Despite the philosophical gulf between them, 35 organizations as liberal as the American Civil Liberties Union (ACLU) and as conservative as the Christian Legal Society (CLS) last month signed a six-page accord outlining what religious activity is permissible in public schools.
The American Jewish Congress began drafting the document last fall as a response to Speaker of the House Newt Gingrich’s stated intentions of pursuing a school prayer constitutional amendment. Civil-liberties organizations will likely attempt to use the document to argue that a constitutional amendment related to religion and public schools now is unnecessary.
The largest U.S. church organization (Roman Catholic) and the largest Protestant group (Southern Baptist) are missing as signers of the 18-point “Religion in the Public Schools: A Joint Statement of Current Law.” The Southern Baptist Convention Christian Life Commission (CLC) was courted as a signatory and even offered the option of adjusting wording.
But CLC legal counsel Michael Whitehead, noting that the majority of organizations supporting the statement identify with the political Left, says the impetus for the document was to be “a hit piece on Newt Gingrich and the school prayer amendment movement.” He calls the statement “a scud missile aimed at a constitutional amendment, with a huge left wing and a tiny right wing.”
“We wanted a clear, unequivocal statement that some groups who would sign this document support a school prayer amendment and others oppose it,” Whitehead says. “The fact that they would not grant us that, I think, proves the point that their primary goal is to prevent a constitutional amendment.”
CALCULATED RISK: Steven McFarland, who ended up playing a major role in drafting the agreement as director of the CLS’s Center for Law and Religious Freedom, does not dispute Whitehead’s assessment of what is motivating those on the ideological Left. “This document came about because of the threat of a constitutional amendment that would go further than existing law,” McFarland says. “They wanted to minimize their losses, so they conceded territory they had not conceded before.”
McFarland plans nevertheless to continue working for a constitutional amendment, claiming that he can produce “pages and pages of cases that cannot be resolved” without such an amendment. He notes that the Establishment Clause of the First Amendment, which prohibits government from establishing religion, is frequently used to suppress religious expression.
CLS and other religious conservative groups that joined the coalition were aware of the risk, according to McFarland, but made the “tactical decision ” to participate. “We think it is worth the possible use of this document to fizzle the amendment movement in order to get this accurate information with the signatures of the Left out to educators.” He adds, “There is no assurance that we will ever get to first base with a constitutional amendment. So the best thing to come out of all the focus on a constitutional amendment might very well be this document.”
Several organizations that usually find themselves lining up on opposite sides of the so-called culture wars-such as the National Association of Evangelicals and the National Council of Churches-supported the document.
A wide range of religious groups signed “Religion in the Public Schools: A Joint Statement of Current Law,” including the Baptist Joint Committee, the American Jewish Committee, the American Muslim Council, the General Conference of Seventh-day Adventists, the Church of Scientology International, B’nai B’rith International, the Christian Science Church, Church of the Brethren, the Lutheran Church in America, the Interfaith Alliance, the American Baptist Churches, the United Church of Christ, the National Sikh Center, and the Reorganized Church of Jesus Christ of Latter Day Saints. Other signatories are the American Humanist Association, People for the American Way, the American Humanist Association, and Americans United for Separation of Church and State. Many of the groups had banded together two years ago to support passage of the Religious Freedom Restoration Act.
Such a consensus statement on church-state issues in public schools was possible largely because the document focuses not on what the law should be, but on what current law in fact is. The statement makes clear that its signatories have taken-and will continue to take-different positions on the laws now in place.
But a clear assessment of existing laws, they believe, will go a long way toward combating the caricatures, exaggerations, and alarmist portrayals common on both sides of the trenches. In practical terms, it may keep confused and skittish public school superintendents and principals from infringing on the rights of students who legally express their faith.
MUTUALLY BENEFICIAL: Civil-liberties organizations value the statement because, in their view, it dispels the notion that God has been outlawed in public schools. According to the document, those who claim “that the Supreme Court has declared public schools ‘religion-free zones’ [are] simply wrong.”
McFarland believes the statement will lead to increased religious expression in public schools. “It gives substantial comfort to an educator to know that these groups, many of whom are the most active in litigation, agree on what is permissible under current law,” McFarland says. “There’s no question that religious students are the winners under this document.”
According to the statement, students may pray in informal settings, individually, or in groups, “audibly or silently, subject to the same rules of order as applied to other speech in these locations.”
Students may “express their religious beliefs in the form of reports, homework, and artwork.” Also, “students have the right to speak to, and attempt to persuade, their peers about religious topics just as they do with regard to political topics,” though such efforts must steer free of religious “harassment.”
DISSENTING VIEW: Whitehead says the document’s claim to be merely a descriptive statement of the law is more easily stated than carried out. He explains that many of the laws related to church-state issues in schools are open to interpretation or are still being contested in the courts. “Some of what the document regards as law is based not on what the Supreme Court has found,” Whitehead says, “but on the finding of trial judges in obscure cases.”
The unsettled nature of some laws led to hours of debate over wording in the document, as ideological opponents tried to agree on what is permissible in areas where the jury is-quite literally-still out. Thus, Whitehead says, the document suffers from “schizophrenia” at points.
He cites as an example the section on the teaching of creationism. The document says that religious explanations for life on earth may be taught in comparative religion or social studies classes, but not in science classes. This implies that the term “creation science” is an oxymoron. Yet, at another point, the agreement states that “any genuinely scientific evidence for or against any explanation of life may be taught.”
“The effort at cosmetic consensus ends up confusing our differences rather than clarifying them,” Whitehead says.
Still, McFarland maintains that the significance of clear statements of what is permissible outweighs concerns about the document’s ambiguities. “It is nothing short of extraordinary that Jewish groups, the ACLU, and others would concede that students have the right to evangelize.”
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