TESTIMONY OF ISAAC M. JAROSLAWICZ,
DIRECTOR OF LEGAL AFFAIRS FOR THE ALEPH
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
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 litigationand
the real risk that the prison system might losefostered 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 RFRAand
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
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,
Many Jews in state prisons are afraid to even announce their religion,
for fear of the anti-Semitic attitude of wardens, guards and other
inmatesespecially 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 seenbut perhaps still not comprehendedby
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
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
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
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 producta man or woman who will one day reenter
societybut 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 beingsand 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 rightsthe 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
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:
- Notification of administrators at least 24 hours prior to the
distribution of the proposed materials;
- Materials to be distributed from a designated table immediately
prior to school and immediately after school;
- Obscene, libelous and religious material that students might
believe to be sponsored, endorsed or have the official imprimatur
of the school were forbidden; and,
- 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
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
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
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
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.
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:
- 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)
- 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)
- Limitations on the time of day and number of days that materials
can be distributed; (Hedges and Harless)
- Requirement that all materials be placed on designated tables
in specific locations; (Hedges and Harless)
- Requirement that students clean up materials left on school
- Requirement that materiels bear a prominent disclaimer of school
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
* 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
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
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"
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
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
* 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.
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.