A Doomed Prayer for ReliefAuthor(s): Perry A. ZirkelSource: The Phi Delta Kappan, Vol. 76, No. 6 (Feb., 1995), pp. 496-497Published by: Phi Delta Kappa InternationalStable URL: http://www.jstor.org/stable/20405378 .

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A Doomed Prayer for Relief

By Perry A. Zirkel

A GROUP of five parents, includ ing David and Kathryn Skip

worth, were not happy with the high school curriculum in the

Woodland Park School District, which serves a suburb of Colorado Springs. More specifically, the focus of their ire was a world history course that taught what they characterized as "ancient chronicles of pa gan [i.e., Greek and Roman] religions" without an offsetting treatment of "an cient chronicles of other religions, in cluding those found in the Bible."

When their crusade at the local level proved unsuccessful, they sued thc Wood land Park school board and Colorado's chief state school officer in state court, seeking a declaratory judgment and dam ages for the defendants' alleged breach of a statutory or constitutional duty to teach

morality in the public schools. They ar gued in their complaint: "Morality can not be taught without teaching some of the content of the Bible.... Much of the content of the Bible is essential to good citizenship."

The trial court granted the defendants' motion for dismissal and awarded attor neys' fees to the Colorado commissioner of education on the ground that the suit was frivolous. The court pointed to the sovereign immunity of the state education agency in Colorado and its lack of author ity to control curriculum beyond the statu tory mandates.

Without contesting the ruling for the state-level defendant, the plaintiff-parents filed an appeal challenging the dismissal of their claims against the local school of ficials. They conceded the Supreme Court's long-established precedent that promo tional Bible study violates the establish

ment clause of the First Amendment,' but they argued as follows: 1) "certain studies

PERRYA. ZIRKEL is University Professor of Education and Law at Lehigh University, Bethlehem, Pa.

plainly essential to good citizenship must be taught in the public schools," and 2) "morality is essential to good citizenship and [therefore] must be taught in the pub lic schools."

As the legal basis for their claim, they pointed both to the state constitution's re quirement that the state legislature pro

The plaintiffs argued that

"morality cannot be taught without teaching some of

the content of the Bible."

vide for a "thorough and uniform" public school system and to the state statutory requirement that local boards of educa tion "determine the educational programs to be carried on in the schools of the dis trict." They claimed that each of these re quirements implicitly established a duty to teach morality as contained in the Bible.

Colorado's appellate court gave short shrift to both legs of the plaintiffs' "im plicit duty" argument.2 The cited consti tutional provision, the court observed,

merely requires the state legislature to es tablish and maintain a school system; its language and state court interpretations do not dictate any such particular duty. The plaintiff-parents had cited a 1927 state supreme court decision that had required Bible reading in public schools. However,

the appeals court reminded them reprov ingly, they failed to mention the state su preme court's subsequent reversal of this decision based on the intervening U.S. Supreme Court decision.

As for the statutory delegation of au thority to local boards of education, the court pointed to the areas specified by legislation for public school curriculum, such as the history, culture, and civil gov ernment of Colorado and the United States; the honor and use of the flag; the U.S. Constitution; and the effect of alco hol and controlled substances. Within these subject areas, the methods, emphases, and "values in general [are] ... within the province of the board of education and not this court." Similarly, the court conclud ed that statutory references to student dis cipline and teacher qualifications do not impose the specific duty that the plaintiffs claimed.

In short, the court suggested that the plaintiffs were in the wrong forum. They should have begun in the political arena.

Appropriate ways to start such action in clude seeking to revise the state constitu tion or to pass legislation or to convince the local board to exercise its discretion,

within the bounds of the U.S. Constitu tion.

Nailing the coffin shut, in effect, the appeals court granted the school board's

motion for attomeys' fees, concluding that, like the original suit, the appeal was "al so frivolous." The school district's coun sel, Marlene Gresh, identified the amount of attorneys' fees as a modest $2,970 for the appeal alone, but she pointed out that, under the Colorado statute and appellate decision, the plaintiffs' lawyer is jointly liable with his clients for the payment.

Guy McCready, who is a minister as well as an attorney, remained undaunted. He responded unswervingly, "We tell our youth that our society is founded upon principles of truth and justice; yet we ex

496 PHI DELTA KAPPAN

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clude the source of our concept of truth and justice, the Bible, from their educa tion."

T THIS COLORADO decision is

similar to a spate of recent rul ings in other parts of the country in response to curricular chal

lenges by the Religious Right.3 Where the focus is the elimination of perceived Sa tanism, witchcraft, paganism, or other anti

Christian evils, the odds of judicial suc cess are much better if the litigants have succeeded in convincing the local school board or co-opting it through the dem ocratic process.4 Where the focus is on the enhancement of Bible-based morali ty or values, even the majority of the lo cal board and of the state legislature must avoid imposing a "pall of orthodoxy" lest they infringe the constitutional rights of individuals in the minority.5 Whether liti gated as a matter of freedom of expres sion or under the establishment clause, a series of court decisions has shown that there is, within certain limits, room for the dominant religious doctrines within the walls of the public schools.6

The Skipworths' suit certainly will not put an end to such litigation. According to the most recent Phi Delta Kappa/Gal lup poll, the public views fighting/vio lence/gangs and poor discipline as the big gest problems facing the public schools.7

More and more parents and school offi cials point to values education as the an swer. For example, in Limestone County,

Alabama, the school board recently di rected teachers to add a fourth "R" to reading, writing, and 'rithmetic: what is "right."8 From the point of view of teach ers in that district, the problem was that the interpreter of values in Limestone

County was Don Osborne, who, in addi tion to being the superintendent, was a

part-time pastor for the local Church of Christ.

From Woodland Park, Colorado, to Limestone, Alabama, these cases reveal that the basic issue is not whether9 but

whose"' values are to be taught in the pub lic schools. "

l.Abington Sch. Dist. v. Schempp, 374 U.S. 203

(1963). 2. Skipworth v. Board ofEduc., 874 P.2d 487 (Colo. Ct. App. 1994). I obtained supplementary informa

tion through telephone interviews in early October

1994 with Guy M. McCready and Marlene T. Gresh,

attorneys for the plaintiff-parents and the defendant

district, respectively. 3. See, for example, Brown v. Woodland Unified Sch.

Dist., 27 F.3d 1373 (9th Cir. 1994); Fleischfresser v. Directors of Sch. Dist. No. 200, 15 F.3d 680 (7th Cir. 1994); and Guyer v. School Bd., 634 So.2d 806

(Fla. Dist. Ct. App. 1994). For the prior round of

such decisions, see Mozert v. Hawkins County Bd.

ofEduc, 827 F.2d 1058 (6th Cir. 1987), cert, de

nied, 484 U.S. 1066 (1988); and Smith v. Board of School Comm'rs, 827 F.2d 684 (11th Cir. 1987). 4. See, for example, Virgil v. School Bd., 862 F.2d

1517(llthCir.l989);andC/avtonv.P/flce,884F.2d 376 (8th Cir. 1989). 5. See, for example, BoardofEduc. v. Pico, 457 U.S.

853 (1982); cf. Lee v. Weisman, 112 S. Ct. 2649

(1992); and Edwards v. Aguillard, 482 U.S. 578

(1987). 6. See, for example, Lamb's Chapel v. Center

Moriches Union Free Sch. Dist., 113 S. Ct. 2141

(1993); Board ofEduc. v. Mergens, 496 U.S. 216

(1990); Hedges v. Wauconda Community Unit Sch.

Dist., 3 F.3d 1295 (7th Cir. 1993); and Gr?goire v.

Centennial Sch. Dist., 907 F.2d 1366 (3d Cir. 1990), cert, denied, 498 U.S. 899 (1990). 7. Stanley M. Elam, Lowell C. Rose, and Alec M.

Gallup, "The 26th Annual Phi Delta Kappa/Gallup Poll of the Public's Attitudes Toward the Public

Schools," Phi Delta Kappan, September 1994, pp. 41-56.

8. Karen Diegmueller, "Ala. County Issues Order:

Teach Values," Education Week, 14 September 1994, pp. 1, 14.

9. The Supreme Court has recognized that one of

the primary missions of the public schools is the in

culcation of values. See, for example, Bethel Sch.

Dist. No. 403 v. Fraser, 478 U.S. 675 (1986).

10. For a school/courts exercise in the identification

of values, see Michael Rebell and Anne Murdaugh, "National Values and Community Values," Journal

of Law and Education, Spring 1992, pp. 155-202, and Summer 1992, pp. 335-80.

11. The corollary questions concern how, when, and

how much. IC

The court suggested that the

plaintiffs were in the wrong forum. They should have

begun in the political arena.

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