Three of the state’s top experts in constitutional law say the Chanute school district made the right call when it took down a portrait of Jesus that had hung in the town’s middle school for decades, but that doesn’t mean religion has to be banished from public schools.
Law professors Bill Rich and Jeff Jackson from Washburn University and Richard Levy from the University of Kansas said the picture almost certainly violated the first part of the First Amendment in the Bill of Rights: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”
“That (Chanute) display strikes me as a fairly clear violation of the establishment clause,” Levy said.
Acting on the advice of its attorney, the district removed the picture – a print of artist Walter Sallman’s famous “Head of Christ” – from a hallway at Royster Middle School, where it had hung for at least 50 years, superintendent Richard Proffitt said. He said a resident apparently snapped a picture of the print during a back-to-school open house and sent it to the national Freedom From Religion Foundation, which demanded the picture be taken down.
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The decision wasn’t popular with residents of Chanute, an overwhelmingly Christian community in southeast Kansas with 9,200 people and 30 churches. They argue that it’s been a fixture in the school for decades and nobody ever complained before.
While there is some leeway in the law for historical or cultural displays of religious elements, longevity alone doesn’t make it legally acceptable, because there’s pressure on people not to complain, Levy said.
“If you grew up as the only Jewish student in school, you may be reluctant to protest because you could be ostracized by the rest of the school,” Levy said.
While all three constitutional law professors saw legal problems with the picture as it was used, they also stressed that there are very few “bright lines” on what exactly public schools are allowed to do when it comes to religion.
The Chanute picture, for example, might have been OK as part of a broader display of religious figures through the ages or as an illustration in a comparative religions lesson.
Public schools are part of a larger legal controversy over religion in public spaces. Divided courts, including the U.S. Supreme Court, have often decided issues based on the circumstances and even intent of those who try to bring religion into public space.
Jackson said such cases often hinge on whether the display has a secular purpose as well as a religious one, and which dominates.
For example, he cited two cases involving displays of the 10 Commandments on public property in Kentucky and Texas. The Supreme Court ruled in 2005 that Kentucky violated the Constitution by posting the commandments in stand-alone fashion at courthouses and a school – and the same day ruled that a granite monument bearing the commandments could remain on the grounds of the Texas Capitol.
The main difference was that the Texas monument had been there since the early 1960s and was part of a park with 37 other monuments dedicated to the state’s history and ideals that shaped it.
While installing that kind of monument today probably wouldn’t pass the court test, courts are less likely to order an agency “to take a jackhammer to something that somebody put up in 1910 because somebody objects to it now,” Jackson said.
No coercion, endorsement
Rich said schools have to steer clear of two pitfalls when it comes to religion: coercion and endorsement.
Coercion comes into play when the school pressures students into participating in a group religious activity, such as a prayer before a football game. Endorsement is more like the Jesus picture in Chanute, where it implies that the government – in this case, the school district – favors a particular religion, he said.
“Endorsement would preclude simply having the face of Jesus (on a wall) but would not preclude a comparative religion class,” he said.
The Chanute case echoes but differs from a Wichita case from two years ago when a teacher posted a bulletin board with the Five Pillars of Islam in a hallway at Minneha Core Knowledge Magnet Elementary School.
The bulletin board was taken down after complaints from some parents and conservative Christian bloggers.
The law professors’ unanimous opinion was that the bulletin board would probably have withstood a legal challenge, because it was a visual aid for a core curriculum class introducing students to the beliefs of five world religions: Christianity, Judaism, Hinduism, Buddhism and Islam.
The professors also addressed some other common issues regarding religion in schools, including:
▪ School prayer – Students are allowed to pray at school, alone or in groups such as the popular “See You at the Pole” meetings, where students gather at the school flagpole to say a prayer before school. Such activities can become a legal problem, though, if school personnel participate in or promote the activity, giving the impression of official endorsement. That’s especially a problem with young children, who are less able to separate teachers and administrators from their roles at the school, Jackson said.
Prayers at scheduled school-sponsored events are generally forbidden, even if the prayer is student-led, because it implies the district’s endorsement, Rich said. Locker-room prayer before a game can also be seen as coercive, particularly if a coach participates. It has the potential to make the nonreligious player think ‘If I’m going to get the ball at all, I better participate in this guy’s prayer,’ ” Rich said.
▪ Use of school property – Religious groups, even churches, can use school facilities for their meetings as long as the school district has building-use policies that don’t discriminate based on the nature of the group or the content of its message, the professors said.
▪ Bible distribution – Last year, before coming to Chanute, Proffitt was superintendent in the Southeast of Saline district, where a teacher invited a representative of Gideons International to address his elementary school class and distribute Bibles to the students. Proffitt investigated and put a stop to future Bible distributions after a complaint from the Freedom From Religion Foundation. While schools can’t allow that on school time, community groups using school facilities after hours, such as the Boy Scouts, could allow Bible distribution to their members, the professors said.
Reach Dion Lefler at 316-268-6527 or firstname.lastname@example.org.