The Need for Federal Protection of Religious Freedom after Boerne v. Flores



By the Grace of G-d. Mr. Chairman, thank you for allowing me the opportunity to appear before this honorable committee today in support of the need for federal protection of religious freedom after the United States Supreme Court decision in Boerne v. Flores, where the Court held that Congress' enactment of the Religious Freedom Restoration Act was unconstitutional as applied to the States. I am grateful for the chance to speak to this problem in a public forum, and I am hopeful that you can pass positive, reasonable legislation to meet the pressing demand for such federal action, especially in the environment where it is most needed and will do the most good _ the hundreds of state and local prisons around the country.

I can and will provide personal testimony as to the present reality of how, usually in the name of administrative convenience, many state prison administrators have returned to the pre-RFRA period and once again routinely trample upon legitimate minority religious practices with seeming impunity. In many egregious cases, they tolerate shameful racism and anti-Semitism by both inmates and staff.

My name is Isaac M. Jaroslawicz, and I am the Director of Legal Affairs for the Aleph Institute, a national, not-for-profit educational, advocacy and humanitarian organization that was founded over 16 years ago by Rabbi Sholom D. Lipskar at the express direction of Rabbi Menachem M. Schneerson, the Lubavitcher Rebbe, of blessed memory. Rabbi Schneerson, as you know, was the first religious leader in our nation to be awarded the Congressional Gold Medal of Honor. It was he who recognized the need to minister to those of our brothers and sisters who are enduring the lowest depths of our exile. It was he who named our group, noting that, "In Hebrew, only one letter differentiates the word for "exile" or "imprisonment" (gola) from the word for redemption" (geula). That letter is Aleph, the first letter of the alphabet. The first step."

We have tried to live up to the Rebbe's ideal. Aleph's mission and mandate is narrowly focused and clear: to serve one of the pressing needs of our society by addressing significant issues relating to our criminal justice system. Among other things, Aleph helps state and federal departments of correction meet the legitimate religious needs of Jewish inmates. We receive, on average, over 1,000 letters and telephone calls per month from inmates and their families, many of which concern unreasonable restrictions on religious practices in the prison environment, some of which I have appended to our written submission.

There are an estimated 6,000 to 8,000 Jewish men and women incarcerated in federal, state and local jails and prisons. This, out of a total population that now exceeds 1.5 million. And while it may appear to be a blessing that my co-religionists constitute such a minute percentage of that population, those who are imprisoned suffer immeasurably.

Judaism is unlike many religions in which adherents are offered salvation primarily for their beliefs or occasional ritual practice. Rather, Jewish law imposes a duty on its adherents to insure that all actions, including eating, drinking, talking, walking, sitting, dressing, transacting business, praying, studying, lying down and rising up, are all performed in a certain way for the sake of, and in a manner worthy of, serving our Creator. Accordingly, the observant Jew's day is consumed with ritual, requiring such items as certain articles of clothing (e.g., a head covering such as a yarmulke and a prayer shawl), prayer books, Torah volumes and phylacteries.

Pre-RFRA, the religious concerns of the average prisoner were generally ignored. Prison personnel had little, if any, understanding of Jewish requests for religious services, and followed an institutional mind-set that traditionally regarded the unique petitions of Jewish inmates as a "burden to the system." Moreover, prison administrators had no concerns about facing Jewish riots, if only because of the low numbers of such inmates. As a result, many religious requests from Jewish men and women were ignored, purposefully delayed in "channels," or dismissed out of hand by unsympathetic supervisors. In worst-case scenarios, Jewish individuals attempting to meet legitimate religious needs were treated with suspicion, contempt, hostility, and even subjected to wrongful punitive actions.

If nothing else, RFRA forced prison officials to stop and think before simply denying requests for religious accommodation. Suddenly, the fact that such accommodation involved some bureaucratic inconvenience was no longer sufficient to sustain a denial. Indeed, although administrators vociferously complained that RFRA had increased litigation, the State of Texas, which filed an amicus brief in Boerne, acknowledged that its Office of Attorney General handles 26,000 cases at any one time, of which only 2,200 were inmate related, and only 60 of those were RFRA-related. Brief of Amicus Curiae State of Texas, City of Boerne, Texas v. Flores, No. 95-2074 (U.S. 1997) at 7. Thus, the Texas brief noted: "RFRA-related cases represent .23 (that is, one-quarter percent) of the entire caseload of the Texas Attorney General's office, and about 2.7 percent of the inmate-related (non-capital punishment) caseload of the State of Texas. Moreover, of the approximately 60 RFRA-related cases, many of these are frivolous to be dispensed summarily...." Id. at 7-8

My own experience demonstrated that the potential of litigation—and the real risk that the prison system might lose—fostered a much more cooperative effort to find solutions that worked for everyone. For example, in 1996 the State of Michigan Department of Corrections suddenly decided to prohibit the lighting of Chanukah candles at all state prisons. The asserted basis for the decision was "fire safety," notwithstanding that smoking, cooking and votive candles were all still allowed. Moreover, officials insisted on enforcing the ban even after some good-hearted institutional fire marshals offered to stand over the communal menorahs with fire extinguishers for the 40 minutes that the candles would burn. There is little doubt in my mind that the DOC's last-minute decision to allow menorahs came about because someone in their legal department told them they had a real risk of losing the litigation we threatened under RFRA—and losing big.

In the aftermath of the Boerne decision, President Clinton reaffirmed the federal government's commitment to RFRA, and federal agencies appear to remain faithful to its dictates. The Federal Bureau of Prisons, under the able leadership of Director Kathleen Hawk and through the guidance of Assistant Director Wallace Cheney and Chief Chaplain Susan Van Baalen, has done a remarkable job of working to accommodate the religious needs of its population. Understandably, in a system that now houses over 100,000 inmates of diverse backgrounds at over 100 facilities across the country, there are still problems to overcome. But the basic commitment to accommodate legitimate religious practices is certainly present, consistent with the legitimate needs of institutional security and administration.

Unfortunately, the same cannot be said now for many state and county departments of corrections.

Having filed an amicus brief ourselves supporting RFRA in the Boerne case with Prison Fellowship Ministries, I was present at the oral arguments before the Supreme Court. I listened as the Assistant Attorney General for the State of Ohio argued that federal protection of religious freedom was totally unnecessary, and that his state and others would certainly outdo RFRA on a local level if only given the opportunity. That has not proven to be the case. The State of Ohio still suppresses religious freedom, and joins many states, including, unfortunately, our own home state of Florida, in routinely refuse to accommodate Jewish religious prayer services and denies Jewish inmates the opportunity to obtain kosher food.

Immediately after the Supreme Court's decision in Boerne, the State of Washington's Department of Corrections issued a memorandum recommitting itself to the standard codified in RFRA. Unfortunately, that was the remote exception rather than the rule.

The State of Michigan has established a departmental rule formalizing its policy of refusing to recognize work proscription days such as the Sabbath and any religious holidays. And while it professes to provide kosher food at certain institutions, those institutions are only located in cold, isolated parts of the state, making it practically impossible for family members or clergy to regularly travel 800 miles or more to provide any visitation. Moreover, no Jewish prayer services are offered at these facilities, essentially forcing Jewish inmates to choose between family, food and prayer. In Michigan and many other states, Jewish religious texts are routinely rejected or confiscated. Religious items such as phylacteries are routinely barred.

Aleph has just filed an amicus brief in the United States Court of Appeals for the Third Circuit, because the Pennsylvania Department of Corrections now insists that Jewish inmates who request kosher food will have to subsist on a raw fruit, a vegetable, a granola bar and a "liquid nutritional supplement"—served for each and every meal. This, notwithstanding that other groups seeking accommodation, such as Muslim inmates, are offered hot, non-pork meals.

Many Jews in state prisons are afraid to even announce their religion, for fear of the anti-Semitic attitude of wardens, guards and other inmates—especially in environments where groups such as the Aryan Brotherhood, the KKK, Black Muslims, the Black Mafia, Spanish Mafia, etc. flourish and sometimes control. Jewish inmates in Arizona have been knifed and beaten, then placed in isolated segregation "for their own benefit" while the perpetrators roam free. One inmate in Texas, Brett Cook, declared himself Jewish and requested accommodation. After refusing to withdraw a religious freedom lawsuit, he suddenly found himself transferred from a minimum to maximum security prison, where, apparently, neo-Nazi skinheads were alerted as to his imminent arrival. Within 15 minutes of his being placed on the compound, he was set upon by members of a gang and killed. The crime was never solved and, shamefully, the Texas Department of Criminal Justice quietly put the case on the shelf. The major who ordered the transfer was subsequently found responsible for retaliatory transfers in other instances.

Certainly, the senior officials in state government and administrators of some states' departments of corrections recognize the importance of allowing inmates to develop their spiritual side. Nevertheless, many rank and file staff and chaplains appear to believe that salvation can only come by following the beliefs and dictates of their own religion and beliefs. For example, almost alone among the states, the State of Texas filed its own amicus brief in the Boerne case wholeheartedly supporting the Religious Freedom Restoration Act, and provided an excellent counterpoint to the sixteen states that filed a hysterical amicus brief in opposition. Yet, Rabbi Ted Sanders, the official Jewish chaplain for the Texas Department of Criminal Justice, has gone on the record to state that most of the other line chaplains in the Texas prison system fight everything Jewish, from releasing inmates for services, to denying them and confiscating prayer books, Bibles, talaisim (prayer shawls), yarmulkes, etc. In many instances, the chaplain or administration will confiscate needed Passover supplies, such as matzo and horseradish that the Rabbi provides, and say it's "contraband." Missionaries constantly try to convert Jewish inmates with promises of toothpaste and soap. Inmates are hounded if they wear a yarmulke in their cells while praying. Rabbi Sanders states that it seems to him that there is a deliberate attempt to make it impossible for Jewish inmates who want to attend Jewish services from doing so. Non-Jews who inquires about converting to Judaism are subjected to harassment and intimidation, too. Unfortunately, the story is the same at many other state prisons around the country.

Even minor requests from Jewish inmates are often summarily denied. For example, we have received hundreds of letters from Jewish inmates around the country who advise us that administrators at their facilities regularly refuse to allow them to miss meals during a Jewish fast day and obtain a "sack lunch" to "break" their fast after nightfall. Lest anyone think that such requests unreasonably burden the system or constitute a legitimate threat to security, note that Muslim inmates are regularly granted such accommodations, particularly during the 30-day Ramadan observance.

The extremes of the insensitivity of the institutional mindset can best be seen—but perhaps still not comprehended—by reviewing Rabbi Sanders' statement, where he relates how prison authorities in Texas attempted to deny Max Soffar, a Jewish death-row inmate, the opportunity to have a Rabbi present at his execution, and insisted on only allowing a Christian minister to preside. Fortunately, Rabbi Sanders was able, albeit with some help, to have that offensive policy changed.

Of course, not all state prison systems have shown such callous disregard for such basic human rights. Illinois has just announced a unique partnership with Aleph's affiliated Rabbi in that state, Rabbi Binyomin Scheiman, that will insure that Jewish inmates at more than 20 prisons in that state will receive sufficient kosher-for-Passover foods to observe the upcoming holiday. Chaplain Leon Adams of the Vandalia Correction Center suggested that Prison Industries could deliver all the meals. Mr. Ronald Parish and Paul Swagmeyer at the IDOC headquarters in Springfield gave their enthusiastic approval. Other states, and many hundreds of chaplains of good faith employed in their prison systems, have contacted Aleph for donations of tens of thousands of pounds of matzo, grape juice, and other Passover supplies.

Contrast this, however, to Michigan, which refuses to allow us to ship matzo, the unleavened bread required to be eaten by Jews on Passover, to any of their high-security facilities. They assert that "outside" foods are prohibited, yet also adamantly refuse to purchase matzo on their own, essentially forcing all their Jewish inmates to violate their mandated religious practices.

Now, unfortunately, I do not have RFRA as an equalizer to level the playing field. Expensive and wholly-unnecessary litigation may result.

While punishment is clearly necessary in a moral society, confinement itself is a grim failure according to numerous American and world penal experts. Behind the walls, the gates, the barbed-wire fences or the lines, ambitions, dreams and endearments are regularly snuffed out. Monotonous assembly line routines replace opportunities for personal growth. An emotionally scarred and unforgiven individual is the common product—a man or woman who will one day reenter society—but alone, stripped of dignity, societal rights and financial resources. Is it any wonder that we have the problems we do of recidivism?

"Modern" incarceration already imposes stunning hardships on the average prisoner. Aleph not only works with staff and inmates, but provides counseling and support to families of inmates, too. From our experience, the insidious damage incarceration wreaks on marriages is often irreparable. The cavernous rifts it creates between parents and children are tragic. The powerful emotions it fosters can be disabling: guilt, fear, isolation, depression, callousness, and a sense of failure. It is disheartening that America has managed to establish the world's most elaborate inventory and warehousing hubs for human beings—and accomplishes little more.

Spiritual development and study have proven to be some of the most valuable tools for rehabilitation and to prevent recidivism. For the record, I have appended to our written submission those pages from our amicus brief in the Boerne case that highlight the importance of religious exercise in the prison environment and traces our country's historical recognition of its importance in furthering legitimate penological goals and objectives.

Mr. Chairman, federal legislation, especially with respect to inmates, is appropriate and justified for at least three reasons:

First, many states simply will not address these issues with a local-RFRA initiative, promises to the Supreme Court notwithstanding.

Second, because all state criminal justice systems obtain federal funding of one kind or another.

Third, a flourishing trade in interstate commerce has actually developed in living human beings. As a result of overcrowding in some states and overbuilding in others, states such as Texas, Michigan, Kansas, Oklahoma, Colorado and others each transfer or receive inmates from other states. Often, the receiving state does not offer the same religious tolerance as the shipping state. In many cases, Jewish inmates in one state who request accommodation find themselves shipped in the dead of night to a facility in another state hundreds or thousands of miles away from family and community. The problem is exacerbated when such inmates are housed in county or private facilities in the receiving state. As Alex Taylor, Chaplain Coordinator for the Texas Department of Criminal Justice (and a person who has extended himself against overwhelming odds on behalf of religious freedom in Texas prisons) has noted, such persons are "out of reach" of the chaplaincy departments of the state prison system. A federal statute - and a uniform standard that can be interpreted and developed by the courts - should eliminate the wide discrepancies that exist.

Such federal legislation is imperative for at least two reasons. First, because even if states do pass local religious freedom acts, they contain widely-varying standards. Many of the acts enacted or proposed specifically contain prisoner exemptions, primarily because local politicians do not have the fortitude to stand up to a powerful local prison industry and a mob mentality which believes that stripping human beings of every vestige of civilization and humanity is an appropriate way to deal with the issue of crime. Second, prisoners above all need a federal forum in which they can present their grievances. State courts, and the elected judges who often sit therein, are subject to the same pressures as local politicians. Moreover, in the growing number of cases where an inmate is convicted in one state but housed in another, issues of differing standards, jurisdiction and conflicts of law, will create a legal quagmire and subject the victim to the vicissitudes of which particular jurisdiction controls. Basic human freedoms of religious exercise should not be subject to such vagaries. Concerns about a wave of federal litigation were voiced but proven unfounded when RFRA was first enacted. Today, of course, the Prisoner Litigation Reform Act is in effect, and will certainly serve to provide an additional limit on those frivolous claims that may be asserted by the litigious or insincere.

Mr. Chairman, it is important to continue the federal process of protecting one of our most-cherished rights—the right to practice our religion. While I am sure there are good reasons in the free world to merit such protection, the deplorable conditions of which I am personally aware certainly cry out for your support. I thank you again for allowing us this opportunity to discuss these issues here today, and I thank Congressman Canady for recognizing the problem and moving forward in the House with a proposed solution.

* The Aleph Institute is a not-for-profit, publicly-supported charitable institution under Section 501(c)(3) of the Internal Revenue Code. On behalf of persons convicted of crimes it advocates an understanding when and how alternatives to prison which protect the public are possible. Second, it helps those in prison develop their spiritual lives and maintain contact with their families and the world beyond their bars and barbed wire. Third, it assists those outside, particularly the children of prisoners, to retain their ties with prisoners. The Institute filed a friend-of-the-Court brief with the United States Supreme Court in the matter of City of Boerne v. Flores. Mr. Jaroslowicz delivered this testimony before the House Judiciary Committee on March 26, 1998.

Distribution of Religious Materials at School: Lessons from the Bible Belt
Thomas E. Wheeler *

As microcosms of our society in general, it is not surprising that our schools are more and more frequently being placed in the position of walking a tightrope between civil libertarians who advocate a strict wall of separation between church and state (e.g., the positions of the American Civil Liberties Union and the Americans United for Separation of Church and State) and religious advocates who believe that the moral decay in America can be directly linked to the exclusion of religious discourse from the schools (e.g., the position of the American Center for Law and Justice). One of the hot current battlegrounds between these factions is in the student distribution of religious materials.

Following the decision in Westside Community Schools v. Mergens affirming the constitutionality of the Equal Access Act, a number of evangelical organizations declared that students now had a constitutional right to distribute religious materials in the schools. For example, an organization entitled Christian Advocates Serving Evangelism ("CASE") produced a pamphlet stating, "Students have the right to pass out Christian papers and tracts to their peers on campus. As long as the students do not disrupt school discipline, school officials must allow them to be student evangelists." Much of the early litigation on the distribution of religious literature by students at school not surprisingly therefore involved the CASE pamphlet "Issues and Answers." The purpose of this article is to discuss the case law surrounding these issues and suggest some neutral guidelines relating to the distribution of religious materials in schools.

A. Religious Pamphlets

In Nelson v. Moline School District No. 40 some high school students began passing out CASE publication Issues and Answers in the hallways before classes began. This was reported to the high school principal who announced that students were prohibited from distributing any materials without prior approval from him. He also stated that materials approved for distribution would be placed in the school office. Several days later (probably after speaking with the school's attorney) the policy was revised so that students desiring to pass out materials were required to get the principal's prior approval, and then the students were permitted to pass out the materials at the entrance to the school both before and after school. The students filed suit alleging that their First Amendment rights were violated when the school refused to permit them to pass out their religious materials in classrooms and halls during passing periods.

The court began its analysis by noting the familiar rubric from Tinker v. Des Moines Independent School District that "[s]tudents do not shed their constitutional rights at the schoolhouse gate." Utilizing a forum analysis, however, the court determined that Moline High School was a non-public forum and therefore the school could prohibit the distribution of all materials if it wished, or in the alternative impose reasonable time place and manner restrictions on the distribution of these materials. The court then found that Moline's policies were reasonable and were not an impermissible prior restraint on the student's First Amendment rights.

Similar issues were raised in the case of Hedges v. Wauconda Community School District No. 118. As with the Moline case, in Hedges junior high school students were passing out Issues and Answers to their peers. The school's 1990 policy permitted students to distribute materials unless the material was obscene or libelous, and provided that "[a]t the elementary and junior high school, written material that is of a religious nature is also prohibited." The students challenged this policy which was promptly thrown out as unconstitutional. The Seventh Circuit affirmed noting that "no arm of government may discriminate against religious speech when speech on other subjects is permitted at the same place at the same time." The school then developed a second policy which required the following when students sought to distribute more than ten copes of any materials:

  1. Notification of administrators at least 24 hours prior to the distribution of the proposed materials;

  2. Materials to be distributed from a designated table immediately prior to school and immediately after school;

  3. Obscene, libelous and religious material that students might believe to be sponsored, endorsed or have the official imprimatur of the school were forbidden; and,

  4. Material that was "primarily prepared by non-students or which concerns the activities, or meetings of a non-school sponsored organization" was banned.

Under this new policy a student was forbidden by the school from handing out Issues and Answers as well as a flyer inviting students to her church for a gathering to send postcards to servicemen and women serving in Operation Desert Storm. The student was, however permitted to distribute a position paper written by her quoting the First Amendment on the topic, "I Believe in God, Won't You?"

Utilizing the forum analysis, the Seventh Circuit held that schools were at the most limited public forums, and as such could impose reasonable restrictions on student distribution of literature. With respect to item one, the prior review of materials, no challenge was made to this restriction as being a prior restraint. With respect to item two, the time, place, and manner restrictions, the Seventh Circuit overturned the district court and held that as follows:

Limiting distribution to a designated place is not an inappropriate rule, given the nature of the school and the principal's lawful control over pupil's behavior within. Part B.2 of the rules does not discriminate against any subject matter or viewpoint, and this record does not contain any indication that demand for access to the designated table is so great that some would-be speakers have been excluded.

The Court then addressed item four, the ban on non-student materials. The district court found that the ban violated the Constitution, but the Seventh Circuit reversed, noting that "[w]hether a school serves pupils' interests by curtailing their dissemination of leaflets prepared by third parties is not a question of constitutional law." The Seventh Circuit essentially noted that this was an educational decision to be left to the schools and because the rule "does not treat religious speech any differently from politics, literature, the arts, and other subjects" there was no Constitutional violation in applying this broad prohibition. In so finding, Judge Easterbrook also pointed out that there was a "safety valve: if they are content to pass out 10 or fewer copies, they need not incur the labor of exposition [i.e. write the materials themselves]."

In Johnston-Loehner v. O'Brien, although the school's policy was found to impose reasonable time, place and manner restrictions, it was still struck down because of the manner in which it was applied. In that case a student wished to pass out two pamphlets, "Strange Facts About You, God, and Your Mother" and an invitation to a Harvest party at her church as an alternative to Halloween activities. Although the policy itself was content-neutral, it gave the superintendent wide discretion as to what he approved or disapproved, and he used it to screen out all religious materials, while allowing other non-religious materials to be distributed. Thus while trying to avoid the Establishment Clause violation the Superintendent violated the Free Speech clause.

In Harless v. Darr a first grade student was distributing religious tracts to fellow students while they were in the classroom preparing to go to lunch. The student was told he could not pass out the religious tracts; he, in turn, and sued the school, alleging that its actions violated his First Amendment rights. The policy essentially tracked the one approved by the Seventh Circuit in Hedges except that it did not contain the ban on non-student produced literature. In generally approving the school's policy the district court adopted the Hedges analysis and noted that the elementary school was a nonpublic forum. The major difference between the Hedges' policy and the policy in Harless was the requirement that administrators review the proposed materials "[a]t least 48 hours prior to any distribution." The student challenged this provision as being an unconstitutional prior restraint. After additional briefing the district court found that the policy was not an impermissible prior restraint because "under the distribution policy a student need not await affirmative action from the Superintendent before proceeding with a distribution, but presumably may proceed with the distribution without the Superintendent's permission." On this basis, the court concluded that the policy requiring students to submit a copy of the literature to be distributed did not constitute an impermissible prior restraint.

In Muller v. Jefferson Lighthouse School the Seventh Circuit revisited the issue of student distribution of religious material and specifically the prior restraint issue that was left open in Hedges. The school had a policy similar to that in the Hedges case but also required that any materials distributed have the following disclaimer: "The opinions expressed are not necessarily those of the school district or its personnel." As in Harless, the court in Muller noted that elementary school students do not have the same degree of free expression rights that high school students have. The court held that elementary schools were generally non-public forums, and "an elementary school under its custodial responsibilities may restrict such speech that could crush a child's sense of self-worth." The Seventh Circuit also found that "[p]rior restraint of student speech in a nonpublic forum is constitutional if reasonable ... Prior restraint in the public school context, and especially where elementary schools are concerned, can be an important tool in preserving a proper educational environment." Although noting that the pre-screening process was involved a "highly specific factual inquiry" the Seventh Circuit indicated that so long as educators act "reasonably" their decisions will pass Constitutional muster.

B. Boy Scouts of America Materials

In Sherman v. Community Consolidated School Dist. No. 21 of Wheeling the issue was whether it was proper for a school to permit the Boy Scouts of America to distribute material about its organization at an elementary school. The material did not have any specific religious message, although the Boy Scouts do require that their members profess a belief in God. The Seventh Circuit was almost dismissive of the parents' complaint noting that because the Boy Scouts' literature contained no overt religious messages, "the religious message of the BSA is sufficiently divorced from the workings of the school to obviate the possibility of the students confusing the two."

C. Bible Distribution by School

Unsurprisingly, in marked contrast to student distribution of religious materials, the courts are much more restrictive of schools permitting outside organizations to come in and distribute materials. A classic example of this is the case of the Rensselaer Central School Corporation located in northern Indiana. For approximately 50 years Rensselaer had permitted two representatives of the Gideons to come to school each year and during instructional time pass out Gideon Bibles to fifth grade students either in class or in the auditorium. In Berger v. Rensselaer Central School Corporation the town's only Jewish family challenged this practice. Both the district court and the Seventh Circuit made short work of Rensselaer's explanation for the practice. The school tried to argue that the practice did not present entanglement problems and that students would not equate the Gideons' actions with those of the school. Rejecting this argument the Seventh Circuit stated that "the image of hundreds of students being marched into an auditorium for the yearly distribution of Bibles cannot but leave the imprimatur of state involvement." The Seventh Circuit also noted that "[t]he only reason the Gideons find schools a more amenable point of solicitation than, say, a church or local mall, is ease of distribution, since all children are compelled by law to attend school and the vast majority attend public schools."

The Seventh Circuit treated the school's Bible distribution and its arguments in favor of this process almost with disdain. The fundamental difference between this case and the preceding cases is the fact the distribution was not being done by students, but was being done by an outside organization with the tacit cooperation of the school itself on school grounds during instructional time. The Seventh Circuit did leave some leeway for other avenues for outside parties to distribute literature such as leaving it with the principal, placing it at a table, or distributing it prior to the start of or after the conclusion of the school day.

D. Conclusion

Because of propaganda by civil liberties organizations, many school administrators view any mention of religion in the schools as being forbidden under the First Amendment. What they fail to recognize is that religious speech, particularly that by students, must be treated equally with other speech. Thus if schools wish to do so, they may close the forum entirely and be treated as a non-public forum thus having no obligation to allow any literature to be passed out by students. Once, however, schools allow some student distribution of materials, they must have a policy of content neutrality and must apply that policy in a content-neutral fashion. In Secretary Riley's Statement on Religion in the Schools he noted as follows: "Students have a right to distribute religious literature on the same terms that they are permitted to distribute other literature that is unrelated to school curriculum or activities. Schools may impose the same reasonable time, place and manner or other constitutional restrictions on distribution of religious literature as they do on nonschool literature generally."

In preparing a policy of general application, students, parents, and schools should keep in mind the fact that religious material must be treated the same manner as other student distributed literature no better and no worse. Schools should also remember that even if they open up door to some literature, they may still ban certain types of literature including: 1. Indecent, vulgar or lewd material or obscenity defined in reference to minors; 2. Libelous material; 3.Material that invades the privacy of others; 4. Material that promotes illegal activities for minors; 5. Material that promotes unhealthy activities; 6. Material that infringes upon someone's copyright; 7. Advertising or commercial material; and, 8. Material from non-student sponsored organizations.

Thus the argument that allowing student distribution of religious materials will generate all sorts of other problems is not particularly well taken. With respect to reasonable restrictions that may be imposed by schools on the distribution of materials by students (including religious materials), the following restrictions have been approved in one or more of the cases cited above:

  1. A requirement that students wishing to distribute materials notify the principle and submit the material in advance for review to determine compliance with objective written restrictions; (Muller)

  2. A prohibition on distribution of materials in hallways or other thoroughfares or on school busses where the distribution would disrupt order or impede the free flow of student movement between classes; (Hedges and Harless)

  3. Limitations on the time of day and number of days that materials can be distributed; (Hedges and Harless)

  4. Requirement that all materials be placed on designated tables in specific locations; (Hedges and Harless)

  5. Requirement that students clean up materials left on school grounds;

  6. Requirement that materiels bear a prominent disclaimer of school sponsorship.

These are, of course, merely general guidelines, and what is a reasonable restriction is usually defined on a case by case basis. As with anything else, any rigid application of the rules may present problems.

* Thomas E. Wheeler, II is a partner in Bose McKinney & Evans where he is a member of the firm's Education Law Practice Group. His practice consists of the representation of schools and other public sector clients in administrative and litigation matters. His article, "Religious Expression by Teachers: Whose Classroom is it?" was recently published in West's Education Law Reporter at 118 Ed.Law Rep. 571 (July 24, 1997).

Statement on Free Exercise of Religion in Public Schools *
Commissioner Robert P. George *

When he appeared at James Madison High School in Vienna, Virginia, on July 12, 1995, to publicly endorse, and to direct the Secretary of Education and the Attorney General to provide each school district in America with a copy of, the "Guidelines on Religion in the Public Schools," President William Jefferson Clinton emphasized that it was important for everyone, including school administrators, to realize that "the First Amendment does not convert our schools into religion-free zones."

The hearings which the U.S. Commission on Civil Rights has held over the past 5 months were designed to examine whether the religious liberty rights of students and teachers were, in fact, being protected. Sadly, we found that in many respects our public schools have, indeed, been converted into "religion-free zones".

The problem is not merely one of lack of information. The Guidelines have been sent, on two occasions, to every school district in America. The problem in one of commitment _ a lack of commitment to respect the religious civil rights of students and teachers as seriously as we respect other civil rights. For instance, while I applaud the Secretary of Education for distributing the Guidelines, I must note that very little has been done to make sure the Guidelines actually reach teachers, students and their parents. DOEd has not gathered Statistical or other information regarding even the preliminary question whether the Guidelines have been distributed by the school superintendent, nor have they gathered information about the more important question whether the public schools are, or are not, complying with the Guidelines. I have head no credible excuse for this from DOEd. Surely, such a massive bureaucracy, which reaches into public schools in numerous ways to protect other civil rights, could undertake this simple task without undue exertion or expense.

Nor have I head credible reasons why DOEd does not undertake additional steps. Why does it fail to offer in-service training, or training videos, done by a balanced panel of experts, on the Guidelines? (This panel might be composed of the principal organizations which drafted the statement, "Religion in the Public Schools: A Joint Statement of Current Law", which, as Secretary Riley notes, formed the basis for the Guidelines.)

Again, while both the President and Secretary Riley noted the importance of every school district using the Guidelines to develop its own district-wide policy regarding religious expression, what has been done, beyond mere exhortation, to encourage this? So far as I can tell, nothing has been done, except for the holding of three "summits" by Secretary Riley in the THREE YEARS since the Guidelines were originally issued. I would say this hardly evidences a serious, sincere commitment to promote the distribution and usage of the Guidelines in developing district-wide policies in school districts across America.

This is all the more a shame because both the Secretary and the President note that using the Guidelines to develop a district-wise plan will also serve to build consensus and to identify common ground among members of the community before rancorous disputes erupt. One of our witnesses, Charles Haynes of the First Amendment Project of the Freedom Forum, testified in detail about how this process can, and has, worked successfully, particularly in Utah and California, to bring communities together and to help the entire local community understand and respect one another and their First Amendment religious liberty rights.

Mr. Haynes and other witnesses also helped us identify one area in which there are still very serious problems, which go far beyond a lack of information. That area is the curriculum. As we learned, public school curricula across America do not, by and large, take religion seriously. Apart from brief treatment in the "history" portion of the curriculum, religion, and religious viewpoints, are simply ignored. As Warren Nord told us, this is, often, the result of hostility to religion, not of mere ignorance. As Charles Haynes told us, a truly "liberal" education would inform students about the full range of viewpoints and let them choose among them. In many schools, in the name of "neutrality," religious understanding of the world are simply excluded, while materialistic views are the norm. This simply must be changed, for if "neutrality" means anything Constitutionally, it surely means "fairness", and a fair presentation of religion and religious points of view in the curriculum is what is lacking. Everyone would benefit from a careful consideration of the pints raised by Haynes and Nord in their new book, Taking Religious Seriously Across the Curriculum, and by Filbert Sewell, of the American Textbook Council and another of our witnesses, in his new booklet, "Learning about Religion, Learning From Religion". University schools of education should, of course, prepare teachers and administrators to take religion seriously, by offering certification in religious studies (certification which state departments of education should require), else classes in the public schools will not be offered or will likely be poorly taught. Finally, one can only hope that when the Guidelines are reissued in the future, they too will go beyond a mere recitation of the current law to the presentation of a positive vision of the role of religion and religious views in the curriculum and in the school, a vision which is fully consistent with the First Amendment and recognizes the value and role of religion in our nation.

Returning to the Guidelines for a moment, I must note strong disagreement with one portion of them. By saying only that, in light of the City of Boerne v. Flore case, students do not have a federal right to "opt out" of classes which students or their parents find objectionable for religious reasons, the Guidelines leave the misleading impression that no such right exists. However, such rights may, and probably do, exist under state law. And such a right is undoubtedly also protected under doctrines of parental rights, which were conspicuously left unaffected in the area of education by Employment Division v. Smith, 485 U.S. 660 (1990). The right to "opt-out" is highly important because, in my opinion, nothing plays a bigger role in driving students away from the public schools than a failure to recognize such a right. If the Secretary is correct that the right to "opt-out" is no longer protected by federal law, then I think it is imperative that Congress act to make it so.

As noted above, the Guidelines were issued by DOEd in consultation with the Attorney General. As our nation's highest law enforcement official, the Attorney General has, among many other things, the responsibility to enforce the law protecting religious freedom in the public schools. Yet, so far as we were able to determine during these hearings, there is NO ONE at the Justice Department who is charged with overseeing enforcement of the Equal Access Act. This Act, which is a prominent part of the Guidelines, guarantees that student "bible clubs" are given the same access to school facilities as are other non-curriculum clubs. So far as we were able to determine, NO ONE in DOJ is responsible for apprising other federal agencies, including, significantly, DOEd, about legal developments regarding equal access. Finally, in those places in which the federal government has the fundamental responsibility for education (for instance, on military bases), we have received no information that DOJ is ensuring that the Guidelines are being followed.

The point is sometimes made that the Equal Access Act provides for a private cause of action. But so do the federal securities laws; yet DOJ is active in ensuring that they are not violated. Why had DOJ failed to institute a single case against a school district where non-compliance with the Equal Access Act has been widespread? My point is this: Other civil rights are not left solely to the resources of private citizens to protect and defend. DOJ has the resources; it simply chooses to spend them otherwise.

One place where DOJ could start is the public school system in the state of New York. Problems, particularly concerning equal access, arise there regularly. Yet, so far as our witnesses told us, it does not appear that the school system has followed the recommendations of Secretary Riley and the President to make sure that the Guidelines are distributed beyond superintendents to teachers, students, and parents, and to encourage the development of district-wise plans based on the Guidelines. Nor is in-service training provided. The New York State School Board Association, while filing briefs alleging establishment violations on several occasions, has not, so far as I could determine, even once filed a brief supporting a claim that religious free exercise is being denied. It appears school officials continue to rely on a distinction between "religious worship" and "religious speech" which was rejected by the Supreme court in Widmar v. Vincent, 454 U.S. 263, 269 n.6 (1981), and to interpret Lamb's Chapel v. Center Moriches Union Free School District, 113 S.Ct. 2141 (1993), so narrowly as to extinguish it. Ironically, the failure of this school system to move beyond polemics to the common ground an mutual understanding which President Clinton, Secretary Riley, and Charles Haynes, among others, encourage appears to have increased the amount of litigation, and associated costs, which the system faces. A heightened sensitivity to the Constitutionally-guaranteed rights to religious freedom of its students would appear to be in order. Surely a program to instruct and train administrators, school board attorneys, and teachers in the Guidelines (including the Equal Access Act), and the wide dissemination of the Guidelines, followed by a program to develop a plan to implement the Guidelines in each school district, would both decrease litigation, build mutual trust, and protect students' religious civil rights.

I believe these hearings demonstrated that the Equal Access Act, where it has been observed, has been a success _ all of our witnesses in Washington, for instance, agreed on this. (As noted above, I must conclude that New York is not one of those placed where the Act has been faithfully observed, as demonstrated by the array of witnesses at our New York hearing who complained about equal access violations.) Those witnesses were also unanimous, save one, in supporting the position that a religious club has the right to require that its officers espouse its beliefs. This is just plain common sense. An organization which cannot insist that its officers espouse its constituting principles has ceased meaningfully to exist. I encourage Congress to make this right explicit in the statute. Also, given that all our witnesses agreed that the Act has worked well in high schools, Congress should consider making it explicit that it extends to "middle schools" and "junior high schools" as well.

The hearings did not, in my opinion, enable the Commission to examine in sufficient detail the problems faced by teachers regarding their own rights to religious freedom. We are not speaking, obviously, of a teacher indoctrinating a student in the teacher's beliefs, but of a teacher having his own rights violated by the school system. In our Seattle hearing, we heard sufficient testimony to convince me that this is a significant problem, one which merits concern and examination.

It has been three years since the Guidelines were originally issued. In that time, it is clear to me that the federal government has failed to do enough to make sure that we move from rhetoric to implementation. In fact, so little has been done, that it encourages cynics who see the issuance of the Guidelines, far from being an attempt to ensure that religious rights are respected and religion is taken seriously, as a ploy to avoid a Constitutional amendment. One hopes the cynics are mistaken. However, the only way we will know is if the federal government takes serious steps to follow through on the statement of the President and Secretary Riley. One thing our hearings surely demonstrated was that religious liberty currently is not sufficiently secured in our public schools, and that the public school culture has for too long regarded religion, contrary to the Constitution and to common sense, as an enemy. The opportunity to build common ground and to reach the mutual understanding which build common ground and to reach the mutual understanding which Charles Haynes and so many other witnesses discussed has too often been squandered. I encourage public school officials to take the right to free exercise of religion as seriously as they take other civil rights, and to no longer treat it as the forgotten child of our Constitution.

* Robert P. George is McCormick Professor of Jurisprudence at Princeton University. He served from 1993-1998 as a presidential appointee (Bush) to the U.S. Commission on Civil Rights.

Ninth Circuit Rules Landlords' Religious Rights Can Trump Antidiscrimination Law
Gerald J. Russello*

In a decision that could have far-reaching consequences for religious liberties jurisprudence, a panel of the Ninth Circuit has ruled, in Thomas v. Anchorage Equal Right Commission, 165 F.3d 692 (9th Cir. 1999), that state and municipal antidiscrimination laws barring landlords from refusing to rent to unmarried couples placed a substantial burden on landlords and are not justified by any compelling governmental interest, when the refusal is based upon religious belief.

Challenging such laws on the basis of religious belief has been made more difficult since the decision in Employment Division v. Smith, 494 U.S. 872 (1990), which generally barred free exercise challenges to generally applicable, neutral laws. A small loophole was created three years later in Church of the Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520, 542 (1993), which mandated strict scrutiny for laws that were found to "target" specific religious groups. The courts of appeals have been groping toward a more flexible rule, drawing upon language in Smith that seems to permit strict scrutiny when the challenged laws infringe other constitutional rights in addition to those of free exercise, the so-called "hybrid-rights" exception. See Smith, 494 U.S. at 881.

Judge O'Scannlain, writing for himself and Judge Farris, affirmed the District court and found that the state and municipal provisions infringed upon the landlords' First and Fifth Amendment rights along with their free exercise rights, thus mandating a strict scrutiny analysis of the provisions. Subject to that analysis, Alaska and Anchorage failed to demonstrate a compelling government interest to justify the substantial burden placed upon the landlords. Judge Hawkins dissented. Thomas, 165 F.3d at 718.

In Thomas, two landlords sued for prospective declaratory and injunctive relief, claiming that enforcement of the municipal or state provisions would violate their constitutional rights. There was no dispute that the landlords had refused to rent to unmarried couples in the past, would do so in the future, and that their refusals were based on religious belief. Thomas, 165 F.3d at 696-97. The District court granted summary judgment to the landlords, ruling that the landlords had standing to sue and that their claims were ripe for review, despite the fact that they had not yet been prosecuted under either provision. In a separate order, the District court found that the provisions would violate the landlords' free exercise rights, and permanently enjoined the defendants from enforcing the provisions. The Anchorage Equal Rights Commission and the head of the Alaska State Commission for Human Rights appealed.

The majority first rejected the landlords' contention that their claims fell within the exception to Smith outlined in Lukumi. The court determined that the provisions were not motivated by any illicit intention that targeted religious belief. Any burden on religiously motivated conduct, the court found, was incidental. Thomas, 165 F.3d at 702. The landlords relied upon the "hybrid rights" exception in Smith. The landlords alleged violations of their Fifth Amendment "right to exclude" others from their property, as well as First Amendment free speech rights.

The "hybrid-rights" doctrine has found a life of its own in the appellate courts, with several Circuits designing tests that preserve the general rule of Smith while remaining faithful to other precedents that Smith left intact. The majority steered a middle course in enunciating a hybrid-right doctrine between the "independently-viable" and "implication" theories rejected by Justice Souter in his dissent in Lukumi. Lukumi, 508 U.S. at 567. The court determined that strict scrutiny would apply if a "colorable" claim that the companion (non-free exercise) claim has been violated by an otherwise neutral and generally applicable law was made by the plaintiff. Thomas, 165 F.3d at 705. Such a standard, the court found, would preserve the validity of Smith's holding that generally applicable, neutral laws will survive a free exercise challenge. At the same time it would preserve the free exercise component of hybrid-rights claims, which would be superfluous if the companion right was independently viable. Id. at 706.

Under the "colorable claim" standard, courts will be required to make "difficult, qualitative, case-by-case judgements" concerning the strength of the companion claims. Thomas, 165 F.3d at 705. The majority found that the landlords had made out colorable claims under the Fifth and First Amendments. The court also found that the provisions authorized a physical invasion of the landlords' property and amounted to a regulatory taking. Id. at 709. The court rejected the appellants' claim that the landlords' refusal to rent to unmarried couples represented only commercial speech entitled to little constitutional protection; on the contrary, the court found that the speech here went beyond a simple commercial transaction and was in fact fully protected religious speech. Id. at 710-11.

The closing portions of the majority opinion found that the provisions had placed a substantial burden upon the exercise of the landlords' religious beliefs because the provisions "de facto banish [the landlords] from the Alaska rental market altogether and force them to forsake their livelihoods" as property owners. Thomas, 165 F.3d at 713. The mere fact that the landlords entered into a regulated industry did not make the burdens placed upon them insubstantial. The majority further found that the appellants had not shown a compelling government interest to support enforcement of the provisions. Id. at 717. The appellants had advanced insufficient evidence to support the conclusion that ending discrimination against unmarried couples (unlike, for example, racial discrimination) was a "firm national policy" sufficient to permit the substantial burden upon the landlords' rights. Id. at 715-17.

Thomas's careful analysis of precedent and close reasoning establish important protections for religious believers. It makes clear that, despite Smith, neutral laws that impact upon religious belief may still be subject to strict scrutiny if a colorable claim can be made out under a companion right, which may often happen given the many points at which government regulations and religious speech or belief may intersect. The hybrid-rights analysis developed by the majority allows a more nuanced look at the contours of belief and law than that allowed by the central holding of Smith. Once a colorable claim has been made, the strict scrutiny analysis will compel government agencies to connect the challenged laws with firm national policies or "paramount" interests.


2001 The Federalist Society