Editor's note: This commentary was published in USA TODAY on Aug. 28.
Every year, the Frenchtown Elementary School in New Jersey presents an after-school talent show, open to kids from kindergarten through eighth grade. The performers can choose to play an instrument, dance, create a skit or select a song.
This past school year, a second-grader decided to sing Awesome God. But during rehearsal, the teacher in charge, on hearing the title and lyrics, told the child that principal Joyce Brennan would have to approve that song. Brennan contacted the attorney for the school district.
Brennan then explained in a letter to the child’s mother that the song was “inappropriate for a school-run event with a captive audience of, in many cases, quite young children because of its religious content.”
Accordingly, a lawsuit has been filed in the chronic civil war in our public schools between the First Amendment’s Establishment Clause and its Free Exercise of Religion requirement. The case landed in U.S. District Court in New Jersey.
With schools opening around the country, it’s unfortunate that many principals and school boards are not educated on the meaning of the Establishment Clause which can be violated, for example, if a principal asks a priest, rabbi or minister to speak at commencement exercises, thereby officially favoring that form of religion, or any specific form of religion.
Such behavior would appropriately be regarded as a “state action.” But under the Free Exercise Clause, a student can express his or her personal religious beliefs in an assignment or as a valedictorian.
A child’s right, not a school’s choice
In the Frenchtown Elementary School’s case, the American Civil Liberties Union of New Jersey is supporting the child plaintiff. Attorney Jennifer Klear, who took the case on behalf of the ACLU, filed a brief to the court. In it, she made the essential and to me, obvious point that it was the child who chose the song, not the school.
So there was no violation of the Establishment Clause by removing the “wall” of separation between church and state. Ironically, the school’s guidelines for the talent show mandated only that everything in the performances be G-rated. There were no other restrictions, nor was there a “captive audience” because students were not required to attend.
But the school district’s lawyer recoiled at the song’s religious content, and the principal explained that the song was the equivalent of a prayer. As this second-grader is discovering how embattled the First Amendment can be, the case is still in the courts.
In another lawsuit, an ACLU affiliate in Nevada has taken the side of school authorities, banishing certain religious speech. In June, during high school graduation exercises at Foothill High School in Henderson, Nev., valedictorian Brittany McComb was reading her address when, suddenly, school officials cut off the microphone.
The audience was spared her presumably infectious references to God, “the Lord,” and a mention of Christ. According to Clark County school district officials, while school events may include religious references, proselytizing is forbidden.
Agreeing, Allen Lichtenstein, general counsel for the ACLU of Nevada, said in the Las Vegas Review-Journal: “There should be no controversy here. It’s important for people to understand that a student was given a school-sponsored forum ... in essence, it was a school-sponsored speech,” thereby violating the Establishment Clause because of “her proselytizing.”
“People aren’t stupid,” the admirably clear-headed McComb told the Review-Journal, “and they know we have freedom of speech, and the district wasn’t advocating my ideas. ... I went through four years of school at Foothill and they taught me logic and they taught me freedom of speech. God’s the biggest part of my life. Just like other valedictorians thank their parents, I wanted to thank my lord and savior.”
How did the school authorities know at what point the forbidden words would be spoken? At Foothill High, as at most high schools around the country, valedictorians are subject to what the courts call “prior restraint” of speeches. School officials preview the remarks, and McComb was ordered to strike those prohibited words.
Refusing, McComb explained why she rebelled against authority for the first time. Having graduated with a 4.7 GPA, McComb who was planning at the time to study journalism at Biola University, a private Christian school in La Mirada, Calif. emphasized that she was saying what she believes: “The district wasn’t advocating my ideas.”
In her lawsuit against the district, McComb is represented by what I consider one of the premier civil liberties organizations in the country, the Rutherford Institute in Charlottesville, Va. Says founder John Whitehead of his client: “She has a constitutional right like any other student to freely speak about the factors that contributed to her success.”
So why are two ACLU affiliates at odds on the kinds of religious speech protected by the First Amendment? Because the national ACLU puts forth an ambiguous and sometimes misinformed policy on such issues. For example, the ACLU has in numerous cases backed efforts to expunge crosses from city seals even if the cross dated to the founding of a city, when religion played a vital role. Citing history is not a violation of the Establishment Clause, nor is it proselytizing.
In need of an education
What’s unfortunate is that every school year, these unreasonable restrictions of free speech come to the fore in this country simply because educators and, for that matter, some ACLU chapters don’t have a clear understanding of the First Amendment.
In 1994, I was reporting in Murfreesboro, Tenn., on another high school valedictorian, Kathryn Sinclair, who on principle defied another prior restraint gag rule: She told the principal of Riverdale High School that prior restraint violated the First Amendment. She gave her address without interruption but was reviled by many of her fellow students and some faculty because the resultant publicity “made the school look bad,” as Sinclair put it.
When her ordeal and it was an ordeal was over, Sinclair asked me: “Why don’t schools teach why we are Americans?” And then she stated an unfortunate truth: “So few people know.”
Nat Hentoff is an expert on First Amendment issues, student rights and education. He is on the advisory board of FIRE.