kurtzman, 403 U.S. 602, 612-13 (1971).
33. The Lemon opinion also suggested that a potential for political divisiveness could amount to a forbidden entanglement, id. at 622, but later opinions backed off from treating that factor as independently relevant.
34. Agostini v. Felton, 521 U.S. 203, 233 (1997). On at least one occasion, in Marsh v. Chambers, 463 U.S. 783 (1983), the Court relied heavily on practices when the Bill of Rights was adopted, to sustain prayers to begin legislative sessions, although the prayers would almost certainly have failed the Lemon test.
35. Agostini, 521 U.S. at 237. According to the justices' understanding, the Supreme Court has not abandoned a test until it does so in an opinion that represents a majority.
36. At least with older children, it may be enough if they object, whatever their parents believe.
37. West Virginia Board of Education v. Barnette, 319 U.S. 624 (1943). The case overruled a previous decision that rejected a free exercise claim to the same effect.
38. Wisconsin v. Yoder, 406 U.S. 208 (1972).
39. This general approach followed Sherbert v. Verner, 374 U.S. 398 (1963), a prior decision involving a refusal to work on Saturday.
40. Employment Decision v. Smith, 494 U.S. 872 (1990).
41. Smith creates two exceptions to its general rule, one of which covers the facts of Yoder and may cover other parental claims to have children excused.
42. Smith, 494 U.S. at 890.
43. In the cases the Supreme Court has actually considered, the free speech argument has been successfully made by people claiming that a state restriction on aid to religious speech is invalid; a state could rely on free speech as a reason not to impose a restriction that some private party claims that the Establishment Clause requires.
44. No doubt, education for certain occupations, such as driving trucks, has little to do with what are conceived as liberal educational objectives.
45. Amy Gutmann, Democratic Education 51 (Princeton: Princeton Univ. Pr., 1987).
46. Thus, the regime he proposes differs in a crucial respect from the regime of disestablishment of religion. His acceptance of governmentrun schools is more than a concession to political reality. Id. at 135 n. 3.
47. Humphrey Taylor, "The Religious and Other Beliefs of Americans 2003," #11 The Harris Poll, February 26, 2003, available at http:// www.harrisinteractive.com/harris_poll/index.asp?PID=359.
48. "Faith-Based Funding Backed, but Church-State Doubts Abound," Pew Research Center for the People & the Press, April 10, 2001, available at http://people-press.org/reports/display.php3?ReportID=15.
49. Warren A. Nord, Religion and American Education (Chapel Hill: Univ. of North Carolina Pr., 1995)
50. Warren A. Nord and Charles C. Haynes, Taking Religion Seriously across the Curriculum (Alexandria, Va.: ASCD; Association for Supervision and Curriculum Development; Nashville: First Amendment Center, 1998).
51. I say "in theory" because it may be that such a detached approach really is impossible.
52. My opinions on that subject are in Private Consciences and Public Reasons (New York: Oxford Univ. Pr., 1995) and Religious Convictions and Political Choice (New York: Oxford Univ. Pr., 1988).
53. In theory, perhaps, one can discuss the issue of political philosophy without attending to particular religious views; in practice, the two are very hard to separate.
54. See generally Sophie C. van Bijsterveld, "Church and State in Western Europe and the United States: Principles and Perspectives," 3 Brigham Young Univ. L. Rev. 989-95 (2000).
55. Id. at 193.
56. These "cultural spillovers," largely the consequence of liberal programs of civic education, may alienate some citizens, disaffecting them and threatening the breadth of consent to the political order, and may colonize other citizens, weakening the freedom of their assent. Id. at 194-95, 198.
57. Id. at 195.
58. Id. at 198.
59. Id. at 210.
60. Id. at 206-13. A question for some chapters of this book is whether a particular practice can reasonably be justified as countering negative spillover effects-and I will return to comments Tomasi makes about practical issues in those contexts.
61. This is the sort of reconciling effort that Tomasi mainly suggests; if effective, it would tend to enhance benefits to civic virtue, because students would see how democratic values can fit with their own religions.
62. Id. at 41-47, 71-126.
63. Id. at 108.
64. If families were once regarded as prepolitical units, with parents (or fathers, in our paternalistic past) enjoying substantial authority against society as a whole, that is no longer the view.
65. In some instances, judges ask what questions juries can decide.
66. Engel v. Vitale, 370 U.S. 421, 422 (1962).
67. Abington Township v. Schempp, 374 U.S. 203 (1963). In the Abington, Pennsylvania, high school, this was done by a broadcast over the loudspeaker to the entire school of a child's reading passages she chose from the version of the Bible she preferred. The 1905 Baltimore rule required Bible reading or recitation of the Lord's Prayer, or both; the practice was to read the Bible.
68. Justices Frankfurter and White did not participate in Engel.
69. Marjorie Silver, "Rethinking Religion and Public School Education," 15 Quinnipiac L. Rev. 213, 215 (1995).
70. Everson v. Board of Education, 330 U.S. 1.
71. Exactly what aids to religion amounted to an establishment of one or more religions is debatable, but Leonard Levy, The Establishment Clause: Religion and the First Amendment 76 (New York: Macmillan, 1986), puts the number of states with establishments when the Bill of Rights was ratified at seven-exactly half the states in existence, Vermont having joined the original thirteen.
72. See, e.g., Steven D. Smith, Foreordained Failure: The Quest for a Constitutional Principle of Religious Freedom 17-18 (New York, Oxford Univ. Pr., 1995).
73. The most extensive discussion in a Supreme Court opinion is in Justice Brennan's concurring opinion in Schempp, 374 U.S. at 254-58.
74. Everson, 330 U.S. at 16.
75. Zorach v. Clauson, 343 U.S. 306 (1952).
76. Engel, 429, 431.
77. Id. at 425.
78. Schempp, 374 U.S. at 223.
79. Id. at 222.
80. Id. He explained that an Establishment Clause violation, unlike a free exercise violation, need not be predicated on coercion. Id. at 223.
81. Id. at 222.
82. Id. at 225.
83. Id. quoting 330 U.S. at 23-24. In the other Everson dissent, Justice Rutledge had written that our "constitutional policy" denies that the state can undertake "religious training, teaching, or observance" in "any form or degree." Id. at 218, quoting 330 U.S. at 52.
84. Jackson himself raised a doubt about its realism.
85. Schempp, 374 U.S. at 231. Countering the argument that religious exercises to start the school day may serve the secular purposes of fostering harmony, tolerance, and discipline, Brennan wrote that religious means could not be used to achieve secular ends when nonreligious means will suffice. Id. at 280-81. Brennan was unwilling to give great weight to the historical pedigree of the practices; what mattered was whether the practices were at odds with the broad purposes underlying the religion clauses. Id. at 236, 241.
86. Engel, 370 U.S. at 444; Schempp, 374 U.S. at 308.
87. Engel, 370 U.S. at 445. He relied heavily on the history of our traditions, in which countless similar practices involving official occasions were deemed acceptable. Id. at 446-50.
88. Schempp, 374 U.S. at 313.
89. Id. at 312.
90. Id. at 316-18. The state must not coerce those who do not wish to participate.
91. See Michael J. Klarman, "Rethinking the Civil Rights and Civil Liberties Revolutions," 82 Va. L. Rev. 1, 15 (1996) (indicating that polls showed that 60 to 80 percent favored prayer and Bible reading in schools).
92. For arguments that the original intent was only to forbid preferential aid, see Wallace v. Jaffree, 472 U.S. 38, 91-114 (1988) (Rehnquist, J., dissenting)
93. Robert Cord, Separation of Church and State: Historical Fact and Current Fiction (Grand Rapids, Mich.: Baker Book House, 1982)
94. Michael J. Malbin, Religion and Politics: The Intentions of the Authors of the First Amendment (Washington, D.C.: American Enterprise Institute, 1978). The Court's position is defended in Douglas Laycock, "The Origins of the Religion Clauses of the Constitution: Nonpreferential Aid to Religion: A False Claim about Original Intent," 27 Wm. & Mary L. Rev. 875 (1986).
95. Pub. L. No. 89-239, 79 Stat. 911, codified in scattered sections of 8 U.S.C. 1101-1351 (1995)
96. see Hiroshi Motomura, "Law and Equality: Whose Alien Nation?; Two Models of Constitutional Immigration Law," 94 Mich. L. Rev. 1927, 1932 (1996).
97. So-called originalists (because they rely on original intent) are divided among those who think what is crucial is the understanding of the enactors of a provision and those who think the sense of the people to whom a provision applies is what counts.
98. My own thoughts on this topic are summarized in Greenawalt, "Constitutional and Statutory Interpretation," in Jules Coleman and Scott Shapiro, eds., The Oxford Handbook of Jurisprudence and Philosophy of Law 268-310 (New York: Oxford Univ. Pr., 2002).
99. Philip Hamburger, in Separation of Church and State (Cambridge: Harvard Univ. Pr., 2002), has suggested that the original notion of "disestablishment" was stretched to an idea of "separation" that lacks constitutional warrant. I do not think the governing metaphor matters for prayer and Bible reading. Other reflections on Hamburger's thesis are in Kent Greenawalt, "History as Ideology: Philip Hamburger's Separation of Church and State," to be published in the California Law Review.
100. For an explanation in terms of the alignment of political forces for why the Court has become more permissive about aid to parochial education but not about religion in public school education, see John C. Jeffries, Jr. and James E. Ryan, "A Political History of the Establishment Clause," 100 Mich. L. Rev. 279, 303 (2001).
101. Lee v. Weisman, 505 U.S. 577.
102. Id. at 631.
103. Id. at 602-4 (Blackman, J., concurring); 609, 618-19, 623 (Souter, J., concurring).
104. See County of Allegheny v. American Civil Liberties Union, 492 U.S. 573, 655-56 (1989) (concurring in part and dissenting in part).
105. Lee, 505 U.S. at 586, 595.
106. Id. at 593.
107. Id. at 637-38.
108. Id. at 629.
109. Id. at 630.
110. Of course, some parents and students who agree with the content of graduation prayers are indifferent about whether they are offered, and some who do not agree with the content will not mind their being said.
111. Santa Fe Independent School District v. Doe, 530 U.S. 290 (2000).
112. Id. at 312.
113. Id. at 308.
114. Chief Justice Rehnquist and Justices Scalia and Thomas are firmly committed to a much more permissive reading of the Establishment Clause in this respect. Two more justices with their views could turn the constitutional law on school prayer upside down.
115. See generally Alan E. Brownstein, "Prayer and Religious Expression at High School Graduations: Constitutional Etiquette in a Pluralist Society," 5 Nexus 61 (Fall 2000).
116. See ACLU of New Jersey v. Black Horse Pike Regional Bd. of Educ., 84 F.3d 1471 (3d Cir.) (en banc); Hans v. Joint School Dist. No. 241, 41 F.3d 44 (9th Cir. 1994), vacated as moot, 515 U.S. 1154 (1995); Deveney v. Board of Education, 231 F. Supp. 2d 483 (S.D. W.Va. 2002).
117. However, many students and other members of the audience may not understand just how much review school officials have undertaken.
118. Of course, if a speaker spontaneously invites prayer on an isolated occasion, courts are unlikely ever to pass what he has done.
119. See Gearon v. Loudoun County School Bd., 844 F. Supp. 1097 (E.D. Va. 1993). But see Doe v. Madison School Dist., 7 Supp. 2d 1110 (D. Idaho 1997), vacated as moot, 177 F.3d 789 (9th Cir. 1999).
120. In Lee, 505 U.S. at 630 n. 8, Justice Souter, concurring, wrote, "If the state had chosen its graduation day speakers according to wholly secular criteria, and if one of those speakers (not a state actor) had individually chosen to deliver a religious message, it would have been harder to attribute an endorsement of religion to the state."
121. It is hard to imagine any such objective criterion for someone who is neither a student nor a school official, such as the principal.
122. It is a common form of speech to say, "I pray that . . ." That is not to offer a prayer in the usual sense.
123. Chandler v. Siegelman, 230 F.3d 1313 (2000).
124. U.S. Department of Education, Guidance on Constitutionally Protected Prayer in Elementary and Secondary Schools (Feb. 7, 2003), available at http://ed.gov/policy/gen/guid/religionandschools/prayer_guidance.html (accessed Feb. 10, 2003).
125. Id., "Student Assemblies and Extracurricular Events."
126. See Lassonde, 320 F.3d 979.
127. Stone v. Graham, 449 U.S. 39.
128. In those days, the Edgemont school ended after tenth grade, and all grades were in the same building. Within a few years of my graduation, the district built a high school, and elementary grades are now distributed among a number of schools.
129. However, in my school, all members of the tenth-grade music class were expected to participate.
130. See John M. Hartenstein, "Comment, A Christmas Issue: Christian Holiday Celebration in the Public Elementary Schools Is an Establishment of Religion," 80 Cal. L. Rev. 981 (1992).
131. Skarin v. Woodbine Community School Dist., 204 F. Supp. 2d 1195 (S.D. Ia. 2002). See also Doe v. Aldine Independent School Dist., 563 F. Supp. 883 (S.D. Tex. 1982) (holding invalid recitation and singing of a school prayer).
132. See Doe v. Duncanville Independent School Dist., 70 F.3d 402, 407 (5th Cir. 1995).
133. There are a few nonreligious "carols," such as "Jingle Bells" and "White Christmas."
134. Faith D. Kasparain, "Note, The Constitutionality of Teaching and Performing Sacred Choral Music in Public Schools," 46 Duke L.J. 1111, 1117 (1997). Interestingly, in communities in which almost everyone is a practicing Christian, it is hard to think of carol singing as performing an educational function.
135. Communion is the central event in Roman Catholic worship, and it is a vital element of Anglican and Episcopalian services. Many Protestant groups do not include Communion as an aspect of most Sunday services, but Communion remains a profound religious moment for Protestants.
136. See Brian A. Whitaker, "Note & Comment, Religious Music in the Public Schools: A Guide for School Districts," 2003 B.Y.U. Educ. & L.J. 339, 356-57. Whitaker summarizes policies of four school districts that are more restrictive in various respects, id., at 353-56; he also proposes his own model policy, id. at 358-61.
137. Much popular religious music refers to God but is not specifically Christian.
138. Doe, 70 F.3d 402.
139. Id. at 411 n. 1 (Mahon, D. J., dissenting in part). According to the case report, the song, in this version, omits the "up" that follows "lift" in the biblical text.
140. Bauchman v. West High School, 132 F.3d 542 (1997). The opinion of the district court, 900 F. Supp. 254, 260 (D. U. 1995), leaves it unclear whether the entire choir participated as a group in Christian worship services.
141. Florey v. Sioux Falls School Dist., 619 F.2d 1311 (8th Cir. 1980), cert. denied, 449 U.S. 987 (1980).
142. Id. at 1316-17 n. 5.
143. Non-Christians may "learn" more from singing carols than Christians, but many non-Christians will feel uncomfortable singing songs that so explicitly acknowledge Jesus as "Christ the Lord," at one of the two times of year (Easter is the other) when most of their fellow citizens specially celebrate that claim.
144. However, any teacher must take care to avoid that some children receive many cards and others none.
145. They do differ from Valentine's Day cards in being strongly associated with a holiday that remains powerfully Christian.
146. Episcopalians and Lutherans adopt intermediate positions between "symbolic" and transubstantiation; the former refer to the "real presence," the latter "consubstantiation." Eastern Orthodox Christians, with Catholics, believe in transubstantiation.
147. I say "avoidable harm" because, as chapter 5 explains, some school teaching inevitably gives a negative impression of some religions. Schools can do without simulated devotional exercises.
148. See, e.g., Clever v. Cherry Hill Township Bd. of Educ., 838 F. Supp. 929 (D.N.J. 1993).
149. Elk Grove Unified Sch. Dist. v. Newdow, 124 S. Ct. 2301 (2004).
150. The right of students not to be compelled to take the pledge had been established in West Virginia Board of Education v. Barnette, 319 U.S. 624 (1943).
151. Newdow v. U.S. Congress, 292 F.3d 597 (9th Cir. 2002).
152. One report of the oral argument before the Supreme Court is Linda Greenhouse, "Atheist Presents Case for Taking God From Pledge," N.Y. Times, March 25, 2004, p. A1, col. 1. Excerpts from the argument itself are on id. at p. A22, col. 1.
153. Newdow, 124 S. Ct. at 2321-27.
154. Another suggestion has been that giving students an option to say the pledge with or without the "under God" language would not meet constitutional objections. See Robert Stern, "Princeton Prof Offers Pledge Compromise," The Times (Princeton Metro), March 27, 2004, p. A1, col. 1.
155. See John Tomasi's ambivalent comments about the Santa Fe case, in "Civic Education and Ethical Subservience: From Mozert and Santa Fe and Beyond, in Stephen Macedo and Yael Tamir, eds., Moral and Political Education 213-15 (New York: New York Univ. Pr., 2002).
156. In Wallace v. Jaffree, 472 U.S. 38, 70-71 (1985), Justice O'Connor, concurring, cited twenty-five state laws that permit or require moments of silence. Apparently thirty-two states now have such statutes. See Derek H. Davis, "Editorial: Moments of Silence in America's Public Schools: Constitutional and Ethical Considerations," 45 J. Church and State 429, 432 (2003). See also Debbie Kaminer, "Barring Organized Prayer through the Back Door: How Moment-of-Silence Legislation for Public Schools Violates the Establishment Clause," 13 Stan. L. & Pol'y Rev. 267, 268 (2002) (at least twenty-nine states have moment-of-silence legislation).
157. However, Davis, "Moments of Silence," at 440, comments that moments of silence "often carry little meaning for some religious traditions," and he summarizes forms of Muslim prayer.
158. I attended Swarthmore College, a private college founded by the Society of Friends. Assemblies began with a moment of silence. In that context, one could speak of a moment of silence showing respect for and reflecting the value of Quaker traditions and practices.
159. This is not true if the moment of silence is set aside for a specific mental exercise that is not prayer-a coach might tell her team to reflect silently for a moment on how they plan to defend their opponents.
160. Marjorie Silver, "Rethinking Religion and Public School Education," 15 Quinnipiac L. Rev. 213, 225-26 (1995), recounts her experience during moments of silence at the Meeting House of a Quaker school her children attended. She felt "individual peace and community harmony." Id. at 226. Silver remarks that the virtue of the moment of silence "is that there is no orthodoxy on how it will be used." Id. But whether anyone would actually say so now, I think there is a tradition according to which some uses are misuses.
161. Wallace v. Jaffree, 472 U.S. 38 (1985).
162. Id. at 56-60.
163. Id. at 60.
164. Id. at 61.
165. Id. at 62 (Powell, J., concurring); id. at 70-78 (O'Connor, J., concurring).
166. Wallace, 472 U.S. at 59. See also Justice Powell's statement (overstatement), id. at 62, that the suggestion that some moment-of-silence statutes may be constitutional "is set forth in the Court's opinion as well."
167. In Brown v. Gilmore, 2000 U.S. Dist. LEXIS 21623 (E.D. Va. Oct. 26, 2000), cert. denied, 534 U.S. 996 (2001), the Court declined to review acceptance of a statute specifically including "prayer" as one possible use of silence. For a compilation of cases in lower courts, see "Annotation, Constitutionality of Regulation or Policy Governing Prayer, Meditation, or 'Moment of Silence' in Public Schools," 110 A.L.R. Fed. 211, § 6.
168. Wallace, 472 U.S. at 72.
169. Id. at 73.
170. O'Connor remarked that the solution to conflicts between free exercise and nonestablishment is not "neutrality." Wallace, 472 U.S. at 83.
171. She seems to assume that endorsement or disapproval will always be the issue about aiding or inhibiting religion, apparently disregarding instances in which public officials try secretly to aid one or more religions.
172. Wallace, 472 U.S. at 76, 83.
173. O'Connor is explicit that the issue is a mixed question of law and fact in which appellate judges do not give great deference to determinations by trial judges and juries. Id.
174. The reason is not only that a majority of the Supreme Court might use that approach; Justice O'Connor's vote is crucial in many Establishment Clause cases.
175. Perhaps she thought that for most statutes a court could not tell whether legislators were completely indifferent between prayer and other possibilities, but one need not know much about any particular legislature to imagine that a moment of silence is largely designed to allow prayer.
176. Teaching that any particular religious ideas are true is one way to prefer that religion over others.
177. Abington Township v. Schempp, 374 U.S. 203, 218.
178. Epperson v. Arkansas, 393 U.S. 97, 103-4 (1968). One may think of Stone v. Graham, 449 U.S. 39 (1980), which held invalid a Kentucky statute that required posting the Ten Commandments in each school classroom, on grounds that the law lacked a secular purpose, as based on a principle that the government cannot implicitly assert the religious truth of the Ten Commandments.
179. See Berger v. Rensselaer Cent. School Corp., 982 F.2d 1160 (7th Cir. 1993), cert. denied, 508 U.S. 911 (1993), deciding that a school cannot allow the Gideons to distribute Bibles in public schools during school hours.
180. In her concurring opinion in Wallace v. Jaffree, 472 U.S. 38, 68-70, 76 (1985), Justice O'Connor presented her endorsement approach as an interpretation of the purpose and effect aspects of the Lemon test. That approach is now usually conceived as an alternative to Lemon.
181. See Nicholas Wolterstorff, "Neutrality and Impartiality," in Theodore Sizer, ed., Religion and Public Education 3-21 (Boston: Houghton Mifflin, 1967). I comment on this problem in more detail in "Religion and the Public School Teacher," in Religion in the Liberal Polity, ed. Terence Cuneo (South Bend: University of Notre Dame Press, 2004).
182. At a distant time in the West, theology was regarded as the queen of the sciences, the keystone into which all other knowledge fits. In the late seventeenth and early eighteenth centuries, figures as diverse as Isaac Newton and Jonathan Edwards still understood what we call natural science as clearly connected to religious truth. See James Gleick, Isaac Newton 8, 148 (New York: Pantheon 2003); George M. Marsden, Jonathan Edwards: A Life 64-81 (New Haven: Yale Univ. Pr. 2003).
183. One might say that religion per se is healthy or good for people, but even that would be odd, given the diverse practices in which religious people have engaged throughout history. To take one extreme example, in devotion to the dual-natured Hindu goddess Kali, a group of marauding Thugees in nineteenth-century India emphasized her dark side and strangled strangers from behind in sacrifice to her.
184. It is theoretically possible for some claims about life after death to be based on scientific studies or personal observations, such as the "white light" recollections of people who have been resuscitated, or communications during seances or psychic readings from those who have "crossed over." I would not count these claims as religious.
185. Widmar v. Vincent, 454 U.S. 263.
186. Id. at 265.
187. Against Justice White's argument in dissent that religious worship differs distinctly from other speech acts, id. at 282-87, Justice Powell answered that the distinction may have no intelligible content, would be impossible for courts to administer, and is not relevant. Id. at 270 n. 6.
188. Id. at 271-72.
189. Id. at 273-75. Rather, any benefit to Cornerstone is only "incidental"-and therefore permissible.
190. The Court also rejected an argument that Missouri could employ its policy to satisfy the state constitution's antiestablishment provisions. Id. at 275-76.
191. 20 U.S.C. § 4071-74.
192. Westside Community Board of Education v. Mergens, 496 U.S. 226 (1990). The Court did not need to decide whether the school's policy directly violated the Constitution.
193. According to Justice O'Connor, for the majority, a school creates a limited open forum under the statute when it allows "noncurriculum related student groups" to meet on school premises. Id. at 235.
194. Justice O'Connor said that a curriculum-related student group had to have more than a tangential relation to school courses. In this sense, the chess club and community service club were "noncurriculum related." In dissent, Justice Stevens, id. at 276, argued for a narrower sense of noncurriculum-related groups that covered only advocacy of partisan theological, political, or ethical views.
195. Id. at 247-50. In this part of her opinion, Justice O'Connor wrote only for herself and three other Justices. Justice Kennedy, joined by Justice Scalia, rejected an endorsement approach in favor of one that focuses on coercion. An issue of sponsorship arose when someone challenged the creation of a gospel choir run by a school secretary. The court said the school should not have allowed the choir, since her leadership violated a specific provision of the Equal Access Act. Sease v. School District of Philadelphia, 811 F. Supp. 183 (E.D. Pa. 1993).
196. Widmar, 454 U.S. at 265-70 (Marshall, J., concurring in the judgment).
197. Hsu v. Roslyn Union Free School Dist., No. 3, 85 F.3d 839 (2nd Cir. 1996). One federal court of appeals held that a school must make facilities available at lunchtime for religious groups if it does so for other groups, Ceniceros v. Board of Trustees, 106 F. 3d 878 (9th Cir. 1997).
198. The Equal Access Act has proved something of a two-edged sword for some conservative Christians. They have used it to establish school groups, but have been dismayed to find gay and lesbian organizations relying on the law to establish their right to use school facilities. See Michael Winerip, "Tolerance and Hypocrisy on Gay-Straight Club," N.Y. Times, January 29, 2003, B10, col. 5; David R. Parkinson, "H. Utah Senate Bill 1003: Prohibiting Specified School Clubs," 23 J. Contemp. L. 268 (1997).
199. Good News Club v. Milford Central School, 533 U.S. 98 (2001). Previously one federal court of appeals held that a school must make facilities available at lunchtime for religious groups if it does so for other groups. Ceniceros, 106 F.3d 878.
200. Good News Club, 533 U.S. at 103.
201. Id. at 106-10.
202. Id. at 2112-17. Courts have held, however, that schools can restrict advertising for proselytizing activities, Rusk v. Crestview Local Schools, 220 F. Supp. 2d 854 (N.D. Ohio 2002), and the distribution of religious gifts, Walz v. Egg Harbor Twp. Bd. of Educ., 187 F. Supp. 2d 232 (D.N.J. 2002).
203. Good News Club, 533 U.S. at 118.
204. Id. at 115.
205. Id. at 130.
206. Id. at 138.
207. On worship services and other religious meetings, see Campbell v. St. Tammany Sch. Bd., 206 F.3d 482 (5th Cir. 2000), vacated and remanded, 533 U.S. 913 (2001); Moore v. City of Van, 238 F. Supp.2d 837 (E.D. Tex. 2003).
208. According to this approach, the government may have powerful enough reasons to engage in viewpoint discrimination. Thus, a public school could presumably refuse to permit a club devoted to the peaceful realization of racial apartheid (although citizens at large are free to express that idea). By and large, the courts have failed to recognize that many acceptable criminal prohibitions of expression involve forms of viewpoint discrimination. I may urge a willing listener to treat someone generously but not to kill that person.
209. Lamb's Chapel v. Center Moriches Union Free School District, 508 U.S. 384 (1993).
210. Rosenberger v. Rector and Visitors of the University of Virginia, 515 U.S. 819 (1995).
211. Id. at 830-35.
212. Id. at 893-99.
213. See Greenawalt, "Viewpoints from Olympus," 96 Colum. L. Rev. 697 (1996).
214. Rosenberger, 515 U.S. at 868-76.
215. Id. at 840-44; id. at 849-52 (O'Connor, J., concurring).
216. The possibility has been largely foreclosed by Board of Regents v. Southworth, 529 U.S. 217 (2000).
217. Rosenberger, 515 U.S. at 842-44.
218. Id. at 847.
219. Prince v. Jacoby, 303 F.3d 1074 (9th Cir. 2002).
220. I am not here relying mainly on the limited capacity of courts to scrutinize what is really happening if a program is presented as satisfying valid educational objectives-the practical freedom teachers have, because few parents will sue over what individual teachers say, and because judges and juries will find it hard to determine just what has transpired in the classroom. The problem is not only replicating the actual words a teacher has used, but capturing the teacher's tone of voice, expressions, and gestures.
221. As Justice Fortas wrote in Epperson v. Arkansas, 393 U.S. 97, 104 (1968), "By and large, public education in our Nation is committed to the control of state and local authorities."
222. Abington Township v. Schempp, 374 U.S. at 225. See also id. at 300 (Brennan, J., concurring), and id. at 306 (Goldberg, J., concurring).
223. In his concurring opinion, however, Justice Goldberg, id., wrote, "Government must inevitably take cognizance of the existence of religion, and, indeed, under certain circumstances, the First Amendment may require that it do so."
224. Nor should they say what is the correct understanding of a particular religion, when that is debated. See Presbyterian Church v. Mary Elizabeth Blue Hull Mem'l Presbyterian Church, 393 U.S. 440 (1969); Kent Greenawalt, "Hands Off! Civil Court Involvement in Conflicts over Religious Property," 98 Colum. L. Rev. 1843 (1998).
225. When, if ever, schools should excuse children whose parents have religious objections to appropriate material, or courts should require such exemptions under free exercise guarantees, are topics I reserve for the last part of the book.
226. In his recent article "Preparing for the Clothed Public Square: Teaching about Religion, Civic Education, and the Constitution," 43 Wm. & Mary L. Rev. 1159, 1172-91 (2002), Jay Wexler provides a helpful historical account of developments since the Schempp decision in 1963. He concludes that, thanks largely to the efforts of reformers like Charles Haynes, Warren Nord, and Oliver Thomas, "the movement to encourage public schools to teach about religion is at its strongest point in the last forty years." Id. at 1191.
227. 330 U.S. 1, 23-24 (1947), quoted in Schempp, 374 U.S. at 218. Justice Jackson went on to express some doubt whether such a disjunction was possible or wise.
228. Warren A. Nord, Religion and American Education 244 (Chapel Hill: Univ. of North Carolina Pr., 1995).
229. One account of secular humanism as seen by its opponents is in Christopher P. Toumey, God's Own Scientists 77-99 (New Brunswick, N.J.: Rutgers Univ. Pr., 1994). He analyzes two styles for expressing its meaning, one in terms of negation of a writer's personal beliefs and the other emphasizing human autonomy.
230. An exception, a very important exception, in this respect was John Dewey, who did propound a complete worldview that rejected traditional religion. His "civic totalism" is summarized and criticized in Stephen Macedo, Diversity and Distrust: Civic Education in a Multicultural Democracy (Cambridge: Harvard University Press, 2000), at 139-47.
231. Smith v. Board of School Commissioners, 827 F.2d 684 (1987). See also Grove v. Mead School Dist. No. 354, 753 F.2d 1528 (9th Cir.) cert. denied, 474 U.S. 826 (1985). The claim had succeeded in the district court in Smith, but with a judge, Brevard Hand, who has shown himself to be extremely unsympathetic with the Supreme Court's establishment jurisprudence, refusing at an early stage of the moment-of-silence case, Wallace v. Jaffree, to accept the application of the Establishment Clause to the states. Jaffree v. Board of School Commissioners, 554 F. Supp. 1104, 1119 (S.D. Ala. 1983).
232. Smith, F.2d 684 at 689, 690. See alsoWilliam v. Board of Education, 388 F. Supp. 93, 94-95 (S.D. W.Va.), aff'd without opinion, 530 F.2d 972 (4th Cir. 1975).
233. See Greenawalt, "Five Questions about Religion Judges Are Afraid to Ask," in Nancy Rosenblum, ed., The Obligations of Citizenship and Demands of Faith 196, 206-24 (Princeton: Princeton Univ. Pr., 1999); Greenawalt, "Religion as a Constitutional Concept," 72 Cal. L. Rev. 753 (1984). For cases that exemplify an approach very close to the one I en-dorse, see Malnak v. Yogi, 92 F.2d 197, 200 (3d Cir. 1979) (concurring opinion of Adams, J.) (analyzing transcendental meditation taught in public schools); Africa v. Commonwealth, 662 F.2d 1025 (3d Cir. 1981) (rejecting claim by members of MOVE for a special diet in prison), cert. denied, 456 U.S. 908 (1982).
234. See Torcaso v. Watkins, 367 U.S. 488, 495 n. 11 (1961), including secular humanism in a list of religions that do not maintain a belief in God, and referring to cases in which people were organized to carry on activities like those in standard religions.
235. I believe that agreement on negative propositions about religion is not sufficient to make a religion if there is no analogy to devotional practices and no organization of like-minded people.
236. In its formulations of the Establishment Clause test of Lemon v. Kurtzman, 403 U.S. 602 (1971), the Supreme Court has treated inhibiting religion as it does promoting religion; and Justice O'Connor's endorsement approach treats disapproval like approval.
237. I explore this issue in "Diverse Perspectives and the Religion Clauses: An Examination of Justifications and Qualifying Beliefs," 74 Notre Dame L. Rev. 1433, 1456-73 (1999).
238. SeeWinton E. Yerby III, "Toward Religious Neutrality in the Public School Curriculum," 56 U. Chi. L. Rev. 899, 933 (1989). One could think that the idea of "choice" leaves open a judgment that one is bound to absolute moral standards set by God, but the texts do not encourage that way of thinking.
239. Sir Walter Hamilton Moberly, The Crisis in the University 55-56 (London: SCM Press, 1949).
240. What matters for this answer is not historical causation but present understanding. Thus, Nord's point that the main historical explanation for the secularity of public schools lies in the general secularization of learning rather than in constitutional understandings is hardly relevant.
241. I say this suggestion is less strong because one might consistently believe that (1) most subjects can be understood with reference to religion, and that (2) public schools must steer clear of religion, but that (3) any life without religion is impoverished.
242. See, e.g., George M. Marsden, Jonathan Edwards: A Life, 150-238 (New Haven: Yale Univ. Pr. 2003).
243. See Heinz Pagels, The Cosmic Code 290, 304 (New York: Simon & Schuster, 1982).
244. See Warren A. Nord, Religion and American Education 164 (Chapel Hill: Univ. of North Carolina Pr., 1995). Various religions may find special significance in certain numbers; but no one contends that these conventions should be taught in mathematics courses.
245. One can engage in modern scientific analysis of nature and appreciate nature as part of God's creation, but the scientific view commonly pushes aside the religious one.
246. Jeffrie Murphy, Evolution, Morality, and the Meaning of Life 47 (Totowa, N.J.: Rowman and Littlefield, 1982); the primary contribution of The Origin of Species was "to organize and synthesize a set of ideas that had pervaded the scientific literature for more than fifty years."
247. Philip Kitcher, Abusing Science: The Case against Creationism (Cambridge: MIT Pr., 1982). See also Robert T. Pennock, Tower of Babel 55 (Cambridge: MIT Pr., 1999).
248. Although Darwin's account covers both plants and animals, I shall largely restrict myself to animals. See Dorothy Nelkin, The Creation Controversy 26 (New York: W. W. Norton, 1982). Darwin's approach contrasted with the earlier theory of Chevalier de Lamarck, who assumed that animals developed progressively as members of one generation passed on adjustments they had made during their lives. See Edward J. Larson, Summer for the Gods 14 (Cambridge: Harvard Univ. Pr., 1998).
249. See John Horgan, "Life against the Odds, from The Riddle in the Skies: Cosmos, God, and Us," UNESCO Courier (May 2001; accessed Jan. 3, 2002), at http://unesco/org/courier/2001_05/uk/doss21.htm, part 2.
250. Kitcher, Abusing Science, note 5 supra, at 16-21.
251. In a population in which half the people had two blue genes for eye color and half had two brown genes, the number of brown-eyed people would increase with intermarriages, because the brown-eye gene is dominant.
252. Kitcher, Abusing Science note 5 supra, at 21, 55.
253. Id. at 26-27.
254. Some modern evolutionists have offered a punctuated-equilibrium model, according to which evolution is jerky rather than continuous- with periods of stability followed by ones of substantial change. See N. Eldredge, Time Frames: The Rethinking of Darwinian Evolution and the Theory of Punctuated Equilibrium (New York: Simon & Schuster, 1985); Stephen Jay Gould, "The Meaning of Punctuated Equilibrium, and Its Role in Validating a Hierarchical Approach to Macroevolution," in R. Milkman, ed., Perspectives on Evolution 83-104 (Sunderland, Mass.: Sinauer, 1982). Richard Dawkins, in The Blind Watchmaker 223-52 (New York: W. W. Norton, 1987), suggests that the difference between a standard neo-Darwinian view and the theory of punctuated equilibrium is slight. See also Kenneth R. Miller, Finding Darwin's God 111-15 (New York: HarperCollins, 1999). H. Allen Orr describes changes in Stephen Jay Gould's understanding of punctuated equilibrium and notes the theory's decline in the 1990s. "A Critic at Large: The Descent of Gould," New Yorker, September 9, 2002, 134-36. Afew theorists claim that not only the timing of evolution but also its mode differs from the gradualist account; major changes may occur from macromutations rather than from a succession of unnoticeable alterations. Kitcher, Abusing Science, note 5 supra, at 148-49.
255. See generally Ernan McMullin, "Plantinga's Defense of Special Creation," in Robert T. Pennock, ed., Intelligent Design Creationism and Its Critics 178 (Cambridge: MIT Pr., 2001).
256. In perhaps the best-known, but now controversial, example, the great majority of peppered moths became darker, and thus less conspicuous to predators, where pollution had darkened the trunks of trees. Kitcher, Abusing Science, note 5 supra, at 25. Critics have disputed the reliability of claims about peppered moths, see, e.g., Jonathan Wells, Icons of Evolution-Science or Myth? Why Much of What We Teach about Evolution Is Wrong 137-58 (Washington, D.C.: Regnery, 2000), for a chapter debunking the "myth" of the peppered moth, whose evidentiary role in respect to evolution survives a close examination by Michael E. N. Majerus, Melanism: Evolution in Action 97-156 (New York: Oxford Univ. Pr., 1998). Judith Hooper, Of Moths and Men: An Evolutionary Tale (New York: Norton 2002), provides a narrative of events. The principle that natural selection can work changes within species is not doubted by most creationists.
257. The precise objections have varied, and their intensity has waxed and waned. See, e.g., Larson, Summer for the Gods, note 6 supra, at 22-27; Christopher P. Toumey, God's Own Scientists: Creationists in a Secular World 31-146 (New Brunswick, N.J.: Rutgers Univ. Pr., 1999).
258. In the passages with which Genesis begins, Genesis 1:1-31, God created plant life on the third day, bird and water life on the fifth day, and land animals and human beings on the sixth day. (Genesis 2:4-24 also contains an account of creation, one that is variously interpreted as a separate creation story or as supplementing the first account.) Many creationists accept the idea that the days of the creation represent ages.
259. John C. Whitcomb Jr. and Henry M. Morris, The Genesis Flood (Phillipsburg, N.J.: Presbyterian and Reformed Pub., 1961). See Toumey, God's Own Scientists, note 15 supra, at 31-35.
260. According to one recent summary, "Today most 'scientific' creationists hedge or disavow the claim that dinosaurs and humans coexisted on the Paluxy." Rich Fox, in "Debunking the Paluxy River Claims" (University of South Dakota Department of Anthropology, last modified Apr. 13, 1996; accessed Jan. 8, 2002), presenting a list of references, both creationist and noncreationist, compiled by Paul V. Heinrich, at http://www.usd.edu/anth/cultarch/paluxybib.html. Robert Pennock provides a summary of events, Tower of Babel, note 5 supra, at 216-21, and also rebuts positive creationist evidence based on the scarcity of moon dust and on human population growth, id. at 221-26.
261. Access Research Network "FAQ" about intelligent design (2001; accessed Jan. 3, 2002) at http://www.arn.org/id_faq.htm. Intelligentdesign claims fall within a wider ambit of creationist approaches, but I shall contrast "intelligent design" theory with creationism to avoid any confusion with Genesis creationism.
262. The term fundamentalist is drawn from a series of essays published from 1905 to 1915 called "The Fundamentals," which were opposed to modernism in religion. The label fundamentalist is itself now somewhat controversial, and critics use it more frequently than do the people whose views fall within the designation. But terms such as conservative Christian or evangelical Christian are less precise for our purposes, because many people within those designations do not accept biblical literalism.
263. The Tennessee Supreme Court sustained one of these in 1925 when it reviewed a teacher's conviction in the famous Scopes trial (the "Monkey Trial"). See Larson, Summer for the Gods, note 6 supra.
264. Nelkin, The Creation Controversy, supra note 6, at 33, writes, "A scholarly survey of the content of biology texts up to 1960 found the influence of antievolutionist sentiment to be persistent, if undramatic, and showed the teaching of evolution actually declined after 1925."
265. Id. at 39-53.
266. Epperson v. Arkansas, 393 U.S. 97.
267. Id. at 103.
268. McLean v. Arkansas Board of Education, 529 F.Supp. 1255 (E.D. Ark. 1982).
269. Edwards v. Aguillard, 482 U.S. 578 (1987).
270. See Steve Benen, "Evolution Evasion," Church & State, October 1999, 4. Although local school districts were free to teach evolution, the subject was to have been omitted from statewide tests for evaluating students. For a caustic evaluation, see Stephen Jay Gould, "Dorothy, It's Really Oz," Viewpoint, Time, August 23, 1999, 59. The board's reversal, following a change in membership, is recounted in Kate Beem, "Emphasis on Evolution Adopted by Kansas Board," Kansas City Star, Feb. 15, 2001, A1.
271. Whatever its religious status, the Bible may be a source of historical truth, for example, supporting the assertion that Israel had a king named David, but it obviously lacks that nonreligious authority about the moment of the earth's creation.
272. As Stephen Jay Gould has put it, they have "nonoverlapping magisteria," science dealing with facts about the world, religion concerning itself with matters of the spirit and morality. Stephen Jay Gould, "Nonoverlapping Magisteria," in Intelligent Design Creationism, Pennock, note 13 supra, at 737-49. See generally Stephen Jay Gould, Rocks of Ages: Science and Religion in the Fullness of Life (New York: Ballantine, 2001).
273. Because religions typically include perspectives on human nature that could coincide or conflict with what social scientists assert, few believers suppose that religion has no overlap with the human sciences. See McMullin, "Plantinga's Defense," note 13 supra, at 173.
274. Philip Kitcher, in Science, Truth, and Democracy 11-82 (New York: Oxford Univ. Pr., 2001) provides a persuasive defense of scientific realism.
275. These two possibilities may be viewed as aspects of traditional Christian faith. According to some passages in the antievolution literature, belief in these two forms of divine control might be sufficient to qualify one as a creationist. See, for example, Phillip Johnson, in Darwin on Trial 113 (Washington, D.C.: Regnery Gateway, 1991). I am considering as creationist and intelligent-design theories only those claims that to some degree, at least, conflict with a neo-Darwinian account.
276. The relations between the findings of science and two other common religious ideas-an afterlife and divine inspiration of human beings-is less straightforward. Besides noting them here, I do not discuss these relations. Science cannot rule out the possibility of a personal afterlife or reincarnation, although many skeptics think that what science does establish suggests strongly that death is the end of personal existence. Science, as of now, cannot explain all aspects of human behavior, and thus cannot foreclose the possibility that a divine spirit inspires human understanding and behavior on some occasions.
277. Kenneth Miller, Finding Darwin's God, note 12 supra, at 19, says that over years of teaching in science he has "come to realize that a presumption of atheism or agnosticism is universal in academic life."
278. These people typically believe that perfect scientific and perfect religious understanding will coincide-that is, they do not think that God has created the natural world in a way to deceive our natural reason and test our faith-but that present understandings are fallible.
279. The attitudes of some religious critics of evolutionary theory are illustrative. See Alvin Plantinga, "When Faith and Reason Clash: Evolution and the Bible," in Pennock, Intelligent Design Creationism, note 13 supra, at 136-39. They believe that if one gave no credence to the existence of a divine creator, the neo-Darwinian explanation, as uncertain as they say it is, would be the best we could do to account for the origins of life. But when one considers a divine creator, another explanation, involving God's creative action, seems much more likely.
280. Such arguments are countered by religious arguments that a creator would be likely to create a universe with "functional integrity," not intervening from time to time to violate its natural laws, Howard J. Van Till, "When Faith and Reason Cooperate," in Pennock, Intelligent Design Creationism, note 13 supra, at 158-59, and that evolution, in all its contingency, fits well with a dynamic creation in which new life comes into being through natural processes, and human beings enjoy true freedom. Arthur Peacocke, "Welcoming the 'Disguised Friend'- Darwinism and Divinity," in Pennock, supra at 472-81; Miller, Finding Darwin's God, note 12 supra, at 270-75.
281. Stephen Jay Gould has highlighted the panda's thumb, which is not like other digits in structure but which functions moderately well. The explanation for its development must be the historical link of modern pandas with prior species, not the hand of God. See Stephen Jay Gould, "The Panda's Thumb," in Pennock, Intelligent Design Creationism, note 13 supra, at 669-76. Another author suggests that an even more powerful example is the laryngeal nerve in mammals, which is much longer than would be ideal and reaches a ridiculous length in giraffes. Kelly C. Smith, "Appealing to Ignorance behind the Cloak of Ambiguity," in Pennock, supra at 724-25.
282. This problem is a variant in the pervasive problem of natural evil, which Christians have always found hard to explain. Evils caused by human actions can plausibly be attributed to a freedom of choice given human beings. Although some have said human sin is also responsible for natural evil, the connection is much less obvious, and natural evil existed long before human beings appeared on earth, if evolutionists are right about history.
283. Sheila Anne Feeny, "Is Prayer Good Medicine?" (Medscape Health, 2002) http://health.medscape.com/cx/viewarticle/405270 (accessed Feb. 21, 2002). See also Eric Nagourney, "A Study Links Prayer and Pregnancy," N.Y. Times, October 2, 2001, F6; and Jim Holt, "Prayer Works," N.Y. Times, December 9, 2001, § 6 (Magazine), at 92. According to reports, the women received identical medical procedures-in vitro fertilization and embryo transfer. American researchers did not inform either the women or the medical personnel assisting them that they were engaging in a prayer experiment. Groups in the United States, Canada, and Australia, with pictures of the women for whom they prayed, prayed for half the women. Other groups prayed that these prayers might be effective.
284. Neil Shanks, God, the Devil, and Darwin 145-53 (New York: Oxford Univ. Pr., 2004), summarizes some earlier prayer experiments and sharp criticisms of their methodologies.
285. An explication of David Hume's skeptical discussion of miracles is in Robert J. Fogelin, A Defense of Hume on Miracles (Princeton: Princeton Univ. Pr., 2003). Contrary to what is sometimes assumed, Hume did not contend that no testimony could ever be sufficient to establish a miracle; rather, no testimony has come close to being strong enough to providing persuasive evidence that a miracle has occurred.
286. See Alvin Plantinga, "Evolution, Neutrality, and Antecedent Reality: AReply to McMullin and Van Till," in Robert T. Pennock, ed., Intelligent Design Creationism and Its Critics 212-13 (Cambridge: MIT Pr., 2001).
287. Jeffrie Murphy, ed., Evolution, Morality, and the Meaning of Life 24, 35 (Totowa, N.J.: Rowman and Littlefield, 1982).
288. A teacher discussing the history of a science may, of course, comment on theories overtaken by time, and explain the power of a dominant theory by comparison with rejected competitors. Bernard Williams, in Truth and Truthfulness 217 (Princeton: Princeton Univ. Pr., 2002), comments on how orderly scientific inquiry deals with crank views.
289. Philip Kitcher, Abusing Science: The Case against Creationism 72, 98 (Cambridge: MIT Pr., 1982). The theory does not clash with the second law of thermodynamics-that systems increase entropy or disorder-which applies only to closed systems, not to the development of life on earth, an open system with new energy continually supplied by the sun. Id. at 91-92.
290. As Robert T. Pennock, Tower of Babel 99-100 (Cambridge: MIT Pr., 1999), explains, the famous philosopher of science Karl Popper once expressed this view but later abandoned it. The theory would be unfalsifiable in this way if it were unable to predict any changes and it declared that the survival of a characteristic proves that the characteristic was fitted for survival-however difficult it may be for us to see that the characteristic is competitively advantageous-or that the characteristic flows from a gene that confers a competitive advantage in some other respect. The theory of descent of complex life from simple common ancestors is more easily subject to disconfirmation. If fossils showed that animals that must have appeared later, according to the theory, actually appeared earlier, that would be a serious blow to the theory. See Richard Dawkins in The Blind Watchmaker 225 (New York: W. W. Norton, 1987).
291. Imre Lakatos defended what he called sophisticated methodological falsificationism, according to which "no experiment, experimental report, observational statement or well-corroborated low-level falsifying hypothesis alone can lead to falsification. There is no falsification before the emergence of a better theory." "Falsification and the Meth-odology of Scientific Research Programmes," in Imre Lakatos and Alan Musgrave, eds., Criticism and the Growth of Knowledge 91, 109 (Cambridge: Cambridge U. Pr., 1970).
292. See also Imre Lakatos, "II-Criticism and the Methodology of Scientific Research Programmes," lXIX Proceedings of the Aristotelian Society 149, 163 (1969).
293. It is now common currency among philosophers of science that individual anomalies, instances in which observations do not comport with what a theory predicts (or "retrodicts"), do not undermine scientific theories; but a very powerful criticism of a theory should be taken seriously whether or not the critic offers a substitute.
294. In id., at 29, Behe remarks, "Mathematicians over the years have complained that Darwinism's numbers just do not add up."
295. I am passing over the argument that the physical conditions necessary to sustain separate suns and planets were themselves highly improbable.
296. Id. at 144-55.
297. Id. at 159. See id. at 155-64.
298. Conversation with Philip Kitcher, September 26, 2003.
299. The results, as chapter 8 suggests, might be explained by a natural power of mental telepathy no one yet understands.
300. What now seem miraculous medical cures may later become explicable scientifically, and a chemist may discover how life could naturally have developed from nonlife three billion years ago.
301. As a terminological matter, such theories might or might not be classed among scientific theories.
302. On the ambiguity of the term explanation, see id. at 185-89.
303. Francis X. Clines, "Ohio Board Hears Debate on an Alternative to Darwinism," N.Y. Times, March 12, 2002, A16, col. 1. A further discussion, including comment on the resolution of the Ohio board, took place on Talk of the Nation: Science Friday, National Public Radio, on November 8, 2002. This archived program can be heard at http:/www.sciencefriday.com/pages/2002/Nov/hour1_110802.htmll.
304. I do not mean that every detail could be explained, but that the outlines of the process could be fully explained.
305. Dorothy Nelkin, The Creation Controversy 79-81 (New York: W.W. Norton, 1982).
306. It is also true that one reason many evolutionists think intelligent design in any form is not plausible is because they reject its religious assumptions.
307. Douglas Futuyma has called the work of creation scientists a "caricature of science [based on] no evidence." Douglas J. Futuyma, Science on Trial: The Case for Evolution 21 (Sunderland, Mass.: Sinauer, 1995). Philip Kitcher has remarked that they "have constructed a glorious fake" useful "to illustrate differences between science and pseudoscience." Philip Kitcher, Abusing Science: The Case Against Creationism 5 (Cambridge: MIT Pr., 1982).
308. David K. DeWolf, Stephen Meyer, and Mark Edward DeForest develop the argument that teaching intelligent design is not teaching religion in "Teaching the Origins Controversy: Science, or Religion, or Speech," 2000 Utah L. Rev. 39. See also by the same authors Intelligent Design in Public School Science Curricula: A Legal Guidebook (Foundation for Thought and Ethics, 1999), available at http://arn.org/docs/dewolf/guidebook.htm. Jay Wexler takes a contrary view in "Note, Of Pandas, People, and the First Amendment: The Constitutionality of Teaching Intelligent Design in the Public Schools," 49 Stan. L. Rev. 439 (1997).
309. See Marjorie George, "Comment: And Then God Created Kansas? The Evolution/Creationism Debate in American Public Schools," 149 U. Pa. L. Rev. 843, 868-71 (2001);
310. Eric P. Martin, "Note, The Evolutionary Threat of Creationism: The Kansas Board of Education's Omission of Evolution from Public School Curricula," 27 J. Legis. 167, 176-78 (2001).
311. On sonograms and similar devices, people can observe what they are told are their own hearts doing what seems to be pumping blood.
312. Notice that an argument that evolution and theism are compatible can be employed to defend evolution against creationism and to defend theism against atheism.
313. See Robert T. Pennock, Tower of Babel, 246-47 (Cambridge: MIT Pr., 1999).
314. An alternative conceptualization is that the educators really are bound constitutionally to do certain things but that courts will not declare invalid decisions that are within a certain range, even if the decisions may exceed constitutional limits.
315. Epperson v. Arkansas, 393 U.S. 97. There was no record of prosecutions under the statute, but a science teacher challenged the law. The Arkansas Supreme Court had sustained the law, finding it unnecessary to resolve whether the statute "prohibits any explanation of the theory of evolution or merely prohibits teaching that the theory is true." Id. at 101 n. 7. The U.S. Supreme Court decided that the law was unconstitutional in either event.
316. Id. at 104.
317. Id. at 106.
318. Id. at 103. In a concurring opinion relying on the statute's vagueness, Justice Black made the suggestion that removing evolution from the curriculum might leave the state in a neutral position between religious and antireligious doctrines (id. at 113). I have indicated why I do not think it is "neutral" to wipe from the curriculum an otherwise essential topic because its theories conflict with some religious views.
319. Edwards v. Aguillard, 482 U.S. 578 (1987).
320. Id. at 581.
321. Officials claimed that the act's purpose was academic freedom, but Justice Brennan wrote that it furthered neither the goal of providing a more comprehensive science curriculum nor the goal of freeing individual teachers to instruct as they thought best. Id. at 586-87.
322. Id. at 591.
323. Various efforts after the law was adopted to define "creation science" without reference to a supernatural creator were not relevant to what the legislature's purpose had been. Id. at 595-96.
324. Justice Brennan also urged that the statute discriminated in favor of creation science as against evolution because it provided curriculum guides and resource services (supplied by a panel of creation scientists) for the former, but not the latter. The easy answer to this contention is that the legislature understood that science teachers in the main believed in evolution, and since plenty of teaching materials were available, no curriculum guides or resource services were needed for evolution. See Justice Scalia's dissent at id. 630-31.
325. Id. at 636-39.
326. Id. at 613.
327. Id. at 614.
328. I explore this issue in Statutory Interpretation: Twenty Questions 145-59 (New York: Foundation Pr., 1999).
329. A brief overview of changing approaches to history is in "History," in Paul Lagassé, ed., Columbia Encyclopedia, 6th ed. 1295-96 (New York: Columbia Univ. Pr., 2000).
330. See also R. G. Collingwood, The Idea of History (New York: Oxford Univ. Pr., 1956).
331. I see no reason why a historian so inclined should not write from a religious or atheist point of view, although such approaches are rare among modern American historians.
332. See Warren A. Nord and Charles C. Haynes, Taking Religion Seriously across the Curriculum 1 (Alexandria, Va.: ASCD; Nashville: First Amendment Center, 1998).
333. One reason for this comparative neglect may be uncertainty about what judicial decisions under the Establishment Clause may allow.
334. See Marjorie A. Silver, "Rethinking Religion and Public School Education," 15 Quinnipiac L. Rev. 200, 220 (1995).
335. The situation has improved in the last decade and a half. See id. at 78;
336. Gilbert T. Sewall, "Religion in the Textbooks," in James T. Sears and James C. Carper, eds., Curriculum, Religion, and Public Education: Conversations for an Enlarging Public Square 73, 80 (New York: Teachers College Pr., 1998).
337. Whether we really have a more objective view of distant than modern events is debatable. Perhaps it is only that "history written by the victors" has become solidly entrenched, that our sense of "objectivity" is blindness to suppressed alternative understandings. The challenge of "multiculturalists" to dominant white European perspectives rests substantially on this insight.
338. The connection between Puritan thought and ideas of democratic government is one example.
339. See Philip C. Kissam, "Let's Bring Religion into the Public Schools and Respect the Religion Clauses," 49 Kan. L. Rev. 593, 604-7 (2001).
340. For less central matters regarding religion, a judgment about whether to teach them should include an assessment of whether available teachers can do so competently and fairly.
341. Charles Haynes has developed a very interesting guide for high school teachers that contains important documents about religion in American history, explains their relation to crucial issues, and provides bibliographic sources. Religion in American History (Alexandria, Va.: Association for Supervision and Curricular Development, 1990).
342. For a highly critical appraisal of the view that American society is distinctively innocent
343. see Reinhold Niebuhr, The Irony of American History (New York: Scribner's 1952).
344. Jay D. Wexler, "Preparing for the Clothed Public Square: Teaching about Religion, Civic Education, and the Constitution," 43 Wm. & Mary L. Rev. 1159 (2002), provides examples of sharply divergent views within the Buddhist and Confucian traditions.
345. See George M. Marsden, Jonathan Edwards: A Life 193-200 (New Haven: Yale Univ. Pr., 2003). Edwards saw the events of political history as revelations of God's will. He also looked for signs that Christ's reign on earth was approaching.
346. Warren A. Nord, Religion and American Public Education 249-51 (Chapel Hill: Univ. of North Carolina Pr., 1995).
347. If all that were involved was critical analysis hostile to some or all religions, my comments about Nord's possibilities 5 through 7, discussed below, would apply. I am assuming that covert inculcation of ideas the teacher does not candidly acknowledge is never justified in school. Given religious beliefs in the United States, not too many high school teachers will teach consistent Marxism or Freudianism.
348. Of course, no one thinks every phrase in the Bible is to be taken literallysthere are some obvious metaphors.
349. In Moore v. Gaston County Bd. of Educ., 357 F. Supp. 1037 (W.D. N.C. 1973), a student teacher was wrongly discharged for answering students' questions about his personal beliefs.
350. Among cases sustaining instructions to teachers not to discuss religious beliefs are Marchi v. Board of Cooperative Educational Services, 173 F.3d 469 (2d Cir. 1999);
351. Peloza v. Capistrano Unified School Dist., 37 F.3d 517 (9th Cir. 1994).
352. See also Bishop v. Aronov, 926 F.2d 1066 (8th Cir. 1991) (professor of health in university);
353. Downing v. West Haven Bd. of Ed., 162 F.Supp.2d 19 (D. Conn. 2001) (wearing of Christian T-shirt). The Bishop decision is criticized, in part, for using high school cases to mark the permissible restraints on teachers in universities. John W. Hamilton, "Bishop v. Aronov: Religion-Tainted Viewpoints Are Banned from the Marketplace of Ideas," 49 Wash. & Lee L. Rev. 1557 (1992).
354. Fourth Circuit, en banc, upheld the transfer of a drama teacher who had put on a controversial play, on the theory that choices of plays are curricular decisions that teachers have no right to control. Boring v. Buncombe County Board of Educ., 136 F. 3d 364, cert. denied 525 U.S. 813 (1998).
355. For criticisms of the contraction of teacher authority, see Karen C. Daly, "Balancing Act: Teachers' Classroom Speech and the First Amendment," 30 J. Law & Education 1 (2001);
356. Kara Lynn Grice, "Striking an Unequal Balance: The Fourth Circuit Holds That Public School Teachers Do Not Have First Amendment Right to Set Curriculum in Boring v. Buncombe Co. Board of Education," 77 N.C. L. Rev. 1960 (1999).
357. In Marchi v. Board of Cooperative Educational Services, 173 F.3d 469 (2d Cir. 1999), the court ruled that a supervisor properly treated a letter to a parent about his child as falling within the writer's responsibilities as a teacher.
358. If a course spends substantial time on Marxist communism, for example, it should devote some time to Christian Socialist movements.
359. National Conference of Catholic Bishops, Economic Justice for All, in 5 Pastoral Letters of the United Catholic Bishops 371 (Hugh J. Nolan, ed., 1988).
360. This alone would not make economics a science rather than an exercise in logic; one needs to add that its premises, and therefore its conclusions, bear a significant relation to what happens in the outside world-isolating crucial factors as one would in the calculation of how fast a physical body falls in the absence of friction.
361. To be somewhat more precise, there is in the West a substantial consensus since the fall of Communism that production and distribution should occur according to a model of free enterprise, with some regulation. No consensus exists about how redistributive a system of taxation and government expenditures should be.
362. Lay Commission on Catholic Social Teaching and the U.S. Economy, "Liberty and Justice for All," 4 Crisis 4-16 (1986).
363. Upper-level courses may be labeled courses in literature, and study of literature plays a role in lower-level English courses. Many foreign language courses include reading and discussion of literature in those languages.
364. However, at some stages of the educational process, educators might decide that materials should emphasize exposure to less familiar traditions.
365. Crockett v. Sorenson, 568 F. Supp. 1422 (W.D. Va. 1983).
366. A recent case to similar effect is Doe v. Porter, 188 F. Supp. 2d 904 U.S. Dist. LEXIS (E.D. Tenn. 2002); without supervision from public school officials, students from a religious college taught Bible classes to elementary school pupils. In this instance, the court found that the Bible was being taught as literally true.
367. See also Gibson v. Lee County School Board, 1 F. Supp. 2d 1426 (M.D. Fla. 1998).
368. In Vaughn v. Reed, 313 F. Supp. 431 (W.D. Va. 1970), the court reached a similar conclusion, but said that a constitutionally acceptable Bible course should be appropriate for all students and should be mandatory.
369. If, at a high school level, students have the opportunity to study other religious texts, an elective course in the Bible may be all right.
370. Despite its disregard by many who are powerful politically-one who reads Robert Caro's biographies of Robert Moses, The Power Broker: Robert Moses and the Fall of New York (New York: Vintage Books 1975)
371. Lyndon Johnson, The Path to Power, vol. 1 of The Years of Lyndon Johnson (New York: Knopf 1982)
372. Means of Ascent, vol. 2 of The Years of Lyndon Johnson (New York, Knopf 1990)
373. Master of the Senate, vol. 3 of The Years of Lyndon Johnson (New York, Knopf 2002), cannot fail to be struck by the extent to which deceit of various kinds contributed to their immense power-honesty is valuable in the life of liberal democracies.
374. When I was a student, boys took "shop" and girls took "home economics." In places where I have lived, it would now be unthinkable to routinely assign boys to shop and girls to home economics.
375. See Amy Gutmann, Democratic Education 107-11 (Princeton: Princeton Univ. Pr., 1987), suggesting that schools may legitimately decide to undertake sex education or not. Of course, much of sexual morality does involve responsibilities to others, but the primary reasons why some people object to homosexual activity, premarital intercourse, and particular varieties of sexual activity do not concern such responsibilities.
376. See, e.g., Andrew A. Cheng, "The Inherent Hostility of Secular Public Education toward Religion: Why Parental Choice Best Serves the Core Values of the Religion Clauses," 19 Hawaii L. Rev. 697 (1997).
377. I do not mean to imply that there is a settled methodology about teaching science and history, only that agreement is fairly wide about how to do science and, to a lesser extent, history.
378. See Rosemary Salomone, "Common Schools, Uncommon Values: Listening to the Voices of Dissent," 14 Yale L. & Pol'y Rev. 169, 181 (1996), on the "cognitive moral development movement" of the 1970s.
379. See Lawrence Kohlberg, "The Philosophy of Moral Development," in Essays on Moral Development, vol. 1 (San Francisco: Harper & Row, 1981).
380. See James Davison Hunter, The Death of Character: Moral Education in an Age without Good or Evil 107-28 (New York: Basic Books, 2000) (describing a neoclassical and a communitarian backlash to psychological approaches);
381. Jeffrey J. Pyle, "Socrates, the Schools, and Civility: The Continuing War between Inculcation and Inquiry," 26 J. L. & Education 65 (1997);
382. Christina Hoff Sommers, "How Moral Education Is Finding Its Way Back into Schools," in William Damon, ed., Bringing in a New Era in Character Education 24-41 (Stanford, Calif.: Hoover Institution Pr., 2002);
383. Thomas Lickona, Educating for Character: How Our Schools Can Teach Respect and Responsibility (New York: Bantam Books, 1991).
384. Warren A. Nord, Religion and American Education 89 (Chapel Hill: Univ. of North Carolina Pr., 1995), places values clarification within a broader movement of "expressive education." "Expressivists are more likely to use the language of self-actualization and modern psychology than the language of morality or religion. They believe teachers should be nonjudgmental." Nord also quotes Karl Rogers to the effect that education should "free curiosity; . . . permit individuals to go charging off into new directions dictated by their own interest." Id. at 90.
385. Id. at 326-28.
386. B. Douglas Hayes, "Secular Humanism in Public School Textbooks: Thou Shalt Have No Other God (Except Thyself)," 63 Notre Dame L. Rev. 358, 372 n. 100 (1988)
387. Citing L. Raths, M. Harmin, and S. Simon, Values and Teaching 28-30 (1966).
388. See, e.g., Lisa Shah, "Faith in Our Future," 23 Whittier L. Rev. 183, 203-4 (2001).
389. One might, for example, so regard a comment that "self-actualization is the highest level of human need." Id.
390. However, I do not think "personal and subjective" is a precise or accurate way to communicate the liberty of citizens in respect to values. That phrase is analyzed and criticized in Winton E. Yerby III, "Toward Religious Neutrality in the Public School Curriculum," 59 U. Chi. L. Rev. 899, 920-23 (1989).
391. More likely, a religion will say that children of adults who believe that religion should follow what the parents say.
392. This dichotomy is rough, in part, because we might believe in an absolute value-say, love-and also believe how one should act depends heavily on context.
393. I add the "more or less" because there will be nuances of difference.
394. Such an argument might be resisted on the basis that the particular ethical beliefs can be explained as peculiarly tied to religious views, and therefore are not sound if the religious perspectives are not sound. And any argument based on historical practice may be resisted on the basis that the practice has been misguided.
395. To be clear, I am not suggesting that either kind of argument is conclusive about what our morality should now be. Someone can make the counterargument that the world religions have all adopted a fallacious moral view-e.g., that women should not enjoy full equality with men-or that our particular religious tradition is seriously misguided in some respect.
396. See especially John Rawls, Political Liberalism (New York: Columbia Univ. Pr., 1993). My own doubts about more rigorous forms of this view are expressed in Private Consciences and Public Reasons (New York: Oxford Univ. Pr., 1995).
397. However, as I point out in chapter 2, students should have a chance to understand religious objections to a political life that depends on nonreligious premises.
398. In the interests of completeness, a teacher should probably also say that many practicing Catholics do not, according to polls, accept the church's stance on this topic.
399. I have read a fair amount of Roman Catholic literature about artificial conception and homosexual relationships, but, given historical developments in doctrine, divisions among Catholics themselves, and the abstraction of the arguments, I doubt my capacity to state fairly why the institutional church opposes these practices.
400. This would exclude criminal penalties for consenting homosexual acts among adults. (Such penalties were declared unconstitutional by the Supreme Court in spring of 2003. Lawrence v. Texas, 539 U.S. 558 (2003)). Although it is minimally coherent to say that gays deserve equal respect as citizens, as do those with strong impulses to steal, but that homosexual actions, like thefts, may be punished, our modern notions of equal respect for gays include at least tolerance of sexual acts in private as well as of inclinations.
401. Stephen Macedo, Diversity and Distrust: Civic Education in a Multicultural Democracy 3-10 (Cambridge: Harvard Univ. Pr., 2000);
402. William Galston, "Civic Education in the Liberal State," in Nancy Rosenblum, ed. Liberalism and the Moral Life 89 (Cambridge: Harvard Univ. Pr., 1989).
403. On the other hand, if the vast majority of people in the country and in the community do not recognize something as a valid claim of social justice, public schools should not teach it as such, even if educators in the district disagree with the consensus. Claims of animal rights could now fit into this category.
404. I am oversimplifying to an extraordinary degree here, not raising the danger of AIDS, differences between gay women and gay men, the possibility of offspring who carry genes from both members of a couple, the prospect of homosexual marriage, the opportunities to be bisexual in practice, and so on.
405. Existing social prejudices (which have abated radically in the last few decades) and the complexities of child bearing and raising for gay couples might figure in whether one would encourage someone to pursue a gay life, if his or her inclinations were not strongly and exclusively homosexual. These considerations are distinguishable from the intrinsic desirability of homosexual acts.
406. When the issue is moral teaching, teachers do not have a responsibility to indicate religious opposition that has no significant representation in the culture.
407. On the virulence of some prejudice against homosexuals, see Theresa J. Bryant, "May We Teach Tolerance? Establishing the Parameters of Academic Freedom in Public Schools," 50 Univ. Pitt. L. Rev. 570, 580-90 (1999), summarizing the harsh facts of Nabozny v. Podlesny, 92 F.3d 446 (7th Cir. 1996).
408. Another, more obvious, illustration of the difficulties of distinguishing conclusions based on fundamental premises of liberal democracy from other moral conclusions is whether men and women should share equally the responsibilities of rearing children. This may be viewed as a matter of personal, noncivic morality, but many see it as an aspect of equal citizenship for women.
409. See Gary J. Simson and Erika A. Sussman, "Keeping the Sex in Sex Education: The First Amendment's Religion Clauses and the Sex Education Debate," 9 So. Cal. Rev. L. & Women's Stud. 265 (2000).
410. See also Kristen S. Rufo, "Public Policy vs. Parent Policy: States Battle over Whether Public Schools Can Provide Condoms to Minors without Parental Consent," 13 N.Y. L. Sch. J. Human Rights 589, 592-99 (1997).
411. According to a 1992 study of the Center for Disease Control, by the time they reach twelfth grade, over 70 percent of students report having had sexual intercourse. Roger J. R. Levesque, "Sexuality Education: What Adolescents' Educational Rights Require," 6 Psych. Pub. Pd. & L. 953 (2000).
412. See id. at 265-82.
413. In many cultures, people themselves would perceive no distinction between religion and other cultural aspects, and outsiders could not differentiate the two in any simple way.
414. See generally Robert J. Nash, Faith, Hype, and Clarity: Teaching about Religion in American Schools and Colleges (New York: Teachers College Pr., 1999). In "Darwin, Design and Disestablishment," 56 Vand. L. Rev. 75 (2003), Jay Wexler proposes a course about various religious perspectives on the origins of life as the best way to help students understand alternatives to scientific approaches.
415. Were it said that this is a course in religion, not skepticism, the answer is that no other course treats atheism and agnosticism in a serious way, and these are significant perspectives about religion. Such a course might, for example, examine Marx's view that religion is the "opiate of the masses."
416. Obviously this is not possible with oral traditions, but even with these it might be helpful to have some account of how the religion is understood from the inside, as by a telling of a story in the oral tradition.
417. See Charles H. Haynes and Oliver Thomas, Finding Common Ground: A Guide to Religious Liberty in Public Schools (Nashville: First Amendment Center, 2001).
418. Lemon v. Kurtzman, 403 U.S. 602 (1971).
419. E.g., County of Allegheny v. A.C.L.U., 492 U.S. 573 (1989).
420. Lee v. Weisman, 505 U.S. 577 (1992).
421. If the state cannot endorse, obviously it cannot condemn. In her concurring opinion in Capitol Square Review and Advisory Bd. v. Pinette, 515 U.S. 753, 778 (1995), Justice O'Connor wrote that government practices must be reviewed to see if they constitute "an endorsement or disapproval of religion."
422. Just how to conceptualize this range is arguable. One might think each educational authority is more constrained by the religion clauses than even a fully informed court would rule, or one might conceive the range of the constitutionally permissible as congruent with what a fully informed court would allow.
423. Comment of Frank Manuel during a conference on religion and education, Daedalus, Spring 1988, 29.
424. See Christopher L. Eisgruber, "How Do Liberal Democracies
425. See People for the American Way Foundation, The Good Book Taught Wrong: "Bible History" Classes in Florida's Public Schools (1999). The history of litigation and settlement is briefly summarized in Jay Wexler, "Preparing for the Clothed Public Square: Teaching about Religion, Civic Education, and the Constitution," 43 Wm. & Mary L. Rev. 1159, 1245-57 (2002).
426. So long as courts are inclined to trust the good faith and competence of public school teachers (Justice O'Connor's approach for the Court in Agostini), they will insist on such supervision only if a program has already exhibited serious problems, or the teaching concerning religion is assigned to persons other than public school teachers.
427. I assume that a teacher may teach about religious subject matters in history or literature without having special training, although such training would be desirable.
428. There are limits, however. Teachers cannot be told to lie, and one can imagine instructions that are so detailed they would trespass upon free speech rights.
429. See Holly M. Bastian, "Religious Garb Statutes and Title VII: An Uneasy Coexistence," 80 Georgetown L.J. 211, 213 n. 14 (1991). In the spring of 2003, after a teacher's aide in Pennsylvania was suspended for wearing a cross necklace, the federal district court suggested that a prohibition of religious jewelry might well be a discriminatory restriction on speech that is unconstitutional. Nichol v. ARIN Intermediate Unit 28, 2003 U.S. Dist. LEXIS 10810 (W.D. Pa. June 25, 2003).
430. I pass over the point here that there are a small number of Episcopalian nuns, wearing habits ordinary people cannot distinguish from those of Roman Catholic nuns. In few, if any, school districts are Episcopalian nuns teachers.
431. See 42 U.S.C. § 2000e(j). Cases can also arise if someone seeks unemployment compensation after having been discharged for wearing religious garb. Mississippi Emp. Sec. Commn. v. McGlothin, 556 So.2d 324 (Miss.), cert. denied, 498 U.S. 879 (1990).
432. United States v. Board of Education, 50 Fair Empl. Prac. Cos. (BNA) 71, 82-85 (1989), rev'd, 911 F.2d 882 (3d Cir. 1990).
433. Anti-Catholicism almost certainly had an influence on initial adoption of such laws.
434. Of course, this constant reminder can turn students away from the religion if they take a strong dislike to the teachers or their methods. Being educated within strict Roman Catholic schools is a reason some "lapsed" Catholics give for falling away from the church.
435. See, e.g., Hysong v. Gallitzin Borough School Dist., 30 A. 482 (Pa. 1894)
436. Rawlings v. Butler, 290 S.W.2d 801 (Ky. 1956). But see Zellers v. Huff, 55 N.M. 501, 236 P.2d 949 (1951).
437. See Commonwealth v. Herr, 78 A. 68 (Pa. 1910); O'Connor v. Hendrick, 184 N.Y. 421, 77 N.E. 612 (1906)
438. Cooper v. Eugene School Dist., 301 Or. 358, 723 P.2d 298, app. dism., 480 U.S. 942 (1986).
439. 911 F.2d 882 (3d Cir. 1990).
440. I put the point this way because the law as a whole would not be justified if many teachers would like to wear religious jewelry that would be likely to have little effect on students.
441. It is a close question what a court should do if there is no real problem in the local region but there is a problem in other parts of the state.
442. One can also imagine suits brought by parents who object that, by allowing religious speech, a school violates the Establishment Clause.
443. We have seen in chapter 3 that the Supreme Court has determined that public schools cannot sponsor prayers in classrooms, at graduation ceremonies, or at football games, and in chapter 6 that schools must treat religious groups that want to use school facilities equally with nonreligious groups.
444. Matters might be different if most students in the class chose to speak from the same religious point of view.
445. Rosenberger v. Rector, 515 U.S. 819 (1995).
446. If a teacher's only reason for excluding religious subjects is a misconception that admitting those subjects would be improper, his decision may be unacceptable even if he otherwise has very wide latitude.
447. Settle v. Dickson County School Board, 53 F.3d 152 (6th Cir. 1995), cert. denied, 516 U.S. 989 (1995).
448. Id. at 153.
449. Id. at 156. Judge Batchelder, concurring, considered whether a teacher can determine an appropriate topic; Ramsey's decision was permissible because her reason for rejecting the paper was not because of its religious content.
450. The court relied on the Supreme Court's decision in Hazelwood School District v. Kuhlmeier, 484 U.S. 260 (1998), involving supervision over the content of a school newspaper, and an indication in Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969),that teachers have broad discretion to administer the curriculum. In his concurrence, Judge Batchelder regarded the problem as significantly different from the published newspaper in Hazelwood.
451. Presumably the four Gospels would have counted as one source, not four, for this purpose.
452. The risk that Settle would write a paper about her "personal religion" is a kind of compendium of risks that she would not use nonbiblical sources, would not learn something new, and would not take an "objective" approach to the paper.
453. Lisa C. Shaw, "Student-Initiated Religious Speech, the Classroom, and the First Amendment: Why the Supreme Court Should Have Granted Review in Settle v. Dickson County School Board," 18 Pace L. Rev. 255 (1998), is highly critical of Ramsey's educational judgments and believes courts should involve themselves much more in protecting the rights of students to rely on religious subjects. She cites, among other things, a speech by President Clinton. Remarks on Religious Liberty in America, July 12, 1995, available at http://www.ed.gov/PressReleases/ 07-1995/religion.html. Other relevant secondary literature is Jay Alan Sicilian, "Proposed Guidelines for Student Religious Speech and Observance in Public Schools," 46 Mercer L. Rev. 1017 (1995); Robert S. Peck, "The Threat to the American Idea of Religious Liberty," 46 Mercer L. Rev. 1123 (1995); Michael McConnell, Testimony before the House Judiciary Committee, June 8, 1995, available at www.house.gov/judiciary/2108.htm.
454. C. H. v. Oliva, 226 F.3d 198 (en banc 2000).
455. C. H. v. Oliva, 990 F. Supp. 341 (D.N.J. 1997).
456. C. H. v. Oliva, 195 F.3d 167 (3d Cir. 1999). This opinion was vacated when en banc review by the entire court was granted, 197 F.3d 63 (3d Cir. 1999).
457. In DeNooyer v. Livonia Public Schools, 779 F. Supp. 744 (E.D. Mich.), a teacher and principal agreed that a student should not, for show and tell, play a videotape of herself singing a proselytizing reli- gious song before a church congregation. One reason was that playing the videotape would not involve the student in making an oral presentation to the class, the purpose of show and tell; another reason was that second graders might think the school endorsed the message of the song about a young child accepting Jesus as Savior, or might be embarrassed or offended by the song. Although the court found public forum analysis to be appropriate, it said the school classroom is a closed forum and that school authorities might regulate the content of speech "in any reasonable manner." Id. at 749. The school had legitimate pedagogical reasons for its decision. In this instance, the independent reason that playing a tape does not involve an oral presentation was enough to sustain the decision. Suppose, instead, all students were told they could play videotapes of activities in which they were engaged. Barring special circumstances, the teacher could eliminate the worry about endorsement by reminding students that the child's choice of subject was purely her own, but the proselytizing content of the song might still be a sufficient basis not to risk discomfort and offense of the other students.
458. The teacher who had restored the poster to a "less prominent position" was not a party, and it was not alleged that she had acted because of the poster's religious theme or that defendants were aware of what she had done. Thus, the complaint failed to allege any responsibility of the defendants for any possible violation. In a case that has so far reached only a procedural stage, parents complained that a child had been treated unconstitutionally when the teacher rejected an initial religious poster and concealed part of a second religious poster made in response to an assignment to make an "environmental poster" for display. Peck v. Baldwinsville School Board of Education, No. 00-9054, 2001 U.S. App. LEXIS 5281 (2d Cir. Mar. 28, 2001).
459. Oliva, 226 F.3d at 210. Ironically, any Thanksgiving poster may be implicitly religious, but being thankful for Jesus is religious in a sense in which being thankful for one's family is not.
460. Id. at 213, 193 F.3d at 170-72.
461. For Judge Alito's position to be a robust one, we have to assume that teachers cannot avoid the demand of equal treatment simply by creating an exception in their original assignments. That is, were the teacher to say, "Make a poster about anything you are thankful for except anything religious," that exclusion would have to pass strict scrutiny. Otherwise teachers and schools could sidestep strict review just by formulating assignments to contain the exclusions they wish.
462. See note 5 supra. On whether Hazelwood School District v. Kuhlmeier, 484 U.S. 260 (1988), authorizes schools to engage in viewpoint discrimination, see Downs v. Los Angeles Unified School Dist., 228 F.3d 1003 (4th Cir. 2000); Fleming v. Jefferson County School Dist. R-1, 298 F.3d 918, 926-29 (10th Cir. 2002).
463. Gernetzke v. Kenosha Unified School District No. 1, 224 F.3d 464 (7th Cir. 2001).
464. John 3:16.
465. Gernetzke, 224 F.3d at 466.
466. The court determined that the First Amendment suit could not be maintained against the defendants in their official capacities.
467. Gernetzke, 224 F.3d at 467.
468. I am assuming restricting the content of the mural of a religious club would constitute unacceptable discrimination against the club under the Equal Access Act (and the First Amendment) if the school lacked a legitimate justification.
469. Put differently, school officials should not be able to rely on the specter of litigation that would definitely be unsuccessful. Were such litigation to justify action, unhappy parents could provide sufficient bases for school officials to act merely by threatening to sue.
470. For a summary of cases that deal with disorder or controversy, see Fleming 298 F.3d at 925-26.
471. Fleming, 170 F. Supp. 2d 1094 (D. Col. 2001). In answer to the argument that in subsequent years people entering the school would assume that the tiles might bear the school's imprimatur, the court said that what would count is the perception of a reasonable and informed observer, drawing from the language of Justice O'Connor's endorsement test. We have examined the problems with Justice O'Connor's approach-and particularly the divide between ordinary reasonable people and (hypothetical) ones as well informed as she envisions-for the temporary displays to which that approach has been applied. These problems are magnified when one considers items that may stay in a building for half a century. Perhaps the Columbine shooting was such a major event that people will have a sense many years later about the origins of the tiles, but one cannot expect that for most decisions to decorate school walls. It is bizarre to imagine forty years from installation that the "reasonable observer" who counts is familiar with all the history of how the tiles came to be as they are. A better judicial response on this point would be to say that the very diversity of the tiles would suggest that the symbols and expressions on any single one would not reflect school policy and that the school might meet the concern about endorsement by posting a modest sign that either summarizes the history of the making of the tiles or states simply, "The tiles in these halls were painted by members of the com- munity and are expressions by them; they do not represent the viewpoints of the school."
472. Fleming, 298 F.3d at 933. The court found it unnecessary to address the claim that religious references would serve as a reminder of the shooting. See also DeLoreto v. Downey Unified School Dist. Board of Education, 196 F.3d 958 (9th Cir. 1999) (holding that a school district could refuse to have an advertisement containing the Ten Commandments on the fence of its high school field).
473. Muller v. Jefferson Lighthouse School, 98 F.3d 1530 (7th Cir. 1996).
474. Orin v. Barclay, 272 F.3d 1207 (9th Cir. 2001), did not involve a student, but a man who was told he could demonstrate against abortion on the campus of a community college as long as, among other things, he did not couch the protest in religious terms. The court held that having given Orin the right to express himself, officials could not preclude religious language. The result was dictated by Widmar v. Vincent, 454 U.S. 263 (1981), and, as in that case, a desire to avoid a violation of the Establishment Clause could not justify the restriction.
475. Muller, 98 F.3d at 1534.
476. Id. at 1440. Judge Rovner, concurring, would have employed the standard from Tinker v. Des Moines Independent School District, 393 U.S. 503 (1969), which is more protective of free speech, requiring school officials to show that speech would "'materially and substantially interfere with the requirements of appropriate discipline in the operation of the school.'" Muller, 98 F.3d at 1546. Judge Rovner recognized that speech innocuous in high school might interfere with work in grammar school, but she did not think that was a reason to apply a different standard of judgment.
477. In Isaacs v. Board of Education, 40 F. Supp. 2d 335 (D. Md. 1999), for example, the court rejected an argument that plaintiff had a free speech right to wear an African head-wrap to celebrate her cultural heritage. See Canady v. Bossier Parrish School Board, 240 F.3d 437 (5th Cir. 2001).
478. Vines v. Board of Education, 2002 U.S. Dist. LEXIS 382 (N.D. Ill.).
479. Plaintiff's argument that there was nonetheless a violation because the requesting letter had to be on official church stationery (thus, plaintiff claimed, limiting the "opt out" to "officially recognized" churches) had not been raised in time.
480. Chalifoux v. New Caney Independent School District, 976 F. Supp. 659 (1997).
481. Tinker, 393 U.S. 503.
482. Employment Division v. Smith 494 U.S. 872 (1990).
483. Chalifoux, 976 F. Supp. at 671.
484. Were a court to use a more "relaxed" standard for ordinary symbolic speech, any heightened free exercise scrutiny could make a significant difference.
485. See Elaine Sciolino, "French Assembly Votes to Ban Religious Symbols in Schools," N.Y. Times, February 11, 2004, A3, col. 1.
486. Worry that Muslim scarves represent a subordinate role for women would presumably not be sufficient.
487. The primary constraint on what schools teach flows from nonestablishment; the primary basis for being excused is free exercise. Also relevant for constitutional purposes are general principles of free speech and a possible parental right, under due process clauses, to control the education of their children.
488. Some states have their own Religious Freedom Restoration Acts. Philip C. Kissom, in "Let's Bring Religion into the Public Schools and Respect the Religion Clauses," 49 Kan. L. Rev. 593, 616 (2001), notes that Kansas has a law exempting students, upon parental request, from activities "contrary to the religious teachings of the child." I do not share Kissom's strong doubts that a law limited to religious objections is constitutional.
489. Mozert v. Hawkins County Board of Education, 827 F.2d 1058 (6th Cir. 1987), cert. denied, 484 U.S. 1066 (1988).
490. Stephen Bates, Battleground 19 (New York: Poseidon Pr., 1993).
491. Id. at 204.
492. Id. at 44.
493. Id. at 82.
494. Id. at 207.
495. Id. at 206-7. (The ellipsis in the text omits Peter's response to Anne's initial comment, as well as some of what Anne said.) The reader also contains the fable of the blind man and the elephant, suggesting that all religions contain some part of the truth but not the entire truth. As Stephen Bates puts it, "To the plaintiffs, who believe that Jesus is the only way to salvation, such statements were sacrilege." Id. at 207.
496. Id. Diane Ravitch has written that after the Mozert litigation, educational publishers took to heart Fundamentalist objections to texts: "Consequently, the content of today's textbooks and tests reflects a remarkable convergence of the interests of feminists and multiculturalists on one side and the religious Right on the other." Ravitch, Education after the Culture Wars, Daedalus, Spring 2002, 5, 15.
497. Bates, Battleground, note 4 supra, at 54.
498. See George W. Dent Jr., "Religious Children, Secular Schools," 61 S. Cal. L. Rev. 863, 867 (1988). Frost also objected to the suggestion in the teachers' manual that students assume roles and act out stories. Mozert, 827 F.2d at 1066.
499. Bates, Battleground, note 4 supra, at 33-38.
500. Id. at 71.
501. Id. at 72-77.
502. Id. at 86-90.
503. Mozert I, 579 F. Supp. at 1052. I have omitted two items and renumbered the remaining ones.
504. See Nomi Maya Stolzenberg, "He Drew a Circle That Shut Me Out: Assimilation, Indoctrination, and the Paradox of a Liberal Education," 106 Harv. L. Rev. 581, 596-97 (1993). I have omitted ten items and renumbered the remaining ones.
505. The uncertainty about the scope of the parents' complaints may have affected whether they were afforded any remedy at all.
506. Bates, Battleground, note 4 supra, at 255.
507. Mozert, 827 F.2d, at 1063.
508. We have seen in the earlier chapters of this book that, insofar as secular humanism constitutes a coherent set of ideas about human beings and the universe, including atheism or agnosticism, public schools may not present that set of ideas as true, in comparison with (false) traditional religions. Given the fundamentalist religious convictions of most residents of Hawkins County, we can be confident that the teachers were not teaching the truth of atheism; and the educational authorities did not understand the Holt readers to do so. Insofar as the materials conveyed ideas such as tolerance and respect for opposing beliefs that might be held by proponents of secular humanism and by many religious believers, that would not count as teaching secular humanism. Insofar as the materials failed to propound the true religion and to assert that religion should be central in people's lives, that can be understood as the inevitable consequence of the state's not taking a position about religion. The parents' complaint about secular humanism might be seen as revealing the extent to which the parents perceived the readers to be inhospitable to their sense of the true religion and how it should be taught to young people. In this sense, the "secular humanist" objection became another way of complaining that it was the overall cumulative effect of the materials that the parents took as so damaging.
509. See Spence v. Bailey, 465 F.2d 797 (6th Cir. 1972).
510. See West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624 (1943); Sherman v. Community Consolidated School Dist. 21, 980 F.2d 437 (7th Cir. 1992). One might think pledges of loyalty, which the Supreme Court said could not be coerced nearly sixty years ago, are special because they involve affirmations of belief, or because they are not part of the regular curriculum, but the principle of the Barnette case should not be taken so narrowly.
511. In Pierce v. Society of Sisters, 268 U.S. 510 (1925), the Court found such a right as a matter of substantive due process. More recently, many have assumed that the Free Exercise Clause is what mainly supports this right. On this view, the constitutional right would probably not extend to nonreligious private schools.
512. As chapter 2 indicates, some scholars believe that states should require more education in liberal democratic values from private schools than they now do.
513. I do not discuss in the text the treatment of nonreligious objections. Briefly, religiously based objections will usually be stronger than those based on nonreligious grounds, but school authorities should respond to some nonreligious objections. If pacifist nonreligious parents object to military training, the children should not have to undergo it. However, for something like the Holt reading series, it is doubtful whether any secular objection would be strong enough to justify excusing children.
514. I pass over here whether biology is a basic subject and whether one can be competent in biology without being taught anything about evolution.
515. However, the private school option does not necessarily undermine the state's claim to enhance autonomy altogether. The state can say that its interest in broadening the entire range of student choice is very great; even though it gives way to a right of parents to choose nonpublic schools if they feel intensely about that, the state maintains its interest in promoting autonomy for children in public schools.
516. Wisconsin v. Yoder, 406 U.S. 205 (1972).
517. For a case holding that parents of a student receiving home schooling did not have a right to choose certain public school courses for their child, see Swanson v. Guthrie Independent School Dist. No. I-L, 135 F.3d 694 (10th Cir. 1998). See generally William Grob, "Access Denied: Prohibiting Homeschooled Students from Participating in Public School Athletics and Activities," 16 Ga. St. U. L. Rev. 823 (2000).
518. Mozert, 827 F.2d 1058 (1987), cert. denied, 484 U.S. 1066 (1988).
519. Yoder, 406 U.S. 205 (1972).
520. Employment Division v. Smith, 494 U.S. 872 (1990).
521. For a discussion of the significance of exposure to obnoxious ideas, see Ware, 75 N.Y.2d at 126-27, 550 N.E.2d at 428, 551 N.Y.S.2d at 175.
522. The court recognized that Wisconsin v. Yoder was a case involving undesired exposure, but the opinion said it rested on a singular set of facts, involving a wish to be free of the entire high school curriculum. Mozert, 827 F.2d at 1067.
523. Among other things, the parents argued that the New Testament orders Christians only to fill their minds with what is true, and to "avoid worldly and empty chatter."
524. He worried about the constant threat of lawsuits, and his treatment of Yoder shows that he supposes that withdrawal of children from the entire school system is much less troublesome than parents picking and choosing among courses.
525. Mozert, 827 F.2d at 1079-81.
526. Id. at 1081.
527. Id. at 1071. On this point, Judge Boggs responded that it was unfair to sustain the need to teach students in this way if the inadequacy of alternatives for children of objecting parents could not be revealed by testing. Id. at 1071. However, insofar as what the school is teaching is independence of choice and civic virtues, it is doubtful if these will be confidently revealed by standard testing.
528. Id. at 1071-72.
529. Asimilar conclusion was reached in Fleischfresser v. Directors of School Dist. 200, 15 F.3d 680 (7th Cir. 1994). In Axson-Flynn v. Johnson, 151 F. Supp. 1326 (D. Utah 2001), a court held that a university drama student did not have a right to participate in an acting program without being willing to speak certain words and phrases in performances.
530. In Ware, 75 N.Y.2d 114, 550 N.E.2d 420, 551 N.Y.S.2d 167, the New York Court of Appeals said that the state had a compelling interest in preventing AIDS, but had not shown the necessity of insisting that members of the Brethren attend the public school course.
531. Gary J. Simson and Erika A. Sussman, "Keeping the Sex in Sex Education: The First Amendment's Religion Clauses and the Sex Education Debates," 9 S. Cal. Rev. L. & Women's Stud. 265, 272-78 (2000). See Brown, 68 F.3d 525 (using a weaker test than compelling interest). For a case holding that schools need provide no "opt-out" for a program of condom distribution, because no one was compelled to take the free condoms, see Curtis v. School Committee of Falmouth, 652 N.E.2d 580 (Sup. Jud. Ct. Mass. 1995). The opposite result was reached on statutory grounds and on the basis of parental rights to control their children's sexual education. Alfonso v. Fernandez, 606 N.Y.S.2d 259 (App. Div. 2d Dept. 1993).