A quick update of a story I have been following here at the blog (earlier post here). A portrait depicting Christ hanging in the hall of a Jackson, Ohio middle school and the subject of a church-state lawsuit, has been moved to the high school. The School District's primary defense is an argument that the portrait is owned by a student club, and therefore not government speech. The only problem? No members of that club are in the middle school where the portrait hangs.

The Columbus Dispatch has more.

Bob Eisnaugle, an art teacher and adviser to the Hi-Y service club, said that the group of about 60 students decided last week to move the portrait to the high school, where the club meets and where its current members are students. He said the middle-school building housed the high school when the club presented the portrait, and it just never had been moved to the newer building.
...
Nick Worner, a spokesman for the ACLU of Ohio, said yesterday that he couldn’t comment on legal strategy, but he stressed that his group’s position hasn’t changed.

“It doesn’t matter which public building the portrait is in,” Worner said. “It’s an unconstitutional endorsement of religion on the part of a public school.”

Even as a limited public forum, shouldn't those who wish to display a picture have to actually be current students in the school where the message is displayed? And not students from 66 years ago, when the building housed an entirely different school?

Religious liberty advocates are joining the dispute over school vouchers in Louisiana. The program was ruled an unconstitutional diversion of funds away from the public school system back in December. In a friend of the court brief filed Friday, organizations including the Interfaith Alliance urged the state's appeals court to affirm the trial court's ruling, and gave them an additional reason: the program improperly funds religious exercise. The News Star has more.

"This voucher system has been a disaster," [attorney Charles Kincade] said. "Millions of tax dollars have been shoveled into religious schools, at the expense of our starving public system. Public money is now being used for religious instruction, including textbooks that proclaim that many Africans are illiterate because they are not Christians."
...
"Although the Constitution gives parents the right to send their children to private, religious schools if they so choose, nothing requires the state to fund these at taxpayer expense,"

 You can read the brief here. An Interfaith Alliance press release is here.

The Oklahoma House voted to send a bill on to the State Senate that purports to expand student religious freedom. The measure empowers school districts to allow students to make religious statements at school assemblies and events. House Bill 1940 passed by a vote of 79-13.

Rep. John Bennett, R-Sallisaw, the bill's author, said it would require public schools to allow and protect religious student expression and to allow students to express religious beliefs in homework, art and other assignments. The bill, modeled after a Texas law, would require school districts to treat the voluntary student expressions of a religious viewpoint the same as voluntary student expressions of a secular viewpoint.

Of course, students are already allowed voluntary religious expression. The questions arise over whether some speech is student speech or is school (i.e. government) speech. When a student is chosen to give the public address system at a football game or a student assembly, it is not just the student who is speaking. His or her religious sentiments expressed in such a forum, whether or not voluntary, may reasonably be interpreted as representing the school's perspective, especially if officials approve the remarks before they are delivered.

This bill does nothing to solve or undo this problem; it just announces that such statements are allowed. Given the particular facts surrounding an event, that may or may not be the case. Certainly no state law can magically transform conduct that violates the First Amendment into conduct that does not.

As many of the bill's detractors note, including the former Oklahoma Governor who vetoed a similar measure in 2008, bills like this raise more questions than they answer, and cause more problems than they solve.

Exciting news today! Former Baptist Joint Committee General Counsel Melissa Rogers, who has chaired President Obama's council of faith-based leaders, has been named the new head of the White House Office of Faith-Based and Neighborhood Partnerships, following Joshua Dubois stepping aside after spending the first term on the job.

The BJC released a statement today on the announcement. An excerpt is below. A few of my thoughts follow that.

[BJC Director Brent] Walker lauded Rogers’ selection.

“I am so happy for Melissa, and proud of her, too,” Walker said. “Her leadership in the church-state field — as the BJC’s general counsel and as chair of the task force charged with reforming the office — has made her the perfect choice to fill this important position in the Obama administration.

“Melissa possesses a keen understanding of the First Amendment’s religion clauses and is sensitive to practical issues of their application,” Walker said.

BJC General Counsel K. Hollyn Hollman, who succeeded Rogers, said she looks forward to Rogers’ leadership in the White House office.  

“Since the opening of the faith-based office, the Baptist Joint Committee’s focus has been safeguarding the standards that make private-public partnerships successful and consistent with constitutional standards that protect the religious liberty of individuals and social service providers,” Hollman said. “As a proven leader and expert on church-state law, Melissa is the most knowledgeable and capable person I can imagine to lead at this time.

“I am hopeful she will be able to provide leadership throughout the implementation of the Obama administration reforms as well as offer thoughtful consideration for any additional reforms,” Hollman said.

Indeed. Her experience qualifies her well for this post. I would only add this: Melissa knows how to speak of the values of church-state separation without degrading or diminishing faith. And she knows how to speak of the role of religion in society while being respectful of those of different faiths, or those who choose no faith at all. Who better to lead this office? Congratulations, Melissa!

When a fifth-grader in Pocono Mountain, Pennsylvania tried to distribute fliers to classmates inviting them to a Christmas party at her church, the school superintendent denied the request, citing a policy that gave him authority to decline to send home non-school events or organizations. Her parents filed suit claiming a violation of First Amendment rights.

Today, the 3rd Circuit affirmed the trial court's holding (pdf) that the student may not be barred from distributing material so long as there is no "specific and significant fear of disruption." That was the standard set in a landmark student speech case called Tinker. The 3rd Circuit's ruling here takes the view that it is the proper standard for evaluating restrictions on elementary school speech as well.

while acknowledging the reality that the risk of disruption of educational and disciplinary functions may be different depending upon the age and maturity of the students, [we have not held] that Tinker analysis has no place in the elementary school setting.
...
[O]ur prior precedents seem to recognize that the Tinker test has the requisite flexibility to accommodate the age-related developmental, educational, and disciplinary concerns of elementary school students.

The religious nature of the underlying event did not play into the decision. The ruling today means, essentially, that a 5th-grader has the same right to deliver a non-disruptive religious message to her classmates as older students have to deliver any other sort of message, so long as it is not lewd, and does not advocate illegal drug use.

In a report published by the Texas Freedom Network, SMU Religious Studies Professor Mark Chancey reviewed bible courses being taught in public schools across the state, pursuant to a law passed in 2007. Today's Houston Chronicle includes an op-ed in which Chancey summarizes his finding, lamenting that "Texas had the opportunity to be a national leader in teaching about the Bible in the right way, but we failed to do it."

Most courses focused solely on the Protestant Bible, as if Jewish, Roman Catholic and Eastern Orthodox Bibles did not even exist.
...
Students were often taught to read the Hebrew Bible/Old Testament strictly through Christian eyes as a set of predictions about Jesus. ("Which prophet foretold that Jesus would be born in Bethlehem?" one test asks.) This approach ignores the fact that Jews, and many others, read those passages very differently.

Judaism in general fares quite poorly, often coming across as a legalistic or lifeless religion that was superseded by Christianity.

Creation science and other pseudo-scholarship creep into some classrooms, as in those where students learn that the biblical book of Genesis is scientifically accurate when read correctly.

Many courses treat the Bible, miracle stories et al, as straightforward, completely accurate, unproblematic history - a religious approach that federal courts have flagged as unconstitutional in a public school setting.

The law included safeguards meant to protect against just these sorts of violations occurring but Chancey reports those safeguards are rarely if ever followed. He did also highlight a few schools that were teaching the course properly., but they were exceptions. 

The Constitution does allow for teaching *about* the Bible in the right setting, when teachers refrain from using it as a tool to promote religious ideas or otherwise proselytize. Chancey's report drives home the inescapable point that while constitutional, a Bible course is a difficult tightrope for most educators, given the lack of training and support. That it can be legally done doesn't make it a wise decision for a public school curriculum. Without significant commitment to constitutional safeguards, Bible courses are better left to houses of worship and home study, and out of the public school curriculum.

One of the most outspoken plaintiffs challenging the contraceptive mandate on religious liberty grounds is asking the 10th Circuit Court of Appeals to hear its case and rule by July 1, before fines begin to pile up. The Oklahoman reports:

U.S. Justice Department attorneys defending the federal government in Hobby Lobby’s lawsuit are not expected to oppose Hobby Lobby’s motion to speed up the legal process, Duncan said.

In court documents filed Thursday, Hobby Lobby said it would begin incurring massive fines July 1 for failing to comply with a federal mandate that is part of the Affordable Care Act that requires it to pay for emergency contraceptives.

 

The Appeals Court has already denied Hobby Lobby's request to overturn the trial court's decision not to issue an injunction against enforcement of the mandate. If they agree to speed up the process, Hobby Lobby's case could be on track to be the first heard by the Supreme Court, which will eventually settle the dispute over the rights of secular businesses to be exempt on religious grounds.

Here's a great way to end a Friday. Just read this. When Pickens County (SC) school superintendent Dr. Kelly Pew supported a sensible, responsible change in the Board's invocation policy in opening its monthly meetings, she got slammed from the expected corners of the Religious Right. How many times have we seen elected officials make the right decision in a church-state matter, only to back down once political pressure begins to mount? Here, instead of shriveling to the inaccurate charges that she was removing prayer from schools, Dr. Pew is smartly defending her view instead.

In a letter to the editor of the Easley Patch, she explains why religious freedom principles demand this change. Here's a snippet.

South Carolina law and the First Amendment protect religious liberty of the individual from government interference, and in so doing they guard against the use of government to promote specific versions of religion. The same rules apply to the meetings of city and county councils.

Non-sectarian invocations before the meetings of deliberative government bodies is a tradition that extends to the very first meeting of the U.S. Congress—the same Congress that passed the First Amendment. I am in favor of maintaining that tradition, which has been upheld in court. But the tradition has only been upheld in cases of non-sectarian prayer―prayers addressed to God but not favoring or disfavoring any one faith or belief. The basis for the change in Board practice, solely at its own meetings, is therefore simple, and the solution is a prudent adherence to honored traditions of many governing bodies in American history.

Read the whole thing.

Idaho has joined the growing list of states concerned about religious affiliation policies on university campuses. A bill that protects the right of religious organizations to determine membership based on religious belief and affiliation passed the State Senate yesterday 30-5. Concern that Boise State University was implementing an all-comers policy - requiring all groups to allow all interested students as members - seems to have led to this legislative effort.

[A] string of former and current Boise State students stood before the [State Affairs] committee, each of them a member of faith-based organizations that they said had been restricted by the university.

"It became apparent we would not be recognized by Boise State because our officers were required to believe," said Boise State student Justin Ranger.

The Supreme Court ruled in 2010 that all-comers policies barring discrimination at state universities are constitutional. That doesn't mean they are required, however. Several states since 2010 have pursued legislation to disallow such policies - including most recently Tennessee and Virginia.

Prior to that Supreme Court decision (CLS v Martinez), I interviewed Holly Hollman, who talked about why the Baptist Joint Committee supported the right of religious groups at publicly-funded universities to set membership criteria based on religious belief.