Russell and Duenes

Muslim Prayer in Public Schools and the Law, Continued…

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muslimprayersThe second element of the Supreme Court’s “Lemon Test” is even more problematic, for it assumes that the State can act in a way that “neither advances nor inhibits religion.” Id. at 1053. One can plausibly argue that all state action will either advance or inhibit religion. That is, it will advance secular agnosticism, as it usually does, or it will advance some non-secular religion. I do not see a problem with this, and with being up-front about it.

On top of Lemon’s explicit language, I think the words “endorse,” “aid,” “promote,” “prefer,” “approve,” and the like, have more elasticity than the Court seems to give them. In other words, the Court does indeed draw lines between “aid” and “accommodate,” or “endorse” and “accommodate,” but their justifications for drawing such lines depend upon a view of religion that I believe, once again, is far too narrow. Does not “accommodating” Muslim prayer times also “aid” them in conducting those prayers? After all, the school will have to take the proactive step of administrating how the prayer times are going to work. This sounds like “aid.” If I walked into a mosque and saw that they “accommodated” women sitting with men, would I not also rightly think they “endorsed” such conduct?

Things can be promoted and endorsed in education without flyers hanging all over campus. Indeed they are all the time. Racism, for example, can be “endorsed” without people coming out and saying, “We are doing this because we think African-Americans are inferior.” Justice O’Connor’s words here are prescient. She says that “government cannot endorse the religious practices and beliefs of some citizens without sending a clear message to nonadherents that they are outsiders or less than full members of the political community.” County of Allegheny, 492 U.S. at 627-28 (O’Connor, J., concurring). Yet devout Muslims and Christians are often thought of as “outsiders” because their religious beliefs and practices do not conform to the public school ethos.

Further, O’Connor argues that the government has “more subtle ways” to “show favoritism to particular beliefs or convey a message of disapproval to others.” Id. So I might ask Justice O’Connor: Do public schools subtly favor and endorse the belief that waiting for sex until marriage is quaint, morally naive, and unrealistic? If by “endorse” one means that they teach this explicitly in their curriculum, the answer is likely “no.” Yet by teaching and implying that appropriate sexual behavior is not really a moral category, but is, if anything, a health and safety category, the public schools “endorse” some kind of sexual ethos, and it isn’t: “Be modest and chaste until marriage.”

The same is true with respect to allowing Muslims out of class to pray or rearranging the schedule for them. It is even more explicit should schools provide footbaths for them. Yes, there are degrees and levels of promotion, but not hard lines. Justice O’Connor seems to honestly acknowledge as much when she says that, “[n]o fixed, per se rule can be framed.” County of Allegheny, 492 U.S. at 623 (O’Connor, J., concurring). The effect over time of our schools’ endorsement of secularism and statism for producing secularism in its graduates should be clear, for imagine a home where the parents do not want to “endorse” any religion, where all talk of God is banished and all religious conduct is cast out as impermissible. Over time, what would be the effect of such a home’s policy? What would the children think their parents are “endorsing?” To ask the question is to answer it.

Similar problems attend Justice Kennedy’s analysis in Weisman. He holds that one particular lesson is “that in the hands of government what might begin as tolerant expression of religious views may end in a policy to indoctrinate and coerce.” Weisman, 505 U.S. at 591-92. The public schools engage, whether intentionally or not, “in a policy to indoctrinate and coerce” adherence to secular agnosticism. One cannot on the one hand argue that forcing students to sit through graduation prayers amounts to “indoctrination and coercion,” but that forcing students to sit through thirteen (13) years of teaching that God has nothing to do with the basis and acquisition of knowledge, that His moral and spiritual rules are irrelevant to the educational process, and that naturalistic, Darwinian evolution is the truth about how we got here is not “indoctrination and coercion.”

Justice Kennedy also writes: “The undeniable fact is that the school district’s supervision and control of a high school graduation ceremony places public pressure, as well as peer pressure, on attending students to stand as a group or, at least, maintain respectful silence during the invocation and benediction.” Id. at 593. My response is: We have to show respectful silence in various situations with which we do not agree. Further, the majority must respectfully put up with prayerless graduation ceremonies in order to accommodate perhaps only one person who objects to it. Why should the student who wants prayer be coerced into showing such respect? On other words, one person’s religious view is going to be respected and another person’s is not. There is no way for a devout Muslim, Jew, or Christian who wants prayers at her graduation ceremony, and the secularist who does not want them, to both have their religious convictions respected. One is going to have to respectfully accept what the other wants, and this is unavoidable because religion is totalizing. Therefore, Justice Blackmun’s assertion that the First Amendment’s “purpose was to create a complete . . . separation of the spheres of religious activity and civic authority by comprehensively forbidding every form of public aid or support for religion,” id. at 601 (Blackmun, J., concurring), is not tenable, because it is not possible.

I have devoted considerable space to exposing the emptiness of the “religious neutrality in education” argument because its emptiness is foundational to my proposed way of addressing the issue of accommodating Muslim prayers, and perhaps other explicitly religious practices, in schools. I would advocate a kind of hybrid of Natural Law and Positivism which starts with the premise that broad and robust religious expression is a good thing, but gives local communities more legislative freedom to decide how they want to regulate religious expression in their schools. By acknowledging the broad religious non-neutrality in human dealings and relationships, judges would adjudicate religious expression questions from a different vantage point. They would perhaps be freed from some of the hyper-sensitivity about the supposed “danger” of “endorsing religion” I sense from some of the judicial opinions I have read. A frank admission that some kind of worldview is going to be influenced, shaped and formed in the educational process – whether in a public or private school – may bring judges back to a First Amendment jurisprudence more in line with Justice Rehnquist’s observation that “[t]he Establishment Clause did not require government neutrality between religion and irreligion nor did it prohibit the Federal Government from providing nondiscriminatory aid to religion.” Wallace, 472 U.S. at 106 (Rehnquist, J., dissenting).

Of course, this raises the question: What about protecting the religious rights of a secularist (“nonadherent”) who happens to live in a place like Dearborn, MI, and must go to a school that is eighty (80) percent Muslim? What if the school becomes a de facto Muslim school? Knowing the kinds of pressures students face amongst their peers, will not such a student feel pressure to “go along” with Muslim practices for the sake of “fitting in” in school and having friends?

First, I believe that judges can allow for broad religious freedom based on more local autonomy without allowing any public school to become a de facto Muslim, Jewish, Hindu or Christian school. Public schools will still have to implement state educational standards, and therefore, cannot subordinate such standards to religious ceremonies and purely sectarian curricula. Second, public schools can remain accountable to avoiding truly coercive practices such as requiring students to say prayers, to attend prayer times, and to dress certain ways. Third, I am not sure I see how the peer pressure from Muslim religiosity has a more pernicious effect on nonadherents than the peer pressure toward sexual immorality, rebellion against authority, cheating, drinking, taking drugs, getting caught up in video games, and general and pervasive secularism has on the Muslim student who is a minority at his school. We accept the latter rather easily, but not the former, and I have not heard a good explanation why.

Related to this, a world of robust public discussion and interaction about religion, where people do not feel “chilled” in their speech about God, is better, in my view, than a politically-correct world where religion is highly privatized and driven out of the public square. Therefore, judges should operate from the premise that more, rather than less, overt religious expression in schools is a good thing, for it better aligns with the basic religious curiosity of human beings, rather than stultifying it. This simply acknowledges that all people are going to have to settle for some accommodations in a public school which may be uncomfortable or offensive to their sensibilities. But we ought not deal with feelings of offense by trying to scrub public schools of all overt religious expression, and then pretend as if we have “protected” everyone’s fundamental religious freedom. Of course there will be the inevitable conflicts about how much expression to give any particular religious group and the proper manner in which to allow for each one’s expression. Yet we have such conflicts in public schools now, and I do not think that Americans’ desire for religious expression is going to die down any time soon, particularly as more Muslim immigrants come to this country, many of whom will not take kindly to the suggestion that they check their religious practices at the schoolhouse door.

I find myself attracted to some of Justice O’Connor’s argument in her Wallace concurrence. She proposes to keep the Lemon Test in some form, but to “reexamine and refine” it so that it does not remain a rigid, unworkable test. See Wallace, 472 U.S. at 69 (O’Connor, J., concurring). She thinks courts should try to determine when government laws “make[] adherence to religion relevant to a person’s standing in the political community.” Id. I agree that when government laws do this, they should be held as unconstitutional. Justice O’Connor says that “[t]he task for the Court is to sort out those statutes and government practices whose purpose and effect go against the grain of religious liberty protected by the First Amendment.” Id. at 70. (italics mine). It is this “sorting out” process that I would favor, though I would not sort it out based on some kind of “endorsement test.” As I have argued at length, schools already vitally endorse a particular worldview – worldview being entirely synonymous with the term “religion” in my analysis. So there is no question over whether schools will endorse, but what they will endorse. What I would have judges sort out, on a case-by-case basis, is not whether individuals or groups are “offended” or made psychologically uncomfortable by certain religious accommodations, but whether they are ostracized in fact, i.e., chilled or not free to speak their views, given lower grades because of their views, subject to harassment for their views, and denied access to the levers of power and influence because of the accommodation. Id. at 69. These are the things school administrators and judges should be concerned with, for there is no way to “protect” a minority student at the school from religious ideas which he does not share, whether they be Islamic, Christian, or Atheist ideas.

This means that, from the positivist part of the hybrid, I would also give a great deal of deference to local legislatures and school boards to work these things out. If, for example, a local community suddenly had a large influx of Muslims, then I think that school accommodations might reflect their presence. I would not see a problem, at least in public schools, with there being a wide berth for Muslim prayers and perhaps some other Islamic practices, which the non-Muslim would have to accommodate. One might argue that this is unfair and oppressive to the non-Muslim. Yet such a set-up seems no more oppressive to the non-Muslim in that situation than the official secular agnosticism is oppressive to the Muslim or Christian believer. Indeed it seems less so. For government schools functionally assume, in every academic field, that God plays no part in knowledge or human life, and this is adverse to the Christian or Muslim who believes that God sovereignly rules over and is actively involved in every area of life. Therefore, again, I would have judges protect religious minorities not from religious ideas, but from true compelled assent, practice (i.e., more than sitting silently through a graduation prayer), reductionistic curriculum, and unfair treatment academically.

Finally, I would advocate a jurisprudence that desires robust religious expression even in public schools, even to the point of some being offended, while creating legal parameters which would also prohibit true coercion (e.g., having to mouth prayers) or intolerance of dissenting opinions or practices. Therefore, practically speaking, I think local public schools may certainly accommodate Muslim prayers and even provide uneasily obtained things such as footbaths. I would also think it fine for schools to rearrange their schedules to make such an accommodation. Though this is not neutral, I do not believe it necessarily relegates the non-Muslim to some kind of lower standing in the community. I would rather my sons be at a school where religious ideas and practices are out in the open, and open for discussion, comment, commendation and critique, than in a secularized school where their own religious beliefs will be relativized, privatized, and portrayed as nothing more than “religious opinion,” and therefore, “superstition.”

Of course, this sounds easier than it is, and as I said, I do not ultimately think the government is well up to the task. There are no easy answers, and I do not think any one jurisprudential approach can resolve the issue. Indeed, I think the public schools will have an increasingly difficult time as more Muslims, particularly of the devout kind, comprise our populace. I have simply tried to provide some general principles that I think our legislators and judges should bear in mind as they decide these matters.

-D

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Written by Michael Duenes

January 2, 2013 at 5:57 pm

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