Center Secures Teacher Participation in "See You at the Pole"

On November 20, the Carlisle Area School District (PA) rescinded an earlier decision to forbid teachers from being present at "See You at the Pole" activities. The Center assisted teachers adversely affected by the previous decision.

During the week of September 22, district officials declared that teachers could not be present at this year's SYATP event. An affected teacher contacted the CLS Center, and Litigation Counsel Tim Tracey communicated with the school district on her behalf. As a result of his efforts, the teacher was permitted to participate in this year's event, but the restrictive policy remained in place.

Tim subsequently made a presentation at a school board meeting and wrote a demand letter to the school district on behalf of the teachers whose religious freedom would be affected by the policy. The school board adopted a new policy allowing teachers to participate as long as they issue a verbal disclaimer, indicating that their presence is in their individual capacities. Media coverage is here, here and here.

Center attorneys were assisted by the law firm of Boyle, Neblett & Wenger.

Loyalty Oaths and Religious Freedom

Both the LA Times and the Chronicle of Higher Education report that Cal State Fullerton fired a lecturer because she declined to sign an oath to defend the California and U.S. Constitutions "against all enemies, foreign and domestic." Wendy Gonaver, a Quaker and pacifist, refused to sign the oath, as it implied that she was willing to take up arms against America's enemies. She apparently indicated her willingness to sign the oath if she could accompany it with a written statement explaining her position, an offer the university reportedly rejected.

It is difficult to argue that this is justifiable incursion upon Gonaver's religious freedom. According to The Chronicle, the loyalty oath was added to the state constitution in 1952 to prevent communists from getting government jobs. Gonaver is not a communist; nor does the defense of California or the United States depend upon the involvement of Quaker teachers in combat.

Without question, anti-communist loyalty oaths are a product of a different era. But most of today's public universities have what amount to new loyalty oaths -- pledges not to offend others with controversial expression. The "nondiscrimination" policies most public universities apply to student groups are not really about stopping widespread invidious discrimination. Instead, these policies are about forcing dissenters to toe the line.

Universities defend the application of religion and sexual orientation nondiscrimination polices to religious groups not because they truly believe that some great injustice occurs when an a atheist or sexually active homosexual is not permitted to be the president of student groups like the Christian Legal Society. Instead, these universities simply cannot tolerate those who believe that certain religious propositions are objectively true or that homosexual conduct is sinful and immoral. The point of these policies is not so much to protect minorities, but rather to marginalize orthodox believers in an effort to reduce their influence and numbers.

Given that Gonaver is a Quaker, it is reasonable to assume that she will not commence litigation against university officials. If she did, one can imagine what the university would argue. In response to any Free Exercise Clause claim, the state would argue that the oath requirement is a "facially neutral and generally applicable rule," and thus immune to scrutiny under the Clause. Thanks in large part to the secular and religious Left, which bailed out on efforts to restore "strict scrutiny" to free exercise claims out of fear that such a restoration would undermine the homosexual "rights" agenda, Gonaver would have a tough time making a winning free exercise claim.

A claim under the California free exercise provision might not fare much better. In a case involving a Christian landlord charged with discriminating on the basis of marital status by refusing to rent an apartment to an unmarried, cohabiting couple, the California Supreme Court essentially said, "too bad -- no one forced you to be a landlord; you should go into some other line of work." One wonders whether the court would tell Gonaver to go into some line of work other than teaching.

Moral of the story: evangelicals are not the only ones hurt by the Left's subordination of religious freedom to "gay rights."

The Rights of Public School Teachers

In addition to the inquiry about a student praying before lunch, we also got an email recently from a public school teacher in California who was apparently told that he could not have crosses or other religious items on his desk or on the walls of his classroom.

A thoughtful discussion of issues like these can be found in the excellent "Teachers and Religion in Public Schools," written by the CLS Center's own Kimberlee Wood Colby and published by Christian Educators Association International.

Prayer in Public Schools: US Dep't of Education Guidelines

I responded today to an inquiry about prayer in public schools. The sender of the email I received indicated that a student had been told by public school officials in Maryland that he was not permitted to thank God for his food prior to eating lunch.

The inquiry reminded me of the guidelines issued by the U.S. Department of Education back in 2003. They're available on the web here. Definitely a good resource.

Is Academic Freedom Dead in the 4th Circuit?

Last week, the 4^th Circuit Court of Appeals decided Lee v. York County School Division, __ F.3d ___ (May 2, 2007), holding that officials of a Virginia school district did not violate a high school teacher’s First Amendment rights when it removed from his classroom bulletin board items the officials deemed “too religious.” The items included a poster of George Washington praying and articles on prayer meetings in the Ashcroft-era Justice Department among others. The Plaintiff had urged for application of the line of school speech cases beginning with Tinker v. Des Moines Independent School District. Instead, the Court held that the teacher’s speech was subject to the Pickering balancing test for speech by government employees and protecting such speech only when it is “on a matter of public concern.” The Court then concluded that the teacher’s speech was “curricular” and therefore categorically not “a matter of public concern.” Hence, the school district did not violate the teacher’s 1^st Amendment rights in removing the items from the bulletin board.

“Academic freedom” is a much heralded though rarely protected (at least on the level of the individual teacher/professor) right in Supreme Court decisions. By treating all “curricular” speech as categorically outside First Amendment protection, the Lee decision would seem to make the concept a dead letter in the Fourth Circuit. Even admitted viewpoint discrimination is permissible if the speech is deemed “curricular” - no matter how paltry the school's justification - because such speech is completely outside the protection of the First Amendment. See Slip Opinion, 19 n 17. Certainly, schools must have authority to determine their curriculum, but this decision would seem to eliminate any freedom a teacher may have had in how to present that curriculum.

Further, while this rule would not apply to "non-curricular" teacher speech, that may simply prove a tautology. The Court invoked the Supreme Court's Hazelwood decision as a test for whether speech is curricular, and this decision has been applied to situations that would not meet the common sense definition of "curriculum." See e.g. Bannon v. Sch. Dist. of Palm Beach County, 387 F.3d 1208, 1214-15 (11th Cir. 2004) (after school, voluntary, student-initiated painting project on school construction panels was curricular under Hazelwood). Indeed, the Bannon decision was cited approvingly by the Fourth Circuit.

You can read more about the decision here and here. The Rutherford Institute's press release on the case is available here.