Jewish World Review Feb. 19, 2003 / 17 Adar I, 5763

Terry Eastland

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Administration fine-tunes religious rights in public education | Every so often, news is made that tells a story larger than first appears. That happened earlier this month when the Education Department issued a four-page document titled "Guidance on Constitutionally Protected Prayer in Public Elementary and Secondary Schools."

The document drew restrained interest from the media, probably because half of it was a dry statement of familiar constitutional principles and the other half was an attempt to apply those principles to particular situations. The document looked like the sort of thing that only school administrators and lawyers might read. Yet the guidance is the latest chapter in a story that involves much more than the public schools.

For most of our history, such a document the work of the federal government would have been unthinkable. The First Amendment provides that "Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof." Not until the 1940s were the religion clauses applied to the states. Before then, the states could do with religion as they pleased. Washington had no power to provide states and their agencies such as the public schools any guidance on religion.

Once the Supreme Court applied the religion clauses to the states in cases decided in 1940 and 1947 there was little doubt the justices would be asked to assess the constitutionality of state-sponsored school prayer and Bible readings. And in 1962 and 1963, the court struck down those activities. The school prayer decisions were among the most controversial in the court's history. Constitutional amendments to overrule or amend them were proposed time and again. None succeeded. Nor did the court, despite changes in personnel, change its mind.

In the early 1980s came reports that schools were halting religious expressions by students that couldn't be reasonably construed as state-sponsored. You can understand why schools were doing that, for lower courts had issued rulings extending the original prayer decisions in ways hostile to the free exercise of religion.

In 1984, Congress responded by passing the Equal Access Act. It says a school must abide by an equality principle if it wants to keep receiving its federal funds. Thus, if the school allows at least one student non-curriculum-related club to meet on its premises during non-instructional time, it may not refuse access to student religious groups. The school has to treat all such groups equally.

The Supreme Court sustained the constitutionality of the Equal Access Act in 1990. Yet the political branches of the federal government remained concerned about the extent to which public school students still were unable to voluntarily practice their religious beliefs. In 1995, at the direction of Bill Clinton, the Education Department issued "guidelines" on religion in the public schools.

The Bush Education Department's "guidance" builds on the Clinton guidelines. That itself is worth noting, for it is clear there is little difference between the current president and his predecessor on the matter of ensuring religious freedom in the public schools. Indeed, in an interview, a Bush administration attorney who advised on the just-released guidance praised the Clinton guidelines: "They were great. They laid out the rights of students, and they made clear that schools don't have to be religion-free zones."

The Bush guidance is more explicit than the Clinton guidelines about students' free-exercise rights. And it makes clear that teachers also have rights: They may meet with each other for prayer or other religious purposes before school or after lunch so long as they aren't acting in official capacities. The guidance embraces a basic First Amendment principle: Government speech endorsing religion is forbidden, but private speech endorsing religion is protected.

The Bush guidance isn't merely an exercise in updating the Clinton guidelines. The "No Child Left Behind" law of 2001 actually requires a document from the Education Department on "constitutionally protected prayer" in the schools. Schools are to use the department's guidance to make sure they aren't abridging rights. Indeed, the law imposes on the schools a requirement that they comply with the guidance. A school that fails to do that stands to lose federal funds. As the administration attorney told me, "We didn't have a stick before. We have one now."

And we also have a story involving massive constitutional change, federal regulation in a matter once confided entirely to the states, and consensus at a general level on a church-state issue that not too long ago sharply divided the nation.

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JWR contributor Terry Eastland is is publisher of The Weekly Standard.Comment by clicking here.

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© 2002, Terry Eastland