Seminole County School Board Announces New Guidelines Which P ermit High School Choir To Sing At Religious Events

[Berg, Thomas C.]

The endorsement of teaching about religion was in the majority opinion in
Schempp, not just in the concurrence.  The Court suggested such teaching as
one means of avoiding a "religion of secularism" in the schools; it also
endorsed the idea that one cannot have a good education without
understanding something about religion, including the Bible.  I take it as
pretty well settled that there is nothing inherently unconstitutional in
teaching about religion, including about the Bible, although of course it
could be done in an unconstitutional manner.

Moreover, in this age of increased religious illiteracy, I think that school
officials could perfectly reasonably conclude that many students do not know
much about the Bible as a book, just as they don't know much about the
Koran.  I can't see any reason on that score, therefore, to say that a
course about the Bible is invalid while a course about Islam or the Koran is
permissible.  And of course while some people might not be happy with what
is taught in a "Bible as literature" course, the same could be said about a
course concerning the Koran.  Good teachers can do lots of things to be more
fair minded, including exposing students to different points of view
("teaching the conflicts," as one writer has put it concerning the analogous
cultural disputes over the literary canon).  This will do not do away with
all objections to the teaching, and I would readily grant opt outs to
objecting students from such studies (if the material was even a required
course or unit in the first place, which it almost never would be) -- as I
would be sympathetic to opt outs for students who object to other secular
study requirements.  But in view of the reasons above for having such a
course, I don't think -- and I'm sure that the courts would not hold -- that
the course is inherently improper.

Tom Berg
University of St. Thomas School of Law (Minnesota)



-----Original Message-----
From: Michael Newsom
To: RELIGIONLAW at listserv.ucla.edu
Sent: 12/3/02 10:48 AM
Subject: Re: Seminole County School Board Announces New Guidelines Which P
ermit High School Choir To  Sing At Religious Events

Tom, see my interlineations below.
----- Original Message -----
From: "Berg, Thomas C." <TCBERG at STTHOMAS.EDU>
To: <RELIGIONLAW at listserv.ucla.edu>
Sent: Monday, December 02, 2002 6:32 PM
Subject: Re: Seminole County School Board Announces New Guidelines Which
P
ermit High School Choir To Sing At Religious Events


> To go back to my previous example:  The religiously pluralistic
audience
> (including I assume plenty of nonbelievers) at the  choral festival in
> downtown Minneapolis responded enthusiastically to the closing gospel
> number, suggesting to me that there is musical, cultural, and
emotional
> appeal apart from the specific Christian theological concepts.  By
contrast,
> I would be very surprised if a program simply reading the Bible would
elicit
> great response from such a wide ranging audience -- the audience would
have
> to be gathered for a specifically religious purpose, I would bet,
unless
> it's some unusual event like a post 9/11 gathering.

Wouldn't the proper analogy be readings from the Bible along with
readings
from other religious text or scripture?  It is this scenario that
presents
the least difficulties, but there are difficulties nonetheless.  The
basic
problem with the "let's include everybody" approach is that it just
doesn't
work.  Somebody's religion gets left out, or somebody's religion is
reduced
to a figurative footnote or appendix.

But more importantly, is the relevant measure of the constitutionality a
choral festival, or what goes on in school day in and day out?  If what
goes
on in school every day is problematic, how does a choral festival cure
the
constitutional wrong?
>
> The question is whether a gospel choir is more like Bible reading per
> Schempp, or more like the Bible as Literature course taught in many
high
> schools, including mine, and which I assume is constitutionally valid.

I, respectfully, do not make that assumption.  Brennan struggled
mightily to
make room for a Bible as Literature course.  But, as with the "let's
include
everybody" strategy, it just doesn't work.  What is most striking is the
fact that the Illinois Supreme Court, over 90 years ago, seems to have
gotten it right, not from a so-called "secular humanist" point of view,
but
from a very proper and theologically sound evangelical Protestant point
of
view, namely that if the Bible is what evangelical Protestants believe
it to
be, then it is highly problematic to make it the subject of a supposedly
secular course offering.

There are several strands of thought in evangelical Protestantism about
the
proper use of the Bible.  Many appear to approve its use in the common
schools for religious purposes, for, what I call elsewhere, the
Protesantization of American school children.  But there are some,
probably
a distinct minority among American evangelical Protestants, who demur
from
this view, finding such use of the Bible inappropriate for theological
reasons having to do largely with the relation between the Word of God
and
the worshipping community.  (Catholics also have a view on this matter
which, if I understand it, basically objects to reading the Bible
outside of
or without regard to the teaching authority of the Church.)   But all
strands of evangelical Protestant thought, I think, would find that the
Bible is not a fit subject for secular instruction.  The only difference
among them is whether the instruction that comes from reading the Bible,
which has to be religious, given evangelical Protestant theology, can
properly take place in the common schools.

The key question is do we take seriously evangelical Protestant claims
about
the meaning and nature of the Bible.  I think that we ought to.  Hence
the
constitutional objection.  If I were a devout evangelical Protestant, I
would be terribly uneasy about attempts to treat the Bible merely as
"literature."  And here is why Bible as Literature does not work.  In a
country in which most of the people are evangelical Protestants, the
courses
cannot easily proceed as you would have them. They would become, for a
variety of reasons, both theological and political or cultural,
religious
exercises.  Hence the constitutional objection.  Again, four or five
Illinois Supreme Court judges had a clear read on all of this back in
1910.

 I
> agree that it would be very easy for the director to create an
atmosphere
> more like the devotional reading.  I am far less certain that this is
> unavoidable and thus that the choir is per unconstitutional.

  Even in the
> Bible as Literature course, a good instructor would want to stir up in
> students some feelings of appreciation for the text:  for its
beautiful
> language, for its grappling with fundamental human issues, for its
> wide-ranging influence on later history.  I don't think that that is
> unconstitutional;

Again, Tom, my comments above indicate why I cannot agree with you on
this
point.

 it's a part even of any "objective" teaching that has any
> zest to it.  I said the same thing about the UNC mini-course on Islam,
in
> earlier exchanges with Rick Duncan.

As some of the old cases make perfectly clear, reading the Bible is one
thing, reading the Koran quite another.  This country is, at least in my
view, a Protestant Empire.  It is not a Muslim Empire.
>
> Finally, the premise of the discussion was that the gospel choir was
one
> among several choral options, unlike the stand-alone Bible reading for
> everyone in homeroom time in Schempp.

Again, Tom, I don't think the "options" feature works.  It has flopped
in
Toronto, Canada for perfectly understandable reasons.

I think that when we seek to build community, when we seek to include,
paradoxically (perhaps) we exclude.  That's the problem.  What we really
need to focus on, it seems to me, is the excluded.  I take that to be
the
constitutional command.  The constitution exists, in my humble opinion,
largely to protect minorities.  In a democratic polity, majorities don't
need much in the way of constitutional protection, particularly stable
long-term majorities.
>
>
>
> *******************
> Thomas C. Berg
> University of St. Thomas School of Law
> Mail # TMH 444C
> 1000 La Salle Avenue
> Minneapolis, MN   55403-2005
> Phone: (651) 962-4918
> Fax: (651) 962-4915
> tcberg at stthomas.edu
>
> ************************
>
>
> -----Original Message-----
> From: Michael Newsom [mailto:mnewsom at LAW.HOWARD.EDU]
> Sent: Monday, December 02, 2002 12:49 PM
> To: RELIGIONLAW at listserv.ucla.edu
> Subject: Re: Seminole County School Board Announces New Guidelines
Which
> P ermit High School Choir To Sing At Religious Events
>
>
> I don't see how Tom's arguments do not apply with equal force to Bible
> reading. Is Schempp wrong?
>
>
> ----- Original Message -----
> From: "Berg, Thomas C." <TCBERG at STTHOMAS.EDU>
> To: <RELIGIONLAW at listserv.ucla.edu>
> Sent: Monday, December 02, 2002 12:02 PM
> Subject: Re: Seminole County School Board Announces New Guidelines
Which P
> ermit High School Choir To Sing At Religious Events
>
>
> > In response to Alan's question below:  There is not a plausible
secular
> > cultural reason to focus on Protestant theology alone in a
public-school
> > course.  The academic value in such a course would consist solely in
> > learning, understanding, grappling with the theological assertions
> > themselves; and when that is the focus, I agree that (at a public
high
> > school, at least) the school should be concerned to expose students
to a
> > variety of theologies/faiths.
> >
> > The gospel choir is a tougher case precisely because there are
secular
> > musical and cultural reasons to focus on this genre -- its
distinctive
> > harmonic progressions, "call and response" structure, bending of
tones
and
> > other solo moves and devices, etc., and the way the music itself
> > communicates certain emotions (stemming from the African-American
> > experience).  There was an international choral festival in
Minneapolis
> this
> > summer, and it ended with a concert by several leading area choirs,
which
> in
> > turn concluded with all those choirs assembled onstage to do a
couple of
> > songs together -- the last song was a gospel song whose words I
don't
even
> > remember, but it had everyone in the audience standing, clapping,
singing
> > the response phrase, etc.  I'm sure that the audience contained many
> > non-Christians (both local and from around the world) who
nevertheless
> could
> > enter into the mood created by the music itself.  The same could
never
be
> > true with a public reading from a Protestant theologian, whether
it's
Karl
> > Barth or Billy Graham.
> >
> > At the same time, I recognize that with a gospel choir, it can be
very
> > difficult to separate the music from the theological message.  Any
good
> > choir director wants the singers to identify in some way with the
message
> > and the emotions of the lyrics, in order to be able to bring the
music
to
> > life again in performance.  In the case of religious music, there is
a
> fine
> > line between encouraging that kind of identification and encouraging
an
> act
> > of corporate worship by the choir as a whole.  I agree that it is
easier
> to
> > cross that line when (1) the gospel music is not simply one among
many
> > genres performed, but is the whole repertoire of a choir, and (2)
when
the
> > music is also the familiar church music of a majority of students in
the
> > choir or the high school.
> >
> > Although it may be fairly easy for a high-school gospel choir to
slip
over
> > into an unconstitutional worship program for a single faith, I do
think
> that
> > courts have to be fairly deferential about such questions, for the
reasons
> > I've tried to raise in previous posts.  There can be secular reasons
for
> > focusing on a musical or artistic genre that overlaps with one
religious
> > faith, and so precise religious equality shouldn't be demanded;
> > correspondingly, if our standard of religious equality is too
demanding,
> we
> > make it very difficult to include religious themes in the  school
arts
> > programs at all, and that produces an unwarranted and improper
> > secularization.  That's all I'm saying.  (Plus, as I said before,
I'm
> really
> > just prolonging this thread because I like to talk about choral
music.)
> >
> >
> > *******************
> > Thomas C. Berg
> > University of St. Thomas School of Law
> > Mail # TMH 444C
> > 1000 La Salle Avenue
> > Minneapolis, MN   55403-2005
> > Phone: (651) 962-4918
> > Fax: (651) 962-4915
> > tcberg at stthomas.edu
> >
> > ************************
> >
> >
> >
> >
> > -----Original Message-----
> > From: Alan Brownstein [mailto:aebrownstein at ucdavis.edu]
> > Sent: Friday, November 29, 2002 12:42 AM
> > To: Berg, Thomas C.
> > Subject: RE: Seminole County School Board Announces New Guidelines
Which
> > P ermit High School Choir To Sing At Religious Events
> >
> >
> > I don't know much about music but I would think that a choir
director
with
> > such a narrow and rigid perspective should not be directing a high
school
> > choir. Still I understand Tom's point. There may be some
circumstances
> > where a musical program can not include significant diversity of
religious
> > music, but the non-religious basis for choosing the program and the
> > non-religious content included in it effectively negates concerns
about
> > religious favoritism and endorsement. The Madrigal Choir at Davis
High
> > School might be an example. I believe they sing a few songs with
religious
> > subjects -- and probably all of the madrigals with religious
subjects
are
> > Christian. In my judgement, the burden is on the school that creates
a
> > program with religious content limited to a single faith tradition
to
> > demonstrate that there is no religious favoritism in the selection
and
no
> > endorsement of a religion in effect. I think it is far easier to
make
that
> > showing for a Madrigal Choir than a Gospel Choir -- for obvious
reasons.
> >
> > Tell me Tom. How would you handle my prior example of a high school
with
> > just two courses in Philosophy, one in Logical Positivism and the
other
in
> > Protestant Theology. If the school offers a class in Rhetoric, may
it
> > include an alternative class in Prayer and Commentary from a single
> > religious tradition. Students can certainly study theology, prayer
and
> > religious commentary from an academic perspective. But I have a hard
time
> > accepting a class in the theology, prayer or commentary of a single
> > religion being taught in a public school -- even if there is a
secular
> > alternative. And if a class in just Protestant Theology or
Protestant
> > Prayer and Commentary is unacceptable, how is a Gospel Choir any
> different?
> >
> > Alan Brownstein
> > UC Davis
> > visiting at UNSW
> >
> >
> > Tom wrote:
> > >  A question concerning Alan's post
> > >  Alan:  You point out, correctly, that music from a variety of
religious
> > >traditions could be incorporated (along with secular music) in an
overall
> > >music program.  But what if the choir director thinks that only a
certain
> > >repertoire has music or cultural value, and that repertoire
coincides
> with
> > >only one religious tradition?  Suppose, for example, that the
director
> > >thinks that only the classical Western European tradition from,
say,
> > >Palestrina (16th century) through Brahms (mid-19th-century) has
musical
> > >value; as a result, although the repertoire has both secular and
> religious
> > >pieces, the religious pieces are only Christian in content.  While
that
> > >choice might reflect a narrow musical vision, I doubt that it is
> > >unconstitutional, since there is plainly a secular reason for the
choice;
> > >and I don't think that the director is nevertheless under an
obligation
> to
> > >maintain religious equality in the results (unless it could be
shown
that
> > >the choice of classical Western European music was made *because*
it
> would
> > >favor Christian content).  In other words, I still wonder whether
your
> > >emphasis on religious equality can really be fully operative in
this
> > setting
> > >-- where there may be secular cultural reasons for choosing music
that
> > turns
> > >out to reflect one religious tradition.  Similarly, secular musical
and
> > >cultural concerns could explain the choice of the gospel choir,
although
> I
> > >concede that it's more of a stretch.  I'm just questioning how much
we
> can
> > >really demand religious equality in this sort of context.