School Prayer and Discrimination: The Civil Rights of Religious Minorities and Dissenters / Edition 1

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In this provocative work, Frank S. Ravitch redirects the heated debate over prayer in the public schools. He asserts that current legal discourse, which centers this controversial issue around First Amendment rights, underestimates the ways in which school prayer fosters discrimination against religious minorities and dissenters. Arguing that traditional Constitutional doctrine is inadequate to address the harmful effects of public school religious exercises, Ravitch looks to civil rights principles and anti-discrimination laws for an alternative approach.

The author confronts the discrimination issue head-on, citing recent dramatic incidents of intimidation, harassment, and physical violence toward both religious minorities and those who oppose religious observances in the schools. He examines the legal, political, and social realities that create such occurrences, concluding that discrimination is likely to become more widespread, particularly as the religious right aggressively promotes the expansion of organized religious exercises in schools. Following a survey of current civil rights statutes and their limitations in dealing with this issue, Ravitch presents a draft of a statute that directly confronts this form of discrimination.

This timely work offers fresh insights into the school prayer debate and it makes a strong case for viewing this controversial issue from a new perspective.

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Editorial Reviews

This is a paperbound reprint of a 1999 book. Ravitch (law, Syracuse U. College of Law) focuses on the discrimination faced by both religious minorities and dissenters when religious exercises occur in public schools, an aspect he feels is rarely addressed separately from the broader First Amendment issues generally surrounding the religion-in-the-schools debate. In addition to citing recent incidents of intimidation, harassment, and physical violence against religious minorities and dissenters, he discusses current legal, political, and social conditions which will likely lead to an increase of the problem and suggests some legal remedies. Annotation c. Book News, Inc., Portland, OR (
Gregg Ivers
Gregg Ivers, Department of Government, American University

In sum, Frank Ravitch has written a fine book, one that offers a fair and thorough treatment of a difficult and vexing political and constitutional issue. It deserves a wide and attentive audience.

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Product Details

  • ISBN-13: 9781555534776
  • Publisher: Northeastern University Press
  • Publication date: 5/24/2001
  • Edition description: New Edition
  • Edition number: 1
  • Pages: 304
  • Product dimensions: 5.90 (w) x 8.90 (h) x 0.90 (d)

Read an Excerpt

Chapter One

From Riots to Harassment

For the greater part of this century, controversy has raged over the separation of church and state in the United States. Perhaps no issue has so fueled this controversy as religion in the public schools. Today, fifty years after Everson v. Board of Education, which brought Thomas Jefferson's famous phrase "a wall of separation between church and state" into modern Establishment Clause jurisprudence, the debate rages on. Despite the passage of more than thirty years since the School District of Abington Township v. Schempp and Engel v. Vitale decisions, which held that school-sponsored bible reading and prayer, respectively, are unconstitutional, public school religious exercises still breed controversy.

    Virtually all of the discourse addressing the legal issues driving the church-state debate has focused on the Constitution. Yet the Constitution has often proven ineffective in protecting the rights of religious minorities and others who object to religious exercises in the public schools. Many school districts simply ignore constitutional mandates, and these mandates themselves have recently become less clear as a result of the legal tactics of school prayer advocates. This is occurring at a time when factions from the Christian Right are engaged in an organized campaign to influence public school policy, making great strides in influencing school boards and, in some instances, winning a majority of seats on such boards.

    United States history is replete with examples of religious exercises in publicschools facilitating discrimination and intolerance against religious minorities and dissenters. In some cases, the discrimination has been an unintended byproduct of the exercises. At other times, it has been a significant purpose behind them. Regardless, a disturbing trend of discrimination results when public schools engage in religious exercises. From the earliest days of such exercises, they have called attention to difference. In particular, they have pointed out those students, families, or groups who do not believe in the faith of the majority or its position on public school religious exercises. As will be demonstrated below, this has led to mistreatment, discrimination, violence, and even death.

    It would be wonderful if such discrimination was limited to the past—an interesting historical anomaly. Unfortunately, today we see terrible instances of discrimination occurring as the result of public school religious exercises and the divisiveness those exercises breed. Later in this chapter, modern instances of discrimination will be addressed, but first discussion of incidents from early in the history of public school religious exercises is useful to provide historical context for the role these exercises have had in the clash between religious-political conservatism and religious pluralism.

    Not long after the foundation of American public schools, over fifty people were killed, and many more injured, in two riots that became known as the Philadelphia Bible Riots of 1844. These riots were part of the reaction to Catholic immigration and participation in the public schools. They were fueled by a fear of increasing religious and cultural pluralism as well as by anti-immigrant zeal. In the period preceding the riots, the first quarter of the nineteenth century, parts of the United States experienced something of a religious enlightenment, which had created a more tolerant attitude toward Catholics, who were relatively few in number at that time. Mainstream Protestant sects dominated American society, and Universalism and Unitarianism were becoming popular in New England. At this time, there was not a great deal of religious pluralism in the United States. With few exceptions, religious pluralism was limited to the differences between various Protestant sects.

    By 1840, the country was in the midst of an evangelical revival known as the "Second Great Awakening" as well as growing nationalist fervor, which was later reflected in the anti-immigrant and reactionary Know Nothing Party. Around this time, non-Protestant religious diversity began to grow, as large numbers of Catholics immigrated to North America and less mainstream denominations such as the Mormons grew in strength. This new religious pluralism and the immigrant status of many of those who gave rise to it created tensions with the Protestant majority who saw it as a threat to their values and dominant status. This situation was aggravated by another strain of anti-immigrant sentiment, which was fueled by economic competition.

    Unfortunately, the evangelical revival rekindled Protestant animosity toward Catholics as did nationalist sympathies, which pitted "natives" against immigrants. One result was the strict enforcement of laws, school board policies, and unofficial practices throughout the country that required, or were interpreted as requiring, the reading of the King James version of the bible and the recitation of Protestant-oriented prayers and hymns in the recently formed public schools. Such practices were not uncommon even when the public schools were primarily attended by Protestants. These laws and practices were sometimes created, however, and often enforced, to discriminate against Catholics, who were forbidden by canon law to read the King James version of the bible, which they viewed as an affront since its dedicatory preface "refers to the pope as the `man of sin.'" These attempts to introduce or enforce sectarian religious exercises in the increasingly pluralistic public schools were the flashpoint for intolerance and violence. They exacerbated tensions between the religious majority and minorities throughout the country and demonstrated Madison's fear of uncontrolled factionalism as a danger to tolerance and democracy. Ultimately, the situation, which was also aggravated by the use of anti-Catholic materials in the public schools, contributed to the founding of the Catholic school system—the only practical means available in many areas to avoid the bias and persecution prevalent in the public schools.

    During the mid-nineteenth century, Catholic children were sometimes whipped and beaten in public schools for refusing to engage in school-sanctioned religious exercises; a priest in Maine was tarred, feathered, and ridden on a rail as the result of a dispute over bible reading in the public schools; and other incidents occurred throughout the country. However, the Philadelphia Bible Riots of 1844 brought a new level of hatred, violence, and persecution relating to public school religious exercises. As the result of riots in May and July of 1844, which were initially sparked by a dispute over public school bible reading, at least fifty-eight people were killed; over one hundred and forty others were wounded; and property damage in the city has been estimated at hundreds of millions of dollars. While the May rioting was directly sparked by tensions over the bible reading issue, the July rioting was also fueled by the discovery that firearms were being stored in St. Philip's church in response to fears that it might be attacked as other churches had been in the May rioting. Regardless, the issue of bible reading in school was the catalyst for the riots. It exacerbated the tensions which gave rise to them and served as a flashpoint.

    Sadly, all of this death and destruction was the result of a school board resolution complying with a reasonable request by the local bishop that Catholic children not be required to read from the King James bible. Neither the request nor the resolution took any rights away from the Protestant children within the district, since they were still allowed to read from the King James version. However, the facts were irrelevant to the majority, and the resulting riots devastated Philadelphia. Unfortunately, as will be discussed below, when it comes to public school religious exercises today, the facts are often irrelevant to those who lash out at religious minorities and dissenters.

    While the Bible Riots of 1844 were sparked by the dispute over the bible in public schools, other factors contributed as well, especially the growing nationalist and anti-immigrant movements. Moreover, the evangelical revival that had been sweeping the country during the Second Great Awakening widened religious differences between Protestants and non-Protestants, lowered religious tolerance, and fueled the nationalist movement, for as immigration increased, so too did religious and cultural pluralism. In response, those who had traditionally held power and dominated American society felt threatened and began to use the mechanisms of government, such as the public schools, to enforce their dominance. Decreased tolerance toward non-Protestants, facilitated by the evangelical revival, ensured that there was a majoritarian religious flavor to this process.

    In modern times, we see similar phenomena, although there are significant historical differences between the Second Great Awakening and the current evangelical revival. Society is becoming increasingly pluralistic, but at the same time the country is witnessing the immense growth in power of the Christian Coalition and other evangelical organizations with similar agendas. In addition, large numbers of citizens identify themselves as "born again." Much of this group sees increasing religious and cultural pluralism as a threat to its values and beliefs. This powerful segment of society actively seeks to use the mechanisms of government, and particularly the public schools, to back its beliefs and political views.

    This is quite similar to the reaction of the dominant Protestant majority to the influx of Catholics in the nineteenth century, although, as will be discussed below, the passage of time has altered the strategies and language utilized. In the nineteenth century, it was often proclaimed that the United States was a "Protestant nation" founded on Protestant values. Now, it is being said that the country is a "Christian nation," founded on Christian values and traditions. The implication in both statements is that those values and traditions should be followed or enforced and that people who oppose such enforcement are outsiders. This has serious ramifications.

    These ramifications are reflected in several recent cases that provide examples of the discrimination and persecution facilitated by public school religious exercises. Despite the Supreme Court's prohibition against organized school prayer, some school districts still engage in practices the Court has specifically prohibited. Others try to work within the parameters the Court has laid down, but still allow religious exercises, usually through moments of silence sanctioned by state legislation or under the theory that organized "voluntary, student-initiated prayer" at school events is somehow constitutional. When this has occurred, the result is an unfortunate trend of discrimination aimed at religious minorities and dissenters.

    I am not suggesting that every time such religious exercises occur they automatically facilitate discrimination. However, the following cases demonstrate that it occurs too often to be ignored. As will be discussed later in this book, discrimination under these circumstances is predictable, since the exercises call attention to differences, which are frequently perceived negatively and have a tendency to create an ingroup and outgroups.

    The case descriptions that follow provide excellent examples of the traumas often inflicted on religious minorities by public school religious exercises. Moreover, the cases provide consistent, vivid, and troubling anecdotal evidence regarding the abuse and discrimination so often associated with public school religious exercises. Since these examples do not exist in a vacuum, they will be followed throughout this book by broader discussions of the phenomena underlying them, especially the highly successful campaign to increase public school religious exercises in the 1980s and 1990s. It is important to remember that many people who experience the type of discrimination described below do not file lawsuits, for fear of worse discrimination, and that few lawsuits actually progress to the point where a written opinion is issued. Moreover, many of the published cases dealing with school prayer issues do not address the incidents of discrimination involved, because as will be discussed in later chapters, current legal doctrines in this area are not equipped to address that problem. Thus, the cases that follow are simply "the tip of the iceberg."

    In 1993, the Herdahl family moved from Wisconsin to Mississippi for work-related reasons. The Herdahl children were baptized Lutheran and attended a Pentecostal church. The area to which they moved is heavily Southern Baptist. Mrs. Herdahl was shocked to learn that the North Pontotoc Attendance Center, the local K-12 public school in her new home, Ecru, Mississippi, practiced public prayer over the public address system and conducted religious bible study thirty years after such practices had been outlawed by the Supreme Court. These activities had a decidedly Southern Baptist bent. Her children were ridiculed and harassed because they did not share the majority faith. They were referred to as devil worshipers and atheists, and were accused of not believing in God. Both teachers and students took part in the harassment. A teacher made one child wear headphones to avoid hearing the offending prayers and the child was taunted as a result. Friends of the children stopped playing with them for fear of being beaten up. One of the Herdahl children tried to avoid going to school, and another asked whether the people who were making things so hard for them were Christian. When his mother responded in the affirmative, the child replied that he did not want to be Christian because he did not want to be like them. This upset Mrs. Herdahl, who is herself Christian, albeit of a different denomination from the persecutors.

    When the practices did not stop, Mrs. Herdahl filed a lawsuit, and the harassment got even worse. Her family received bomb threats. She received a death threat, and the name calling and ridicule worsened. Ultimately, the Herdahls won their lawsuit and got an order enjoining the religious exercises, but Mrs. Herdahl stated that others who felt the way she did, even in her own school district, were afraid to say so in public. This fear of opposing practices that facilitate discrimination against one's family or that are patently offensive to one's beliefs is common because of the even harsher response that often results.

    The pain the Herdahls endured as the result of the situation facilitated by the Pontotoc County School District's disregard for constitutional mandates might seem to be an isolated case. Sadly, this is far from the truth. In fact, the Herdahl case is not even the worst example of the willingness of school districts, overcome by religious zeal, to ignore constitutional requirements regarding religious exercises.

    In August 1997, a lawsuit was filed against the Pike County, Alabama, School District by the Herrings, a Jewish family whose children had been subjected to severe religious discrimination and harassment in school. Many of the alleged incidents of discrimination were tied to a variety of religious exercises sponsored or condoned by the schools on school property. The harassment, discrimination, and ridicule were intense.

    The Herring children were forced to participate in or witness a plethora of religious activities at school. Among the allegations in the case were the following incidents. The Herring children were required to bow their heads during Christian prayers. David Herring, a seventh grade student, was physically forced to do so. A minister spoke at a school assembly and told the students that those who do not accept Jesus as their savior were doomed to hell. When Sarah Herring, a sixth grade student who was present for that assembly, got up to leave, she was taunted by her classmates. The incident caused her to have serious nightmares. Sarah endured a similar incident when the school invited the Gideons to distribute bibles at school. Because she was Jewish, Sarah was sent to wait in the hall. The other children called her names as she left the classroom. In the hallway, a Gideon representative tried to persuade Sarah to take a bible. When she explained she did not want it because of her faith, he held a cross in front of her face. She began screaming and ran back into the classroom for help, but her teacher did nothing.

    The Pike County schools regularly engaged in Christian activities in classes and religious assemblies, such as "Birth of Jesus" plays and "Happy Birthday, Jesus" parties. On one occasion, a vice principal disciplined Paul Herring, an eighth grade student, for a class disruption by requiring him to compose an essay on the subject of "why Jesus loves me." Additionally, Paul and David Herring were prevented from participating in gym class while wearing their yarmulkes; they were physically assaulted by classmates because of their religion; swastikas were drawn on their lockers, bookbags, and jackets; and they were regularly taunted by the other children. The verbal assaults were especially intense after religious activities at school.

    The children were sometimes excused from the religious activities, and sometimes they were not. Mrs. Willis, the children's mother, in a sworn statement submitted to the court, addressed the ineffectiveness of allowing the children to leave to avoid the offending religious exercises: "Even when they have been given permission to leave by a teacher, however, their leaving makes them a target for name-calling, ostracism and harassment by their classmates." She also stated: "[I]njection of Christian religion into these school events provokes the expression of religious bigotry toward my children."

    Like Mrs. Herdahl, Mrs. Willis was unable to effect any significant improvement by contacting school officials. In her sworn statement to the court, she stated:

Every day that I send my children to Pike County schools, I wonder if I am sending them into a war zone. The moment one event is over, a worse one follows on its heels. Every day that I send my children to Pike County schools, I feel that the environment threatens every value that my husband and I have tried to teach them at home. I have asked school officials how they expect me to train my sons to respect other people's property when their own property is vandalized at school and no one is punished. I have asked school officials how I can teach my children to be tolerant human beings and not bigots when they are subjected to outright religious persecution and bigotry in school. The consequences of the school environment on my children's psyches are devastating. My children are growing up believing that America is a caste society and they are untouchables—except for the purpose of getting beaten up.

    Several of the activities described above were characterized by school officials as "student-initiated religious exercises" a concept that is being used increasingly by those who wish to return such exercises to the public schools, but is still controversial from a legal perspective. That concept will be discussed in great detail in Chapter Three. However, if even a small percentage of the allegations in the Herring case are proven, it is doubtful that individuals who advocate the "student-initiated religious exercises" concept would claim that most of the religious activities occurring at Pike County schools were "student-initiated."

    While the Herdahl and Herring cases might seem a bit extreme, they are not the only examples of the intolerance and hatred often aimed at religious minorities and dissenters when public school religious exercises occur. Another example of the pain facilitated by public school involvement with religious exercises arose in a school district in Utah where, in a bit of irony, the persecutors were Mormons—a denomination that has itself been the target of a great deal of discrimination.

    Rachel Bauchman, a Jewish high school student, objected to overtly religious songs, which were sung at high school graduations by the high school choir of which she was a member. The same public school choir also performed at churches and performed religious songs on numerous occasions. Most of this activity was organized by the school's choir teacher. When Rachel protested against the songs, she was harassed and called names. The teacher noted that she was Jewish to other students. Rachel obtained a court order prohibiting the graduation songs. However, at the urging of parents and some students, the choir performed one of the religious songs anyway, while nearly the entire audience joined in—a blatant disregard of the court order. When Rachel and her mother got up to leave—Rachel in tears—parents and students in the audience jeered and spat on them. Of course, if the religious songs and performances had never been promoted by the choir teacher in the first place, it is likely that what Rachel endured would never have happened. In a meeting with other Jewish youth in Washington shortly after the experience, Rachel said that she is "now more determined than ever not to give up.... Nobody should be put through what I was put through in their own public school."

    Despite serious allegations that the choir teacher had engaged in such religious practices for over twenty years, implying on an earlier occasion that the choir was somehow connected to the Mormon church, and that he had even been cautioned by school officials about such activities, a panel of the Tenth Circuit Court of Appeals, over a vigorous dissent, refused to reverse a trial court's holding that the practices alleged in the Bauchman case were constitutional. This decision is discussed in greater detail in Chapter Seven. However, it is significant that in addition to its decision regarding the constitutional issues, the court held that Rachel Bauchman could not obtain redress for the discrimination she suffered as a result of the negative attention called to her by her teacher's practices, because such conduct, while insensitive, does not "rise to the level of a constitutional violation."

    Perhaps the worst example of the discrimination and hatred resulting from public school religious exercises in recent years occurred in a quiet town in Oklahoma. From 1980 until 1982, the Little Axe Independent School District in Oklahoma was divided by a controversy revolving around religious meetings held before class at the Little Axe primary school. The meetings were openly religious, often conducted by teachers, and held during school hours after students arrived on school premises.

    Two families, one belonging to the Nazarene denomination and the other to the Church of Christ, complained to the superintendent of schools when their children were confronted and harassed by other students because they did not attend the meetings. The other children asserted that the children of the two families "must not believe in God" since they did not attend the meetings. On another occasion, the son of one of the families was refused entry to school to work on his class project because only those who had the purpose of attending the prayer sessions could be admitted at that time.

    Initially, the superintendent of schools suspended the meetings to enable the school board to make a determination. Ultimately, the school board decided to allow the meetings to continue until they were declared unlawful—the board president apparently yelled "bring on the ACLU." That is exactly what the two families, the Bells and McCords, did. After the lawsuit was filed, the board adopted an "equal access policy" in an attempt to enable the meetings to continue, but the court found that both this policy and the district's original policies violated the Establishment Clause.

    Unfortunately, the initiation of the lawsuit brought even more persecution. The Bell and McCord children were called "devil worshipers"; Joann Bell received her own obituary in the mail, and her children received constant threats on their lives. Both families received numerous threatening telephone calls and mail; an inverted cross was hung on one of the McCord children's locker at school; Mrs. Bell had her hair pulled by a school employee; at a school sports banquet, the only school athletes not recognized were the McCords' two sons, who played three sports each; there were threats that the Bells' house would be burned; and it was later burned to the ground under suspicious circumstances. The persecution continued and was so extreme that it forced both families to move out of the school district for the following school year. After the McCords moved out of their home it was vandalized (of course, the Bells' home could not be vandalized since it had already been burned down).

    In this case, it appears that the Bells were in the religious minority in the area, but that the McCords were not. Regardless, the families' position on the issue, arising from sincere beliefs that it is their right to determine their own children's exposure to religious doctrine, placed them clearly in the minority. In this regard, they were treated with the same disdain as the individuals belonging to religious minorities discussed elsewhere in this chapter.

    Mrs. Bell later said:

The threats [sic] to burn my home was the one that I probably should have taken the most seriously. I just couldn't see in an [sic] civilized area—I considered that these people would not ever do that. But my home was firebombed. Unless you've ever had a fire—the devastation is something you can not ever begin to describe. To lose everything you've ever had. And with four children you really accumulate a lot of things—the trophies ... Everything that you saved, your baby pictures, the little things—your marriage license. You lose everything.... One of the things, the very few things that survived the fire was the christening dress of my daughter. We have three sons and we have a daughter that we are very proud of and this was her christening dress and that little hat was melted. It's one of the things that you'd like to pass on and let them use it for their children. This is just an example of the things that were ruined and what our family lost in the fire. Because we essentially lost everything we had.

Mrs. McCord stated:

Every day something happens that brings back the memories, something that happens, something the kids will say, something they do, something that I see. It was a devastating experience. For anyone. And I can understand why people don't want to get involved with it.

    Ironically, the Tenth Circuit Court of Appeals held that the school district could not be held liable for the discrimination and persecution perpetrated by the citizens in the district, despite the fact that board policy facilitated the entire incident. The court held instead that the district was liable only for those harms flowing from its own violation of the Bells' and McCords' constitutional rights.

    The incidents that Sarah Herring faced, discussed above, demonstrate that the intolerance and discrimination demonstrated in the Herdahl, Herring, Bauchman, and Bell cases are not limited to children in high school and middle school. Even young children have utilized the religious differences brought into focus by public school religious exercises as a basis upon which to discriminate. In fact, studies have shown that children act out against, and can be more overtly negative toward, those perceived as different. The following case provides yet another example of such behavior.

    Sally was an eleven-year-old Jewish gift attending elementary school in West Virginia in 1984. At that time, West Virginia had a moment of silence statute, which required a period to be set aside each day for "private contemplation, meditation or prayer." The statute acknowledged that no student could be denied the right to engage in such activity or be forced to do so, but its legislative history demonstrated it was religiously motivated. Sally dealt with this rule by quietly reading a book during the period set aside in homeroom each day for the moment of silence. Later, in a different class, a student who had noticed her reading during the moment of silence informed her that she would go to hell with the other Jews. Another student added that Jews were not worth saving because they killed Christ. The incident was facilitated by the moment of silence. Sally felt hurt, angry, and uncomfortable because she felt the students should not have been able to "say things like that during the school day and get away with it."

    Sally didn't complain or protest to her teacher because she thought the teacher would not listen to her or that she would be made the center of negative attention in the school. Sally's fears were probably justified. This is demonstrated by the cases where students and their parents stood up to fight religious practices in the public schools. Many people are afraid to oppose such practices, even when those practices are facilitating discrimination against them. Many people fear that they will be treated even worse if they stand up for their constitutional rights. In a sense, this victimizes them twice and gives them a Hobson's choice.

    Significantly, this is not an isolated story. In fact, even in regard to legislative measures as seemingly innocuous as moments of silence, the harm inflicted on minorities and dissenters can leave lasting scars. The following statement by Debbie Wasserman Schultz, a Florida state representative who opposed a proposed school prayer bill in that state, is indicative of this. Her opposition to the bill resulted from her experiences in eighth grade, when her homeroom teacher used a moment of silence to pray to "a god I wasn't familiar with ... I would really, literally, squirm in my chair."

    The cases discussed above are some of the better-documented and serious examples. However, there are others. In fact, some of the most famous Supreme Court cases dealing with religion in the public schools were accompanied by allegations of discrimination aimed at those who opposed the religious practices in question or who were in the religious minority. These allegations were likely not addressed in the Supreme Court opinions because, as the Bauchman and Bell cases demonstrate, they are generally not actionable or relevant to the constitutional claims that are the focus of such cases. Much of the discrimination in these cases was in response to the challenges to the offending religious exercises.

    In response to their complaint in the famous 1948 case of Illinois ex rel. McCollum v. Board of Education, in which James Terry McCollum challenged a Christian release time program, the McCollum family was subjected to vitriolic harassment. While the suit was pending the family received thousands of hostile letters using phrases such as "you slimy bastard" and "[y]our filthy rotten body produced three children so that you can pilot them all safely to hell. The family's child involved in the case was regularly beaten up and called a "godless communist."

    During the pendancy of the now-famous Lee v. Weisman case, the Weismans received hate mail and death threats. In another well-known case, which ultimately went before the Fifth Circuit Court of Appeals, involving a challenge to a high school coach's policy requiring the team to say the Lord's Prayer, the complaining student was taunted by fellow students and spectators and was called a "little atheist" by a teacher during a lecture. In fact, the divisiveness and strife that can be facilitated by government-sanctioned religious activity in the public schools were addressed by Justice Blackmun in his concurring opinion in Lee v. Weisman. In a significant footnote in that concurrence, he quotes James Madison's Memorial and Remonstrance against Religious Assessments and a recent statement by an ACLU official in Utah who noted that the organization's position on school prayer "elicits death threats." In particular, Justice Blackmun was concerned with the "`anguish, hardship and bitter strife' [that] result `when zealous religious groups struggle with one another to obtain the Government's stamp of approval." That portion of the relevant note in the concurring opinion reads as follows:

James Madison stated the theory even more strongly in his "Memorial and Remonstrance" against a bill providing tax funds to religious teachers: "it degrades from the equal rank of Citizens all those whose opinions on Religion do not bend to those of the Legislative authority. Distant as it may be in its present, from the Inquisition it differs from it only in degree. The one is the first step, the other the last in the career of intolerance" The Complete Madison, at 303. Religion has not lost its power to engender divisiveness. "Of all the issues the ACLU takes on—reproductive rights, discrimination, jail and prison conditions, abuse of kids in the public schools, police brutality, to name a few—by far the most volatile issue is that of school prayer. Aside from our efforts to abolish the death penalty, it is the only issue that elicits death threats." Parish Graduation Prayer Violates the Bill of Rights, 4 Utah Bar J. 19 (June/July 1991).

    Finally, consider the statements of the Reverend Dr. James Forbes, an African-American minister who is currently the senior minister at Riverside Church in New York City. Reverend Forbes testified against a proposed constitutional amendment regarding school prayer in September 1995. During that testimony, he recalled from his youth in North Carolina "the pain and the damage to one's religious consciousness that the majority can inflict." He equated his minority racial status with his minority religious status, noting that as a Pentecostal growing up he belonged to a minority in a town where mainline Protestant denominations far outnumbered Pentecostals. He was also in the minority among Pentecostals because he did not speak in tongues. Reverend Forbes testified:

When you feel affirmed by God in your spirit, but the community in which you live, in promoting its own religious practices, rejects your personal affirmation, you are led to question the authenticity of your own spiritual relationship with God. Having suffered doubly from the suspicion of those of other religions and those of my own, I have a sense of the suffering of Lisa Herdahl and her children. I believe that no government should ever inflict such suffering upon the religious minority. As a religious leader, I am self-critical enough to know how easy it is in the passion of the moment to promote one's own faith in a manner which is oppressive and intolerant of the religious views of others [emphasis added].

    These are some examples of the discrimination that dissenters and religious minorities are subject to when religion and the public schools mix in the United States. The examples indicate a pattern linking public school religious exercises to discrimination and intolerance, though not one that will necessarily occur at every school. The types of religious exercises vary, but each is organized, public, and calls attention to religious differences. Additionally, as the next chapter demonstrates, there is currently a highly organized and well-funded campaign aimed at bringing school prayer and other religious exercises back into the public schools. Thus, the likelihood of incidents such as those described in this chapter occurring and the potential for religious divisiveness in public schools and their surrounding communities are increasing. As will be discussed in Chapters Six, Seven, and Ten, there is currently no legal mechanism available that is able to directly address this discrimination and harassment effectively.

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Table of Contents

Ch. 1 From Riots to Harassment 3
Ch. 2 The Christian Right and the Public Schools 19
Ch. 3 The Current Legal Status of Public School Religious Exercises 44
Ch. 4 The Social Context 74
Ch. 5 Where Do We Go from Here? 88
Ch. 6 The Utility of Antidiscrimination Law 103
Ch. 7 The Limitations of Using the Constitution 128
Ch. 8 A Model for Protecting Religious Minorities and Dissenters 144
Ch. 9 The Proposed Statute and the Free Speech and Free Exercise Clauses 176
Ch. 10 Can Existing Law Help? 192
Ch. 11 Somebody Make It Stop 206
Notes 213
Index 265
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