Bible Belt upside the head.

Bible Belt upside the head.

Bible Belt upside the head.

The law, lawyers, and the court.
Feb. 16 2005 7:09 PM

Bible Belt Upside the Head

Why the Constitution tries so hard to protect the Buddhist kid.

This week, the Staunton, Va., School Board met to consider changing its 60-year-old Weekday Religious Education program. The WRE is a released-time Christian educational program, in which students in first, second, and third grades in the public school system, leave regular classes on school time in order to attend 30 minutes of religious instruction each week. Twenty such "released-time" programs exist across Virginia, and many more exist in at least 32 states nationwide. To comport with constitutional requirements, these religion classes happen either at local churches or in buses or trailers parked off school grounds. Estimates of the number of Staunton school kids currently participating in WRE differ slightly: The schools say that between 78 percent to 87 percent of the students at their four elementary schools attend WRE classes; JoAnne Shirley—state president for WRE—says that closer to 95 percent of the kids take part. The classes and facilities are funded by local churches.

Several Staunton parents—many of them new to an area often described as "Virginia's Bible Belt"—have come to feel that their children should not have to choose between being evangelized or ostracized on public school time. Their bonus yuppie spin on all this: Taking time away from regular classroom instruction disadvantages all of the children on the state standardized testing regime, as well as on meeting the requirements set out by No Child Left Behind. So the program was formally challenged before the school board earlier this week.

Dahlia Lithwick Dahlia Lithwick

Dahlia Lithwick writes about the courts and the law for Slate and hosts the podcast Amicus.

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At Monday's meeting, it became clear that one of the school board's principal concerns was with the fate of those children whose parents opt out of the WRE. Not because they are stigmatized, but because these kids sit around and color while all their friends go across the street to church. So, in a 5-1 vote, the board decided to try to find some more useful way to keep them occupied. It was seemingly less concerned with the fact that these children were being segregated on the basis of religious beliefs, since they voted to continue the program, at least for another year.

Defenders of the program—who number in the hundreds in Staunton—offer several arguments, all of which illuminate the battle lines in the war between church and state:

1) It's constitutional: They aren't wrong. The U.S. Supreme Court considered the constitutionality of school released-time programs in a 1948 case, McCollum v. Board of Education. In McCollum the court held that an Illinois released-time program, in which students received religious instruction in the classroom during the school day by denominational teachers, was unconstitutional. Justice Hugo Black found that "[t]his is beyond all questions a utilization of the tax-established and tax-supported public school system to aid religious groups to spread their faith." Only four years later, however, the high court revisited this issue in Zorach v. Clauson. Zorach dealt with New York's released-time law, which differed from the Illinois program chiefly in that students left school grounds for religious instruction. In an opinion by William O. Douglas that included the now-famous words, "We are a religious people whose institutions presuppose a Supreme Being," the court struggled to balance the need for public schools to "accommodate" themselves to outside religious education, and the requirement that the "separation [between church and state] must be complete and unequivocal." In the end, the court found that program constitutional, and that is the model released-time programs nationwide have followed ever since. But this analysis doesn't take into account the views of two crucial swing voters on the current Supreme Court, who probably worry more about stigmatizing and coercing very young children than did Justice Douglas. While we can't know how the current Supreme Court would view released-time programs, we do know that, to quote Justice Anthony Kennedy in Lee v. Weisman, a 1992 school prayer case, "What to most believers may seem nothing more than a reasonable request that the nonbeliever respect their religious practices, in a school context may appear to the nonbeliever or dissenter to be an attempt to employ the machinery of the State to enforce a religious orthodoxy."

The Jewish father of one child who will opt out of the program told the Richmond Times-Dispatch that WRE "artificially divides students during the school day by religion. … Why should we generate that type of friction between children?" This recent letter to the Washington Post makes the same point. That is precisely the sort of question that most troubles Kennedy and O'Connor in Establishment Clause cases.

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2) It's religious persecution to prohibit it: Andrea Oakes, the parent of two WRE graduates, told CNN this week: "I would like to think that, no, they're not attacking us because we are Christians; however, I cannot help but question whether or not that is the reason." This is the logic we increasingly hear when President Bush's judicial candidates are blocked: that they are being persecuted for their Christianity. But that logic has it completely upside-down. Demanding scrupulous adherence to the principle of religious neutrality is not persecuting Christians any more than it persecutes Buddhists. The Constitution guarantees the absolute right to free religious expression. But it doesn't give any one sect or denomination the absolute right to bootstrap its own programs onto government ones.

3) The majority want it: This was the argument offered in the Washington Post by Jack Hinton, head of a group affiliated with the Virginia Council of Churches, which funds and administers the WRE classes: "If they flout the will of the people in the community, we'll schedule a recall election, and we'll kick them out. … We have a small core of a group philosophically opposed to any connection between religiosity and schools. They're articulate and persuasive, but they are in the minority." None of this should be surprising in a town with only 24,000 residents and 75 churches. But this is, of course, the rub of the religion cases: The Constitution is subject to neither majority rule nor to popular recall. Democracy is an exquisite invention. But programs can be popular and still unconstitutional.

4) It's nondenominational: One of the most curious defenses advanced by supporters of the WRE is that the programs are, at least according to the Virginia Council of Churches as "interdenominational" and "non-evangelistic."There is an abiding belief in some parts of this country that so long as a program is Christian, it is truly all-inclusive. For parents who view the teaching of Christian values or the story of the birth of Jesus as universal moral truths, the rejection of these messages is not just sacrilege, it's also immoral. And there seems to be no secular source of moral teaching that could satisfy some of these parents. As one supporter of the program told the Associated Press: Without these classes, "kids get into trouble and have no moral structure on which to combat drugs, sex, pornography and all that." Or as another put it at the meeting, "The question here isn't about children being left behind … the question here tonight is what are we going to do to teach religion to our children? I will say it here tonight, that if we eliminate this program, the next generation of children will be worse than the ones that we have now."

5) It's noncoercive: This is the magical "choice" argument—the one that has immunized school voucher programs from being labeled unconstitutional. The notion is that so long as parents have the freedom to opt in or opt out of a state's religious program, it is inherently permissible. So far, the ACLU has not become involved in this dispute over the Staunton schools. One case it did bring involved a county that allowed religious leaders to use candy to entice children to participate and parked a bus used for instruction on school property, but that case was settled. Maybe the good people of Staunton have never been in the position of being the lone Buddhist, or Jehovah's Witness, or Jew, sitting in an empty classroom drawing Sponge Bob, while the rest of the class is off playing games next door. But most first-graders are not subtle or critical thinkers; they just about understand "good" and "bad' and "right" and "wrong." Religion at this age is indoctrination, as it must be, but it's naive to believe that such indoctrination doesn't affect the outsiders. One mother, who herself teaches Sunday school but nevertheless opted out of the program, explains it better than I ever could: "I asked them whether Jesus was a Christian and they said 'yes.' When I said, 'Jesus was a Jew,' one girl said, 'But Jesus was a good person.' "

The Supreme Court will hear a pair of Ten Commandments cases in two weeks, and you'll hear each of these arguments once again. But just because they are perfect truth to some of us doesn't mean they must be truth to all.