February 17, 2003
White House guidelines go where courts fear to tread
___By Robert Marus
___ABP Washington Bureau
___WASHINGTON (ABP)--The Bush administration has issued a new set of guidelines on religious expression in public schools that may create more controversy than they solve.
___On Feb. 7, the federal Department of Education issued "Guidance on Constitutionally Protected Prayer in Public Elementary and Secondary Schools" to public-school administrators across the country.
___As a result of the No Child Left Behind Act, the education bill passed in 2001 and signed into law by President Bush, school districts must demonstrate that they do not unconstitutionally limit student religious expression in order to receive federal funds.
___The act requires schools to certify their compliance with Department of Education guidelines. But groups that support strict separation of church and state have criticized the guidelines as, in some cases, implementing the Bush administration's favored interpretation of the First Amendment's religious-freedom clauses rather than laying out principles settled by federal courts.
___"This thing kind of has the flavor of being written by a right-wing law student; it takes far more than is appropriate out of the cases that are there," said Barry Lynn, head of Americans United for Separation of Church and State and a frequent critic of Bush policies on church-state issues.
___One of the critics' main issues with the guidelines is their characterization of the legality of "student-initiated" prayer at school events such as assemblies, commencement ceremonies and athletic events.
___The administration's guidelines read: "Student speakers at student assemblies and extracurricular activities such as sporting events may not be selected on a basis that either favors or disfavors religious speech. Where student speakers are selected on the basis of genuinely neutral, even-handed criteria and retain primary control over the content of their expression, that expression is not attributable to the school and therefore may not be restricted because of its religious (or anti-religious) content."
___However, that issue is far from being a settled matter of federal law, according to Lynn. "Federal courts have split over the legality of some religious activities in public schools, such as so-called 'student-initiated prayer,' at public school events. Yet these guidelines flatly state that such activities are legal."
___In particular, the guidelines seem to rely heavily on a recent ruling from the 11th U.S. Circuit Court of Appeals that said a Florida school district could allow graduating seniors to hold elections to decide if their classmates could deliver a commencement "message." The "messages" often included prayer. A year ago, the Supreme Court declined to review that decision.
___However, that ruling applies only in the Southeastern states covered by the 11th Circuit. Federal courts in other regions of the country have ruled against similar practices.
___In 2000, the Supreme Court ruled unconstitutional a Texas school district's policy of allowing students to elect a fellow classmate to lead prayers before high-school football games. The court's majority asserted that since the community was overwhelmingly made up of evangelical Protestants, the student elected to pray would invariably give an evangelical Protestant prayer--thus violating the rights of the community's religious minorities.
___But Kevin "Seamus" Hasson, president of the Washington-based Becket Fund for Religious Liberty, said the new guidelines don't contradict that case. "What the guideline says is that if (prayer) is truly student-initiated--if it's not rigged by the school district somehow--then the First Amendment protects it."
___The Department of Education under President Clinton issued a set of guidelines on religious expression in public schools in 1995, but those guidelines did not contain the Bush assertions on "student-initiated" prayer at school events. Instead, that set of rules was based on a consensus statement on First-Amendment law approved by a diverse set of groups interested in religious freedom.
___Those guidelines also did not contain the link to federal funding that the No Child Left Behind Act imposes on schools, and that's why Hasson believes the new rules are necessary.
___"The Clinton guidelines may have been well-intentioned, but they were roundly ignored," Hasson said. "These guidelines have teeth. These guidelines ensure that no child will be left behind not only academically, but also with her own spiritual side."
___Both Lynn and Holly Hollman, general counsel for the Baptist Joint Committee on Public Affairs, said the new guidelines do little or nothing to prevent some kinds of violations of the First Amendment.
___Hollman said the Bush guidelines move away from balancing the two halves of the Constitution's religious liberty-protections--the free exercise clause, which prevents government from limiting its citizens' expression of religion, and the establishment clause, which prohibits government from supporting or endorsing religion.
___"Instead of pushing compliance with both free exercise clause and establishment clause values, the guidelines appear to make free-exercise concerns paramount," Hollman said. "They threaten to punish schools that fail to guarantee certain student and teacher religious speech. Yet no comparable punishment exists for school-sponsored religion."
___Hasson countered that depends on how one interprets the establishment clause. "There's plenty of stuff in the rules that sets limits on what the government can do," Hasson said. "The establishment clause not only bars promotion of religion, it also bars hostility to religion. Certainly, the guidelines bar that."
___Besides, Hasson contended, government promotion of religion was not the problem from which the new guidelines arose.
___"Nobody has any doubts really that the establishment clause will be enforced in public schools; that's not where mistakes are being made," he said. "It's not the case that teachers all over the country are trying to smuggle religion in to the classroom; it's the case that teachers all over the country are trying to squelch it."
Get printer-friendly version of this story
Send this story to a friend
News of religion, faith, missions, Bible study and Christian ministry among Texas Baptist churches, in the BGCT, the Southern Baptist Convention ( SBC ) and around the world.
Contents/ Masthead / Why We're Here / Links / Archive / E-mail us/ SUBSCRIBE!/ Signup for FirstLook