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As a student, I took a semester-long law course at Harvard Law School that focused only on church and state issues. We didn’t exhaust the topic in an entire semester. I have been teaching for many years now about the legal and ethical issues that arise in educational settings, with a focus on American public K–12 schools. Below are some very basic answers to questions frequently raised by educators and preservice education students regarding their duties and legal exposure in the event-rich environment of public schools. Obviously this brief discus-sion will tend to oversimplify the issue. Constitutional doctrine in this area is generally controlled by U.S. Supreme Court precedent interpreting the First Amendment. It is also affected in some states by state constitutions and other state statutes and their judicial interpretation.
THE TOPIC OF RELIGION IS NOT FORBIDDEN
How do I protect religious freedom and discourse—my own and that of my students—while still respecting the important values of the First Amendment and the right of parents to ensure that their children are not proselyted to or indoctrinated by state employees in a state compulsory education setting?
First, as a constitutional matter, the U.S. Supreme Court and other courts have long recognized that religion as a topic is not forbidden in public schools as long as no state-sponsored indoctrination is intended or reasonably perceived by students.
In classes focused on history, world civilizations, literature, psychology, and other subjects, religion, the Bible, or other religious texts are appropriate subject matter for study and discussion as literature and as an integral part of human social history. The challenge for teachers is the political and human dimension to this legal and constitutional issue.
Many students and parents, especially if they are members of a minority religion in a particular school setting, are uncomfortable having any state-sponsored discussion of religious issues. In the rough and tumble of classroom discussion, it is possible that religious sensibilities of individuals and families may be offended. Courts and think tanks have often said that it is just such religious differences that we need to learn to be able to discuss respectfully and learn about in a safe environment. Nevertheless, it is often the educator or school that is the lightning rod for concerns regarding discussing religion at all.
KEY CONCEPTS FOR DEALING WITH RELIGIOUS ISSUES IN THE CLASSROOMS
Is Teaching About Religion the Same as Proselyting for Religion?
In discussions with Buddy Richards, a colleague and educational philosopher, we have often wondered if it would be violative of the First Amendment to teach Greek, Roman, and other classic literature if the teacher and hearers actually believed in the Greek and Roman gods referenced. We tend to feel comfortable teaching that lexicon, which is quite religious, but references to the Bible, Koran, or Torah, among other religious texts, prompt claims and fears that the First Amendment rights are being infringed upon.
Some students and their families are often not well versed in civics education and may believe that any reference to religion is forbidden in public schools. A careful introduction to why and how religious issues can be addressed in class will help, but such discussions and their intent are not always understood.
It is hard to see any constitutional violation in teaching something of the religious history of groups and individuals in, for example, a Utah history or American history class. It is possible that some will take issue with discussing the religious motivations of historical figures and groups. Such discus-sions do not offend the Constitution, but individuals may still take offense. A clear explanation of why such issues are explored in class can help.
Who Controls the Curriculum?
The teacher, under the direction of the school board and the state legislature, controls the curriculum. If a teacher gives an assignment to write a paper on Shakespearean sonnets, it may be appropriate for a teacher to tell a student that a paper on a revered religious figure is off topic. However, if an assignment is to write on the most influential person in their lives, students in that case would be free to refer to any person, including religious figures.
Who Does the Teacher Represent?
The U.S. Constitution and many state constitutions expressly prohibit an establishment of religion by the state or state agents. Students are not protected from other students’ desires to confess, witness, proselyte, or invite them to attend their baptisms or other religious observances or holidays while they are in appropriate venues, such as on playgrounds, in lunchrooms, and before and after school. Educators must be careful not to infringe on students’ protected free exercise of religion in this arena. Care is required, however, when religious minority students are made to feel intimidated or oppressed by successive invitations or religious witnessing from majority religion member students.
Schools can develop and enforce codes of conduct that deal with bullying, harassment, or discrimination by students endeavoring with too much zeal to proselyte or marginalize other students, especially from minority religion backgrounds.
Can Parents Obtain Waivers for Their Children?
Parents and students often seek waivers from readings and other portions of the curriculum for religious exercise or conscientious reasons. Apprehensions by parents over the curriculum may include concerns about teaching subjects such as evolution, the occult, human sexuality and the family, certain science curricula that invoke deep age of the earth and universe, New Age and magic overtones, or other topics of concern. Such requests from a minor should be communicated to the parents, since parental preference is controlling in most instances under law.
Teachers should consult local district and state regulations or policies before responding to such requests and recognize that states differ in their regulations in this area. Some states, like Utah, are very explicit regarding requests for waivers and how to respond to them. As a constitutional matter, the Supreme Court has generally found that requiring students to merely be exposed in the curriculum to concepts that are not in alignment with their religious or conscientious concerns is not too high a burden on their free exercise of religion, so long as the curricular features are rationally related to legitimate pedagogical purposes and tailored in a respectfully narrow and rational way to achieve those purposes.
What Material Can Be Removed from Libraries?
Although courts recognize that districts and states can control the curriculum to a large extent, access to ideas in the library is seen as a different environment than the curriculum. Courts tend to find that the First Amendment includes a right of “access to” ideas. If books and ideas are being removed based on con-tent that is not related to a legitimate pedagogical purpose, courts are likely to examine that practice and feel free to rule on its constitutionality.
Legitimate purposes for removal of material from a library can be age appropriateness and violent or sexual themes or images, especially if access is sought by young students. How this affects a teacher’s personal lending library in their classroom is less clear.
Can Teachers Share Their Religious Beliefs?
Spontaneous questions are often raised in educational settings regarding a teacher’s own religious beliefs. In responding to such questions, there is no bright-line rule. Members of the U.S. Supreme Court might be found on either side of this issue. Generally, however, so long as proselyting or indoctrination is not the aim and the question is truly raised spontaneously, it will be up to the teacher to decide what to share and to what extent. There are ways to respond that are respectful to belief and the Constitution. In general, caution and respect for minors’ and their families’ rights to be free from “establishment” of religion by the state while being true to a teacher’s own vision of respect for belief and the Constitution should guide educators in this area.
Teachers also must note that, for many religions, there is a current conflict over definitions and constitutional protections for competing conceptions of the family, based on a recent Supreme Court precedent. In some instances this has brought families into conflict with school officials and teachers over curricular offerings that are mandated by state learning standards.
Some states have written into their statutes learning standards such as those in Massachusetts that require that students should be able to describe “different types of families,” and teachers must, under those state learning standards, address the “detrimental effect of prejudice (such as prejudice on the basis of race, gender, sexual orientation, class, or religion) in individual relationships and society as a whole.” Massachusetts also requires that by fifth grade, students be able to “define sexual orientation using the correct terminology (such as heterosexual, and gay and lesbian).” Application of such standards, even in a fairly intrusive manner, has been upheld against a free exercise of religion and deprivation of due process claim in Massachusetts brought by a group that included an LDS plaintiff, among others. This means that teachers in states with such learning standards will need to comply with those standards while seeking ways to not single out or harm students from diverse backgrounds, including diverse religious backgrounds.
If parental notice is available, it should be used so that parents can know what is in the curriculum and what their rights are to opt in or out. State statutes regarding issues relating to human sexuality are often categorized as opt-in, opt-out, or mandatory provisions.
Opt-out provisions allow parents in some states to opt out of the curriculum for their children, but failure to exercise the option defaults to children being offered the curriculum. Some states don’t provide opt-in or opt-out provisions and require all students to take health education or sexual education curricula. Although such mandatory provisions have been found constitutional, many legislatures have provided opt-in or opt-out provisions for courses dealing with human sexuality, and teachers will need to know the statutory provisions within their own states.
It appears that the public schools and classrooms have become some-what uneasy venues to act out national angst over current culture wars, shifting values, and the growing concern from religious conservatives—especially biblical conservatives—that their values and issues are being either ignored or denigrated in public schools. However, there are groups working to find common ground, respect, and understanding about the religious differences that are inherent in a pluralistic society. Teachers would be well served to seek out such groups, such as the Freedom Forum at Vanderbilt University, the Three Rs Project, and others. Teachers should also attend in-service training and join with professional associations that are working to help teachers and learners in public schools deal with the specifics of respecting our deepest religious differences and diversity while protecting the right to speak and dissent responsibly and civilly.
Next issue: More on teachers and the law
For additional information, check out the BYU Education and Law Journal at digitalcommons.law.byu.edu/elj. This is a peer-reviewed law review that is a joint production of the Department of Educational Leadership and Foundations in the McKay School of Education and the J. Reuben Clark Law School. It is a highly respected journal with regular submissions from the most notable experts in the field. In many ways it is for specialists, but many articles are reasonably accessible to a teacher audience. If there are questions regard-ing the journal or submissions, Scott Ferrin is the faculty advisor to the journal.
By Scott Ellis Ferrin, JD, EDD
Scott Ferrin, a professor in the McKay School of Education, teaches educational leadership and is an adjunct professor of law at the J. Reuben Clark Law School. He earned his BA and JD from BYU and his MEd and EdD degrees from Harvard University.
Photography by Bradley Slade