School District Bans religious Holiday Celebrations

[Brownstein, Alan]

A school's decision to teach about religion through objective course materials rather than celebrating religion in school sponsored activities seems like a reasonable pedagogical decision to me even if it is influenced by debatable Establishment Clause concerns. Indeed, I see nothing unreasonable if a School Board's decision is grounded on Establishment Clause values - even if that exceeds what the First Amendment currently requires, just as I do not think it is per se unreasonable for a School Board to base some of its decisions on free exercise values - even if that exceeds what the First Amendment currently requires. Indeed, the idea that it is necessarily unreasonable to exceed a First Amendment guarantee strikes me as unreasonable. Constitutional guarantees create a floor, not a ceiling, for liberty and equality interests. A particular decision by a teacher or principal may be unreasonable for other reasons, but it isn't unreasonable to care more about the values underlying the religion clauses of the First Amendment than the current Supreme Court does.

I also think it is reasonable for a school district to take parental concerns into account in deciding curricular content. I have not always been pleased with the results of those decisions, but such a system seems far more "reasonable" to me than one that holds that it violates the Free Speech Clause of the First Amendment if a school bases its decision on parental concerns.

I also think it is reasonable for a School to attempt to reduce its exposure to constitutional litigation by avoiding getting close to the violation of constitutional prohibitions - if the School concludes that the cost in resources spent in defending itself in court exceeds the arguable benefits of straying too close to a constitutional line. My guess is that when schools defend their control of school sponsored activities relating to religion by expressing concerns about the Establishment Clause, they are expressing both their aversion to exposure to litigation and some commitment to Establishment Clause values.

But most of all, I think it is completely unreasonable to assign to the federal courts the task of deciding whether a school's decisions about school-sponsored activities are sufficiently reasonable or pedagogical or both to satisfy free speech requirements. Ultimately, I think that the Court in Hazelwood  erred in even implicitly suggesting that the federal courts have some role to play in reviewing school decisions regarding school sponsored activities under the Free Speech Clause of the First Amendment. There is no constitutional basis for a judge determining what constitutes a legitimate pedagogical concern.  For a court to attempt to reach such a conclusion is judicial policy making in its most extreme form. Shameless plug. I have written an unreasonably long article making this argument in exhausting detail. It is called "The Nonforum as a First Amendment Category: Bringing Order Out of the Chaos of Free Speech Cases Involving School-Sponsored Activities." It is currently available on SSRN.

Alan Brownstein

From: religionlaw-bounces at lists.ucla.edu [mailto:religionlaw-bounces at lists.ucla.edu] On Behalf Of Rick Duncan
Sent: Sunday, November 30, 2008 9:18 AM
To: Law & Religion issues for Law Academics
Subject: Re: School District Bans religious Holiday Celebrations

How is the school's mistaken fear of avoiding EC violations a reasonable pedagogical concern under Hazelwood?

Here is a hypo I use in class all the time. In an art class assignment to draw "an inspirational historical character," Sally draws a picture of Jesus and is informed by her teacher that her drawing is inappropriate because it violates the EC.

Is the teacher's legal ignorance about the reach of the EC a "reasonable pedagogical concern?" Is it reasonable? Is it even a pedagogical concern?

Hazelwood is tilted in favor of the school, but the school's reasons must be both reasonable and pedagogical. For example, a rule that says we will sing the following songs (all of which happen to be secular) at the holiday concert because they teach the best music lessons is a pedagogical concern. But a rule that excludes religious music because of the school's unwarranted fear of the EC (or to appease some parents who object to religious music) is neither reasonable nor pedagogical. No?
Rick Duncan
Welpton Professor of Law
University of Nebraska College of Law
Lincoln, NE 68583-0902




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