Putting Freedom to the Test 

What role should religion play in our public schools? That's a question Lee Sease, the Addison Central Supervisory Union Superintendent, has had to wrestle with in recent months, after a Middlebury Union High School student filed a lawsuit requesting that a religious club called Youth Alive be given the same recognition and support as other student groups. It's been a question, as well, for the Williston Central School, which hosts an after-school Christian group for elementary and middle school students called the Good News Club.

Stephen Urgenson, superintendent of the Orleans Central Supervisory Union, has also had to consider this question in light of a complaint from a student and the American Civil Liberties Union of Vermont about a seventh-grade teacher at the Irasburg Village School who allegedly handed out a flyer just before the holidays entitled, "Why Jesus Is Better Than Santa Claus."

Nowhere is the First Amendment more alive, and more subject to controversy, than in our public schools. The First Amendment says, "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech . . . or the right of the people peaceably to assemble." The precise meaning of these words has been the subject of great debate since our nation's founding, and has no doubt caused many a superintendent some sleepless nights.

Yet, despite the public's frequent assumption that the Constitution requires our schools to be "religion-free," the United State Supreme Court has been relatively consistent in recent years in allowing a fair amount of religious activity in public schools. Given national trends, we're likely to see more cases like those in Middlebury, Williston and Irasburg, inviting even more debate about where religious liberty and free speech ends and the government "establishment of religion" begins.

The Middlebury Union High School lawsuit involves a classic conflict between the free-speech rights of the students on one hand and, on the other, the concerns of school officials that they might violate the Establishment Clause, which prohibits the government from promoting religion. Last year, student members of Youth Alive requested that the district provide them with the same benefits of other district-recognized student clubs, such as the Gay/Lesbian Alliance, the Arabic Club and the Outing Club. Those benefits included not just meeting space, which the club already had, but also recognition in the school yearbook, an advisor, supplies and a small budget. The district's attorneys advised that, were it to provide those benefits, it could be in violation of the Establishment Clause. Fearing it might be sued if it granted Youth Alive's request, the school district refused to do so.

It was sued anyway. A student in Youth Alive, with the aid of her parents and an organization called the Alliance Defense Fund, filed suit in Federal District Court, arguing that by refusing to grant official club status, the school district violated both her First Amendment right to free speech and the Equal Access Act of 1983. Addison Central's insurance-company attorneys advised that Youth Alive did indeed have a strong case. The school district has settled the lawsuit, giving the club all the benefits it requested.

Under current law, Middlebury Union High School did the right thing. The Supreme Court has been clear that once the school district allows for non-curricular groups such as an Outing Club, it can't deny other groups the same status just because the club is religious. To do so would amount to government censorship of speech. As long as the school doesn't endorse the views of religious clubs, there is no violation of the Establishment Clause in doing so. Furthermore, under the Equal Access Act, the school district must treat all clubs equally, even religious ones, or risk losing federal funds.

Similarly, Williston Central School has to allow the Good News Club access to its facilities after school. In 2001, the Supreme Court heard a case involving a Good News Club that wanted to use a New York elementary school. The Court reasoned that because the school opened its facilities to other community groups, such as the Boy Scouts and the 4-H Club, it could not deny religious groups access to the school. The Court dismissed the concerns of those who feared that, in elementary schools, young students might face pressure to attend such a club. As long as the school itself didn't coerce students into attending, there was still adequate separation between church and state.

Interestingly, the Equal Access Act and the First Amendment arguments used by Youth Alive have ensured that school districts also can't discriminate against clubs such as the Gay/Lesbian Alliance. The theory behind the law is that, once a school district creates a public forum for students, it can't then pick and choose which clubs it likes and which it doesn't. Of course, there may be cases in which the school has a compelling reason to disallow a club. For example, if a student group formed to advocate illegal drug use, the school would have a very good argument that such a message is disruptive to the educational environment. But as long as the group doesn't advocate violence or illegal activity, the law likely requires the school to treat it equally.

Indeed, the Supreme Court has often sided with religious minorities when governments have tried to suppress their activities. Just two years ago, the Supreme Court unanimously sided with members of a Brazilian-based religion, O Centro Espirita Beneficiente Uniao do Vegetal, who believe that hoasca tea from the Amazon is sacred and that using it connects them to God. The federal government banned the tea's import because of its hallucinogenic effect. The Court found that the government had no good reason for doing so, signaling its continued willingness to uphold the rights of all religious groups regardless of their beliefs.

But what about providing funds to Youth Alive? No doubt many taxpayers object to their money being used to fund religious activities. Yet, the Supreme Court has said that, once the government chooses to allocate resources to student groups, it can't then deny funds because of a group's message, even if it is religious. Using taxpayer money is fine as long as the students organize the clubs and can choose whether or not to participate.

There are important values at stake on each side of this debate. Those who agree with the Court's direction in these cases argue that the First Amendment should be interpreted to recognize the importance of religion in society. While the government shouldn't favor one religion over another, it also shouldn't favor secularism over religion. Religious views are welcome into the marketplace of ideas, as people are free to choose among diverse religions, or to choose no religion at all.

Advocates of the Court's approach also remind us of the history of religious persecution. For example, in 1940, the United States Supreme Court originally sided with a school district that expelled two Jehovah's Witnesses children who refused to salute the flag because doing so would violate their religious beliefs. The decision triggered what has been called "open season on Jehovah's Witnesses": The children of church members were taken from their homes. Their properties and businesses were vandalized. Many halls of worship were burned.

Realizing it had made a huge mistake, the Court reversed itself three years later, holding that Jehovah's Witnesses had a free-speech right not to salute the flag. This case serves as a reminder as to why the law should accommodate all religions as much as possible.

Yet, there are plenty of people, including U.S. Supreme Court Justice David Souter, who argue that the Court has gone too far in allowing religion and the state to commingle. It's one thing to protect religious minorities so they may freely exercise their religion; it's quite another for the state to subsidize religion.

Thomas Jefferson used the metaphor that there should be a wall separating church and state. "That wall," he wrote, "must be kept high and impregnable." Jefferson wasn't hostile to religion. Rather, he believed that a strict separation of church and state was necessary to ensure religious liberty. Once the government partakes in religious activity, inevitably people will feel coerced into participating. This then corrupts religion and compels participation of the people into religious activities that they should be free to reject.

Thus, allowing religious clubs in our schools and funding them amounts to the government establishment of religion. Given the Court's current composition, however, arguments advocating Jefferson's wall of separation are likely to fall on deaf ears.

The Middlebury case was complicated, as it pitted free speech against "establishment." By comparison, the Irasburg case is relatively simple. Just as teachers can't lead prayers in the classroom, the Court has held they can't promote or teach religion, except in the limited context of courses such as World Religions, or those that examine the Bible as literature.

Hanging the Ten Commandments on the wall of a classroom, linking to religious websites on a school-sponsored Internet site, or passing out religious fliers - all of which the Irasburg teacher was accused of doing- would most certainly cross the line. Reportedly, Orleans Central Superintendent Urgenson sent a memo to Irasburg teachers about the separation of church and state and removed the objectionable weblinks. The ACLU is encouraged by the district's actions and continues to monitor the situation.

What happened in Irasburg is hardly an isolated incident. Across the country, public schools cross the line all the time. Yet, students either don't know their rights or are afraid to enforce them. Students who raise these claims are often harassed by their classmates and the community. There has been some reported harassment of the Middlebury and Irasburg students, although not nearly to the extent students have suffered in other states. Addison Central Superintendent Sease, in particular, has done an excellent job of ensuring that the student who sued has not been subjected to any retaliation.

Students who bring these challenges do so on principle alone. While schools that violate a student's First Amendment rights often must pay attorney fees (this is to encourage attorneys to take civil-rights cases), neither the students - nor their parents - receive any financial gain. Those brave enough to sue their schools deserve our support, whether or not we agree with the positions they take. Rather than resent such challenges, public schools ought to embrace them. After all, the First Amendment would be meaningless if people weren't willing to test its limits. That's a civics lesson they won't soon forget.