Contemporary Issues I

ROBERT L. CORD

Church-State Separationand the Public Schools:

A Re-evaluationSupreme Court decisions in cases involving

religion in the public schools have been based ona misinterpretation of both the meaning of the,

First Amendment and the intentions of its framers.

or four decades-since the Ever-son v Board of Education' deci-sion in 1947-a volatile national

debate has raged about the meaningand scope of the First Amendment'sestablishment clause that mandatesseparation of church and state Manyof the U S. Supreme Court's decisionsabout this matter involve education;therefore, their importance is great toschool administrators and teacherswho establish and execute policy

Because of the vagueness of Su-preme Court decision making in thisimportant area of constitutional law,public school educators have beenaccused of violating the First Amend-ment by allowing or disallowing, forexample, the posting of the Ten Com-mandments, a meeting on schoolproperty of a student religious club, ora moment of silent meditation and/orprayer. Today even the very textbooksthat students read have become a sub-iect of litigation by parents against aschool system, a controversy mostlikely to end before the SupremeCourt.

As this national debate rages, mostscholars generally agree that theFounding Fathers' intentions regard-ing church-state separation are still

extremely relevant and importantWhile the framers of the Constitutionand the First Amendment could notforesee many twentieth century prob-lem.s-especially those growing fromadvanced technology-many church-state concerns that they addressed in1787 and 1789 are similar to those weface todav

Constitution's WordsNot TrivialFurther, if a nation, such as the UnitedStates, proclaims that its written Con-stitution protects individual libertiesand truly provides legal restrictions onthe actions of government, the wordsof that organic law-and the princi-ples derived from them-cannot betreated as irrelevant trivia by thosewho temporarily govern is the surestsingle way to undo constitutional gov-ernment, for constitutional govern-ment requires that the general powerof government be defined and limitedby law in fact as well as in theory.2

Published in 1979 to the praise ofmany respected constitutional schol-ars, the encyclopedic CongressionalQuarterly 's Guide to the U S Supreme

Court provided the following meaningof the establishment clause

The two men most responsible for itAinclusion in the Bill of lights construed theclause absolutely Thomas Jefferson andJames Madison thought that the prohibition of establishment meant that a presi-dential proclamation of Thanksgiving Daywas just as improper as a tax exemption forchurches'

Despite this authoritative statement,the historical facts are that, as Presi-dent, James Madison issued at leastfour Thanksgiving Day proclama-tions-9 July 1812, 23 July 1813, 16November 1814, and 4 March 1815 4 IfMadison interpreted the establishmentclause absolutely, he violated both hisoath of office and the very instrumentsof government that he helped writeand labored to have ratified s.

Similarly, if President ThomasJeffer-son construed the establishmentclause absolutely, he also violated hisoath of office, his principles, and theConstitution when, in 1802, he signedinto federal law tax exemption for thechurches in Alexandria County,Virginia 6

Since Jefferson and Madison heldthe concept of separation of churchand state most dear, in my judgment,

26EoucxnosAc LEADER5HiP

26 EDUICATIoNAL LEADERSHIP

Religion in the Public Schools

neither man-as president or in anyother public office under the federalConstitution-was an absolutist andneither violated his understanding ofthe First Amendment's establishmentclause. For me, it therefore logicallyfollows that President Madison did notthink issuing Thanksgiving Day Procla-mations violated the constitutional

doctrine of church-state separation,and that President Jefferson held thesame view about tax exemption forchurches.

Whoever wrote the paragraphquoted from the prestigious Guide tothe i S. Supreme Court, I assume, didnot intend to deceive, but evidentlydid not check primary historical

Cour case a ocating religion In e public sahools bhae Psiama athincet ed duImg (be1980s Piciti'ed bere is Vicki Fros, a paintf in a cwe charging Iat teatbooks lack berreligious tieupoint Her ilds placrd reads, 'Sar Mefrom Humanism. " Hers sas, ParentsHae the RibrM to Protest Ojensir Sdol Teatboos "

sources, was ignorant of Madison'sand Jefferson's actions when each waspresident, and mistakenly relied oninadequate secondary historical writ-ings considered authoritative, as nodoubt the paragraph from the Guideis, too This indicates that much misun-derstanding and/or misinformationexists about the meaning of the consti-tutional concept of separation ofchurch and state.

In that context, I examine ideascritical of my writing published in amonograph-Religion, Education,and the First Amendment: 7be Apetalto Histor)yby the eminent scholar, RFreeman Butts There he characterizedmy book, Separation of Cbtcb andState: Historical Fact and Cu'rent Fic-tion, as a manifestation of some "con-servative counterreformation," thepurpose of which is "to attack onceagain the [U. S Supreme] Court's ad-herence to the principle of separationbetween church and state" by charac-tenzing that principle as a "myth" or a"fiction" or merely "rhetoric.'" Thevery first paragraph of my book refutesthis erroneous characterization.

Separation of Church and State is proba-blv the most distinctive concept that theAmerican constitutional system has con-tributed to the body of political ideas. In1791, when the First Amendment's prohi-bition that "Congress shall make no lawrespecting an establishment of religion"was added to the United States Constitu-tion, no other country had provided socarefully to prevent the combination of thepower of religion with the power of thenational government s

While primary historical sources ex-ist that substantiate the Founding Fa-thers' commitment to church-stateseparation, other primary sources con-vince me that much of what the UnitedStates Supreme Court and notedscholars have written about it is his-torically untenable and, in many in-stances, sheer fiction at odds with thewords and actions of the statesmenwho placed that very principle in ourConstitution.

MAY 1987

Absolute Separation v."No Preference" DoctrineIn the 40-year-old Everson case theSupreme Court justices, while splitting5-4 over the immediate issue, wereunanimous in proclaiming that thepurpose of the establishment clause-and the intention of its framers in theFirst Congress--was to create a "highand impregnable" wall of separationbetween church and state 9

Unlike the Everson Court, ProfessorButts, and all "absolute separationist"scholars, I think the full weight ofhistorical evidence-especially thedocumented public words and deedsof the First Amendment's framers, in-cluding James Madison and our earlypresidents ar - Congresses--indicatesthat they emoraced a far narrowerconcept of church-state separation Inmy judgment, they interpreted theFirst Amendment as prohibiting Con-gress from (1) creating a national reli-gion or establishment, and (2) placingany one religion, religious sect, orreligious tradition in a legally pre-ferred position.'°

Simply put, the framers of the estab-lishment clause sought to precludediscriminatory government religiouspartisanship, not nondiscriminatorygovernment accommodation or, insome instances, government collabo-ration with religion. When this "noreligious preference" interpretation ofthe establishment clause is substitutedfor the Supreme Court's "high andimpregnable wall" interpretation, it is

"Adherence to the'no preference'doctrine wouldreturn many policydecisions to theappropriateeducationalauthorities... ."

easier to understand many historicaldocuments at odds with the absolut-ists' position. They substantiate that allour early Congresses, including theone that proposed to the states whatsubsequently became the First Amend-ment, and all our early presidents,including Jefferson and Madison, inone way or another used sectarianmeans to achieve constitutional secu-lar ends.

Everson CaseIn the Everson Case, writing theCourt's opinion, Justice Black soughtto bolster his "high and impregnablewall" dictum with appeals to somecarefully chosen actions of Madison,Jefferson, the Virginia Legislature of1786, and the framers of the FirstAmendment. Omitted from all of theEverson opinions are any historicalfacts that run counter to that theory. Inhis writings, I think Professor Buttsemploys a similar technique of "his-tory by omission." By this I mean thathe fails to address indisputable histori-cal facts that are irreconcilable with hisabsolute separationist views A few ex-amples will substantiate this extremelyimportant point.

Mentioning Madison's successfulVirginia battle against the "Bill Estab-lishing a Provision for Teachers of theChristian Religion" and "Jefferson'shistoric statute for religious freedomin 1786,"; Professor Butts does notexplain away Jefferson's Virginia "Billfor Punishing Disturbers of ReligiousWorship and Sabbath Breakers,"which was introduced by Madison inthe Virginia Assembly in 1785 andbecame law in 1786. 2 Further, whilehe emphasizes Madison's role in intro-ducing and guiding the Bill of Rightsthrough the First Congress,13 ProfessorButts does not explain why the "abso-lutist" Madison served as one of sixmembers of a Congressional Commit-tee which, without recorded dissent,recommended the establishment of aCongressional Chaplain System.Adopting the Committee's recommen-dation, the First Congress voted a $500annual salary from public funds for aSenate chaplain and a like amount fora House chaplain, both of whom wereto offer public prayers in Congress. 4

Nor does Professor Butts explainwhy, as an absolute separationist,

". .. much of whatthe ... SupremeCourt has writtenabout [separation ofchurch and state] ishistoricallyuntenable and, inmany instances,sheer fiction...."

James Madison would, as president,issue discretionary proclamations ofThanksgiving, calling for a day "to beset apart for the devout purposes ofrendering the Sovereign of the Uni-verse and the Benefactor of Man I iden-tified earlier in the proclamation byMadison as "Almighty God"] the pub-lic homage due to His holy attributes

Unexplained also is why ProfessorButts' absolute separationist version ofThomas Jefferson would, as president,conclude a treaty with the KaskaskiaIndians which, in part, called for theUnited States to build them a RomanCatholic Church and pay their priest,and subsequently would urge Con-gress to appropriate public funds tocarry out the terms of the treaty. 16 Anunderstanding of what the framers ofour Constitution thought aboutchurch-state separation would also befurthered if we had explanations ofwhy Presidents Washington, John Ad-ams, and Jefferson apparently did notthink they were breaching the "highand impregnable" wall when theysigned into law Congressional billsthat, in effect, purchased with enor-mous grants of federal land, in control-ling trusts, the services of the "Societyof the United Brethren for propagatingthe Gospel among the Heathen" tominister to the needs of Christian andother Indians in the Ohio Territory.'-Like the majority of the SupremeCourt, Professor Butts does not com-ment on these historical documentsand events.

EDUCATIONAL LEADERSHIP

I

When all the historical evidence isconsidered, I think it relatively clearthat the establishment clause was de-signed to prevent Congress from ei-ther establishing a national religion orfrom putting any one religion, reli-gious sect, or religious tradition into alegally preferred position. In Everson,the Supreme Court interpreted theFourteenth Amendment as prohibitingstate legislatures, or their instrumen-talities such as school boards, fromdoing likewise. As a result, the inter-pretation of the establishment clauseby Supreme Court decisions governsthe permissible range of both stateand federal legislative authority.

Professor Butts thinks my definitionof an "establishment of religion" toonarrow, and the prohibition which Ithink the framers intended "plausiblebut false."1' Plausible because in thesixteenth and seventeenth centuries,establishments in Europe and in theearly American colonies usually meantthe establishment of a single church.False because Professor Butts con-tends that, by the end of the eigh-teenth century, in America the term"establishment of religion" had takenon a different meaning.

His argument is that "the idea of asingle church as constituting 'an estab-lishment of religion' was no longerembedded in the legal framework ofany American state when the FirstAmendment was being debated inCongress in the summer of 1789."Adding that in all of the states that stillretained establishments, "multiple es-tablishments were the rule," ProfessorBuns concludes that "the founders andthe framers could not have been igno-rant of this fact; they knew very wellthat this is what the majority in theFirst Congress intended to prohibit atthe federal level. " 19

Butts' ArgumentUntenableThis argument is simply untenablewhen considered with the primaryhistorical record. Professor Butts virtu-ally ignored the documents most cru-cial to an understanding of what thereligion clauses were designed to pro-hibit at the federal level-the suggest-ed constitutional amendments fromthe various State Ratifying Conven-

tions. Those documents show that theyfeared, among other things, that im-portant individual rights might be in-fringed by the powerful new nationallegislature authorized by the adoptionof the federal Constitution.

Their amendments indicate that thestates feared interference with the in-dividual's right of conscience and anexclusive religious establishment, nota multiple national establ/i!muent, asProfessor Butts wants us to believe.Typical was the Maryland RatifyingConvention's proposed amendmentstating "that there will be no nationalreligion established by law; but that allpersons be equally entitled to protec-tion in their religious libertv.. "20

The Virginia Ratifying Conventionproposed a "Declaration of Bill ofRights" as amendments to the Consti-tution that was echoed by North Caro-lina. Rhode Island, and New York Con-ventions. Virginia's Article Twenty,adopted 2' June 1788, stated:

That religion, or the duty which we oweto our Creator, and the manner of dis-charging it, can be directed only by reasonand conviction. not by force or violence.and therefore all men have an equal. natu-ral, and unalienable right to the free exer-cise of religion, according to the dictates ofconscience, and that no particular religioussect or society ought to be favored orestablished, by law, in preference toothers '

States WantedNonpreferenceIn short. when it came to religiousestablishments, the State RatifyingConventions proposed "nonprefer-ence" amendments.

With these proposals in mind, it iseasier to understand the wording ofMadison's original religion amend-ment: '"The Civil rights of none shallbe abridged on account of religiousbelief or worship, nor shall any nation-al religion be established, nor shall thefull and equal rights of Conscience bein any manner, or on any pretext,infringed."22 Madison wanted the Con-stitution to forbid the federal govern-ment from interfering with the rightsof conscience or establish an exclusivenational religion-not religions-andthe record said so

The "nonpreference" interpretationis further bolstered by Madison's origi-nal wording of his own establishmentclause and his later interpretation onthe floor of the House of Representa-tives of the intended prohibitions ofthe amendment. On 15 August 1789,using virtually the same words em-ployed by the petitioning State Ratifv-ing Conventions.

Mr. Madison said, he apprehended themeaning of the words to be, that Congressshould not establish a religion, and en-force the legal observation of it by law, norcompel men to worship God in an' man-ner contrary to their conscience Whetherthe words are necessary or not. he did notmean to say, but . he thought it as wellexpressed as the nature of the languagewould admit.

2'

MAY 1987

Further, the House record indicatesthat Madison said that "he believedthat the people feared one sect mightobtain a preeminence, or two com-bine together, and establish a religionto which they would compel others toconform."24 Certainly Madison's state-menms from the record of the FirstCongress and the other primary docu-ments mentioned here run contrary tothe "multiple establishment" thesis.

Implications forthe Public SchoolsProfessionals in education may won-der appropriately what the impactwould be on public education shouldthe U S Supreme Court now chooseto reverse some of its major rulingsand adopt the narrower interpretationof church-state separation which I be-lieve was intended and embraced bythe First Amendment's framers.

First, the establishment clausewould continue to prohibit Congressand individual states from creating, inMadison's words, "a national religion."

Second, in keeping with the fram-ers' intent, the establishment clause's"no preference" doctrine, applied di-rectly to the federal government andto the states by the Fourteenth Amend-ment, would constitutionally precludeall governmental entities from placingany one religion, religious sect, orreligious tradition into a preferred le-gal status. As a consequence, in publicscho(xls, the recitation of the Lord'sPrayer or readings taken solely fromthe New Testament would continue tobe unconstitutional because they placethe Christian religion in a preferredposition.

Similarly, the posting of the TenCommandments only or reading onlyfrom the Old Testament would placethe Judeo-Christian tradition in an un-constitutionally favored religious sta-tus. However, unendorsed readings orpostings from many writings consid-ered sacred by various religions, suchas the Book of Mormon, the interpre-tative writings of Mary Baker Eddy, theBible, the Koran, the Analects of Con-fucius, would not be unconstitutional.A decision to teach only "creationism"or Genesis would be unconstitutional,while a course in cosmology, explor-ing a full range of beliefs about theorigin of life or the nature of theuniverse-religious, areligious, or

MAY 1987

"Simply put, theframers of theestablishment clausesought to precludediscriminatorygovernmentreligiouspartisanship, notnondiscriminatorygovernmentaccommodation or... collaborationwith religion."

nonreligious-would not violate theFirst Amendment any more thanwould a course on comparative reli-gions without teacher endorsement

In all circumstances where the stateis pursuing a valid educational goal.and is religiously nonpartisan in doingso, the professional leadership of theeducational unit would decide, as inany other policy, whether such anactivity was educationally appropriateor desirable. This would be the casewhether the educational unit was aschool, a school district, or an entirestate educational system. Consequent-Iv, adherence to the "no preference"doctrine would return many policsdecisions to the appropriate educa-tional authorities, elected or appoint-ed, and reduce the all too frequentpresent pattern of government bvjudiciary.

Third, although the First Amend-ment's free exercise of religion clausewould not be contracted by the "nopreference" principle, that interpreta-tion would, in some instances, expandthe individual's free exercise of reli-gion and other First Amendmentrights. This would happen where'equal access" is currently deniedpublic school students.

Equal Access ActThe Equal Access Act of 1984 (PublicLaw 98-377) prohibits public highschools receiving federal aid from pre-venting voluntary student groups, in-cluding religious ones, from meetingin school facilities before and afterclass hours or during a club period, ifother extracurricular groups have ac-ces s.2 The constitutionality of refusing"equal access" to voluntary studentreligious organizations was litigated inthe lower courts- before reaching theU.S. Supreme Court in Bender v. Wil-liamsport in March 1986 2-

In deciding equal access cases, thelower federal courts applied the Su-preme Court's "three part Lemon" testto determine whether the establish-ment clause had been violated. Underthis test, first described in Lemon v.Kurtzman, the Supreme Court heldthat in order to pass constitutionalmuster under the establishmentclause, the challenged governmentalpolicy or activitn must (1) have a secu-lar purpose, (2) be one that has aprincipal or primary effect which nei-ther advances nor inhibits religion,and (3) not foster an excessive govern-ment entanglement with religion. "

The "no preference" doctrine, onthe other hand, would provide a rela-tively clearer and easier-to-apply test.Alleged violations would be measuredbv two simple questions: (1) Is thegovernmental action within the consti-tutional power of the acting publicbody? and (2) Does the governmentalaction elevate any one religion, reli-gious sect, or religious tradition into apreferred legal status? Either a "no" tothe first question or a "yes" to thesecond would make the policyunconstitutional.

Unlike the Lemon interpretation,the "no preference" interpretationposes less danger to a student's indi-viddtal First and Fourteenth Amend-ment libert. The Third U S. CircuitCourt's decision in Bender v. Williams-port illustrates this point. There thecourt held that it was constitutional fora school board to refuse to permit astudent-initiated nondenominationalprayer club to meet during the regu-larly scheduled activity period in apublic school room.29 As I see it. thatdecision subordinated three FirstAmendment freedoms-free exerciseof religion, freedom of speech, and

"Under the 'nopreference' doctrine,equal access would beguaranteed to allreligious or ...irreligious groups..."

voluntary assembly-to one misinterpreted First Amendment guaranteeUnder the "no preference" doctrine,equal access would be guaranteed toall religious or, for that matter, irreli-gious student groups under the sameconditions that apply to any other vol-untary student group

Application of the 'no preferenceinterpretation also avoids enormousdangers to an "open society" possibleunder the Lemon test Can we not seethat a court which can hold todav thata classroom could not be used by avoluntary religious student group be-cause that use mav have as its primaryeffect the advancement of religion, cantomorrow, by the same logic, barmeeting rooms to students who wantto discuss atheism or a book negativeabout religion, such as Bertrand Rus-sell s Why I Am Not a Christian, be-cause the primary effect there mightbe said to inhibit religion. By the useof Lemon's "primary effect" test, booksabout religion or those said to beirreligious can be removed from pub-lic school libraries. Is C. S. Lewis' TheScrewtape Letters safe? And what aboutInherit the Wind, or Darwin's Origin ofthe Species? Are we so frightened ofourselves that we are willing to disal-low, in our institutions of learning,scrutinization of ultimate issues andvalues because of fear about where anopen marketplace of ideas may even-tually take the nation?

Finally, while some actions such asan uncoerced moment of silence formediation and/or prayer in a publicschoolroom3 0

or the teaching of edu-cationally deprived students from low-income families for several hours eachweek in a parochial school by public

school teachers, recently held uncon-stitutional,3' would be constitutionalunder the "no preference" interpreta-tion, that does not mean they wouldautomatically become educational pol-icy In all public educational entities,large or small, what would becomepolicy would be up to the legallyempowered decision makers in eachof those entities E

1 330 1 S 1 (1947)2 Charles 11 Mcilwain, Constitutional-

ism Ancient and Modern, rev ed (Ithaca.NY: Great Seal Books, 1958), 19-22

3 Congressional Quarterivs Guide tothe I nited States Supreme Court (Washing-ton, D C Congressional Quarterly, Inc.19'9), 461 Emphasis added The FirstAmendment has two religion clauses, theestablishment' clause and the "free exer-

cise clause 1 S Constitution AmendmentI Congress shall make no law respectingan establishment of religion, or prohibit-ing the free exercise thereof

4 These proclamations, in their entiretv, are published in James D Richardson. AContemplation of the Messages and Papersof the Presidents, 1789-1897, vol I(Washington. DC: Bureau of National Literature and Art. 1901). 34-35; and RobertL Cord, Separation of Church and Statellstorncal Fact and Current Fiction (NewYork Lambeth Press, 1982), 257-260

5 After he had left the presidency, andtoward the end of his life, Madison wrote adocument commonly known as the "Detached Memoranda,' which was first pub-lished as recently as 1946 in William andMary Quarterly 3 (1946): 534 In it Madi-son does say that Thanksgiving Day procla-mations are unconstitutional, as are chap-lains in Congress In light of his actions inpublic office, these were obviously not hisviews as a congressman and president Fora fuller discussion of Madison's "DetachedMemoranda," see Cord, Separation, 29-36

6 2 StatutesatLarge 194, Seventh Con-gress, Sess 1, Chap 52 Jefferson did be-lieve Thanksgiving Proclamation violatedthe First Amendment and, unlike Washing-ton, John Adams, and James Madison, de-clined to issue them

7 R. Freeman Butts, Religion, Educa-tion, and the First Amendment: The Appealto History (Washington, DC.: People forthe American Way, 1986), 9. Butts, an edu-cational historian, is William F. RussellProfessor Emeritus, Teachers College, Co-lumbia University; Senior Fellow of theKettering Foundation; and Visiting Scholarat the Hoover Institution, StanfordUniversityv

8 Cord, Separation, XIII9 For an extensive critique of the Ever-

son case and its interpretation of the estab-lishment clause, see Cord, Separation,103-133

10 For in-depth study of the "no preference" principle, see Robert L Cord,"Church-State Separation: Restoring the'No Preference' Doctrine of the FirstAmendment," liarvard Journal of Lau' &Public Policy 9 (1986): 129

11 Butts, Religion, 1812 Cord, Separation, 215-21813 Butts, Religion, 18-2114 Cord, Separation, 22 2615 Quoted from President Madison's

"Proclamation" of "the 9th day of July A D1812" This proclamation is republished inits entirety in Cord, Separation, 257

16 For the entire text of the treaty, seeIbid, 261 263

17 The full texts of these laws are re-published in Cord, 263-270

18 Butts, Religion, 1619 Ibid, 1820 Jonathan Elliott, Debates on the Fed

eral Constitution, vol II (Philadelphia J BLippincott Co, 1901), 553

21 Ibid, vol III, 65922 Annals of the Congress of the United

States, The Debates and Proceedings in theCongress of the United States. vol 1, Com-piled from Authentic Materials, by JosephGales. Senior (Washington, D C Gales andSeaton, 1834), 434

23 Ibid. 73024 Ihid, 73125 Congressional Quarterly Weekl/ Re-

port, votls 42, p 1545, 1854; 43, p 180726 Brandon v Board of Education, 635

F 2nd 971 (2d Cir 1980): cert denied, 454U 5 1123 (1981), Lubbock Civil LibertiesUnion v Lubbock Independent School Disotrict, 669 F 2d 1038 (5th Cir 1982). certdenied, 459 1: S 1155 (1983)

27 Bender v Williamnport, 475 1 S89 LEd 2d 501 (1986) While the ThirdCircuit Coun dealt with the "equal accessquestion, the Supreme Court did not reachthat constitutional issue because one of theparties to the suit in the Circuit Courtlacked standing and, therefore, that Courtshould have dismissed the case for want ofjurisdiction Ibid., 516

28 Lemon v Kurtzman, 403 U S 602,612, 613 (1971)

29 Bender v Williamsport, '41 F 2d538, 541 (3rd Cir 1984)

30 In Wallace v Jaffree, 105 s Ct 2479(1985), the U S Supreme Court held sucha law unconstitutional

31 In Grand Rapids v Ball, 473 U S-.87 L.Ed. 2d 267 (1985) and Aguilar vFelton, 473 U.S.-, 87 LEd 2d 290 (1985),the Supreme Court held similar programsunconstitutional

Robert L. Cord is Professor of PoliticalScience, Northeastern University, Boston,MA 02115.

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Copyright © 1987 by the Association for Supervision and Curriculum Development. All rights reserved.