Friday, September 23, 2011

Charles C. Haynes: Teachers, take note: Neutrality toward religion cuts both ways

  By now, it should be axiomatic that public school teachers can’t take sides in religion.

  After all, the Supreme Court has been hammering this point home for more than 60 years: Under the First Amendment’s establishment clause, public schools must be neutral toward religion — meaning neutral among religions and neutral between religion and non-religion.

  But two new court decisions — both from the 9th U.S. Circuit Court of Appeals — suggest that “neutrality” is viewed by some schools and judges as a one-way street. Teacher promotion of religion was struck down as unconstitutional, but teacher denigration of religion got a pass.

  In the “promotion” case, math teacher Bradley Johnson was told by the school district to remove from his classroom walls several huge banners with patriotic one-liners emphasizing references to “God” and “Creator.” School officials were concerned that the displays sent a school-endorsed sectarian message in violation of the establishment clause (Johnson v. Poway Unified School District).

  Johnson sued, and won the first round when a federal district court ruled that the school had engaged in viewpoint discrimination by allowing other teachers to put up classroom displays with a variety of messages (some with references to religion), but disallowing Johnson’s banners.

  On Sept. 14, however, a three-judge panel of the 9th Circuit reversed the lower court decision, ruling that public school officials have the authority to determine what gets put on classroom walls. Although Johnson’s school did allow teachers some freedom to decorate their classrooms, the court sided with the school district by concluding that the banners “as organized and displayed by Johnson” conveyed a religious message.

  A few weeks earlier, the same appeals court was far less concerned about “neutrality” in deciding a case involving alleged teacher hostility to religion (C.F. v. Capistrano Unified School District). On Aug. 19, the court dismissed a lawsuit against James Corbett, a high school history teacher in Mission Viejo, Calif., accused by a student of repeatedly making derogatory comments about religious faith.

  A lower court had singled out only one of the teacher’s statements — that creationism was “superstitious nonsense” — as an establishment-clause violation. The appeals court, however, found no constitutional problem with anything Corbett had said in class about religion, including the creationism put-down.

  The 9th Circuit acknowledged that “at some point a teacher’s comments on religion might cross the line and rise to the level of unconstitutional hostility.” But because there haven’t been cases drawing that line, the court “cannot conclude that a reasonable teacher standing in Corbett’s shoes would have been on notice that his actions might be unconstitutional.”

  It’s true that few legal precedents define the parameters of teacher hostility to religion in a public school classroom. But the Supreme Court’s insistence on school neutrality between religion and non-religion should be precedent enough.

  Writing for the Court majority in Abington v. Schempp (a 1963 decision striking down school-sponsored religious exercises), Justice Tom Clark made clear that “the State may not establish a ‘religion of secularism’ in the sense of affirmatively opposing or showing hostility to religion.”

  Moreover, for almost two decades, education, religious and civil liberties groups, as well as the U.S. Department of Education, have disseminated First Amendment guidelines explaining that although teachers may teach about religion, they may neither inculcate nor denigrate religion.

  In my view, the 9th Circuit was right to bar promotion of religion in the classroom. But fair is fair. If religious people are to accept that their faith cannot be privileged in schools, then they need to be assured that hostility to their faith will not be tolerated, either.

  Teachers should have more academic freedom than they presently enjoy. But when religion is involved, teachers should not be free to impose either a religious or an anti-religious viewpoint on students.

  Apply the First Amendment fairly — and teacher “neutrality” will cut both ways.

  About the author: Charles C. Haynes is director of the Religious Freedom Education Project at the Newseum, 555 Pennsylvania Ave., N.W., Washington, D.C., 20001. Web: E-mail:

  This article was published by the First Amendment Center.

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