Say it ain't so, ACLU Joe!

[JMHACLJ at AOL.COM]

In a message dated 12/29/2000 4:41:17 PM Eastern Standard Time,
conlawprof at YAHOO.COM writes:

<< If the facts are as Mark presents them--public school
 teachers participating with students in religious
 activities--the ACLU's position is reasonable. >>

I disagree with Rick's conclusion that the position is reasonable.  While it
is true that the Equal Access Act limits the participation of school
employees in religious clubs to the role of "custodial monitors," this case
doesn't appear to involve an asserted right under the Equal Access Act.

For the purposes of clarifying a contentious question of law and fact,
Congress concluded, in its enactment of the EAA, that secondary school
students possessed sufficient judgmental maturity to understand that schools
don't necessarily endorse things that they allow.  That conclusion, in turn,
passed constitutional scrutiny by the Supreme Court in Mergens.

Given the accepted soundness of this conclusion about student's judgmental
maturity, it is fair to say that in the high school setting, students possess
the judgmental maturity to understand that if a school district accommodates
the religious needs of its employees, the school district doesn't necessarily
endorse the religions of its employees.  Thus, when a school distirct:

--allows teachers a few moments break during Ramadan (or for that matter
throughout the school year for the daily practice of prayer) or
--allows teachers to conclude their Friday schedules in the winter soon
enough that they can be at home for the beginning of Sabbath or
--allows teachers to use personal leave time to attend mass or other
religious observations on holy days of obligation (or the cognates of other
religions that the Roman Catholic one),
--allows teachers to pray before meals or
--any of a thousand other personal instances of religious observance and
devotion,

there is no significant reason to believe that secondary school students will
confuse those accommodations as a sign of governmental endorsement.

This conclusion, mirrored by Congress' mirror-image conclusion about the
effect of accommodating religious student organizations, is intuitively
sound, as well.  Consider, for example, the large school districts of our
urban metropolises.  Dozens or hundreds, at least, shades of religious and
nonreligious practices are represented by highly diverse populations of
employees, staff, and students.  In such districts, an accommodationist
policy that ensures maximum religious toleration results in no favoritism for
any one religion.  In fact, a student will see Catholics tolerated one day,
Muslims tolerated the next, Jews the third, atheists the fourth, and so on.
No student of secondary school age, who has already been found by Congress to
be sufficiently judgmentally mature to make the fine and necessary
distinctions required under the EAA, is likely going to presume that such a
school district is endorsing any one or other of such a broad, exclusivistic
range of faiths.

Given the reasonable and obvious likelihood that a student will understand
and appreciate that the school district is merely respecting individual
rights and liberties by tolerating the religious faiths and practices of its
employees, I think that the ACLU's position (if it was their position), is an
unnecessarily doting and overwrought fear for the perceptive fragility of
students.

Jim "Who Let the Dog Out, Woof, Woof, Woof, Woof, Woof" Henderson
Senior Counsel
ACLJ