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 Religious Liberties News 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 Religious
Liberties News 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
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