Tag Archives: Public Schools

Event at Hunter College: “American Education and the Separation of Church and State: Fact vs. Fiction”

The CUNY Institute for Educational Policy is hosting a discussion entitled “American Education and the Separation of Church and State: Fact vs. Fiction,” on December 4th at Hunter College. The discussants include Philip Hamburger (Columbia), Ashley Berner (CUNY), and Matthew Yellin (Hillside Arts and Letters Academy):

Most Americans know the term “separation of church and state,” but few understand it. Howhas the phrase influenced education policy and practice? How has the Supreme Court’s interpretation of the First Amendment evolved? Are tax credits and vouchers that enable funding for religious schools Constitutional? Are public school teachers allowed to talk about religion in the classroom? If so, how can they do so without violating the Establishment clause of the Constitution?

These are timely questions for New Yorkers: Albany is considering a tax credit bill that would provide support for Catholic, Jewish, and Muslim, and other non-public schools; international leaders are calling for better religious literacy in K-12 classrooms, so that young citizens are prepared to negotiate our diverse and increasingly interconnected world. For many Americans, however, public funding for religious schools, and open discussions about religious beliefs in public school classrooms, raise important concerns.

On December 4, the nation’s leading scholar of First Amendment jurisprudence will set out the history and current interpretation of separation, and a master teacher will discuss some challenges and solutions to navigating religious literacy in New York’s public school system.

Get details and register here.

Removing Christmas (and Everything Else) from the School Calendar

Here’s a lesson in how to irritate everybody. Last week, the Board of Education in Montgomery County, Maryland, a wealthy suburb of Washington, DC, voted to remove references to religious holidays from its public school calendar. Starting next year, students will have off for “Winter Break” rather than Christmas, “Spring Break” rather than Easter, and two unnamed holidays rather than Rosh Hashanah and Yom Kippur. The decision came after a Muslim group requested that schools also close for a Muslim holiday, Eid al-Adha. Rather than declare Eid a holiday, the board decided to remove religious references altogether.

The board apparently believed that retaining the names of religious holidays is constitutionally problematic. That is not so. Naming school holidays after widely celebrated religious observances does not violate any of Supreme Court’s many Establishment Clause tests, even the so-called endorsement test. Consider Christmas, for example. Closing on December 25 does not endorse the religious meaning of the holiday. It simply acknowledges the fact that most students and staff would stay home. And as everybody, including the state and federal governments, refers to the holiday as Christmas, it’s natural for the school calendar to do the same. In fact, expunging the word “Christmas,” after it has been in the calendar for so long, suggests hostility to the religious meaning of the holiday. Such a suggestion itself creates problems under the endorsement test.

What about the fact that the schools recognize the holidays of some religions, but not others? Doesn’t that suggest hostility for religions the schools ignore? Obviously some Montgomery Country Muslims took it that way, and one must respect their feelings. But there’s a very good administrative reason why Montgomery County schools don’t close on Eid. Only about 1% of the county’s population is Muslim. There are simply not enough Muslim students and staff to justify closing the schools–just as there are not enough Hindus to justify closing schools on Hindu holidays, or Buddhists to justify closing schools on Buddhist holidays. That’s not a reflection of disrespect for those religions, but an acknowledgement of demographic reality. It’s worth noting that the Montgomery County schools excuse absences for Muslims who observe Eid.

I could explain why the other Establishment Clause tests also would allow schools to close for some religious holidays but not others, but there’s no point belaboring things. The Constitution does not require what the board did. But the board’s decision is worse than wrong; it’s pernicious. Striking the names of religious holidays has only served to create religious conflict. Many Christians and Jews have expressed dismay, as has the Muslim organization that requested the Eid holiday in the first place. That organization now worries, not implausibly, that angry parents and students will blame Muslims for the board’s decision. That would be unfair. The organization didn’t ask the board to rename these other holidays; that was entirely the board’s doing. But many people will ignore that fact.

In a pluralistic society like ours, respect is a crucial value. Respect for religious traditions other than one’s own promotes harmony and social peace. But recognizing a religious holiday that many students and staff observe doesn’t express disrespect for other religions, and the board’s decision to rename Christmas–as well as the other holidays–has done nothing to promote religious harmony. The board has created an entirely unnecessary, uncomfortable situation in which everyone feels aggrieved. One could hardly call that progress.

More on Yoga in the Public Schools

Yoga Class at Encinitas School (NYT)

Last month, a California state court ruled that including yoga in an elementary school phys ed program does not violate the Establishment Clause. The program was funded by a half-million dollar grant from the Jois Foundation, a private organization that promotes the form of yoga known as Ashtanga. The court ruled that the Encinitas Union School District had scrubbed religious references from the classes, so that what remained was simply a fitness and stress reduction program for kids. To use the language of the so-called “endorsement test,” the court concluded that a reasonable observer would not believe the school district had impermissibly endorsed a religion–in this case, Hinduism.

This week, the Oxford University Press blog published an interesting interview with Candy Gunther Brown, an Indiana University religious studies professor who served as an expert witness for the plaintiffs in the case. Brown argues convincingly that Ashtanga yoga is in fact deeply religious. “Ashtanga,” she says, “emphasizes postures and breathing on the premise that these practices will ‘automatically’ lead practitioners to …  ‘become one with God’… ‘whether they want it or not'”:

Although EUSD officials reacted to parent complaints by modifying some practices, EUSD classes still always begin with “Opening Sequence” (Surya Namaskara) [a prayer to the sun god] and end with “lotuses” and “resting” (aka shavasana or “corpse”—which encourages reflection on one’s death to inspire virtuous living), and teach symbolic gestures such as “praying hands” (anjalimudra) and “wisdom gesture” (jnanamudra), which in Ashtanga yoga symbolize union with the divine and instill religious feelings.

It’s quite possible for people, especially kids, to be influenced by these religious messages, she says:

Scientific research shows that practicing yoga can lead to religious transformations. For example, Kristin is a Catholic who started Ashtanga for the stretching; she now prefers Ashtanga’s “eight limbs” to the “Ten Commandments.” Kids who learn yoga in public schools may also be learning religion.

Perhaps Brown overstates the difficulty of separating religious and non-religious elements in yoga, I don’t know. After reading her interview, though, the question I have is this. How could anyone not think Ashtanga yoga is religious, and that by sponsoring this class–especially with funding from an organization that promotes Ashtanga’s religious message–the school district has endorsed religion in a manner that current law forbids?

Perhaps, with our deeply Protestant religious culture, Americans simply dismiss the notion that physical practices can be genuinely “religious.” Religion is a matter of mind and spirit, not body; stretching is purely physical, just a nice way to relax. Stretching isn’t prayer, after all. Brown’s point, however–and it is a very important one–is that these practices are a kind of prayer. Ashtanga yoga purports to instill religious feelings and lead one to God, whether one intends it or not. (In fact, Hindus might find the claim that yoga is just a stretching exercise rather insulting). And the school district has students participate in these prayers, not just learn about them from a book. The Supreme Court has said the Constitution forbids even displaying the Ten Commandments inside a public school classroom, lest students feel pressured to read and meditate on them. But this is OK?

Let’s try a thought experiment. Orthodox Christianity has a tradition known as hesychasm, in which hermits discipline themselves to meditate, shut out the world, and experience God inside them. It’s a very difficult mystical practice, not for everyone–though some people like to dabble. Apparently it gives great inner peace. The key element is repetition of the Jesus Prayer: “Lord Jesus Christ, Son of God, Have Mercy on Me, a Sinner.” Suppose some enterprising Orthodox Christian foundation adapted these practices, put the Jesus Prayer in an esoteric language, and proffered the package to a public school district as a stress-reduction program for kids. Would anyone think such a program constitutional under present law?

The plaintiffs in the case have indicated they plan to appeal. I hope they do, because this could turn out to be be a very significant case. As Eastern religious practices continue to seep into mainstream culture, situations like this are bound to recur. They may lead to a change in the way Americans understand religion.

California Court Rules School Yoga Program Does Not Violate Constitution

The Crisscross-Applesauce Position (New York Times)

An update on a case I wrote about in May: a California state court has ruled that including yoga in an elementary school phys ed program does not violate the Establishment Clause. Under current Supreme Court precedent, public schools may not endorse any particular religion (or, for that matter, religion generally). In yesterday’s ruling, the San Diego Superior Court reasoned that the Encinitas Union School District has scrubbed religious references from its yoga classes–the Lotus position has been renamed the “Crisscross-Applesauce” pose, for example–so that what remains is merely a fitness and stress-reduction program for kids. The court apparently did not find persuasive the testimony of an Indiana University religious studies professor, Candy Gunther Brown, who argued that yoga, a Hindu practice, is inherently religious. A lawyer for parents who brought the lawsuit against the school district says his clients will likely appeal.

Is Yoga Constitutional?

Last month, I  wrote about a controversy surrounding the White House’s inclusion of a yoga garden in its annual Easter Egg Roll. The problem is this: yoga is a Hindu spiritual practice. Arguably, therefore, state-sponsored yoga is a religious endorsement that violates the Establishment Clause under existing Supreme Court case law.

Yoga Class at Encinitas School (New York Times)

It turns out that very issue is being litigated this week in a California  court. The Encinitas Union School District has introduced yoga as part of the phys ed program in elementary schools. Some parents object that the program highlights yoga’s spiritual elements and amounts to religious indoctrination. The school argues that it has eliminated religious references and that what remains is nothing more than an enriched gym class. An Indiana University religious studies professor who testified at trial demurs. She says that that it would be odd, from a Hindu perspective, to separate yoga’s physical and spiritual elements.

Under Supreme Court precedent, government can separate “cultural” from “religious” messages and promote the former. That’s why official Christmas displays with reindeer and elves survive constitutional scrutiny, but not solo nativity scenes. The logic is that the secular decorations swamp the religious message and ensure that passersby don’t think the government is endorsing Christianity, as opposed to Christianity’s cultural accretions.

This logic has saved some Christmas displays, but offended some Christians. To them, the Supreme Court’s reasoning suggests an unfortunate hostility to their religion: Christmas is acceptable in the public square only if its spiritual associations are diluted. To be sure, the Supreme Court  has said only that official displays must avoid religious associations, but people rarely compartmentalize things so logically. Culture often follows law.

So here’s a question: if official yoga programs are allowed on the theory that they have been scrubbed of religious associations, will pious Hindus object?Will people start demanding to keep the yoga  in yoga?

A Bunny is a Bunny

I guess it was bound to happen. A public elementary school in Alabama has renamed its annual Easter Egg Hunt to avoid giving offense to non-Christian children and parents. According to the school’s principal, Lydia Davenport, the hunt will still take place; it will just no longer have the word “Easter” attached to it. The seasonal rabbit will likewise go nameless:

“Kids love the bunny,” smiles Davenport, “and we just make sure we don’t say ‘the Easter bunny’ so that we don’t infringe on the rights of others because people relate the Easter bunny to religion; a bunny is a bunny and a rabbit is a rabbit,” Davenport concluded.

Well, you can’t argue with that. Most disputes about public holiday displays in America involve Christmas, of course. This is so, I think, because Easter, although far more important as a religious holiday, is relatively minor as a public holiday. Perhaps that’s because it falls on a Sunday. Compared to Christmas, Easter passes by almost without notice in America. But there’s no reason we can’t fight over it as well. Let the Easter Wars begin.

Panel on Bronx Household of Faith (Feb. 20)

The New York Lawyers Chapter of the Federalist Society will host a panel discussion, “Can Government Deny the Use of Public Space for Religious Services? Bronx Household of Faith v. NYC Department of Education,” in New York on Wednesday, February 20. Speakers include Jordan Lorence (Alliance Defending Freedom) and CLR Forum Guest Author Nelson Tebbe (Brooklyn Law School). Details are here.

Muslim Parents Sue Greek Orthodox School for Banning Head Scarves

Here’s an unusual case. Muslim parents are suing a public school in south London for refusing to allow their nine-year old daughter to wear a head scarf to class. That’s not so unusual in itself. Law school casebooks are full of cases in which parents sue public schools for failing to accommodate their children’s religious practices. What makes this case unusual is that the public school in question, St. Cyprian’s in Croydon, is an Orthodox Christian school.

To Americans, faith-based public schools are unfamiliar. As Ashley Berner explains here, however, such schools are common in England. According to the official government website, roughly 7000 “maintained,” as in publicly maintained, “faith schools” exist, the large majority of which are affiliated with the Church of England. St. Cyprian’s is affiliated with the Greek Orthodox Church — it is the only Greek Orthodox school in England, in fact. As a faith-based school, St. Cyprian’s may give priority in admission to Greek Orthodox students, though by law it must admit students of other faiths if places remain unfilled. As far as I can tell, like other public schools, St. Cyprian’s may adopt its own school uniform policy, subject to very broad guidelines.

I’m not sure how the English courts will resolve this dispute. But the whole situation is puzzling and it’s a shame things have come so far. It’s odd, in the circumstances, that the parents would insist on a Greek Orthodox school for their daughter. If it’s so important to them that she maintain Muslim practices, why put her in a school in which a different religion is pervasive? Isn’t that a bit unreasonable, and unfair to her? The school says the parents petitioned to send their daughter to St. Cyprian’s, and that the school’s rule against head scarves was explained to them before she matriculated. St. Cyprian’s has very high academic ratings; perhaps that explains why the parents are so eager to have their daughter attend. Still, it’s all rather odd.

On the other hand, the school’s position is puzzling as well. There’s nothing in Orthodoxy that forbids the wearing of head scarves; in fact, some Orthodox women wear head scarves in church. Perhaps St. Cyprian’s is concerned that a visible non-Orthodox presence would dilute the school’s identity. That’s a valid concern, in my opinion. And I can understand how school officials might think they’ve been sandbagged by the parents in this case. If the parents knew about the rule against head scarves before their daughter matriculated, why are they complaining now? But the law requires St. Cyprian’s to admit non-Orthodox students if it has places for them, and it doesn’t seem tenable to admit such students and then forbid them from wearing their religious attire. Anyway, mightn’t it be better, in the circumstances, to allow this student to wear her head scarf? What would demonstrate more effectively the essential nature of Christianity — its willingness, even joy, in serving everyone and anyone?

Rosen on the Liberal Case for Educational Accommodation of Religious Groups

Apropos of Erwin Chemerinsky’s illiberal proposal to close down all private and religious schools, here is a liberal argument for accommodation of the educational preferences of (some) religious and other “perfectionist” groups: The Educational Autonomy of Perfectionist Religious Groups in a Liberal State, by Mark Rosen.  The influence of Rawls on Rosen’s work is very substantial, but Rosen departs from Rawls in several interesting ways.  Arguments like Rosen’s are not the only way to think about issues of educational pluralism (and it seems to me that Rosen’s piece has nothing to say about the educational autonomy of non-perfectionist groups, such as one might find at your typical secular private school).  For a different approach, see this earlier post on Ashley Berner’s essay.  But, like Berner’s essay, Rosen’s is a serious and thoughtful attempt to grapple with these problems.  Here’s the abstract.

This Article draws upon, but reworks, John Rawls’ framework from Political Liberalism to determine the degree of educational autonomy that illiberal perfectionist religious groups ought to enjoy in a liberal state. I start by arguing that Rawls mistakenly concludes that political liberalism flatly cannot accommodate Perfectionists, and that his misstep is attributable to two errors: (1) Rawls utilizes an overly restrictive “political conception of the person” in determining who participates in the original position, and (2) Rawls overlooks the possibility of a “federalist” basic political structure that can afford significant political autonomy to different groups within a single country. With these insights, I argue that some, though not all, religious Perfectionists are consistent with a stable liberal polity, and explain why foundational Rawlsian premises require that Perfectionists be accommodated to the extent possible.

My ultimate conclusions are that liberal polities ought to grant significant autonomy to those illiberal groups that satisfy specified conditions, and that the autonomy of such “eligible” illiberal groups is subject to two further constraints, which I call “well-orderedness” and “opt-out.” The autonomy to which eligible Perfections are entitled includes the authority to educate their children in a way that provides a fair opportunity for the groups to perpetuate themselves. The constraint of well-orderedness, however, permits the State to impose educational requirements that facilitate peace and political stability. Accommodating eligible illiberal groups, subject to these constraints, is an instantiation of liberal commitments, not a compromise of liberal values.

Chemerinsky Urges Compulsory Public Education

I am not attending the AALS conference this year, but I thought to reproduce (with permission) a message on a constitutional law listserv that I’m on, written by Pepperdine law professor Mark Scarberry.  Mark reports his impressions of a presentation by UC Irvine law dean Erwin Chemerinsky:

Dean Chemerinsky stated, if my memory is correct, that the only way to deal with educational disparities and the problem of (de facto) resegregation of public schools is to require all children to attend public schools and to require that they do so within districts made up of metropolitan areas. That would include suburbs along with inner cities, so that racial integration by busing will be possible. He stated that Milliken v.  Bradley should be overruled, so that suburban school districts could be, for these purposes, combined with inner city school districts to allow integration. He also stated that Pierce v. Society of Sisters should be overruled, so that all children could be required to attend these racially mixed public schools. As I understand it, he thinks that only if whites are required to put their children in the same schools as those attended by racial minorities will there be the political will to provide the resources so that minority students can receive a quality education. He said that parents who wanted to have their children receive religious education or other forms of education could have them receive it after school or (I believe he said) on weekends.

I don’t think he meant to say that the right of parents to control their children’s upbringing and education would be eliminated, but that the right should be overridden by a compelling state interest in providing an adequate education to all students. It wasn’t clear to me whether he wanted all the work to be done by the courts, with courts holding that the Constitution requires that all students attend schools on such a metropolitan-area racially-mixed basis (either as a matter of equal protection or as a matter of a fundamental right to an adequate public education) — or, alternatively, that the Court should allow Congress or states to impose this scheme.

Since it impinges on various law and religion issues, I thought this proposal might be of interest to CLR Forum readers — the legal implications of compulsory public education and the overruling of Milliken v. Bradley and/or Pierce v Society of Sisters would be substantial, and it is notable that someone of Chemerinsky’s status in constitutional law is suggesting this.  There is certainly a pressing need to take seriously the problem of grossly undereducated children in urban and poor areas, and the consequences of Milliken were pretty awful, though what exactly is to be done about that is obscure, at least to me (this is not my area of expertise).  But this proposal seems, as Mark later notes in his message, rather illiberal.  It also doesn’t quite do justice to the reasons for attending a religious school, or any private school for that matter (admittedly, my own educational experience has been entirely within such schools).

I also wonder whether Dean Chemerinsky, as part of his proposal, would be favorably disposed to overruling McCollum v. Board of Education, in which the Court in 1948 held that it violated the Establishment Clause for public schools to release students for religious instruction on school premises, taught by teachers outside the public school system.  It seems to me that Dean Chemerinsky would probably approve of Zorach v. Clausen (but maybe not, because the released time program was being conducted during regular school hours, let alone all of that “Supreme Being” stuff), where the Court in 1952 approved released time religious instruction off school premises.  In conjunction with the (constitutionally mandated?) elimination of private schools, does he envision a larger role for the state (financial or otherwise) in religious education?  If not, after private and religious schools are closed down by the state (whether by judges or by legislators), where would students receive the education that their parents, and they, actually want?