NEVER USE THIS LINE WHEN DISCUSSING CHURCH AND STATE ISSUES: “AS LONG AS THERE ARE MATH TESTS, THERE WILL BE PRAYER IN SCHOOLS”

In 1962 and 1963, the United States Supreme Court invalidated, first, the daily recitation in New York public schools of a prayer written by the New York State Board of Regents, and then the recitation of the Lord's Prayer (at least a better crafted theological work, by my standards) in Pennsylvania and Maryland schools. President John F. Kennedy urged respect for the rule of law, even though there was an enormous outcry by many religious groups about the Court having “kicked God out of public school,” a fairly dramatic conclusion for those believers in an otherwise omnipotent deity.

The anti-Supreme Court sentiment, though, boiled over into consistent efforts from 1963 until 1999 to have Congress pass a proposed constitutional amendment allowing public school prayer out to states for ratification. This process would require a two-thirds vote of both the House and Senate and then the approval of three-quarters of the states’ legislatures.

During the 1980s, when I worked for the American Civil Liberties Union, there was a tremendous push to pass such a measure in the Senate. Indeed, during my first day of employment there, I was sent out for an interview with CNN, in the middle of a massive rainstorm. I'm sure the image projected to the network's more conservative viewers was clearly: “Look at that idiot from the ACLU—he doesn't even know enough to come in out of the rain!”

That proposal was ultimately defeated—liberal Republicans and a plurality of Democrats voted no. Even Mr. Conservative, Arizona senator Barry Goldwater, was opposed, arguing that it would be impossible to come up with appropriate language in a state that had Christians and numerous Native American communities side by side.

What follows are my first two columns for Church and State magazine after my selection as Executive Director of Americans United for Separation of Church and State, both about the central constitutional fear in 1992—that new momentum in Congress and a waffling newly elected President Bill Clinton—would propel a prayer measure to the even more conservative quilt of state legislatures.

RELIGIOUS FREEDOM AND CHURCH-STATE SEPARATION: KEEPING OUR BALANCE1

Once, when my daughter was seven years old, she happened to begin a sentence at the family dinner with the phrase: “When I prayed at lunch today…”

Nearly dropping my forkful of spaghetti, I thought: “This is a school day and she is in a public school.” Visions of protest, and perhaps litigation, danced in my head. I was so surprised, I didn't allow her to finish the sentence before my interrogation began.

“Did the teacher tell you what to say?”

“No,” she replied.

Undaunted, I continued. “Well, did somebody in the lunch room tell you this was the time to pray?”

Again, the answer was no.

“Well,” I queried, “why did you pray?”

She gave me one of those looks that I see more regularly now that she is a teenager and announced: “You know—to thank God for the food.”

Pretty good answer.

Somehow, my daughter hadn't gotten the misinformation promoted by the Religious Right that “God had been expelled from public schools” because she expected God to hear her just fine. On the other hand, her religious education at home and church was apparently sufficient that she didn't need a government to tell her how or when to practice her faith.

WELCOME TO WASHINGTON, PRESIDENT CLINTON2

The Washington newspapers are filled these day with tales of the coming of Bill Clinton. There is speculation about everything from his cabinet appointments to how the “open house” at the White House can avoid becoming a duplicate of Andrew Jackson's inaugural open house, where rowdy crowds forced him to escape through a window.

Church-state separationists look to President-elect Clinton as a compatriot on some issues and a mystery on others. Like many other issues, church-state separation was a largely invisible topic during the presidential campaign, but some important facts did emerge.

On the matter of government-sponsored religious observances in public schools, the incoming president enters without a complete understanding of what is at stake. While he supports the Supreme Court ban on religious devotions in the classroom, he told Reader's Digest he questions the Lee v. Weisman³ decision, which rejected the constitutionality of school-sponsored graduation prayers. “The issue of prayer at public events is whether it is in any way coercive or oppressive to non-believers,” he said. “In an open public event like a commencement, I don't really think that it is—at least nine times out of ten.”⁴

Since Americans United was founded, we have seen nine presidents come and go. (President-elect Clinton will be the tenth.) Some have been favorable to First Amendment values; some have misunderstood the concept. In each case, our organization has done its best to make the case for church-state separation. Our commitment remains firm.

President Clinton eventually made it clear that he wouldn't support such an amendment (which he would not have had to sign for it to be sent to the states for possible ratification) and the movement again lost its momentum. Clinton did a brilliant Saturday morning Oval Office address on this topic. I attended, discussed country music with him briefly, and met his dog, Buddy, on the way out.

Republicans who captured the House in 1994, led by the ever-insufferable Newt Gingrich, backed a quixotic campaign beginning in 1995 for the “real deal”—an allegedly noncoercive Constitutional amendment. The weight of this exercise fell to Oklahoma Congressman and former television commentator Ernest “Jim” Istook.

PRAYING FOR COMMON SENSE IN CONGRESS5

To the surprise of many political pundits, Election Day 1994 brought the Republican Party into power in both house of Congress.

I am more than a little disturbed over the comments being made by soon-to-be Speaker of the House Newt Gingrich about prayer in public schools. The Georgia Republican's remarks indicate that he is not the type of conservative who understands that one important component of “conserving” American principles means not aiding religion or subsidizing its mission.

Indeed, Gingrich has already called for action by July 4, 1995, on an amendment to the Constitution to permit governmental-sponsored prayer in public schools. Sure, Gingrich and his backers call it “voluntary prayer” and say it won't be written by the state and that no one will be forced to pray. But that's all smoke. What they really want is majority rule in religious matters in the public schools. In other words, the majority decides what prayer goes into the school, and everyone else is out of luck.

Gingrich admitted this last October during a speech at the Heritage Foundation when he acknowledged that under his scheme “you might well have a prayer that was offered by a person who was not necessarily praying in exactly the way that you would personally pray.”

Yes, you might well. To me that quite obviously flies in the face of religious freedom and usurps parental rights; Gingrich seems untroubled by it.

This amendment has one purpose: to allow schools to set aside a time for group, vocal prayer each and every school day. Perhaps the school will be nice enough to let your child get up and walk out to the hall every morning if he or she would find the activity inconsistent with your family's tradition. Maybe the school won't even force your child to have his or her head bowed on the way out, but that's exactly what will happen—not out of reverence but out of discomfort from the ostracism that child will feel every day.

The amendment will probably say that no government body will write the prayer. It won't say that the school board, a committee of administrators, or a group of parents can't select it, though. Perhaps there will be contests to write the best prayer, with the winner chosen by a school official. Perhaps communities will vote on whether the Protestant Lord's Prayer will be used over its Roman Catholic counterpart, the Our Father.

These are not far-fetched examples. One allegedly conservative talk radio show host told me recently that the problem of which prayer to use could be solved by having students utter a prayer to a different deity every day. (Yes, he was serious.) Does he actually believe that prayers to the Christian God on Monday, Allah on Tuesday, and to Odin of Norse mythology on Wednesday is sound theology? What parent who is a person of faith tells his or her children to pray to random deities?

As many of you know, I cohost the Pat Buchanan and Company radio show most afternoons. On a recent show, a woman called in to say she supports a school prayer amendment. I asked her how she would feel if the prayer chosen to be recited read, “Dear Lord, we thank you for the diversity you have created, making us male and female, black, white, gay, and straight. Amen.” She was outraged and declared the prayer unacceptable. But I've actually heard such prayers used by people of various religious backgrounds over the years. Although I find no fault with such a theological stance, others obviously do. Who is going to judge the quality or acceptability of the prayer being said?

The amendment was introduced, as promised. Americans United flew into action. Our government relations staff lobbied Capitol Hill for months. Our communications department blitzed the media with information about why this was a bad idea. Our field department engaged and energized our grassroots supporters. And every week, staffers were traveling to (or returning from) meetings where they spoke against the measure.

In addition to the unconstitutionality of the amendment, we were also motivated by stories like the ones below, which popped up every time I spoke about the issue.

First there was “Sam,” whom I encountered at a convention in Texas. He grew up in Chicago in the late ’20s/early ’30s. As the only Jewish kid in his class, his teacher, Mrs. Smith, would excuse him from the morning prayers that she conducted in her homeroom, but she desperately wanted “her only Jewish student to come to know Jesus.” One day, after school, a dozen of Sam's classmates broke his nose because they were tired of “praying for the different kid.”

Then there was Jo Ann Bell, the Oklahoma mother who was assaulted in a parking lot and whose house was burned down after she spoke out against school-sponsored religious activity at her child's public school. Ms. Bell had a lot in common with the Wybles, who were driven from their home in North Carolina because they protested sectarian Bible classes at their son's public elementary school. And there were many others.

So when the day for a vote on the amendment eventually came in early June of 1998, I could not have been happier with the result.

One of the congressional leaders of the anti-amendment forces had told me a few hours earlier that a last-minute half-million-dollar ad campaign by the Christian Coalition was “costing us votes.”6 With this in mind, I had in my head a list of members whose votes would be pivotal. These folks had indicated they would oppose the Istook Amendment, but were feeling the heat. If enough of them changed their votes from no to yes, it could spell disaster for our side.

I watched in amazement as these swing members cast their votes and the lights blinked on the big board. They were all red (no), as were a surprising number of the votes of those who called themselves hopelessly undecided until the day of the vote. When the opposition vote total went over 190—eventually reaching 203—it was clear that Istook and his Religious Right allies had suffered a humiliating defeat. Not only had they fallen short by 61 votes of the two-thirds majority needed to pass the measure, but our side got 33 votes more than in 1971, the last time a prayer amendment hit the House floor.

The last prevote debate I had with Istook (and I had so many I sometimes felt he was a member of my family) illustrated, in about six minutes, why the amendment campaign failed. As Istook complained that children can't pray in school, the Fox News Channel was running footage of a large group of Minnesota high schools students at their regular voluntary Bible study club, praying away. The image put the lie to the comments of the congressman. I really didn't need to say a thing. Clearly, Istook's unnuanced assessment, though, was incorrect—and the message was clear. The need for this amendment was built on an insupportable house of cards.

Now, before too much excitement sets in, we must all remember that a simple majority of the House did vote to amend the Bill of Rights. Even though some will privately concede that Religious Right pressure, not the merits, compelled their yes votes, such profiles in cowardice don't square with the vow taken by members to uphold the Constitution and to make independent judgments about the constitutionality of any action.

Congressman Istook attempted to revive this himself a year later, but in spite of the support of such moral giants as Tom DeLay and Dick Armey, the whole effort petered out. Although the Constitutional amendment route was not revisited, prayer issues still emerge in public school districts across the country.

The courts have had to address the issue of prayer at school board meetings,7 clergy-led school-sponsored prayer at graduation ceremonies,⁸ and student-led speech over school public address systems,⁹ each time finding it unconstitutional if the speech is religious and it carries any hint of school sponsorship or support. One might think, after reading this, that prayer has been completely eradicated from the public schoolhouse. That would be an incorrect assumption. Provided that faculty and outsiders don't participate, there are a number of ways that like-minded students can organize together for prayer or spiritual fellowship. Students can organize anywhere on the school grounds, including the flagpole or the cafeteria, and pray together.¹⁰ Students can also pray before games, competitions, or other school events, provided that faculty do not participate.¹¹

At the time of this writing, there are two issues that have not been clearly resolved. The first is to whether schools must provide temporary accommodations to those whose religion requires them to pray during the school day. The courts’ decisions seem to imply that this will be permitted if the space provided is not set aside exclusively for prayer.

The second unresolved situation is whether student speakers at graduations or events can open with a prayer, make religious comments during their speech, or deliver sermons to the attendees. The Ninth Circuit court found this to be unconstitutional.¹² The Eleventh Circuit Court did not.¹³ Some case will need to come forward, and probably make it all the way up to the Supreme Court, before we will get a definitive ruling.

STEALTH EVANGELISM—TROUBLING ENCOUNTERS WITH “UNEQUAL ACCESS”

When it became apparent that Constitutional amendments would not fly, the Religious Right started pushing for something called the “Equal Access Act.” I was not happy that so many moderate and liberal groups supported it, because initially it only allowed for “religious” clubs in public schools. At the ACLU, I pushed to make it a “free speech” bill, including the phrase “religious, political, philosophical, or other content.” On balance, it hasn't worked out as badly as some of us feared. The statute was upheld 8–1 in Westside School District v. Mergens14 in 1990.

MEMO TO GOVERNMENT: IF YOU DON'T WANT “WEEDS,” DON'T PLANT A GARDEN¹⁵

Everybody loves the “marketplace of ideas.” Everyone believes that “a thousand flowers should bloom.” Free speech is great, isn't it? The problem is that it's often more appealing in theory than in practice. At least, that's the lesson in Salt Lake City, Waynesboro, Pennsylvania, and Titusville, Florida, these days.

In 1984, Congress passed the Equal Access Act, which guarantees that public secondary schools cannot discriminate against student clubs on the basis of “religious, political, philosophical, or other content of speech.” Consistent with this open-door policy, Salt Lake City high schools have welcomed debate clubs, chess clubs, a Bible club, and even a steak-eating club.

No longer. On a 4–3 vote the school board recently canceled all clubs. This bizarre decision was prompted because a support group for gay students was about to be established at East High School. Gay and straight students simply wanted to be able to meet to talk through the sometimes painful experiences of life in a homophobic society. The majority of the school board—all of whom apparently loved the idea of “equal access” when initially passed at the urging of religious groups—suddenly had a change of heart. Realizing that failure to comply with the Act could lose the state over $100 million in federal aid, board members decided to throw all the clubs off the cliff.

Senator Orrin Hatch (R-UT), a big supporter of the federal law, is now arguing that the law might not need to be read to require gay-related clubs, apparently because clubs may be prevented if they pose “order and discipline” problems. Even a first-year law student knows that you can't curtail the right of one person to speak because other people get disorderly. None of the students who wanted to form the group had any illegal or disorderly interest. To his credit, even Jim Henderson, counsel for Pat Robertson's American Center for Law and Justice, on a radio show with me, conceded that “equal access” preserves the right of any lawful group—no matter how much he disagrees with them—to meet. The lesson for high school is one of “all or none.”

First Amendment controversies can have differing resolutions. Two propositions, in my view, ought to help our dilemma. One, every public space (say, an elementary school hallway) does not have to become a literature bazaar. Two, once a public forum—a “thousand-flower garden”—is set up, it's not constitutionally acceptable to allow a school board, city council, or other governmental body—to tear out some of the plants by deciding they are weeds.

The Equal Access Act has led to hundreds of “gay-straight student alliance” clubs—and only in an outlier case from a federal court in Texas was such a club not allowed to meet.

This “all or nothing” approach next emerged in an unusual Supreme Court case involving student clubs at a law school.

In the Supreme Court case Christian Legal Society v. Martinez16 the Christian Legal Society at the Hastings College of the Law claimed that it was the subject of discrimination because it did not receive official school recognition and a cut of the student fees like other student-run clubs. The law school argued that the Christian group was not being treated differently, but that because the CLS refused to not discriminate on the basis of status or belief it was not a recognized club. CLS insisted that full membership not be open to non-Christians and (at least) “unrepentant homosexuals.”

I admit that the policy of requiring a student-run club to admit everyone sounds strange to some people. Why does an environmental group have to admit members who want to chop down the California redwoods? Why does the Republican Club have to admit Democrats?

Hastings's rules may not be the best-constructed policy out there. The policy may even be “crazy” (as Justice Antonin Scalia characterized it during the oral argument), but that does not mean it's also unconstitutional.

To be constitutional, the policy need only be “viewpoint neutral”—a legalistic way of saying it treats all groups the same. Hastings's policy is certainly neutral, requiring all groups to admit all comers. This means school officials don't have to decide whether a student was rejected for club membership by some “forbidden” reason: it is wrong if she was rejected for any reason.

In 2010, the Supreme Court ruled 5–4 that the policy is reasonable and viewpoint neutral. Since this case, forty-one Intervarsity Christian Fellowships have been defunded, although not prohibited from meeting. Several schools, including private ones like Vanderbilt, have added similar nondiscrimination policies.

Although school prayer seems to be a battle won, other religious issues still emerge when parents demand inclusion of religious messages, or national or local crises lead to public prayer sessions.

Religious Right groups and their allies are now seeking ways to chip away First Amendment rights while spouting platitudes about “free speech” at the same time.17 Enter Zachary Hood, who as a first grade student at a New Jersey public school was told he could not read a story from a children's Bible to his classmates after he had been chosen to bring something from home to share with the class.

Zachary's mother decided to literally make a federal case out of this matter, and his lawyers have been in court for years, trying to prove that their client was “censored.” Add to the mix that the particular story, about Jacob and Esau, did not contain any direct reference to God, and even columnists like Nat Hentoff have been boosters of Hood's claim.

But the federal courts have found the young boy's case less persuasive. In fact, four federal judges, including the trial court judge and three appellate court judges, have ruled against Zachary's claim of “censorship.” They have sided with the teacher's discretion in handling the delicate issue of the appearance of government promotion of religion. They found no antireligious bias on her part and no hostility toward her student.

Here was a teacher trying to be careful in dealing with this delicate subject in a classroom full of young children of various faiths. She was concerned that since this was a school assignment and she was introducing the student to the class, it could appear that she was promoting religion. After all, six-year-olds are not constitutional scholars able to readily separate the imprimatur of the school from the personal views of a fellow student. Zachary's teacher allowed him to read the story to her as a means of reasonably accommodating his oral presentation of an important story. In other words, when courts looked at these facts, they saw a teacher exercising reasonable judgment, not the tyrannical actions of a bigot.

IN TIMES OF TROUBLE, THE WATCHDOGS MUST BARK EVEN LOUDER18

The chickens have come home to roost. More specifically, my own son's high school was the site of an unusually flagrant violation of church-state separation a few days after the September 11 terrorist attacks.

The Rev. Jesse Jackson invited himself to speak at Thomas Jefferson High School for Science and Technology in Northern Virginia. Since his schedule allegedly did not permit him to come to the regular Friday assembly period, the principal dutifully “accommodated” his need to speak on Thursday by shortening all the academic class periods to encourage maximum attendance. Jesse then used the occasion to launch a prayer session, followed by a speech on peacekeeping liberally laced with Bible stories.

My son's friend Ankur Shah, a Hindu, posed the right question (and got quoted in Time magazine): “Can he do that?”

What was the principal thinking? What was Jackson thinking? Does this mean that anybody who is famous (or used to have a cable TV show, or is a minister) can now address this public school whenever he or she feels like it? I am awaiting a response from the school and its attorneys. It is one example, though, of the apparent feeling of some school and government leaders that the First Amendment is partially suspended in times of national crisis.

I believe just the opposite: it is in such times that our real commitment to fundamental principles should be highest. You might even say that this is a time when love of country demands renewed commitment to the separation of church and state as the first principle of constitutional democracy. This is the preeminent defining principle that stands in starkest contrast to the conduct of those against whom President George W. Bush has declared “a new kind of war.”

Was the Jackson appearance at my son's school the most egregious incident of “suspending” religious liberty? Probably not, but it was certainly an incident that didn't need to happen, or that should properly have been the subject of an immediate apology.

The school eventually conceded that the Rev. Jackson's appearance was not appropriate.

RELIGIOUS RIGHT ACTIVISTS: EVER INSATIABLE, EVER INNOVATIVE

It is perhaps faint praise, but I would concede that the Religious Right remains “inventive” when it comes to sneaking religion into schools.

The culprit can be Congress or state legislatures who try to pass “get religion in the schoolhouse door” statutes, as illustrated by a 1999 effort to have the Ten Commandments—at least some version of them—up in every classroom.

MEMO TO CONGRESS: YOU'RE ON CAPITOL HILL, NOT MT. SINAI19

Lately, many people have been asking me the same question—in San Diego when I moderated a debate on vouchers at a national meeting of the American Civil Liberties Union, in Salt Lake City when I spoke to the Unitarian Universalist Association General Assembly, and in casual conversations on airplanes en route. The question: “Do they really believe it?”

“They” in this case is Congress, and the belief is the sincerity to which I am asked to assess, that posting the Ten Commandments in public schools is a cure for youth violence at Colorado's Columbine High School and elsewhere.

On June 17, 1999, 248 members of the House of Representatives voted to permit states to allow the Ten Commandments to be put up in all public buildings, including schools. What everyone wants to know is, did the House members who voted for this proposal really think it would help?

I have a basic rule of thumb that about 2 percent of any large group will believe literally anything, no matter how preposterous it seems to the rest of us. Therefore, almost five House members honestly think posting the Ten Commandments will do the trick. The rest, I suggest, just knew a no vote would look bad on their next Religious Right “voter guide” separating the “godly” sheep for the “unholy” goats.

I did so many radio and television shows in the forty-eight hours following the vote that I thought I had been given a job as a permanent guest on some networks. The debates were mesmerizingly bizarre. One spokeswoman for the Family Research Council was so abrasive I had to remind her that although “thou shalt not be rude” was not officially a commandment, it was probably a good standard for TV show debates.

On another show, I asked Georgia congressman Jack Kingston to discuss the meaning of the Second Commandment, which relates to graven images. He began spouting off about gun control, as if I had asked about the Second Amendment. Conservative talk show host Oliver North seemed to think if the First Commandment (barring the worship of “false” gods) was too controversial in some states, it could be eliminated from the posting. “You mean,” I said, “we should let the states edit God?” I saved perhaps my favorite quip for the new president of the Southern Baptist Convention, telling him that I believe, frankly, that most Americans would be happier if members of Congress just tried to obey most of the commandments instead of launching them as political footballs.

In the midst of these comments, I was able to make this core point for religious liberty advocates: The House of Representatives is wasting its time with this foolish grandstanding because this issue is settled. The Supreme Court, back in the 1980 Stone v. Graham20 case, said the commandments are “undeniably a sacred text” and therefore could not be posted in Kentucky's public schools.

Several Religious Rights groups have launched campaigns with names like “Hang Ten” (a somewhat oblique reference to surfing) but they have had only marginal successes. For example, in December of 2014, the principal of Harding High School in Marion, Ohio, removed a community plaque donated by a private group. He told a local paper: “Our responsibility, when we are challenged is to do what's in line under the law.” One disgruntled freshman told the same paper that he was so upset he would not participate in any school-related activities, go to class, and “won't even wear my Harding Marching Band shirt.” Life will probably go on.

But if not for “religion,” where will our values come from? This question, when coming from the Religious Right, is usually followed by the fatuous answer: “there will be no values” because of “cultural relativism.” Baloney.

Public schools do teach and can teach values Americans commonly share. You might say that many commonly shared values are found right in the United States Constitution.

PUBLIC SCHOOLS TEACH VALUES EVERY DAY21

Former Moral Majority Communications Director, and then TV talk show host, Cal Thomas wrote a new book called The Things That Matter Most. The cover describes it as a work that “debunks fuzzy-headed liberalism,” and in it are cleverly written essays on what Cal sees as the failed promises of the 1960s.

Cal has a wonderful sense of humor. I only wish it was equaled by a parallel sense of logic and analytical clarity. One essay in the book that I found particularly muddled deals with the “Promise of Progressive Education.” He asserts, “As for learning about a moral code in school, one by which people should live in order to benefit themselves and society, the notion that such a moral code even exists, or ought to exist, has been abandoned.”

This assertion echoes a constantly recurring notion I hear in question periods after speeches I give and on talk radio shows I do around the country. The Religious Right says it so often that many people think it's true: Public schools don't teach values.

Is that so? Do public schools really have no interest in “values” or the search for a “moral code”? Repetition of a complaint, of course, doesn't mean there is really something to it.

Unlike many leaders of the Religious Right, I actually have children who attend public schools. I'm aware that all kinds of positive ideas are being generated in them, and children are even encouraged to believe these ideas are normative, that they ought to inform the way they live—for self and others.

The problem with critics like Cal is that they hold such a limited view of what “values” are they don't acknowledge any effort at moral instruction that doesn't fit into that narrow definition. For example, virtually every public school corridor from elementary school to high school, has a poster communicating the message, “Don't Use Drugs!” Some would be happier if the poster had a “proof-text” from the Bible at the bottom of it, but for me it is important enough that the widely shared community value of not having fourteen-year-olds try crack cocaine be plugged as official policy. Contrary to the common talk-show assumption, even when sex is discussed in school, it is a rare course that doesn't promote abstinence before it discusses condoms.

One could even argue that every time a student is told to stop talking in class, receives praise for solving a problem, or gets a low grade for turning in a sloppy reports, values are transmitted. After all, these actions are designed to make students learn that good behavior brings rewards, bad behavior brings sanctions. In other words, children are taught the difference between right and wrong in the classroom every day.

In a sense, the real values “taught” in public schools are not deliberately articulated parts of any lesson plan. Instead, they are examples set by a school's teachers and administrators. Does the administration respect the views of students, giving some responsible mechanism for grievances and suggestions? Is there a sense of fairness in disciplinary proceedings? Are students with differing backgrounds treated with equal respect? I remember more about the character of math teachers I had thirty years ago than the relationship between sines and tangents.

All of this probably sounds too mushy, too “touchy-feel” for people like Cal Thomas. So may be the fact that my son in the fourth grade is taught to respect the environment; is told about the similarities—and differences—between United States residents and people in Africa and Japan (Cal probably sees “one-world government” propaganda running rampant); or that my daughter in high school is actually writing a paper on images of African-Americans in films. (She also reads Steinbeck.)

This values issue came up recently when I spoke to a Chicago group organized by the National Council of Jewish Women. I explained how last December, Americans United got a Pennsylvania school district to halt daily Bible reading and praying over the intercom, practices the Supreme Court ruled unconstitutional thirty years ago. What “value” is taught when school administrators thumb their noses at the highest court in the land and continue illegal practices? That is the ultimate example of “relativism” gone amok; it's even got a name: anarchy. So, Cal, shouldn't we put the “rule of law” somewhere among the “things that matter most?”

There are also routine attacks on sex education by ultraconservative religious critics. I summarized some of the nonsense being promoted by the Religious Right at a meeting called Save Our Schools: The People's Education Convention in August of 2012 in Washington, DC:

A second area of concern where social conservatives have successfully worked their own agenda into the public schools, is sex education.22 Since l994 public schools have been stuck with federal funding only for “abstinence” programs. While some states forgo this federal funding, many can't afford to, and we now spend over half a billion dollars on a plan of action that has not a single reputable scientific study to validate it. President Obama, with some reluctance, even had to put more money into the program in order to pass his healthcare bill. At best, for some populations it may postpone the first sexual activity for six to eight months, but then, tragically, young people engage in the riskiest behavior (in no small measure because they have been left in the dark about safer alternatives). A few years back, Congressman Henry Waxman commissioned a study of the materials taught in these abstinence classes and some of the information there is embarrassing. A textbook example: One out of every seven uses of a condom fails; which, if true, would create a birthrate high enough to sink the United States into both oceans, even without global warming. But we know condoms are, in actuality, 98 percent effective.

And there are many other absurd examples. Some materials assert that condom use has no effect in mitigating the health risks of unprotected sex (what these materials refer to categorically as “premarital sex”) like the contraction of sexually transmitted diseases. They say condoms fail to prevent HIV transmission 31 percent of the time, when in fact they are proven to reduce transmission over 85 percent of the time. And some materials also claim that condoms are ineffective because students who can't “exercise self-control to remain abstinent” are not likely to “exercise self-control” and use a condom. That's like saying we shouldn't teach our kids safe drinking techniques because those who choose to drink underage can't control themselves anyway—so we should just let them binge drink without any guidance at all. Alarmingly, drawing on the inaccurate “one in seven condoms fail” statistic, some programs compare the use of condoms to playing Russian roulette—arguing that “if one continues to perform this act, the chamber with the bullet will ultimately fall into position under the hammer, and the game ends as one of the players dies. Relying on condoms is like playing Russian roulette.” But instead, running a curriculum about health like this, based on religious beliefs, is playing Russian roulette with our children.

So, when all is said and done, where do we stand on the issue of how much, if any, religious promotion can occur within the hallowed halls of America's public schools. I tried to summarize it all to the Secular Student Association Convention in the summer of 2013 in Columbus, Ohio:

I have a question23. How many of you are in law school or thinking about going to law school? Great. I am exactly one week from being covered by Medicare, but I will only offer one bit of grandfatherly advice: if you pick the right subject matter you won't have to remember much of what you are actually taught in law school. I have built most of my career on just two phrases: the sixteen words in the First Amendment that note, “Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof,” and Article 3's prohibition on any religious test for public office. Pick environmental law and you'll spend every waking hour on regulations about land use, air, water, and something called the “Federal Insecticide, Rodenticide, and Fungicide Act.” Choose wisely.

I'm going to try to distill the history and future of the law of religion and secularism in public schools in the next fourteen minutes so we have five more for questions. Until the 1930s Americans didn't even know that an individual could challenge government actions by claiming it violated an individual guarantee in the Constitution. Once we figured that out, the dam broke open. But it was still just fifty years ago last month that a man named Ellery Schempp, with the full support of his parents, challenged the required public school practice in Pennsylvania of reading ten verses from the Bible and reciting the Lord's Prayer. I was in a Pennsylvania junior high school at the time and one year—all of a sudden—the religiosity was gone from home room. I was a very religious young person; I still am a religious person. Those practices in school—particularly any dealing with Jesus—seemed to make my Jewish friends uncomfortable. At that time, atheists hadn't been invented yet but I'm sure they would have been upset. The whole process became increasingly silly as classmates managed to find the strangest passages to read, including the famous lineage sections that all go “So and so begat so and so who begat so and so…” or the section of Song of Solomon that mentioned breasts. We were idiots.

No prayer privately uttered (or even voluntary groups of students praying in a nondisruptive manner) is unconstitutional. No child saying her prayers over cookies and milk has been sent to prison. However, many other forms of government prayer—where the school sets the time, the place, the manner, the content, or the opportunity for prayer—have been held unconstitutional. If you have a “moment of silence,” which the legislative history of the policy shows was designed not for thinking about stuff generally but to have you consider the divine, even that is unconstitutional. You can't have prayers by clergy at high school graduations or even prayer by students at sporting events over the public address system. After the Supreme Court found such prayers at Texas football games unconstitutional, I was on ESPN one morning with Senator Lindsey Graham, who was all upset about the case and was saying that he expected people to “spontaneously” rise up in prayer in the stands; I told him as a public official he should be trying to explain the case, not avoid its conclusion, but I said: “here's an idea if you want to keep evading the law—have parrots trained to say the Lord's Prayer and release them right before kickoff.” Lindsey Graham really didn't like me to start with.

Can students offer a prayer at graduation? Most courts say no but it is not fully settled. You may have seen stories of a young man in South Carolina just last month who ripped up the valedictory speech he had cleared with the school and instead led the audience in the aforementioned “Lord's Prayer.” The crowd went wild. Fox News acted like this was the moral equivalent of standing up in front of a tank in Tiananmen Square or saving Anne Frank; when in fact it was just a display to make the guy popular. He's probably already running for office down there. What the school should have done—turned off the microphone and not given him his diploma until he at least appeared at a hearing. Yeah, I know; I'm a hard ass.

Legislatures are now passing bills to protect such religious activities as “free speech” of students. Although this sounds better, it is not constitutional to characterize evangelizing student utterances, sponsored or promoted by the school, as if they were football scores or announcements about where to pick up the school newspaper. Religious speech is in that way different from other speech—and it is the First Amendment that makes that distinction. Congress and (through the Fourteenth Amendment) the states can hold opinions about lots of things, but must be neutral about one thing: religion.

Okay—in theory no school prayer with the blessing of the school. How about other religious activities, like school clubs? A federal law called the Equal Access Act, passed in 1984 and upheld 8–1 by the Supreme Court stated that if a high school has any “noncurricular” clubs (chess club, philately club—does anyone still collect stamps) then you can't keep out any club on the basis of “religious, political, philosophical, or other content.” This is why there are Bible clubs and Gay-Straight Student Alliances in so many high schools. Only one court has ruled that an LGBT club wasn't permitted, and that was in Texas, home of the Ted Cruz, W., and of course Governor Rick “God Told Me I'd Be President” Perry. (Go ahead and laugh at Texas—this is the Eastern Secular Student Alliance conference; the Western people had theirs a few weeks ago in Las Vegas—Columbus, Vegas, same difference except there are more magicians in Nevada.) These clubs can't have faculty participation, can't regularly invite outsiders come in; in other words, they are truly student initiated and student run. Based on the reasoning of a recent Supreme Court case regarding student clubs at a law school, a high school club probably can't bar students because of their religion or absence of it or their sexual orientation.

And, of course, you can have secular clubs. We represented a young man named Micah in Michigan, who wanted to start an atheist club. The school at first refused, but then offered him the opportunity to lead a “world religions club.” We gave them his answer: “No, my point is I don't believe in any of them!” He won.

Since these clubs must be student-initiated and run, there are other avenues sometimes adopted to sneak religious evangelism into public schools. There are schools that just happen to allow a local minister to come into the schools at lunchtime, wander around looking for apparently lost souls and then counseling them. There are schools that still allow the Gideons to distribute Bibles in public schools, although we can generally stop that with a complaint letter, not even having to go to court. I will give the Gideons credit for trying, though. After they were no longer allowed to roam the halls at one school, they decided to go to the bus parking lot, ask students to roll down the windows, and then threw the Bibles through the windows.

Finally, there is the “school assembly” scam. This is where a school allows a local minister to do an assembly about why you shouldn't be a stoner. And he doesn't mention God at all. However, on the way out the doors his assistants pass out leaflets about how you can come to a local pizza parlor after school for free food (which may sound really good if you didn't buy into the “no pot” message) and that's where the Jesus chats happen. Schools have no business facilitating that or variations that include demonstrations by Christian bodybuilders or motorcycle riders.

One of the biggest issues beyond these is whether schools need to “accommodate” individual student religious claims. This gets a little trickier. If a school has not banned all “expressive” tee shirts, for example, and you can wear shirts advertising your favorite gun brand or political candidate, the school probably can't bar a Christian student from wearing a shirt that says “Gay Is Not Great” or other minitheological sentiments. In several states, including California, Sikh students can bring ceremonial daggers required by their religion to school if the blades are welded into the sheath and thus rendered unusable as a weapon. If you are a secular “knife” aficionado, although it may not be right, that same school can probably prevent you from carrying even a welded Harry Potter-themed blade.

But what if you want to be religiously accommodated not for doing something but for avoiding something? Let's say your parents do not want you to learn about sex in school? Schools are permitted—but probably not required—to allow opt-outs from specific parts of a course (in the sex education context, what is referred to as “the good stuff”), but in an important case in Tennessee fifteen years ago, a federal court pretty much disposed of the idea that schools were required to allow “opt-outs” of entire swaths of the curriculum. In that case, a parent didn't like the English reading choices. In other states, parents have not been allowed to refuse to allow their child to be exposed to, for example, Othello because it has an interracial love affair. If that school had allowed this stab at Shakespeare, can you imagine how the parents would have next gone after Macbeth, which has three witches and obviously condones demon worship?

School displays can cause litigation as well. The general rule is: no religious imagery is allowed unless it has a distinct and separate historical value. Even my friend Michael Newdow, who brought the case challenging the use of “under God” in the Pledge of Allegiance to the Supreme Court, doesn't object to the frieze of famous lawgivers that is at the top of the Supreme Court chamber, even though it depicts Moses with tablets and Confucius. A student in Oklahoma just successfully challenged Ten Commandments posters, which had been put up in most classrooms. A Religious Right group has been distributing these in a campaign cleverly labeled “Hang Ten”—dude. A young woman in Rhode Island won a case last year challenging a long-hanging banner on a school wall that contained a prayer. We won a case in West Virginia where students objected to a portrait of Jesus praying that happened to hang right outside the principal's office for the last forty years, presumably sending the message that you didn't need to just fear the academic power structure, but the cosmic one as well.

When it comes to holiday time in December, manger scenes of the Nativity standing alone are impermissible, but if you find a crèche amidst a menorah, an evergreen tree, and a Festivus pole, the school might be able to get away with it under current law. I have a neighbor who used to put up a display on her front yard (and I am not making this up), where the baby Jesus was in a cradle, surrounded by shepherds, wise men, and Santa Claus looking down at the baby. See, nothing I've ever seen from an atheist is more insulting to the spiritual significance of Christmas than seeing St. Nick at the manger.

So, we've been through prayers, clubs, displays, and assemblies. What about the curriculum of public schools? Many high schools have done away with art, music, geography, and even civics. But there are both well-meaning and not-so-well-meaning people who want to have classes in “comparative religion” or, even more problematically, the Bible. Even some liberals point out that there are so many biblical references in art, music, and literature that a well-rounded education requires instruction in religion generally or Christianity specifically. My response to this line of thinking is why not address religious imagery when it in fact comes up in the regular flow of teaching. When your English literature class comes up to William Faulkner's Absalom, Absalom, it's fine to mention that this is a character's name in the Bible who did something. Even with comparative religion, are we going to give equal time to all two thousand religions in this country along, with the beliefs of humanists, freethinkers, agnostics, atheists, and disbelievers? Of course not—we'll focus on the majority faiths only and claim to be balanced. We'll really end up teaching about Christianity, because in the latest poll on the subject nearly 40 percent think we should declare the United States a Christian nation.

Finally, did any of you have “sex education” classes in public schools? If you had a good course, you are in the minority. Like evolution, fact-based teaching on human sexuality is always under attack. I used to debate the late Dr. Jerry Falwell all the time, and he always claimed that you should teach alternatives to evolution and “let the children decide.” So one night I asked him on TV if he felt the same about sex education. We could have students decide whether to read the abstinence brochures on one end of a table or watch the condom and banana demonstration on the other end. He never liked me even before that night.

So you can see we are still in a major fight to keeping religious evangelism out of our nation's supposedly secular, religiously neutral public schools. We depend on courageous students to let us know what is going on in their schools so we can help remedy unconstitutional activities. Let us know if we can be of help.