Say it ain't so, ACLU Joe!

[Rick Duncan]

I agree with Jim Henderson's analysis, which concludes
that a neutral policy of accommodating the religious
needs of teachers (as well as students) does not
violate the EC and may be required by the Free
Exercise Clause even under Smith and Lukumi.

But if the facts were as Mark Stern suggested (and
Eric Treene provides a different account of the
facts), Muslim teachers were being allowed to lead
Muslim students in prayer on school premises. There is
at least a reasonable EC concern in such
circumstances. Thus, it would be reasonable for the
ACLU to at least make some inquiries.

--Rick "moderate bipartisanship is my middle name"
Duncan

--- JMHACLJ at AOL.COM wrote:
> 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


=====
nightfall--
daughters and kitten
purring.
   (haiku, rfd, 12/00)

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