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This is a copy of the testimony given to the U.S. Civil Rights Commission on Friday, August 21, 1998 by Ellen Johnson, President of American Atheists. Introduction American Atheists is a non-profit, non-political, educational organization dedicated to the absolute separate of government and religion. Our organization has been intricately involved in the area of religion in the public schools. It was the founder of our organization, Madalyn Murray-O'Hair, who was the successful litigant in the Supreme Court which removed both organized prayer and bible recitation from the public schools. It has been repeatedly overlooked that this decision made the public school system equally accessible for all American children. Since 1963, despite more than three decades of legislation and court rulings, the issue of religion in our nation's public schools remains a controversial and contentious subject. As the courts have moved to uphold the constitutional separation of church and state, the issue of student religious expression and the inclusion of religion in public school curricula have become divisive. Some of this is due to a biased redefinition, not only of the First Amendment (both the free exercise and establishment clauses) and its precise legal meaning, but how it is to be applied in public school classrooms and other school-related activities such as sporting contests or graduation ceremonies. American Atheists takes the position that court rulings such as MURRAY v. CURLETT (1963), ENGEL v. VITALE (1962), LEE v. WEISMAN (1992) and LEMON v. KURTZMAN (1971) and the Federal Equal Access Act define the proper roles in our civil institutions of both the free expression and establishment clauses of the First Amendment. In the United States there are over 350,000 churches, mosques, chapels, temples, and other "houses of worship." This figure does not include the many "weekend congregations" that gather in rented halls, hotels rooms or even private homes. Churches of many faiths are represented in listings in the "yellow pages" of phone directories. Newspapers often include a Religion Section, with advertisements and listings of services. There is ample and abundant opportunity, for those of a religious inclination, to worship not only in these venues with others of like-minded worldviews, but in the privacy of their own homes without having to bring religious ceremonies and rituals into the public schools. Thus it disturbs us, as state-church separationists, that so much is done to magnify the issue of religion in public schools and to inject religious themes, activities, organizations, and content into what should be a secular institution having the primary goal of educating students and preparing them for societal integration and the workforce. In addition, most of the political and social discourse concerning freedom of religion in our nation's public schools has focused on how best to accommodate the needs of those who wish to express their religious views, or engage in religious activity - everything from praying (or leading others prayer, or praying during a school event in front of others) to forming worship or study groups. Little, if any discussion has ever covered the problems associated with that religious expression, or the rights of students to freedom from religion. THE PROBLEM The establishment clause of the First Amendment was intended to prevent the sorts of abuses that are taking place in our public schools today by keeping the spheres of public education and religious indoctrination separate. Once that clause is breached, however, abuses occur. It is not always realistic to assume that administrators, counselors or other officials in a school where such activities take place can "self-police" or correct the problem. In fact, in many cases, they are all too often the cause of the problem. This suggests to us that much more needs to be done in defining and enforcing guidelines having to do with the rights of the many students who choose to remain free from such religious activities. Government statements and guidelines do not go far enough in discussing or protecting the rights of those students (including Atheist students) who do not wish to pray, or attend religious clubs or Bible-study groups, or be proselytized in their schools. RESISTANCE TO THE FIRST AMENDMENT While most school districts do acknowledge and obey guidelines pertaining to the separation of church and state, there is the obvious fact that in some areas of the country administrators, teachers and/or students who wish to violate the First Amendment simply do so. • In DeKalb County, Alabama, for instance, there have been recurrent problems involving student religious expression over a school public address system, in class rooms and at athletic events. Federal Judge Ira DeMent, who overturned Alabama's school prayer law, has had to admonish and warn Christian administrators that continued opposition to the guidelines he affirmed in his rulings could result in further legal action. The court has had to actually field "monitors" in these schools to insure that the First Amendment is recognized and to serve as information resources for any students, teachers or administrators who have questions. Unfortunately, not all public officials have cooperated with Judge DeMent. Alabama Governor Fob James has spoken favorably of those students and administrators who "resist" the court's order, and Attorney General Pryor has actively distorted the meaning of the guidelines. And in late July, 1998, a finding by one of the court-appointed monitors, Rev. Chriss Doss, a Baptist minister and educator at Samford University in Birmingham, raised questions about the involvement of a high school principal (Gary Carlyle, Sylvania High School) in encouraging students to join in reading "The Lord's Prayer" at a May 26 graduation ceremony, an activity that contravened the Federal court order pertaining to the separation of church and state. • In 1996 the Washington State Attorney General issued a ruling that officially sponsored prayer at public high school graduation ceremonies was unconstitutional after two students, one an Atheist and the other a Baptist, filed suit to stop the prayers. • In New York, a teacher was recently dismissed for allegedly leading her sixth-grade students in prayer and healing services. While she gave students who did not wish to engage in this activity the "option" of spending time on a classroom computer instead, her actions were nevertheless highly inappropriate and she was dismissed. Her case is on appeal. • In Jackson, Mississippi, the local school superintendent was the target of gunfire after suspending a principal in Jackson for allowing Christian prayers to be read over the school's public address system. • Again, in Mississippi, Lisa Herdahl's son was required to wear a football helmet, or musical headphones, or leave the room because he refused to participate in organized religious rituals with the majoritarian sect (Baptist). He was Lutheran. • In Oklahoma, Ms. Jo Ann Bell, a mother and homemaker, was assaulted in a parking lot and her home burned down after she protested school-sponsored religious activity. • In Dunn, N.C., Laurey and Rick Wyble received harassing phone calls, were called "communists", and were driven from their home for protesting sectarian bible classes in their son's public elementary school. • In Columbia, S.C., Henry Jordan, a state school board member, and member of the Christian Coalition, proposed the posting of a version of the Ten Commandments in the public schools. When asked about the sensitivities of minority religions to his suggestion, he remarked, "Screw the Buddhists and kill the Muslims - and put that in the minutes!" • Attempts by Christian-oriented groups such as Family Friendly Libraries to limit our children's access to library and internet resources continue unabated. They are entitled to impose such limits on their own children, but are they not legally empowered to make such choices for our children as well. • In May of this year the American Civil Liberties Union of Oregon went to court on behalf of an Atheist family from Portland, to prevent the Portland School District from actively participating in the recruitment of Cub Scouts at Harvey Scott Elementary School. The suit was filed on behalf of Nancy Powell and her son, Remington Powell, who was in the second grade. After-school staff assisted Cub Scout recruiters in placing wrist bands on students that urged them to join Cub Scout Pack 16. The suit argued that the recruitment of students to join the Cub Scouts during school hours and on school property is unconstitutional because the Cub Scouts and Boy Scouts are required by the Boy Scouts of America to refuse membership to boys who do not "profess a belief in God, recognize an obligation to God and declare a duty to God." In most school districts throughout the country, proper limits concerning the expression of religious beliefs by students are generally (but not always) observed. If there is a lesson here, though, it is this: Our public schools are considered not educational centers, but a locus for "culture war" battles waged by certain sectarian groups who seek to introduce prayer, religious proselytizing or inappropriate religious content into the public school curricula (such as "creationism," " bible history") and other extracurricular activities (such as sporting events, graduation ceremonies and other school- sponsored presentations).STUDENT RELIGIOUS EXPRESSION Under the Equal Access Act, students are permitted to form religious clubs if non-curriculum related secular student groups are permitted in a high school. We see no reason why students should not enjoy this right of free speech, whether it involves religious expression and study, or some other area, from chess to politics. However, religious activity in the schools warrants special attention from us for several reasons: 1) The Equal Access Act (EAA) requires the elimination of all non-curriculum related clubs as a response to the denial of the legitimate rights of other groups. We disagree with that remedy. By eliminating all clubs, the schools thus deny the free speech rights of everyone, in order to accommodate the prejudices of some. • In Utah, for instance, the EAA was supported in order to defend the "free speech rights" of students who wanted to form religious clubs; but when a gay- straight student support group was founded, however, Senator Orin Hatch and other EAA proponents quickly abandoned their enthusiasm for free speech. Sen. Hatch declared that the purpose of Equal Access was not to permit the establishment of "those sorts of clubs," only religious groups. In addition, a student group that supports homosexual rights sued Cherry Creek Public Schools in January of this year for refusing to recognize it as an official club at Smoky Hill High School. The "Equal" in Equal Access needs stronger protection and enforcement. 2) The EAA, in our opinion, does little to establish and protect freedom of speech for all students. There is no mechanism for safeguarding the rights of students who may, and frequently are, subject to religious harassment. The whole question of the status of religious expression by students in public schools has been demonstrated to be a highly emotional and controversial issue - outside the normal rules of decorum observed by other student groups. Unlike chess or computer clubs, religious clubs in schools have been surrounded by an aura of controversy. • One such controversy is the nature of bible/prayer "clubs" themselves. First hand observation and additional anecdotal evidence reveals that these are not student "clubs" in the traditional sense. Rather, they consist of religious ritual, scriptural readings, songs, prayers and similar activities usually reserved for the church setting. In effect, these clubs become satellites of the local church for proselytizing and recruitment in the schools - a fact that should give pause to civil libertarians and parents everywhere. One of our members related the following events at her Oak Ridge High School in Conroe, Texas. Remember, this is just one school.
Other attempts at "blind-side" proselytizing occur when such religious clubs hold their meetings in school lobbies, lunchrooms, and hallways - venues not normally used by other student clubs when attending to their special interests. In his letter of release of the guidelines on these issues dated August 10, 1995, Secretary of Education Richard W. Riley wrote: "At the same time, schools may not endorse religious activity or doctrine, nor may they coerce participation in religious activity. Among other things, of course, school administrators and teachers may not organize or encourage prayer exercises in the classrooms. And the right of religious expression in school does not include the right to have a 'captive audience' listen, or to compel other students to participate. School officials should not permit student religious speech to turn into religious harassment aimed at a student or a small group of students. Students do not have the right to make repeated invitations to other students to participate in religious activity in the face of a request to stop."American Atheists has found that in many parts of the country, this admonition is simply ignored or circumvented; there are no independent enforcement mechanisms available to the victims of this harassment in public schools. AMERICAN ATHEISTS IS CONCERNED School districts throughout the nation need to do more in advising students of what is and what is not appropriate behavior in terms of religious expression. While some students may wish to form religious clubs or hold events such as "See You At The Pole," the increasing number of such activities - and, sometimes, their manipulation or influence by outside, adult religious groups, such as the evangelical organization known as First Priority - is cause for concern. Increasingly, American Atheists has received reports of exuberant student "prayer warriors" aggressively "sharing the good news" of their religious faith with other students who disagree, or are repulsed by such proselytizing. "Prayer warriors" cannot be permitted to conduct in-your-face harassment in the school hallways, lunchrooms, or lobbies. Non-participation by dissenting students in religious ceremonies or groups publicly identifies those students as not being part of the religious majority. • Since 1993, Cory Bazydlo, an Atheist student from Collins, NY, has been the target of religious abuse because of such an identification. She joined a chorus in her public school and refused to participate in songs of praise to the Christian "savior" on the basis that it violated her freedom of conscience. This has resulted in threats of physical violence (including the religious suggestion of "burning in hell"), being told that she was "lying" about her non-belief, and that we are a "Christian nation so deal with it." There was no recourse to the student because the chorale director, teachers, principal, and school board, all sided against the Atheist student. Congress has enacted laws, with significant penalties, against sexual harassment - it needs to enact similar legislation, with penalties, protecting all students against religious harassment and discrimination in our schools. Any majority must know that there are consequences for the abuse of their rights; the minority population of Atheists (and, indeed, members of smaller religious sects) needs the protection from the courts, of the right to be free from religion in America. The decision to embrace, or reject religious belief and rituals must be respected. To that end, we must include Atheists as a protected group in the Federal Civil Rights Act. It needs to be pointed out that approximately 10% of the American population describe themselves as Atheists, Agnostics, freethinkers, or other such appellation. That is approximately 26,000,000 persons, and it includes students in public schools. For millions of others religion plays little or no role in their lives. Indeed, there has never been a time in American history when the majority of the citizens were regular church goers, and claims of regular church attendance (some as high as 40% according to the Gallup poll, have been demonstrated to be seriously inflated. The shut-down of parishes across the nation suggests that "empty pew syndrome" is a problem, at least for the major denominations. The inclusion of Atheists as a protected category in the Federal Civil Rights Act would go a long way to affording Atheists the same protection of the law enjoyed by every other group in America. "STUDENT-LED, STUDENT-INITIATED" DOES IT MAKE A DIFFERENCE? In response to legislation and court rulings which have, over the decades, strengthened state-church separation in our public schools, the claim is now often made that certain types of unconstitutional activity should be considered constitutional since it is supposedly "student-led" or "student- initiated." Indeed, the argument has been made that a prayer suggested by a student is substantially different from that dictated by a teacher, administrator, or government committee (as in the case of the former "Regents' Prayer" in New York State which was declared unconstitutional in ENGEL v. VITALE). Similar arguments were made on behalf of "silent prayer" or a moment of silence or meditation; courts have been decisive in striking down these unconstitutional practices in KAREN B. v. TREEN (1981), MAY v. COOPERMAN (1985) and WALLACE v. JAFFREE (1985), to list just a few cases. Any "student led" or "student initiated" religious activity has the effect of promoting religion when it involves a captive audience of students. The student(s) who "initiates" the prayer simply replaces the teacher, minister or administrator who, prior to cases such as MURRAY v. CURLETT (1963), led all students in religious verse recitation. Representatives of government may not legislate individuals into religious ritual activities. Yet implicit in the push for "student-initiated" religious ceremonies is the notion that individual citizens have the right to force others to bend to their theological bias and submit to what fairly may be described as the spiritual equivalent of rape! Where in the Constitution are citizens accorded such powers and privileges? By what legal mechanism have the courts taken it upon themselves to confer upon public school students the duties and functions traditionally performed by those extensively trained in a particular religious discipline? Again, we point out that the public schools are an inappropriate venue for this sort of activity. The prayer, even if it reflects the sensibilities or beliefs of the majority of students, is still unconstitutional as it can offend those students who adhere to no religious belief system, or embrace teachings of a minority creed. And since the notion of "student-initiated" prayer consists of simply replacing the minister or school administrator with a student, the effect is exactly the same as prior to MURRAY - organized religious services, including prayers, songs, and scriptural readings continue to occur in the schools. American Atheists is alarmed that teachers, school administrators, and even elected officials accept the concept that only in the public schools can the First Amendment be made subject to student popularity vote. Nothing could be more unconstitutional than to submit our freedom of conscience to a majority rule situation. In MURRAY, the Court was adamant in its interpretation when it noted that: "Finally, we cannot accept that the concept of neutrality, which does not permit the State to require a religious exercise even with the consent of the majority of those affected, collides with the majority's right to free exercise of religion. While the Free Exercise Clause clearly prohibits the use of state actions to deny the rights of free exercise to anyone, it has never meant that a majority could use the machinery of the state to practice its beliefs. Such a contention was effectively answered by Mr. Justice Jackson for the Court in West Virginia Board of Education v. Barnette, 319 U.S. 624, 638, 63 S.Ct. 1178, 1185, 87 L.Ed 1628 (1943):'The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by courts. One's right to freedom of worship and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.'" SUMMARY While there is ample provision (First Amendment, Religious Guidelines, etc.) for the rights of religious individuals in the schools, there is nothing to provide for, or protect, Atheist students in the public schools. The Establishment Clause, by and large, has failed to protect this growing population of students for several reasons, among them:
Thank you Ellen Johnson, President American Atheists, Inc.
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