Protecting the Protected
Albert Ditte May/June 1998
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In case they didn't know it already, Tennessee public school students have the right to pray in a public school, vocally or silently, alone or with other students; the right to express religious viewpoints in a public school; the right to speak to and attempt to persuade other students in a public school about religious viewpoints the same as they can about other topics; the right to distribute religious literature in a public school, subject to the same reasonable time, place, and manner restrictions on those distributing secular material; the right to have a reasonable number of excused absences from a public school to observe religious holidays and participate in other religious practices required by the religion of the student; and the right to be excused from a public school for instruction or devotional exercises off school grounds in accordance with the decision of the United States Supreme Court in Zorach v. Clauson.
Where did these rights come from? Most would say that they are found current U.S. Supreme Court religion clause jurisprudence made applicable to the states through the Fourteenth Amendment. However, that protection wasn't enough for some Tennessee legislators, who got the Student Religious Liberty Act passed through the 1997 Tennessee General Assembly.
Why protect rights already protected? According to state senator Roy Herron and state representative Craig Fitzhugh, two democrats who sponsored the bill, it was to help people understand just what religious freedoms children do have in public schools.
"In the past decade we personally have heard literally hundreds of people say 'They've taken God out of the public schools,' and 'The Supreme Court has prohibited prayer in school,'" the state senators said in a letter explaining the bill. "These are myths, not constitutional law, but they are widely held and deeply believed."
It was to clear up these misconceptions that they sponsored the bill. Unfortunately, in its original form the Student Religious Liberty Act raised some constitutional concerns.
"The bill lacks a secular purpose, endorses or advances religion by creating a preferred status under Tennessee law for certain religious activities, and could create excessive government entanglement with religion," warned state attorney general John Know Walkup.
The attorney general also said the bill, as first proposed, raised difficult questions concerning what affirmative steps the government may take in requiring public institutions to accommodate religious values without violating the Establishment Clause.
"The bill does more than merely protect against unjustified infringement," the attorney general said. "It transforms the listed activities into statutory 'rights' enforceable by special remedy. At some point, the effort to accommodate religion may become under the Establishment Clause an unconstitutional endorsement of religion."
For example, at what point does the school's determination of the appropriateness of the religious literature being passed out or the legitimacy of religious activities or holidays or practices violate the "excessive entanglement" prong of the Lemon test?
In consultation with the attorney general, Herron and Fitzhugh amended the bill, adding that a student could exercise his or her religious rights "to the same extent and under the same circumstances" as a student is permitted to vocally or silently reflect, meditate, or speak on nonreligious matters, express viewpoints on nonreligious topics, share nonreligious viewpoints, possess or distribute literature on nonreligious topics or subjects, and be absent from a public school for nonreligious purposes.
The revisions also included, "Nothing in this act shall be construed to support, encourage or permit a teacher, administrator or other employee of the public schools to lead, direct or encourage any religious or antireligious activity in violation of that portion of the First Amendment of the United States Constitution prohibiting laws respecting an establishment of religion."
The attorney general affirmed this revision.
"The amendment alters the basic thrust of the bill," Walkup said. "The original bill arguably confers a preferred status upon student religious expression and activity not enjoyed by nonreligious student speech and activity. By contrast, the amendment provides that students are to be permitted to engage in religious expression and activities to the same extent and under the same circumstances as they are permitted to engage in similar expression and activities of a nonreligious nature."
The bill cleared up the no-secular-purpose problem by establishing no rights regarding religion, but merely states that the religious expression and activities of students are not to be discriminated against, a position consistent with well established constitutional principles. The revision also eliminated the entanglement with-religion problem by allowing students to be absent for religious observances on the same basis that they are allowed other excused absences.
"The bill," Walkup said, "as amended will no longer force school administrators to judge whether an absence to attend a particular event or observance is 'required' by the student's religion." This helps solve the excessive entanglement problem.
Yet not everybody is happy, even with the revisions.
"This bill will cause innumerable problems," says Hedy Weinberg, president of the Tennessee chapter of the American Civil Liberties Union. "Enacting a law and burying it in the codebook is not the right mechanism to explain the meaning of the First Amendment."
According to Weinberg, instead of a bill, the state commissioner of education could have simply issued guidelines on what religious activity was and wasn't permitted in public schools. The problem with religion in school isn't the law; more often than not it's simply a school's ignorance of the law. Despite hype to the contrary, prayer and speaking about religion have always been allowed in public schools, provided these activities did not infringe upon the rights of other students. Guidelines could have made that very clear.
"But," Weinberg said, "guidelines would not receive the same type of media attention as the bill."
At this point no threat of lawsuits challenging the bill are looming, though some legislators, like state representative Mike McDonald, don't see the necessity of a bill protecting what's already protected.
"Everything there," he said, "is already allowed.'
Albert Dittes is a freelance writer from Portland, Tennessee.