Once Upon a First Amendment

Bette Nysinger November/December 2000 Six-year-old Zachary Hood was happy at this chance to be recognized for his good reading performance. He and the other students in the first-grade class at Haines School in Medford, New Jersey, would be allowed to read a story to their classmates. Zachary initially selected Dr. Suess's The Cat in the Hat, but decided that it was too long and picked a story about Jacob and Esau from The Beginner's Bible instead. The story, titled "A Big Family," reads:

"Jacob traveled far away to his uncle's house. He worked for his uncle, taking care of sheep. While he was there, Jacob got married. He had twelve sons. Jacob's big family lived on his uncle's land for many years. But Jacob wanted to go back home. One day Jacob packed up all his animals and his family and everything he had. They traveled all the way back to where Esau lived. Now, Jacob was afraid that Esau might still be angry with him. So he sent presents to Esau. He sent servants who said, 'Please don't be angry anymore.' But Esau wasn't angry. He ran to Jacob. He hugged and kissed him. He was happy to see his brother again."[1]

Unfortunately teacher Grace Oliva decided the story was inappropriate, since it has based on the Bible. She would not allow Zachary to read it to the students. Instead, he was instructed to read the story to her privately. Zachary's mother, Carol, requested that he be allowed to read the story to the class, but her request was not granted.

It was not the first time something like this had happened to Zachary. The year before, in kindergarten at the same school, he and his classmates were asked to make posters of things they were thankful for. It was Thanksgiving time. Zach's poster said, "Thankful for Jesus."

The children's artwork was then displayed on a wall in a hallway outside the classroom. While his teacher was absent a school employee removed the picture. When his teacher returned she replaced the poster, but in an area where it was not so prominent. As with the reading assignment rejection, Zachary's parents complained to the school.

"When it happened," Carol Hood explained, "I went to the secretary because I didn't want to make a big thing, you know? I said, 'What is going on? Zachary did a poster at Thanksgiving . . . weren't they thanking God? We say grace at Thanksgiving. We thank God. Zach is only 5. He knows that.' And she said, 'Oh, don't worry, Mrs. Hood. If it comes from the child, it's fine.'"

But complaints about the instances received no positive response from school officials. Zach's parents enlisted the help of the Rutherford Institute, filing suit in 1996 against the local Board of Education and the state Department of Education, "alleging a violation of 'Z. H.'s rights to freedom of expression under the First Amendment.'"[2]

The Medford Township Board of Education doesn't agree with the charge. Michael P. Madden, an attorney who represents them, thinks Ms. Oliva did the right thing. "We're taking the position that it was nothing but a closed forum, and she had the right to check on what the children wanted to read and to make sure the content was appropriate for firstgraders," he said. "The source of the story was the Bible. We thought it would send a message to the class that the teacher or the school endorsed the Bible."[3]

There is a certain irony to the reality that almost every child in America has been exposed to rather explicit television violence and "news" like the president's extramarital sexual exploits. But thanks to the vigilance of school officials we do not have to worry about their tender consciences being seared by tales from The Beginner's Bible.

Young "subversives" like Zachary Hood, it seems, will not be permitted to play fast and loose with our youngsters' minds in public school. They will not be permitted to read their classmates stories from a religious source, even when those stories do not promote any theology or doctrine whatsoever, or indeed even mention God or the Bible, but merely tell about two brothers having an argument and then making up. Such seditious material will not be tolerated in our school system under any circumstances.

Is this an over-the-top, paranoid interpretation? Well, it's almost an inescapable one after U.S. district judge Joseph Rodriguez's ruling in December 1997 that Zachary's free speech and religious liberty rights were not violated by his teacher's actions. "Zachary 'was not allowed to read the book to his classmates during classtime because it was the Bible, a religious book that constitutes the very foundation for a number of, but obviously not all, religions,' Rodriguez wrote. 'It is irrelevant that the story had no overt religious theme; the speech was the book itself. Even if every student, teacher, and administrator in [Zachary's] public school were strong adherents to Christianity, the Medford defendants' actions would still be permissible.'"[4]

"This is a tough case," admits Charles Haynes, senior scholar for religious freedom at the Freedom Forum's First Amendment Center, "because teachers need to have control over material presented in their classrooms- especially in the elementary schools. First-grade classes are not 'open forums.' Parents expect teachers to make sure that what is read is appropriate for their children. That's why judges are wise to defer to teachers in most cases involving educational decisions.

"But in this case the judge went too far in protecting the teacher's right to exercise editorial control. According to the court, the fact that Z.H.'s story was from the Bible was sufficient reason to prevent its being read."[5]

Of course, that might have been the end of the story. Except that it wasn't. An initial appeal to the Third Circuit Court of Appeals was made and subsequently rejected in September 1998. Zachary's parents switched counsel to the Becket Fund, who filed a petition for rehearing. On April 16, 1999, the Third Circuit Court granted the petition and oral arguments were heard in June. The three-member panel of the third U.S. Circuit Court of Appeals handed down its decision on October 22, 1999, once again denying any violation of Zachary's right to free speech.

"I think this panel got it wrong," says Haynes. "They got it wrong last time, and they got it wrong this time. In my view, in upholding the right of the teacher to make choices about what goes on in the classroom, they have gone too far. I think most Americans want first-grade teachers to have control of the content of the classroom, but there must be some limit to that. The student's right to express himself or herself must also be respected. Especially if the assignment is open and general and many different stories are allowed to be read by students."

If the teacher wouldn't allow specific material such as the Bible to be read in the classroom, then that condition should have been clearly outlined at the time the assignment was given. If Zachary, or any other student, had then chosen a Bible story and not been allowed to read it, everyone would know why. If Ms. Oliva had expressly disallowed the Bible and/or other religious books, such as the Koran, ahead of time, the situation would have been very different.

"By creating a forum for children to bring in their favorite stories and [then] denying Zachary the chance to read his story simply because it was based on a biblical story, the school engaged in unconstitutional viewpoint discrimination,"[6] says Eric Treene, the Becket Fund's litigation coordinator, who is representing the Hoods.

The ruling might be more understandable had the story contained controversial aspects--if it was too violent, if it espoused Christian doctrine, if it was too difficult for the children to understand. If Zachary had presented the story as a witness for his faith or led his classmates in prayer after reading it, then the ruling might make more sense.

"Whether you use the Bible as a basis for spiritual beliefs or not, it is a fact that it is part and parcel of human history," says John DiBlasio, a concerned Christian parent who attended Haines School as a fifth grader. "It is part of world literature, just like the writings of Plato or Aristotle or nursery rhymes. A public education that does not include age-appropriate, noncoercive exposure to the Bible is not a complete public education. Secular literature is full of biblical references. Moby Dick is an example. How can you fully appreciate these pieces of literature if such references aren't fully understood? It would be like trying to give someone a well-rounded education without telling them about the existence of Greek mythology. It simply makes no sense."

Students are free to disregard the belief systems of others taught to them in school. Exposure to those beliefs does not constitute endorsement. And after all, isn't exposure to varied beliefs part of what education is all about? And in this case, "the Bible" wasn't even being taught. Zachary proposed to read his favorite story from the Bible.

Marc Stern, an attorney who filed a friend-of-the-court brief on behalf of the American Jewish Congress, Americans United for Separation of Church and State, and the Anti-Defamation League, contends that teachers, even at the first-grade level, must have discretion and be free to exercise it. "He asks what would happen if Zachary wanted to read Heather Has Two Mommies--a controversial children's book about a family with lesbian parents. 'How would the evangelical Christian parents in the district have felt about that?"'[7]

This raises an interesting point. But maybe it attempts to compare apples and oranges. One can safely assume that evangelical Christian parents in the district would not be objecting to the title of the book Heather Has Two Mommies. Their objection would be to the content of the book, something that is clearly not the case in the situation with Zachary Hood. Here both sides agree that it is the fact that the story came from the Bible that caused it to be deemed "inappropriate." Obviously, if a book titled Heather Has Two Mommies were about a girl who had two mommies because she was adopted, evangelical Christian parents would have no problem with the book being read to their children. The content is of primary concern here.

Eric Treene says that groups like his will fight the policy of keeping religion out of schools. "'Schools are so afraid of religion that they just wipe out everything,' he says, hoping the New Jersey case sends a message--that 'it's not a safe harbor to just avoid religion altogether.'"[8]

The court's decision is difficult to understand, given President Clinton's support of religious expression in public schools. He directed U.S. secretary of education Richard W. Riley to provide all the public school districts in America with a statement of guidelines for religious expression and activity permissible in public schools. The pamphlet, Religious Expression in Public Schools, was distributed in August of 1995. It was intended to reassure principals who were afraid of being sued, yet many teachers have never even seen it.[9]

"The great advantage of the presidential guidelines," writes Riley, "is that they allow school districts to avoid contentious disputes by developing a common understanding among students, teachers, parents, and the broader community that the First Amendment does in fact provide ample room for religious expression by students while at the same time maintaining freedom from government-sponsored religion."[10]

( Tell that to Zachary Hood!)

"The First Amendment does not," President Clinton stated emphatically at a Virginia high school in 1995, "I will say again, does not, convert our schools into religion-free zones. If a student is told he can't wear a yarmulke, for example, we have an obligation to tell the school the law says the student can most definitely wear a yarmulke to school. If a student is told she cannot bring a Bible to school we have to tell the school, no, the law guarantees her the right to bring a Bible to school."[11]

While the ruling of the third U.S. Circuit Court of Appeals didn't negate the Religious Expression in Public Schools guidelines, it certainly undermines them. Teachers and administrators who are unsure about what types of religious expression are appropriate in public schools will see the outcome of this case as evidence that you can't be too careful. To protect themselves, they will be more cautious than necessary in their decisions about what is allowed in the classroom.

"It will confuse teachers," Haynes observes, "because many teachers won't understand the subtlety of the case. These judges have not said that the teacher may not allow a Bible story, that Bible stories are establishment of religion, so you can't allow them. They're saying that the teacher may choose to do so or not, that the teacher has the prerogative, but many teachers won't hear that--many teachers will read the headline and think, 'If I allow Suzie to read a story from the Bible or even if I teach something about the Bible in my class, I may be charged with violating the First Amendment or the Establishment Clause.' That's not what the case is saying, but that's what I think the message will be."

There's another message, a frightening one, that can't be overlooked as well. Judges in the Oliva court said, "In determining whether Ms. Oliva's decision was reasonably related to legitimate pedagogical concerns, the context is, of course, crucial. Ms. Oliva's was a first-grade class. For children at this level, their teacher is a primary source of authority in their lives. They look to their teacher for signals of appropriate behavior. As a result, lessons that a first-grade teacher imparts to a class, or allows to be imparted in a classroom under her supervision, are likely to be understood as carrying her imprimatur. While older students may be able to distinguish messages a teacher specifically advocates from those she merely allows to be expressed in the classroom, most first graders cannot be counted on to make this nuanced distinction."[12]

Can we then say that the reverse is also true? What will Zachary's classmates take from this experience? That the Bible is bad, bad, bad? How about Zachary himself? Will he ever be comfortable expressing his religious beliefs in school again, even though the president and the secretary of education assure him he has that right?

"No," his mother Carol says. "They have scared him to death. When he was in second grade, I'd do his spelling words with him. One day we were writing sentences, and he used something with angel in it. And he looked at me with this frightened look and said, 'I can't write that! My teacher!' and I said, 'Yes, you can write that Zach.' They have just scared him to death about that. That bothers me. What it's done to him in the long run I just don't know."

"When Zachary had his poster taken down and when he was barred from sharing his story with the class, it sent a powerful message to him and to the other kids in the class," explains Eric Treene. "And that's the message that because he had made a religious choice, there was something different about him. That this part of him that he wanted to share is something better left at home.

"That's the same mistake educators made when they had official school prayer, pushing one particular religion over another. The problem there is that the child is made to feel like an outsider if they don't share those beliefs. Because of their religious beliefs they are excluded, treated as second-class citizens. The same thing happened to Zachary here--and the school doesn't realize it. He was made to feel like an outsider just because the choice of story and artwork that he made were from his religious tradition. And that's wrong. It's wrong for the same reasons that it's wrong to push school prayer on a child. That's really why we're involved in this case. Those are the rights we see at stake here."

Handled diplomatically, this situation would have avoided the courts altogether. Zachary's teacher could have simply said, "You know, I see your point. I should have let him read his story and explained to the kids that it was a story from his faith. I'll do it differently next time." And that would have been the end of it.

And many teachers would have handled the situation differently. The challenge is helping teachers and administrators understand how to handle situations like this in a way that doesn't offend the First Amendment or alienate parents from the public schools. Of course, what is ultimately decided in the Hood case could significantly redefine the boundaries of religion in public schools.

The Hoods are determined to see the matter through.

"We just go forward," says Carol Hood quietly, "because we're not quitters. We can't quit now. Well, I guess we could, but we're not going to. And as long as Zach's Ok. We have to protect him. We're in it, and we're in it deep. We're just focusing on the fact that what we're doing is right. It's very frustrating, and it's really hard when it's your child.

"When we heard on Friday [that the second appeal had been denied] I told him. And I always leave it up to him: 'Do you want to keep going?' If he was crying and upset about it I wouldn't go on. But he said, 'Yup,' and that was that. I don't talk about it around him too much. We want him to be a regular little guy. It really bothers me that they undermine what we've taught him."

"We were obviously disappointed with the ruling," Treene admits. "However, we have reviewed the decision and believe that the three-judge panel's decision conflicts with prior precedent from the Third Circuit Court of Appeals. We have petitioned the en banc court, all 11 judges, to take up the case and overturn the panel's decision."

If this were a fairy tale, everyone would live happily ever after. But this is reality. And a little boy tries to be a normal kid instead of a hero fighting for religious expression in the battle of the First Amendment.

Bette Nysinger is a freelance writer in upstate New York..


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ENDNOTES

[1]. As told by Karyn Henley, The Beginner's Bible (Sisters, Oreg.: Questar Publishers, Inc., 1989), pp. 68-72.
[2]. Chad Allred, "Guarding the Treasure: Protection of Student Religious Speech in the Classroom," 22 SEATTLE U. L. Rev. 741 (1999).
[3]. Andrea Billups, "Court to Reconsider Ban on Bible Story in Class," Washington Times, June 8, 1999, p. A1.
[4]. Jeremy Leaming, "Federal Appeals Court to Reconsider Decision in Bible reading Case," Freedom Forum Online, Apr. 22, 1999.
[5]. Charles C. Haynes, "Student Should Be Allowed to Read Bible Story," Freedom Forum Online, Feb. 1, 1998.
[6]. Jeremy Leaming, "Federal Appeals Court to Reconsider Decision in Bible reading Case," Freedom Forum Online, Apr. 22, 1999.
[7]. Marjorie Coeyman, "First-grader Tests Ban on Religion in Class," Christian Science Monitor, June 15, 1999.
[8]. Ibid.
[9]. The contents of Religious Expression in Public Schools can be viewed at: http://www.ed.gov/Speeches/08-1995/religion.html.
[10]. Richard W. Riley, "Secretary's Statement on Religious Expression." http://www.ed.gov/Speeches/08-1995/religion.html.
[11]. NCR, "All Things Considered," Nov. 1, 1996.
[12]. Hood v. Oliva, No. 98-5061, 1999 U.S. App. Lexis 26584 at *21 (3rd Cir. Oct. 22, 1999).

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Article Author: Bette Nysinger