Jesus Heard the word of God, but Mohammed had convulsions: How religion clause principles should be applied to religion in the public school social studies curriculum

Journal of Law and Education, Jul 2003 by Kaiser, Elizabeth D

INTRODUCTION

If one is to believe the Ninth Circuit Court of Appeals, public school teachers walk a constitutional tightrope every day in class. They violate the Establishment Clause of the First Amendment when they lead students in pledging allegiance to the American flag, "one Nation, under God."1 Regardless of whether the Ninth Circuit is correct on this issue, the fact remains that teachers face several constitutional challenges at work. In fact, teachers can threaten Establishment Clause values when they engage in the seemingly innocuous activity of instructing about religion in a world history course. On the one hand, the Supreme Court has stated that the mere inclusion of religion as a subject in the public school curriculum does not offend constitutional principles.2 But it has left open the possibility that certain pedagogic choices might. What if a teacher decides to use the textbook A History of Western Society by Houghton Mifflin? That textbook contains the following description of the Islamic prophet Mohammed:

[H]e had been subject to seizures during which he completely lost consciousness and had visions . . . . The religion Mohammed founded is called Islam . . . . Mohammed described his visions in verse form and used these verses as his Koran. The subtle and complex reasoning Christianity had acquired by the seventh century was absent from early Islam. Nor did Islam emphasize study and learning as did Judaism . . . . The faith of Allah united the Arabs sufficiently to redirect their warlike energies. Hostilities were launched outward.3

By offering this incorrect account of Islam, a well-intentioned public school teacher might create the impression among her students that Islam is disfavored. Given the power and influence of teachers and schools over students, such a lesson might even discourage students from professing or practicing Islam. In other contexts, courts might well find that certain adverse effects raise significant Establishment Clause issues. Yet courts, for good reason, might be wary of policing pedagogic choices. The question is how to balance these important concerns.

This article argues for creating a new legal test to determine when religion in the public school curriculum violates constitutional principles. Part I discusses why public schools are making religion an increasingly important part of the social studies curriculum. Part II discusses how pedagogic choices surrounding religion in the curriculum may create unconstitutional effects. Part III explores the utility of current legal tests on religion in the curriculum. Part IV proposes three new legal methods of analysis for this type of conduct and recommends the best one.

I. RELIGION IS PLAYING AN INCREASINGLY LARGE ROLE IN PUBLIC SCHOOLS

Nowhere is America's reputation as the "great melting pot" more prevalent than in today's public schools. By the year 2040, minorities are projected to represent more than half of America's K-12 student population.4 With this increase in minority student population has come a change in attitude about how religious content should be treated in the classroom. Whereas in the 1970s many schools purged religion from the classroom, now those same schools are actively trying to incorporate the perspectives of many world religions into the curriculum.5

The movement to put religion in American classrooms is national in scope. The National Center for History in the Schools (NCHS), which guides many school districts in developing curriculum, listed religion as a critical element of history.6 For world history in grades 5-12, the organization recommended the study of Christianity, Confucianism, Daoism, Brahmanism and Hinduism.7 For United States History, NCHS recommended that students study religions that are representative of the modern population in order to understand "religious diversity and its impact on American institutions and values . . . ."8 Though NCHS is not a governmental entity, it does get substantial funding from the United States Department of Education and the National Endowment for the Humanities to write the standards. Many school districts use the NCHS standards as a guide when planning their own curriculum.9

Education policy experts, and even some judges, have also supported a curricular policy of religious inclusion in the public schools. As Warren Nord and Charles Haynes have advocated in their book, Taking Religion Seriously Across the Curriculum, a school that teaches nothing about religion minimizes the importance of religion in history and science.10 A curriculum that does not cover religion would "[marginalize] religion in our intellectual and cultural life, (implicitly) conveying the sense that religion is irrelevant in the search for truth in the various domains of the curriculum . . . ."" Supreme Court Justice Goldberg expressed similar sentiments twenty-five years earlier in School District v. Schempp.12 In that case, the Court struck down a school policy that required students to read the Bible every morning because it violated the school's duty as a government actor to remain neutral towards religion.13 However, Goldberg made sure to warn that the holding did not advocate complete expulsion of religious content from the curriculum in the name of government neutrality.