Banning Religion from Public School Fallacies

In the second edition of his highly regarded and widely read treatise on American constitutional law, Harvard law professor Lawrence Tribe writes with confidence that “[p]rayer as an established part of the official school day is always forbidden.”¹ What is so remarkable about this unequivocal statement is that it is based upon a line of Supreme Court cases that is not yet thirty years old.² Throughout America’s colonial period, prayer and Bible reading were central to an educational system dominated by the family and the church. Under the leadership first of Thomas Jefferson in Virginia and then of Horace Mann in Massachusetts, a tax-supported public school system began to emerge in the nation’s first one hundred years. It was not until the late eighteenth century that the state began to play any significant role in education. Dominated by open endorsement of a generalized Protestant religion, prayer and Bible reading were continued except for an occasional attack upon such practices in the courts.³

Notwithstanding such legal challenges, and the political challenges to such practices raised by Catholics, Jews, and various other “minority groups,” expressions of Christianity by teachers and students through prayer and Bible reading remained largely unchallenged until the 1940s, culminating in the Court’s rulings against prayer and Bible reading in the 1960’s.⁴ Nevertheless, many schools continued prayer and Bible reading practices until they finally died out under persistent threats of lawsuits and under an educational leadership committed to adhering to the Supreme Court’s rulings. Prayer and Bible reading would still occupy center stage in most American communities, despite the proliferation of other religious traditions, but for the Supreme Court’s consistent rulings since 1962 excluding prayer and Bible reading from the public school classrooms.

In the name of the first amendment’s prohibition against the establishment of religion, the Court has insisted that prayer and Bible reading must be excluded lest, according to Professor Tribe, government power be “lent … to a religious cause.”⁵ The Constitution, Tribe claims, requires religious neutrality and prohibits “any form of official school prayer [because it] violates principles of neutrality”:⁶

Even if different days were given over to different religions’ prayers, government would be endorsing religion over nonreligion, endorsing religions that include prayers over those that do not, and endorsing religions that favor public prayer over those that believe prayer must be private.⁷

So convinced that forbidding prayer in the public school classroom places the government in a neutral position on religion, Tribe never asks whether excluding prayer does not inevitably endorse nonreligion over religion, endorse religions that do not include prayer over those that do, and endorse religions that oppose public prayer over those that favor it. A recent opinion written by Senior Circuit Judge Hugh H. Bownes typifies the blindness of those who claim that outlawing prayer yields a neutral playing field for all religions.⁸ In the body of his opinion, Judge Bownes embraces the lower court’s holding that “it is self-evident that a prayer given by a religious person chosen by public school teachers communicates a message of government endorsement of religion.”⁹ Yet in an opening footnote, the judge invokes “formidable religious authority condemning prayer in public,” citing the words of Jesus Christ in Matthew 6:5-7.¹⁰ The truth is that forbidding prayer is no more religiously neutral than allowing it.

Not only do the Court and its supporters claim that school prayer must be forbidden lest the government take sides in religious disputes, but they also claim that prayer must be excluded from the classroom to avoid religious indoctrination of students. Again, Professor Tribe has stated this rationale with characteristic confidence and conviction:

Even where dissenting students are entirely free to leave the room, state power remains at issue. The choice presented to students-either to take part in a particular religious exercise or to wait passively elsewhere-implies that the exercise is a valid element of a legally required education; the norm is religion and dissenters must opt out. In addition, the combination of official ceremony and peer pressure is likely to make any such religious session inherently coercive.¹¹

If prayer is forbidden in order not to coerce those students who oppose prayer, what happens to the student who wants to pray? Must he opt out and go elsewhere for prayer? Must he bow his head hurriedly in silence hoping that his fellow students not notice him and that he not miss the morning announcements? If prayer is not offered, is it not inevitable that the norm is “nonreligious” and “religious” dissenters will be coerced to conform to that standard?

As was the case with his neutrality claim, Tribe does not even consider the possibility that excluding prayer does not alleviate the problem of coercion. It merely shifts the coercive power of the state from one favoring a God-centered view of life and learning to one favoring another view.¹²

A third claim made by those who support the exclusion of school prayer is that prayer in the public school “may polarize citizens and leaders around a religious axis, creating the sort of divisiveness that the first amendment was partly intended to minimize.”¹³ In other words, the Court fears not only religious totalitarianism but religious anarchy. According to this view, the threat of anarchy has multiplied as the number of nonbelievers has increased and as America’s civil Protestant religious tradition has receded into the twilight of the twentieth century. So the solution to this loss of religious homogeneity is to eliminate all religious exercises from taking place in school during the day.

Again, what is remarkable about this claim is that it is taken seriously. Has the elimination of prayer from the public schools removed the element of divisiveness and polarization from American political life? To the contrary, the Court’s relentless attack on prayer and Bible reading in the public schools has polarized citizens and their leaders around a “religious axis” that only the most myopic observer would miss. For example, a variety of amendments to the Constitution have been offered to restore school prayer over the past two decades. These proposals have been as politically divisive as any in America’s history and have pitted Christians against Jews, Catholics against Protestants, Fundamentalists against Evangelicals, as well as believers against unbelievers.¹⁴

Exclusion of prayer from the public schools will not resolve the divisiveness issue any more than it will resolve the neutrality and indoctrination issues. Yet the promise of neutrality, the fear of indoctrination, and the threat of anarchy continue to be paraded before the American people and the courts as the American Civil Liberties Union and others continue without abatement their campaign to rid the public schools of all vestiges . of religion. School boards are attacked with lawsuits to remove prayer from graduation exercises and from school sporting events.¹⁵ Music directors are cautioned about the inclusion of traditional Christmas carols in the annual Christmas holiday program. Indeed, brochures are written for anxious principals advising them how to walk the tight-rope between teaching about religion and celebrating a religious holiday to comply with the latest court decisions.¹⁶

Efforts to hold back this tidal wave of court rulings have not yielded a single victory of great significance. For the most part, the litigation strategy, adopted by those who have tried to stop further erosion of the soil holding religion in the public schools, has been to accept the Supreme Court’s three-part establishment clause test and attempt to meet it.¹⁷ That strategy has clearly failed and for good reason: Each prong of the test embodies one of each of three claims made on behalf of the opponents of prayer, Bible reading, and other “religious activities” in the public schools. Until those claims-the promise of neutrality, the fear of indoctrination, and the threat of anarchy-are challenged, the erosion of religion in the public schools will continue.

Not only have proponents of Bible reading and prayer in the public schools adopted a litigation strategy doomed to fail, they have sought legislative solutions of dubious merit. Senator Jesse Helms has introduced several bills to oust the federal courts from exercising jurisdiction over constitutional eases involving “involuntary prayer” in the public schools.¹⁸ Such a measure is of doubtful constitutional validity; moreover, it would leave intact state court jurisdiction over such matters governed by existing Supreme Court precedents that, if followed, would ban all religious activities in the public schools. Of greater constitutional merit are the several proposed constitutional amendments overruling the Court’s decisions in the prayer and Bible-reading cases. But none of these amendments have met with success in the United States Congress. having failed to secure the necessary two-thirds vote required for amendments to the Constitution.¹⁹

The first purpose of this article is to lay down the gauntlet to the Supreme Court’s three-part establishment clause test. Thus, in part I, I demonstrate that the three claims of that test – the promise of neutrality, the freedom from indoctrination, and the avoidance of anarchy-are all false and inevitably prejudicial to religion.

The second purpose is to propose a constitutionally viable and educationally sound solution. Thus, in parts n and III, I outline a strategy to establish public school chaplaincies at the local level to meet the educational needs of society and to preserve free choice of religion for America’s parents and school children and, at the same time, to satisfy the constitutional ban on laws respecting an establishment of religion.

I.     BANNING RELIGION FROM PUBLIC SCHOOLS: THREE CONSTITUTIONAL FALLACIES

Prior to 1968, the Supreme Court tested claims that the establishment clause had been violated by determining if the government had backed with its coercive power, directly or indirectly, a religious activity.²⁰ In Abington School District v. Schempp,²¹ however, the Court, following dictum in the 1962 Engel case, enlisted a new test in ruling that the Pennsylvania law prescribing daily recitation of the Lord’s Prayer and reading of selected Bible verses violated the establishment clause. Justice Tom Clark’s majority opinion stated “that to withstand the strictures of the Establishment Clause there must be a secular legislative purpose and a primary effect that neither advances nor inhibits religion.”²² Later, this two-pronged approach would be expanded by the Court in Lemon v. Kurtzman²³ into a three-part test, as follows: “First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion; finally, the statute must not foster an excessive government entanglement with religion.”²⁴

In both the Schempp and the Lemon cases, the secular purpose requirement axiomatically followed from the Court’s assumption that the establishment clause demanded government neutrality regarding religion and that passing the secular purpose prong of the Court’s test was a prerequisite to that neutrality.

A.     The Myth of Neutrality

At the very heart of the Supreme Court rulings against prayer in the public school classroom is the claim that prayer serves no secular purpose. The Justices have assumed that prayer is solely an act of religious worship that, if allowed to take place in the classroom, requires the government to prefer one religion over another. Thus, they have reasoned that only by eliminating prayer can the government be neutral and, thereby, avoid sectarian disputes in public education.

The irony of this claim is that the Justices continue to make it despite the political controversy that has raged since 1962 over prayer in public schools. It remains a hotly debated issue that shows no sign of going away. And for good reason. The elimination of prayer from the public school classroom is not neutral. The goal of neutrality long pursued by the Court in the prayer and Bible-reading cases is, in fact, unreachable╖ because religious neutrality in education is a myth.²⁵

Education is defined by Webster’s as “the act or process of providing with knowledge, skill, [or] competence.”²⁶ All educators have a philosophy of how best to impart that knowledge. Before one can become a teacher in the public schools in America, he must obtain a college degree. Part of his training includes the philosophy of education, its methods and goals. Typically today’s teacher is trained to believe that respect for the authority of human experts in various fields is the beginning of learning.²⁷ One does not learn the rudiments of reading, writing, and arithmetic, for example, if one does not learn to fear the authority of the teacher and his selected roster of experts.

According to the Bible, however, “[t]he fear of the Lord is the beginning of knowledge.”²⁸ Indeed, the writer of Proverbs claims that men “hated knowledge” if they “did not choose the fear of the Lord.”²⁹ Not only is the fear of God the key to knowledge, it is the key to wisdom. And wisdom is defined by the book of Proverbs to comprehend all things, including moral character,³⁰ law and justice,³¹ economics and business,³² engineering and other practical sciences,³³ philosophy,³⁴ and the natural sciences.³⁵ So it is not just religious truths that the writer is talking about, but it is the kind of wisdom that God gave King Solomon: about justice,³⁶ botany and biology,³⁷ philosophy and music,³⁸ architecture and building construction,³⁹ and art and sculpture.⁴⁰ So comprehensive was Solomon’s “wisdom and understanding” that the Bible describes it as “exceeding … the sand that is on the sea shore,” and as having “excelled the wisdom of all the children of the east country, and all the wisdom of Egypt for he was wiser than all men.”⁴¹

It was because of Solomon’s reputation for great wisdom that the Queen of Sheba “came to prove him with hard questions.” And the queen, after Solomon answered all of her questions, concluded that Solomon’s “wisdom … exceedeth the fame which I heard.”⁴² Indeed, the queen’s testimony confirmed what God had previously revealed to Solomon: “I have given thee a wide and understanding heart; so that there was none like thee before thee, neither after thee shall any arise like unto thee.”⁴³

Only one man in all of history has excelled in wisdom over that of Solomon, that is the God/man Jesus Christ. In the gospel according to Saint Matthew, Jesus gave this account of Himself: “The queen of the south shall rise up in the judgment with this generation, and shall condemn it: for she came from the uttermost parts of the earth to hear the wisdom of Solomon; and, behold, a greater than Solomon is here.”⁴⁴ Jesus’ wisdom excelled that of Solomon for He is wisdom personified.

The writer of Proverbs gave witness to this truth: “The Lord by wisdom hath founded the earth; by understanding hath he established the heavens.”⁴⁵ The apostle John confirmed this in the very first part of the first chapter of his gospel: “In the beginning was the Word, and the Word was with God, and the Word was God. The same was in the beginning with God. All things were made by him; and without him was not any thing made that was made.”⁴⁶ And Paul seconded John in his letter to the church at Colosse when he encouraged the saints to be filled with all knowledge and wisdom through the Lord Jesus Christ “[i]n whom are hid all the treasures of wisdom and knowledge.”⁴⁷

For by [Christ] were all things created, that are in heaven, and that are on earth, visible and invisible, whether they be thrones, or dominions, or principalities, or powers: all things were created by him, and for him; and he is before all things, and by him all things consist.⁴⁸

In today’s public schools, the Court and its allies have ruled that America’s school children must be shielded from all knowledge of Jesus Christ as the Second Person of the Trinity. In the name of religious neutrality, the Court, the American Civil Liberties Union, the National Education Association, and other powerful groups deny the claim of Christ: that He is the key to all knowledge. They impose their usecular” worldview upon everyone, including America’s Christian majority.

A true Christian philosophy of education accepts no division between the sacred and the secular. Yet, the Supreme Court has devised a constitutional test under the establishment clause that has, at its very foundation, a requirement that state educational policy have only one purpose, a “secular” one. That requirement excludes from the public school a Christian philosophy of education because it forbids expressing the fear of the Lord through prayer and hearing the Word of God from the Bible. “The fear of the Lord.. is. according to the writer of Proverbs, “the beginning of wisdom: and knowledge of the holy [one] is understanding.”⁴⁹ Prayer and Bible reading then are as essential to those who seek to learn reading, writing, and arithmetic as they are to those who seek to know the saving grace of Jesus Christ. The Bible is the foundation of all education, and prayer is the cornerstone.

Yet the first prong of the Court’s three-part test necessarily bans both the Bible as the Word of God⁵⁰ and prayer. Such a ban is not neutral. To the contrary, the Court’s prayer and Bible reading rulings directly oppose Christians and a Christian philosophy of education. Religious neutrality in education ought to be recognized for what it is, a myth that has been perpetrated upon the American public far too long by a group of disingenuous judges, legal scholars, and lawyer-advocates who wish to impose their philosophy of truth through the school system upon teachers, parents, and children who do not subscribe to their “secular” worldview.

Ironically, this group has persuaded many, even Christians, to believe that those who call for prayer and the Bible in the public school classroom are the ones who want to impose their values on an unsuspecting American public. The truth is just the opposite.

B.     The Fear of Indoctrination

In 1979, Justice Lewis Powell, Jr., concluded that the system of public schools in America had been deliberately designed to prepare children to participate as citizens in a democratic society and to preserve the values upon which that society rests.⁵¹ Citing the works of two educationists, one of whom was John Dewey, Justice Powell acknowledged that the architects of the public school system “have perceived public schools as an assimilative force’ by which diverse and conflicting elements in our society are brought together on a broad but common ground.”⁵² Citing the works of five social scientists, the Justice confirmed that studies have shown that the system of public schools has accomplished this “assimilative” goal by “inculcating [in the students] fundamental values necessary to the maintenance of a democratic political system.”⁵³

This “assimilative” and “inculcative” role of the public schools was endorsed three years later by Justice William J. Brennan, Jr., when he wrote: “We have … acknowledged that public schools are vitally important in the preparation of individuals for participation as citizens,’ and as vehicles for inculcating fundamental values necessary to the maintenance of a democratic political system.'”⁵⁴ This inculcative process, Brennan further acknowledged, takes place primarily in the classroom, “in matters of curriculum” where there is a “duty to inculcate community values.”⁵⁵ Earlier in this same opinion, Brennan expressed “full agreement . . . that local school boards must be permitted to establish and apply their curriculum in such a way as to transmit community values,’ and that there is a legitimate and substantial community interest in promoting respect for authority and traditional values be they social, moral, or political.”‘⁵⁶

So, the Supreme Court from moderately conservative Justice Powell to firmly liberal Justice Brennan has agreed: The system of tax-supported public education in America is to be an assimilative force, transmitting and promoting community and traditional values by inculcating into the students those values through the curriculum in the classroom.

The word inculcate,╖ as defined by Webster’s, means “to teach and impress by frequent repetitions or admonitions: urge on or fix in the mind.”⁵⁷ It is taken from the Latin word inculcare, which literally means “to tread on, trample.”⁵⁸ Indeed, the middle part of the Latin word inculcare is derived from calx, meaning “heel.”⁵⁹ No wonder Roget’s defines inculcate as follows: “(1) To fix (an idea) in someone’s mind by reemphasis and repetition. (2) To instruct in a body of doctrine or belief.”⁶⁰ Equally unsurprising are the synonyms for inculcate: “impress” and “indoctrinate.”⁶¹

The word assimilate is defined by Webster’s as “to make similar … : absorb.”⁶² In sociology the word assimilation means the process “wherein individuals and groups of differing ethnic heritage acquire the basic habits, attitudes, and mode of life of an embracing national culture.”⁶³

The word transmit means not only “to send or to convey” but also “to give or convey (a disease or infection) to another person or organism.”⁶⁴ It is also used to mean “to pass on by inheritance or by heredity: hand down.”⁶⁵ The word promote means “to contribute to the growth, enlargement, or prosperity of; further, encourage.”⁶⁶ The thesaurus adds these synonyms for promote: “cultivate, … encourage, feed, foster.”⁶⁷

To recapitulate, the United States Supreme Court and its favored educationists and social scientists all agree that the American public school system is designed to, and does, act as a force to absorb all students in a common culture by handing down and advocating selected values through an indoctrination process that takes place five days a week, six hours per day, and approximately 180 days per year in the classroom.

So the question is not whether the schools indoctrinate. They do. Rather, the question is: What will the schools indoctrinate their students to believe? The Court has reassured us that the teachers will pass on community or traditional values. But one need only read the newspapers (or watch television) for a short time to discover that the values taught in the public schools, like the issues of prayer and Bible reading, are a battleground.⁶⁸

On closer look, one finds not only that there is a serious conflict over what constitutes community or traditional values, but that the battle is not being fought on an equal playing field. The second prong of the Court’s three-part test requires that a public school activity neither primarily advance nor inhibit religion. In a rare moment of candor, federal District Judge Francis J. Boyle, ruling that a benediction or invocation that invokes a deity violates this test, confessed: “God has been ruled out of public education as an instrument of inspiration or consolation.”⁶⁹ He explained that he had reached this unfortunate conclusion because he was obligated to do so by the Supreme Court’s Lemon test:

The fact is that an unacceptably high number of citizens who are undergoing difficult times in this country are children and young people. School-sponsored prayer might provide hope to sustain them, and principles to guide them in the difficult choices they confront today. But the Constitution as the Supreme Court views it does not permit it.⁷⁰

Once again, the Christian parent, the Christian teacher, and the Christian student have been told that his religious values do not belong on the secular turf of the public school. Oftentimes, the Christian is told that he cannot impose his values on those who do not share them because value imposition, per se, is anathema to the educational process and philosophy of the public school. That kind of objection is hypocrisy. The acknowledged purpose of public education is to inculcate values; thus, indoctrination of students is inevitable. The establishment clause, as applied by the courts under the Lemon test, has become an instrument to exclude “religious values” from the “community values” inculcated in public school children.

This fact has been well documented in a recent study by New York University psychology professor Paul Vitz.⁷¹ Funded by the National Institute of Education, Vitz conducted a systematic investigation of “how religion and traditional values are represented in today’s public school textbooks.”⁷² Generally, Vitz found such values either ignored altogether or, iftreated, presented with a bias against them.

Our survey of the total sample of 670 pieces in these basal readers produced several notable results. First, we found no references to serious religious motivation in any of the pieces. There were few references to Christianity or Judaism …. [W]e found virtually no mention at all of Protestantism ….
Altogether, the basal readers in the sample … clearly represented a systematic denial of the history, heritage, beliefs, and values of a very large segment of the American people.⁷³

One explanation given for such omissions and biased treatment is that America has become so pluralist in its religious beliefs, that reference to them would either introduce confusion or excessive selectivity. Thus, in the place of the fear of indoctrination that could result from introducing “religious values” there is substituted the threat of anarchy.

C.     The Threat of Anarchy

This claimed threat of anarchy surfaced in opposition to the Equal Access Act of 1984. The Act provides inter alia:

It shall be unlawful for any public secondary school which receives Federal financial assistance and which has a limited open forum to deny access … to … any students who wish to conduct a meeting within that limited open forum on the basis of the religious, political, philosophical, or other content of the speech at such meetings.⁷⁴

Because of a claimed ambiguity in the statutory language and in the legislative history, opponents argued that this statute opened the door “to every religious, political, or social organization, no matter how controversial or distasteful its views may be.”⁷⁵ Thus, Justice John Paul Stevens, dissenting in the case upholding the constitutionality of the Equal Access Act. warned that the majority’s interpretation of that statute would likely create a statutory obligation “to allow student members of the Ku Klux Klan or the Communist Party to have access to school facilities.”⁷⁶

Turning to the establishment clause, Stevens, drawing on the “excessive entanglement” portion of the Lemon test, argued that to allow Bible clubs to use school facilities would raise the spectre of “divisiveness” and would directly undermine the public school as “the symbol of our democracy and the most pervasive means for promoting our common destiny.”⁷⁷

This threat of anarchy – loss of control over the number and the nature of the views expressed in the public schools – has been voiced by some who oppose the reinstitution of prayer in public schools. As America continues to be a safe haven for an increasing number of religious views other than Christianity and Judaism, some have contended that the Constitution would require equal time for all religious views to be expressed through prayer. Even those who favor school prayer have balked at the prospect of their children or grandchildren being led in prayer by a Hindu or, worse yet, a Satanist.

Those who have interposed this threat in the debate over prayer in the schools have assumed either that the Constitution would require equal time or that the classroom teachers of America would simply reflect the proliferation of religious views in the nation so that unwelcome prayers would inevitably be offered. On the constitutional point, one must remember that the Court has never conceded that the public school classroom is an open forum for all points of view. Even Justice Brennan has admitted that the classroom and the curriculum is within the broad discretionary authority of local school boards.⁷⁸ While that discretion must be constitutionally tempered by “the transcendent imperatives of the First Amendment,”⁷⁹ one of those imperatives is not, for example, to force the public school student to be exposed to the ritual of a flag burning just because he is exposed to the ritual of the flag salute. In other words, there is no constitutional requirement for equal time for all competing points of view in the curriculum or within the four walls of the classroom. Hence, the concerns expressed by Stevens in the Mergens ease, arguably applicable to extracurricular activities, would not apply to curricular matters.

But what does apply here is the third prong of the Court’s Lemon test; namely, that religion if made part of the public school curriculum would foster an excessive government entanglement with religion. The “excessive government entanglement” concern, in reality, reflects ultimately the Court’s claim that religion is a divisive force in society and must be excluded from the public school classroom if young people are to be “inculcated with democratic values.” Justice Brennan articulated this position most forcefully in his opinion for the Court in Grand Rapids School District v. Ball.⁸⁰

For just as religion throughout history has provided for spiritual comfort, guidance, and inspiration to many, it can also serve powerfully to divide societies and to exclude those whose beliefs are not in accord with the particular religions or sects that have from time to time achieved dominance.⁸¹

Justice Brennan’s solution to this perceived threat of anarchy on the one hand and totalitarianism on the other is to exclude all religion from the jurisdiction of the public school. That solution is not consistent with Brennan’s acknowledgment elsewhere that a public school classroom ought to be a crucible for students to become effective citizens in American democratic society. How will students be prepared for the potential divisiveness of a President’s call for the nation to pray for success in a military conflict if those student have been ..shielded” from such calls to prayer in the very place that was to prepare them for citizenship? The entanglement concern, if faithfully followed, would create an atmosphere in the public school that would stray so far from reality that public education could no longer serve to “inculcat[e] fundamental values necessary to the maintenance of a democratic political system.”⁸²

This is not to say that there is no threat of religious anarchy or of religious totalitarianism in the public schools. The threat of anarchy coming from diverse religious views of the nation’s primary and secondary teachers is real, although greatly exaggerated in some parts of the country where traditional Christianity still permeates the local culture. Likewise, the threat of totalitarianism is real, although greatly exaggerated because there is so much religious diversity even within single localities.

The answer to these threats is not to remove altogether religious values and activities from the schools, but to reexamine whether those values and activities are best delivered through the teachers who have been called upon in the past to present daily Bible reading and to lead in prayer. Such activities and values have traditionally been introduced in other government institutions, most notably the nation’s legislatures and the United States military, through the office of a chaplain. In 1983 the United States Supreme Court found the legislative chaplaincy constitutional. Lower courts have consistently rejected claims that chaplains in the armed forces are unconstitutional. It is to that constitutional legacy that I now turn before addressing the constitutionality of a proposal to establish chaplains for the public schools.