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

However, the Court has also used the endorsement test as a tool to allow more religious speech in an academic setting. For example, in Rosenberger v. Rector & Visitors of the University of Virginia, the Court allowed public funds to be used for a Christian magazine based on the outcome of the endorsement test." In Rosenberger, the Court was asked to determine whether government funds should have been disbursed to a student-run Christian publication. Only by concluding that the speech was free of government endorsement could the government legally fund the magazine.54 O'Connor said that the publication was not a public, government speaker since it was structurally independent from the university and its funding was "provided to the religious publication in a context that makes improbable any perception of government endorsement of the religious message . . . ."55 Therefore, the magazine's speech was private speech that was not restricted by the Establishment or Free Exercise clauses. In essence, the Court used the endorsement test as a tool to increase religious speech in public universities.

Yet on the very same day it approved an endorsement analysis in Rosenberger, the Court also demonstrated eroding support for the test. In Capitol Square v. Knights of the Ku Klux Klan, the local chapter of the Ku Klux Klan sought a public permit to display a cross in the area surrounding the statehouse that was owned by the state.56 Though the Supreme Court ultimately affirmed the decision, some justices demonstrated their lack of fondness for the endorsement test in Capitol Square.57 The plurality held that the endorsement test was immaterial since the criteria to gain entry to the public forum were neutral and did not discriminate against or among religions.58 In fact, the plurality argued that in cases involving the implementation of neutral policies, the endorsement test should not be used.59 "We find it peculiar to say that government 'promotes' or 'favors' a religious display by giving it the same access to a public forum that all others enjoy."60 Concurring justices criticized the plurality's attempt to kill the endorsement test.61 O'Connor argued that the endorsement test still had a place in Establishment Clause analysis, even when neutral criteria were involved.62 Justice Souter agreed.63 By leaving out the endorsement test in their analysis, Justice Souter argued that the plurality had created "a serious loophole in the protection provided by the endorsement test. . . ."64 Since displaying the cross on the public square posed a slight risk of government endorsement in the eyes of an objective observer, both Justices Souter and O'Connor advocated placing a sign next to the cross indicating clearly and from a distance that the cross belonged to the KKK and not to the State.65 Capitol Square left the endorsement test in disarray.66

Despite the Court's erratic use of the endorsement test, it could be used to determine whether religious curriculum in the public school classroom violates the Establishment Clause. The test would be whether an objective observer would perceive that a teacher has endorsed religion via classroom instruction, activities, curricular materials or other pedagogical activities.67 For purposes of the endorsement test, assume that the teacher has no educational background in world religions. Also, assume that the teacher may be familiar with Christian traditions and history as a member of the local church. In a predominantly Christian community, several pedagogical choices and classroom circumstances could combine to send a message to students that non-Christian religions are disfavored. For example, the teacher could teach a unit about world religion by using various sources. Because she is more familiar with the history of Christianity, she may supplement textbook reading with outside sources to enhance student learning. But for Islam, a religion she knows less about, she could just stick to the classroom textbook. What if she uses A History of Western Society, the book that incorrectly claimed that the Muslim prophet Mohammed "had been subject to seizures during which he completely lost consciousness and had visions"?68 In a classroom environment where the teacher is authoritarian, students may not know enough or be brave enough to correct the error-ridden instruction. These classroom circumstances could combine to convey a message to students that the teacher endorses Christianity and does not endorse Islam. The objective observer component of the endorsement test would prevent the test from being abused. For example, limiting the reach of the endorsement by confining it to the objective observer perspective keeps the test from barring every lesson on religion that is even mildly offensive to over-sensitive plaintiffs. It would also prevent schools from tailoring their curriculum to satisfy the desires of religious adherents, a practice that the Court deemed unconstitutional in Epperson.69