Faithful to the Constitution: the Roadblock for Nebraska's Schools

• Publication year: 2021

79 Nebraska L. Rev. 884. Faithful to the Constitution: The Roadblock For Nebraska's Schools

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Richard E. Shugrue*

Faithful to the Constitution: The Roadblock For Nebraska's Schools

INTRODUCTION

For six decades, American schools have been the major battleground in the controversy surrounding the doctrine of separation of church and state. This struggle, inevitably, pits claims that public agents have violated the Establishment Clause1 against claims that public agents prevent the Free Exercise of Religion.2

On one side of the battle line are those who believe in the wall of separation between church and state.3 Although this doctrine is not found in the Constitution itself, the Supreme Court has honored it since 1878 when Reynolds v. United States4 resolved the question of whether a man, wrapped in the cloak of Free Exercise, could violate a federal statute banning plural marriages.5 Combatants on this side

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regard any incursion by religionists on public school property as a threat to the individual liberty to be free from an establishment of religion,6 however they define that elusive term.7 They are prepared to fight organized prayer and Bible reading in public schools,8 distribution of religious materials,9 and virtually any role for clergy on school property,10 whether in the classroom,11 auditorium or halls,12 or on the playing field.13 These warriors take the position that no tax funds should be used for any religious education,14 and they feel that

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any accommodation of religion in public education is a slippery slope leading inevitably to the destruction of the wall of separation.15 They are convinced that their foes are militant advocates of an American theocracy.16

On the other side of the line are ardent believers in the notion that the Supreme Court has torn religion from public schools17 and replaced America's sacred educational heritage with a doctrine they brand as atheism18 or secular humanism.19 They accept without question the assertion of Justice Scalia20 that the Constitution accords religion preferential treatment21 and argue that separation of church

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and state is not only a constitutional fiction,22 but also a detriment to religious liberty.23 They hold tenaciously to the beliefs that prayers belong in public schools and that the Ten Commandments should hang on the walls of every classroom,24 and they often proclaim that evolution should be stripped from the curriculum and replaced with creationism.25 They believe that tax dollars can and should be spent on educational systems operated by religious organizations26 -- let textbooks be bought, let speech therapists and remedial reading teachers be employed,27 and let parochial school students ride the

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public school busses,28 they proclaim. They are prepared to crusade for the proposition that if the treacherous, unelected judges forbid direct spending of taxes on projects directed toward the promotion of religion,29 then schemes such as vouchers30 should be adopted to give parents religion-driven freedom of choice in education.31

The battles that have taken place have been waged over the meaning of the First Amendment to the United States Constitution. Since the Supreme Court has ruled that the First Amendment applies to the states,32 litigants have rarely fought over the meaning of state constitutional language,33 which has a rich history and unique meaning.34 State constitutions have been sent to the back of the proverbial bus and are literally ignored in the constitutional battles over state schools and religion.35 This article seeks to focus the attention of the

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legal world on the fact that in the era of the New Federalism,36 learning what the state fundamental law has to say on church-state relations is worthwhile. If the Supreme Court is serious about reempowering the states,37 the states should at least be free to apply their own constitutional guarantees to their local problems.38

In the First Amendment War of the Titans, each side has won its share of battles. For example, the victories of the opponents of the wall of separation have created an environment in which Christian children may establish Bible reading clubs on school property where other non-curricular organizations are permitted to organize,39 public school employees who are "signers" for the deaf may work in parochial school settings,40 and displaying Christian films on public school prop

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erty is not an establishment of religion.41 On the other side, those who wish to maintain the wall of separation between church and state as it has been judicially erected in the educational context have won monumental cases such as Engel v. Vitale42 and Lee v. Weisman.43

The fact that litigation over the role of religion in schools is burgeoning should be no surprise, given the growing militancy of some faiths and their announced goals of inserting their beliefs into the daily life of public conduct, particularly conduct relating to schools.44 The 1999 Term of the Supreme Court yielded two important opinions on the issue, one involving prayer in a school setting,45 the other involving government aid to religious schools.46

The prayer case involved an elected student's recital of a prayer over a school-owned public address system prior to an inter-school athletic competition. By a six to three vote, the Court determined that the practice was a violation of the Establishment Clause.47 The aid

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case involved a statute that channeled federal money, via state educational agencies, to local public school administrations that, in turn, lent materials and equipment to private schools for "secular, neutral, and nonideological" programs.48 Most of the recipients of this aid were Catholic schools. The Court found that the program neither resulted in governmental indoctrination nor defined its recipients by reference to religion, and thus was constitutional.49 These decisions send mixed signals regarding church-state relations in the twentyfirst century and add to the confusion that has characterized this jurisprudence for decades.50

TESTS

In the nearly sixty years that has followed the Supreme Court's declaration that a state statute requiring a flag salute and pledge of allegiance in a public school was an unconstitutional infringement on the rights of youngsters who did not believe in such symbolism,51 the Court has struggled with the conflicting claims surrounding churchstate relations. But, it has only been since the original school prayer case in 196252 that the Court has tried to develop principles by which to test claims of excessive involvement between church and state.53 State courts,54 on the other hand, and particularly Nebraska's,55 had

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been breathing life into their unique constitutional provisions relating to religion and education long before the federal courts undertook to interpret the U.S. Constitution's religious guarantee provisions. The state courts' work is not yet complete, as the Era of the New Federalism may yet see the pendulum swing back toward a position where they will define basic constitutional rights.

Since the Court's entry into religion and education cases just over a half-century ago, it has primarily used two tests to scrutinize conflicting claims under the Establishment Clause. The first is the "secular purpose and effect" model.56 The second is the enduring, but controversial model devised in the 1971 majority opinion of Chief Justice Burger in Lemon v. Kurtzman.57 Never abandoned by the Court's ma-jority,58 certain justices59 have grown increasingly hostile to its appli-cation.60 This test, referred to as the Lemon doctrine, declares that in order for government action to survive Establishment Clause scrutiny, (1) the action must have a secular legislative purpose, (2) its principal or primary effect must be one that neither advances nor inhibits religion, and (3) it must not foster an excessive government entanglement with religion.61 Both tests presuppose the constitutional value of the doctrine of separation of church and state, whose proponents adhere to the notion that separation is essential to the protection of an individual's religious liberty.62

During the same sixty year period in which the Supreme Court's shifting majority struggled to find and apply a separation standard that had intellectual integrity and could be applied in a common sense fashion, opponents of separation, both judicial and academic, fought to discard any remnants of Lemon.63 These individuals rejected separation as a guiding principle of First Amendment doctrine and applied a third "coercion" standard to all Establishment Clause cases.64 The co

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ercion standard judges government practices by whether they directly support religion or coerce citizens to engage in some religious activity. This means that that conduct advancing or endorsing a particular religious faith would be held to violate the Establishment Clause only if the conduct were to force, on pain of penalty, an individual to believe in or act in accordance with a religion against the individual's will. One writer observed that "[u]nder this standard, theocratic governmental policies would no longer automatically violate the Constitution. . . . [C]oercion theory radically departs from existing attitudesabout the role of government, the parameters of individual autonomy, and the nature of religion."65

A fourth test of the constitutionality of government conduct, referred to as the endorsement test, is found in Justice O'Connor's concurring opinion in Lynch v. Donnelly.66 Under this test, the Court looks to see if the government has engaged in purposeful endorsement of a religion. Justice O'Connor writes that the proper inquiry is whether a reasonable observer would discern an actual message of endorsement from the government's conduct.67

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