Freedom of Religion vs. Public School Reading Curriculum

• Publication year: 1989
• Citation: Vol. 12 No. 03

UNIVERSITY OF PUGET SOUND LAW REVIEWVolume 12, No. 3SPRING 1989

NOTES

Freedom of Religion vs. Public School Reading Curriculum

Keith Kemper

The first amendment guarantees that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof . . . ."(fn1) From this language comes the fundamental constitutional notion that government and religion ought to be separate. The pursuit of this "separation of Church and State" has caused continued controversy, and none more heated than the controversy surrounding the influence of religion in public schools.(fn2)

It is no surprise that the curriculum of public schools has often been the center of controversy, for the public school classroom plays a major role in the transmission of society's values to young students.(fn3) Parents and students who have religious objections to the values being taught are more and more frequently bringing their disputes into court, claiming a violation of their religious liberty.(fn4) One such dispute was at issue in Mozert v. Hawkins County Board of Education.(fn5) In Mozert, conservative Christian(fn6) children and their parents claimed that their first amendment right to freely exercise their religion was burdened by compulsory reading from a basic reading series that they claimed undermined their Bible-based world view.(fn7) The United States Court of Appeals for the Sixth Circuit, however, found that there was no burden, in the constitutional sense, on the plaintiffs' right to freely exercise their religious beliefs.(fn8)

The purpose of this Note is to analyze that appellate decision in light of recent United States Supreme Court opinions regarding the free exercise of religion. Section I will explain the legal issues that are relevant in deciding this and similar free exercise cases.(fn9) Section II will discuss the history and background of the Mozert case.(fn10) Section III will discuss the different opinions in Mozert.(fn11) Section IV will analyze and critique the different rationales used to decide this case.(fn12) After weighing the alternatives, this Note will conclude that an accommodation should be made for plaintiffs such as those in Mozert that would allow the students to opt-out of the reading program that they claim undermines their religious beliefs.(fn13)

I. First Amendment Legal Issues

To understand fully the controversy in Mozert, a preliminary discussion of the religion clauses in the first amendment is necessary. The Establishment Clause(fn14) and the Free Exercise Clause(fn15) are generally viewed by the Supreme Court as independent mandates.(fn16) The former prohibits government from acting in any way that might further one religion as opposed to another or that might favor religion over nonreligion.(fn17) The latter prohibits government from restraining the right of every person to choose and exercise his or her religious beliefs.(fn18) Because they are separate mandates, the Court has developed separate tests for determining the legality of government action under each clause.(fn19)

The definitive test for Establishment Clause(fn20) violations is expounded in Lemon v. Kurtzman.(fn21) The Lemon test is three-pronged, requiring that, in order to be constitutional, government action must 1) have a clear secular purpose; 2) have a primary effect that neither advances nor inhibits religion; and 3) not foster excessive entanglement between government and religion.(fn22)

In the context of the public school classroom, the Court's primary concern is that the inclusion of religious material in school curricula creates a risk that students could perceive the school to be supporting religion.(fn23) Therefore, no religious activity, no matter how voluntary, has been allowed to take place within the public schools, lest it appear that the schools are inculcating religious values along with important social and democratic values, thereby favoring religious believers over those with nonreligious beliefs.(fn24) The Supreme Court has found an Establishment Clause violation in every instance in which the presence of religion could directly or indirectly influence the beliefs of school children.(fn25)

When a government action is found to violate the Establishment Clause, the appropriate remedy is a prohibition of that government action.(fn26) Prohibition is necessary because merely exempting an individual from participation does not neutralize the perception that the government supports religion.(fn27) For example, when the Supreme Court found that Bible readings in the classroom violated the Establishment Clause, the Court prohibited that type of activity, because merely removing the offended students from the classroom during the readings would not eliminate the perception that the school supported religion.(fn28)

The test and remedy for violations of the Free Exercise Clause are markedly different from those of the Establishment Clause, for although the two clauses are related, they protect somewhat differing interests.(fn29) Thus, an individual may have a cause of action under one clause but not under the other.(fn30)

The basic test in deciding free exercise claims involves three related questions. First, has some government action imposed a burden(fn31) or penalty upon the exercise of a particular religion? Second, if a burden is found, is that burden justified by some compelling state interest? Third, if the state interest is compelling, is imposing the burden the least restrictive manner of protecting the interest involved?(fn32) Thus, the test is one of strict scrutiny; government action must be of the utmost importance(fn33) before religious objectors can be subjected to its regulations.(fn34)

The remedy applied in cases involving the Free Exercise Clause is also different from the remedy for Establishment Clause cases. In free exercise cases, the questioned government action is only invalid as it applies to the burdened individual.(fn35) Therefore, the remedy is to exempt the individual from the application of the statute or action.(fn36) The statute or action need not be removed. In fact, prohibiting the government action might well be unconstitutional under the Establishment Clause because it would, in effect, mean that a religious minority could dictate the actions of government, based on religious considerations.(fn37)

A good example of a remedy for a Free Exercise Clause violation is found in Sherbert v. Venter.(fn38) In Sherbert, an unemployment compensation statute in South Carolina provided compensation only to those individuals who, with "good cause," were unable to find suitable work. Sherbert, a Seventh-Day Adventist, was unable to find suitable work because all of her potential employers wanted her to work on Saturday, the Sabbath. Since the unemployment compensation statute made no such exception to the requirement that a person accept "suitable work," Sherbert was denied unemployment compensation.(fn39) Thus, although the South Carolina statute was facially neutral toward religion,(fn40) it was indeed oppressive(fn41) as it applied to Sherbert or other Seventh-Day Advent-ists, Orthodox Jews, or anyone else with similar convictions. The remedy was to make an exception for Sherbert and allow her compensation so long as she could not find suitable work that did not require her to work on Saturday.(fn42) The compensation statute itself was not eliminated because it was a fair and legal requirement, except as it applied to certain religious adherents.(fn43)

There is a natural tension between the two religion clauses that has been troublesome for the courts.(fn44) Allowing a religious exemption from an apparently neutral government action under the Free Exercise Clause conflicts to some degree with the government's commitment to favor no religion under the Establishment Clause, because the exemption itself may appear to advance religion.(fn45) However, the Supreme Court, through a line of cases including Sherbert, Wisconsin v. Yoder, Thomas v. Review Board, and Hobbie v. Unemployment Appeals Commission of Florida,(fn46) appears to have committed itself to a principle of substantive religious neutrality: if a facially neutral statute results in substantially different burdens on different religious adherents, an exemption ought to be allowed in order to make the parties substantially equal.(fn47)

Even so, problems remain in deciding what accommodations can be made without favoring a particular religion and, thereby, violating the Establishment Clause.(fn48) "Some of the most complex legal questions are raised when students' rights to attend public school in an environment free from state sponsorship of religion are pitted against claims that accommodations to religious beliefs are required to protect free exercise rights."(fn49) There is also the difficult task of deciding what weight to assign to the state's interest, as opposed to the burden on an individual's religious liberty.(fn50) At the heart of each of these issues is the problem addressed in Mozert.

II. History of the Case

A. Background

Early in 1983, a textbook selection committee appointed by the Hawkins County School District recommended the purchase of the 1983 edition of the Holt, Rinehart, and Winston basic reading series(fn51) for use in grades one through eight of the county's public schools.(fn52) The committee evaluated several series of textbooks over a number of...