Thomas: Establishment Clause Jurisprudence 'In Shambles'

This from The School Law Blog:

Justice Clarence Thomas on Monday said that the U.S. Supreme Court's establishment-clause jurisprudence is "in shambles."

Citing divergent lower-court opinions on the display of crosses, the Ten Commandments, and other religious messages in courthouses, city halls, and public schools, Thomas said "our jurisprudence has confounded the lower courts and rendered the constitutionality of displays of religious imagery on government property anyone's guess."

"Even if the court does not share my view that the establishment clause restrains only the federal government, and that, even if incorporated [i.e., applied to the states], the clause only prohibits actual legal coercion, the court should be deeply troubled by what its establishment clause jurisprudence has wrought," Thomas said in a lone dissent from the court's denial of certiorari in Utah Highway Patrol Association v. American Atheists Inc. (Case No. 10-1276).

The Supreme Court on Oct. 31 refused to hear the case involving white crosses placed on or near spots where members of the Utah Highway Patrol were killed while on duty. The U.S. Court of Appeals for the 10th Circuit, in Denver, ruled last year that although the crosses were placed by a private group, their location predominantly on public property conveyed a message that the state of Utah endorsed Christianity.

In his 19-page dissent, Thomas referred to a number of school cases that, in his view, reflect confusion or inconsistent application by lower courts of the Supreme Court's rulings under the First Amendment's prohibition against government establishment of religion...

Teacher Can't Be Sued Over Alleged Hostility to Religion, Court Says

This from the School Law blog:

A California teacher is immune from a student's lawsuit claiming that the teacher's classroom comments were hostile to religion, a federal appeals court has ruled.

A three-judge panel of the U.S. Court of Appeals for the 9th Circuit, in San Francisco, declined to decide whether any of the teacher's comments were actually hostile to religion to the point of violating the student's First Amendment right to be free from government establishment of religion.

Instead, the panel held unanimously that it was not clearly established that a teacher could violate the establishment clause by appearing hostile to religion during class lectures. Thus, the teacher in this case was entitled to qualified immunity from the student's lawsuit.

The Aug. 19 decision in C.F. v. Capistrano Unified School District involves a suit brought on behalf of a student who was a sophomore at Capistrano Valley High School in 2007 when he began the Advanced Placement European History course taught by James Corbett.

According to court papers, the teacher had told students in a letter that the course would be provocative and would prompt them to develop their critical-thinking skills. Students would be encouraged to disagree with the teacher as long as they could back up their arguments, the letter said.

The student, a Christian who believes in creationism, objected to numerous comments made by Corbett during the course, For example, Corbett said the strong religious beliefs of European peasants helped keep them from improving their position in society.

"When you put on your Jesus glasses, you can't see the truth," Corbett said in class. (The student surreptitiously recorded Corbett's lectures, which the teacher claims violated the state education code, but that issue wasn't before the court.)

The suit said Corbett also belittled creationism, and criticized a teacher at Capistrano Valley High who some 20 years ago had been involved in a controversy over his promotion of creation science. (According to court papers, Corbett is also Christian, and prays and attends church regularly.)
A federal district judge had granted summary judgment to the teacher on the basis of qualified-immunity over most of the suit's claims, although the judge ruled for the student over Corbett's criticism of the other Capistrano High teacher.
The 9th Circuit panel held that Corbett was entitled to qualified immunity on all of the suit's claims.

"We are aware of no prior case holding that a teacher violated the establishment clause by appearing critical of religion during class lectures, nor any case with sufficiently similar facts to give a teacher fair warning that such conduct was unlawful," said the opinion by U.S. Circuit Judge Raymond C. Fisher.

Both parties agreed that AP European History could not be taught without discussing religion, the court said, and "we have no doubt that the freedom to have a frank discussion about the role of religion in history is an integral part of any advanced history course."
In addressing religion in a public school classroom, teachers should be sensitive to students' personal beliefs and not abuse their authority, the court said, but teachers must also foster students' critical-thinking skills and develop their analytic abilities.
"This balance is hard to achieve, and we must be careful not to curb intellectual freedom by imposing dogmatic restrictions that chill teachers from adopting the pedagogical methods they believe are most effective," Judge Fisher said.

What Establishment of Religion Looks Like

This from H-L, Cartoon by Joel Pett:

Atheists want God out of Ky. homeland security

A group of atheists filed a lawsuit Tuesday seeking to remove part of a state anti-terrorism law that requires Kentucky's Office of Homeland Security to acknowledge it can't keep the state safe without God's help.

American Atheists Inc. sued in state court over a 2002 law that stresses God's role in Kentucky's homeland security alongside the military, police agencies and health departments.

Of particular concern is a 2006 clause requiring the Office of Homeland Security to post a plaque that says the safety and security of the state "cannot be achieved apart from reliance upon almighty God" and to stress that fact through training and educational materials.

The plaque, posted at the Kentucky Emergency Operations Center in Frankfort, includes the Bible verse: "Except the Lord keep the city, the watchman waketh but in vain." ...

Establishment. Plain and simple.

Town split over teacher accused of preaching

This from MSNBC:

Ohio science teacher, 53, accused of

burning crosses into students' arms

MOUNT VERNON, Ohio - Demonstrations on the town square show how divided people are over the school board's decision to fire a science teacher accused of preaching his Christian beliefs in the classroom and burning crosses on students' arms.

John Freshwater, 52, was fired last month after an outside consulting firm released a report concluding that he taught creationism and was insubordinate in failing to remove a Bible and other religious materials from his classroom at Mount Vernon Middle School.

Some residents consider him a courageous fighter for religious freedom. Others say he has brazenly violated the church-state divide.

"This is going to be a mess," said Dr. Allan Bazzoli, who has written letters to the local newspaper criticizing Freshwater. "Resident against resident, and worse, student against student."

Freshwater's supporters have rallied on the town's square urging school board members to resign. A much-viewed sign about a mile from town reads: "If the Bible goes, the school board should follow." ...

...Jessica Philemond, an attorney for the unnamed student's family that is suing Freshwater and the school district, said that raises some troubling questions.

"I want to find out who had complained, to whom they complained and why for 11 years nothing was done," Philemond said. "They could have taken action a
while ago."

Bazzoli and other critics say the public's support for Freshwater may be wavering. A demonstration last month in which supporters urged school board members to resign attracted just 25 people...

Here's the KSN&C's backstory: "What Establishment of Religion Looks Like"

What Establishment of Religion Looks Like

There are probably many teachers who have Bibles in their classrooms and it's never a problem.

There were probably times when I had a Bible in my classroom. In fact, I'm not completely sure how one teaches western civilization and the persistent conflicts between the church and the state without some understanding of the Book of Matthew.

That said, an Ohio teacher provides a field guide for those who would establish religion in the public schools.

He led his football players in prayers before games; before practices; before meetings. His district had to settle a $18,000 suit as a result. Later, he taught Intelligent design. More recently he posted the Ten Commandments on his classroom door, and now, supported by a religious activist, refuses to remove a Bible from the view of his students.

His persistent effort over time to impose his strongly held views promoting a specific religion smells like ...establishment.

This from the Columbus Dispatch:

Teacher, school district battle over Bible in classroom

A Mount Vernon science teacher said today that he will refuse to remove a Bible from his classroom desk, despite his school district's order.

"Thousands of citizens in this community have built their lives on deeply held religious convictions, and it is for them that I stand today," John Freshwater, 51, who teaches at Mount Vernon Middle School, said in a news release.

The religious activist Dave Daubenmire, Freshwater's friend, acted as his spokesman today. "This is not a religion issue; this is a free-speech issue," Daubenmire said. "He didn't take the Bible to read to anybody."

Mount Vernon Superintendent Steve Short said Freshwater's characterization of the events leading to the district order that he remove religious items from his classroom was "not entirely accurate," but Short wouldn't elaborate.

The district later released a one-paragraph statement saying that district officials don't oppose religion but are required "under the First Amendment of the United States Constitution to protect against the establishment of religion in the schools. As a public school system the district cannot teach, promote or favor any religion or religious beliefs."

Freshwater and Daubenmire believe that separation of church and state "is a fraud" and that the framers of the Constitution never intended it to be practiced the way it is today, Daubenmire said.

The district asked Freshwater last week to remove the Ten Commandments from the door to his classroom and to remove the Bible from the view of students. About 3,900 students attend Mount Vernon schools. Mount Vernon is about 52 miles northeast of Columbus.

Freshwater took down the Ten Commandments but decided that being prevented from taking a Bible into the classroom was going too far.

In the past, Freshwater has taught his students about the "holes in evolution" and intelligent design, the theory that a supernatural power created complex forms of life, Daubenmire said.

"Would our government ask a follower of Islam to remove her burqa in order to teach school?" Freshwater said in his written statement. "Would we ask a science teacher to remove The Origin of Species from his desk merely because the origin of man has never been proven?

"I cannot with a clear conscience follow a directive that makes religion and the religious viewpoint any less credible by those who deem themselves more enlightened."

Freshwater wouldn't answer questions directly because of the likelihood he will file a lawsuit charging "viewpoint discrimination," Daubenmire said.

Daubenmire is the former London High School football coach whose district was sued in 1999 by the American Civil Liberties Union because he led his players in prayer at games, practices and meetings. The district settled out of court, and its insurance company paid the ACLU $18,000 for court costs.

And this from the Mount Vernon News: Photo by Pamela Schehl.

AUDIO of Rally.

MOUNT VERNON — Nearly 100 people gathered on Mount Vernon’s Public Square on Wednesday afternoon, in a show of support for middle school science teacher John Freshwater.

The Mount Vernon City School administration has demanded Freshwater remove a Bible from his desk at school, even though a Bible has been a fixture in his classroom for many years.

The school district told Freshwater he cannot, as a public school teacher, engage in any activity that promotes or denigrates a particular religion.

Freshwater complied with a request to remove a a copy of the 10 commandments from display in his classroom, but is resistant to removing the Bible. He said the district’s mandate is an infringement of his First Amendment rights to free speech and to freely express his beliefs.

It is unclear as to what prompted the school district’s action.

September 12, 2007:
Parents’ objections spark cancellation of FCA speaker—Administrators of public institutions, such as schools, are sometimes caught up in a balancing act, trying to ensure the rights of citizens are not violated while at the same time following established rules and procedures. That seems to be the case with regard to an occurrence Tuesday at Mount Vernon Middle School.

June 3, 2003:
Mount Vernon Board of Education turns down proposal— The Mount Vernon Board of Education turned down a proposal on the teaching of evolution at its board meeting Monday at the Mount Vernon Middle School library.