Modern-day School Prayer: How Public Schools Are Teaching Buddhist Meditation in Violation of the Establishment Clause

• Publication year: 2022

52 Creighton L. Rev. 325. MODERN-DAY SCHOOL PRAYER: HOW PUBLIC SCHOOLS ARE TEACHING BUDDHIST MEDITATION IN VIOLATION OF THE ESTABLISHMENT CLAUSE

MODERN-DAY SCHOOL PRAYER: HOW PUBLIC SCHOOLS ARE TEACHING BUDDHIST MEDITATION IN VIOLATION OF THE ESTABLISHMENT CLAUSE

Drew D. Engle ^[*]

I. INTRODUCTION

The United States Supreme Court has previously warned that "great consequences can grow from small beginnings." ^[1] What can appear to be simple breathing exercises to help students handle stress could actually lead to the religious indoctrination of an entire generation. Public schools are training students in Buddhist practices through the teaching of mindfulness. ^[2]

The origins of mindfulness are not in dispute. ^[3] Jon Kabat-Zinn, the founder of mindfulness, freely admits mindfulness is based on Buddhism. ^[4] However, proponents of mindfulness are strategically avoiding using Buddhist terms, including the word Buddhism itself, in an attempt to make Buddhism more palatable to a western audience. ^[5] Mindfulness is Buddhist meditation repackaged. ^[6]

In recent years, many public schools have adopted mindfulness as part of the curriculum. ^[7] In those schools, it is now the role of the teacher to lead students in Buddhist meditation exercises in the class-room. ^[8] Schools districts are directing and training teachers on how to teach mindfulness. ^[9] This Article will argue that through the adoption and promotion of mindfulness programs in public schools, the state has determined what religion is to be taught, who is to teach it, and how it is to be taught. ^[10]

This Article will highlight the various factors used by the Supreme Court to determine if the Establishment Clause has been violated in the public school setting. ^[11] This Article will review the history of mindfulness and its Buddhist meditation practices. ^[12] This Article will show that mindfulness is merely Buddhist meditation re-packaged. ^[13] Ultimately, this Article will argue that, upon applying Supreme Court precedent, teaching mindfulness in public schools violates the Establishment Clause. ^[14]

II. BACKGROUND

The first sentence of the First Amendment to the United States Constitution provides that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." ^[15] The Establishment Clause only served as a limitation on Congress' legislative power until the United States Supreme Court, in Everson v. Board of Education, ^[16] applied the Establishment Clause to the states through the Due Process Clause of the Fourteenth Amendment. ^[17] The Supreme Court has stated that "[t]he fundamental concept of liberty embodied in [the Fourteenth] Amendment embraces the liberties guaranteed by the First Amendment." ^[18] Therefore, the Establishment Clause imposes "substantive limitations on the legislative power of the States and their political subdivisions." ^[19]

The Supreme Court has interpreted the Establishment Clause to mean more than simply forbidding the government to favor one religion over another. ^[20] "[T]he First Amendment was adopted to curtail the power of Congress to interfere with the individual's freedom to believe, to worship, and to express himself in accordance with the dictates of his own conscience." ^[21]

The Court has explained that the Establishment Clause forbids "laws which aid one religion, aid all religions, or prefer one religion over another." ^[22] The Supreme Court relied on history in acknowledging "that governmentally established religions and religious persecutions go hand in hand." ^[23] "When the power, prestige and financial support of government is placed behind a particular religious belief, the indirect coercive pressure upon religious minorities to conform to the prevailing officially approved religion is plain." ^[24] That is why the Supreme Court has stated "the Constitution guarantees that government may not coerce anyone to support or participate in religion or its exercise." ^[25]

A. SUPREME COURT CASES REGARDING RELIGIOUS ACTIVITY IN PUBLIC SCHOOLS

1. Engel v. Vitale: The Supreme Court Recognizes Minor Endorsements of Religion as Potentially Coercive

In 1962, the United States Supreme Court, in Engel v. Vitale, ^[26] determined that beginning a school day with a prayer violated the Establishment Clause. ^[27] The prayer was composed by state officials as part of the school's moral and spiritual training. ^[28] This religious exercise was to be conducted "by each class in the presence of a teacher at the beginning of each school day." ^[29] Some parents challenged the daily religious exercise as "contrary to the beliefs, religions, or religious practices of both themselves and their children." ^[30]

Respondents defended the program, arguing the prayer was non-denominational or denominationally neutral. ^[31] Respondents also argued there could not be an Establishment Clause violation because students were not required to participate in the program. ^[32] Students that did not want to participate were allowed to either sit and not recite the prayer or be excused from the classroom during the exercise. ^[33] Respondents reasoned that the prayer was "so brief and general there can be no danger to religious freedom in its governmental establishment." ^[34]

Even though the Court conceded that the program did not set up an official state religion, the Court quoted James Madison in stating, "it is proper to take alarm at the first experiment on our liberties." ^[35] The Court reasoned that even a minor endorsement of religion may lead to coerced obedience in the future. ^[36]

In addressing the other defenses of the program, the Court stated that "[n]either the fact that the prayer may be denominationally neutral nor the fact that its observance on the part of the students is voluntary can serve to free it from the limitations of the Establishment Clause." ^[37] The Court concluded by stating that there can be no doubt that the "prayer program officially establishes the religious beliefs embodied in the Regents' prayer." ^[38]

2. School District of Abington Township v. Schempp: The Supreme Court Emphasizes the Importance of Neutrality as Embodied in the First Amendment

In School District of Abington Township v. Schempp, ^[39] the United States Supreme Court addressed two companion cases involving possible Establishment Clause violations in public schools. ^[40] The first case, originating from Pennsylvania, involved a state law that required reading at least ten verses of the Holy Bible at the beginning of each school day. ^[41] While some schools included a recitation of the Lord's Prayer with their readings, all schools were to conclude the exercises with a salute to the flag. ^[42]

The religious exercises were to be accompanied by "no prefatory statements, no questions asked or solicited, no comments or explanations made and no interpretations given at or during the exercises." ^[43] Classes were to simply perform the religious exercise. ^[44] The Scripture readings were taken from the King James Bible, the Douay Bible, the Revised Standard Bible, and the Jewish Holy Scriptures. ^[45] Student participation was voluntary, and students were allowed to be excused from the Bible reading upon the request of a parent. ^[46]

The Supreme Court referenced expert witness testimony from the trial court proceeding that stated reading from the Holy Bible was nonsectarian among the Christian faith and the Jewish faith. ^[47] The expert testimony also noted secular benefits gained from reading the Bible in classrooms, including the great moral, historical, and literary value. ^[48] Even with this expert testimony, however, the Court struck down the exercises explaining that "[t]he reading of the verses, even without comment, possesses a devotional and religious character and constitutes in effect a religious observance." ^[49] The fact that the classroom exercises were practices favored by religions demonstrated that it was the "intention of [Pennsylvania] to introduce a religious ceremony into the public schools." ^[50] The Court also determined the classroom exercises were obligatory, even though participation was voluntary and the students were able to be excused. ^[51]

The second case, out of Baltimore, Maryland, involved a similar statute that "provided for the holding of opening exercises in the schools of the city, consisting primarily of the reading, without comment, of a chapter in the Holy Bible and/or the use of the Lord's Prayer." ^[52]

Both schools defended the exercises on the basis that such exercises provided secular benefits to all public school students regardless of religious affiliation. ^[53] These secular benefits included: "the promotion of moral values, the contradiction to the materialistic trends of our times, the perpetuation of our institutions and the teaching of literature." ^[54] However, the Court explained that even if the public schools were attempting to teach secular lessons, or provide secular benefits to students through these exercises, the schools still used religious exercises to accomplish these goals. ^[55] Therefore, the Court concluded that both schools engaged in religious exercises that violated the Establishment Clause. ^[56]

In examining these cases, the Court referenced an unpublished opinion by Judge Alphonso Taft, the father of former President and Chief Justice William Howard...