"Play in the joints": the struggle to define permissive accommodation under the First Amendment.

INTRODUCTION

In the two decades since the Supreme Court left open the door for permissive religious accommodation in Employment Division v. Smith, (1) the Court has only obscured the doctrine further by creating multiple and overlapping analytical frameworks. (2) Public schools in particular have been caught in the crossfire between the mandate of the Free Exercise Clause and the prohibition of the Establishment Clause. They must attempt to walk a tight rope over a jurisprudential minefield, while trying to meet the needs of increasingly diverse student bodies. (3)

As the Roberts Court begins to take a fresh look at the First Amendment, (4) Congress has recently sought to encourage the Court to clarify the scope of the "play in the joints" (5) between the Free Exercise and Establishment Clauses, and the authority of state actors to accommodate their constituents' religious practices. An important component of the balance Congress has struck in this area, 42 U.S.C. [section] 1988, rewards those successful in bringing [section] 1983 (6) suits for Establishment Clause violations with attorneys' fees.

The statute, however, does more than simply give incentives to plaintiffs bringing [section] 1983 suits. In practice, [section] 1988 has placed schools in an impossible position. With no standard to assess the risk that they will lose a [section] 1983 claim and face paying plaintiffs' legal fees, schools must either risk losing budgetary funds at a time when school programs are already being cut for lack of funding (7) or give in to the demands of plaintiffs' lawyers. As a result, powerful interest groups are given the green light to intimidate schools into accepting their interpretations of the First Amendment rather than allowing such important constitutional questions to be decided by the courts.

The proposed Veterans' Memorials, Boy Scouts, Public Seals, and Other Public Expressions of Religion Protection Act of 2007 (PERA) would prohibit courts from awarding attorneys' fees under [section] 1988 for Establishment Clause violations, thereby removing one of the burdens on schools attempting to accommodate minority religious practices. (8) This statute would recalibrate the balance between litigants to the default American rule, (9) thus allowing each party to stand on equal footing when making strategic litigation decisions.

This Note is in three Parts. Part I examines the current state of the Court's free exercise jurisprudence and the state of permissive religious accommodation in public schools, arguing that a lack of clear guidance from the Court has led to inconsistent results that shrink the space between what the Establishment Clause forbids and what the Free Exercise Clause demands. Part II provides a case study on the state of religious accommodation in public schools, discussing the experience of a public elementary school that recently attempted to accommodate minority religious beliefs. Finally, Part III explores the Public Expression of Religion Act as a possible legislative solution to expand the ability of schools to accommodate religious practices that fall between the Establishment and Free Exercise Clauses.

I. PERMISSIVE ACCOMMODATION: RELIGIOUS FREEDOM IN A PLURALISTIC SOCIETY

The First Amendment of the United States Constitution provides that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." (10) These sixteen words were written by "a group of statesmen ... who proposed a guarantee with contours not wholly worked out, leaving the Establishment Clause with edges still to be determined." (11)

The Court has stated that "the common purpose of the Religion Clauses 'is to secure religious liberty.'" (12) In 1952, the Court stated that "[w]hen the state encourages religious instruction or cooperates with religious authorities by adjusting the schedule of public events to sectarian needs, it follows the best of our traditions ... [by] respect[ing] the religious nature of our people and accommodat[ing] the public service to their spiritual needs." (13) At the same time, however, the "vast majority of Establishment Clause cases have either cited or relied upon Jefferson's 'wall of separation' metaphor." (14) This contradiction has led to a Court that is "unwilling or unable to take a unified stand on what the Constitution really means when it comes to the relation between religion and government." (15) One federal appellate court has referred to the Court's Establishment Clause case law as "suffer[ing] from a sort of jurisprudential schizophrenia." (16)

Nevertheless, it is clear that some accommodation of religious practices by public schools is not only permitted but required by law. (17) A high school in Richardson, Texas, for example, recently clarified its policy on prayer, recognizing Muslim students' legal right to pray during the school day and providing them with a designated place to do so. (18) Although the Court has generally held that a non-accommodation school policy does not violate the Free Exercise Clause "if [the school] has pursued its secular policies without reference or regard to religion--even if the exercise of a religion is thereby seriously disadvantaged, or even destroyed," (19) schools must show that the policy is neutral to religion. For example, if a school has forbidden students to leave class to pray, but allows students to be excused for medical reasons, extracurricular activities, and athletic practices, the school is no longer pursuing a religiously neutral policy. (20)

Other schools have voluntarily attempted to accommodate minority-religion students through what the courts have called permissible or permissive accommodation--that is, through policies not required by the Free Exercise Clause but not forbidden by the Establishment Clause. (21) The Court has repeatedly emphasized that "[not] all benefits conferred exclusively upon religious groups or upon individuals on account of their religious beliefs are forbidden by the Establishment Clause unless they are mandated by the Free Exercise Clause." (22) Put differently, "the state may extend benefits to religious observers where denying those benefits would effectively penalize them for not violating their faith." (23)

Rather than endorsing religion, permissive accommodations for religious observance show "secular respect for the needs of religious people." (24) As then-Professor Michael W. McConnell observed, a theory of the Establishment and Free Exercise Clauses that demands formal neutrality "would make the Religion Clauses violate the Religion Clauses, since the Religion Clauses 'single out' religion by name for special protections." (25) To avoid this absurdity, the courts must recognize that "religion is constitutionally distinctive from all other human enterprise, [that] its distinctiveness requires special constitutional treatment," (26) and that a country that leads the charge against terrorism abroad "may have more success generating loyalty [at home] from religiously diverse citizens by allowing inclusive governmental manifestations of religion than by banning them." (27)

Both the original meaning of the Constitution and historical practice support the constitutionality of permissive accommodations. In the years before the ratification of the First Amendment, the colonies and states passed religious exemptions to protect religious observances in the few cases where religious tenets conflicted with the civil law. (28) An examination of the ratification debate suggests that "[a]t a minimum, the message of history is that religious accommodations are permissible and desirable, even if not constitutionally compelled." (29) Today, the pervasiveness of the regulatory state requires more than formal neutrality. (30) But perhaps more than any other factor, it is the "pervasive embrace of religion from the founding of the United States until the present day [that] clearly demonstrates that the Establishment Clause was intended to accommodate religion." (31)

Permissive accommodations can take many forms. As many as seventeen universities have installed or are installing foot baths to allow Muslim students to wash their feet before praying. (32) The University of Michigan has announced that foot baths will be installed with student funds, as opposed to taxpayer dollars, "as this is an issue of trying to make ... bathrooms safer and improve plumbing--not of endorsing a religion." (33)

Christian students, of course, are already granted accommodations by not having school on Sundays or over Christmas. (34) But in Dearborn, Michigan, where the Muslim population is as high as thirty-three percent at some schools, schools have started to offer students lunch meat slaughtered in accordance with Islamic law and to give two days off during Ramadan. (35) Other schools grant exemptions from dress codes for head coverings, release students from strenuous exercise during times of religious fasting, or decline to administer tests on Yom Kippur. (36)

There are boundaries to what constitutes a permissible accommodation. It would be nonsensical to argue that "the free exercise clause of the first amendment was intended to give persons or churches the right to disobey laws with impunity provided they had religious reasons for wishing to do so." (37) The state may not act "entirely motivated by a purpose to advance religion," (38) or grant religious exemptions for burdens that fall equally on religious organizations and the general public. (39) Even critics, however, acknowledge that "those practices that are, beyond reasonable controversy, at the spiritual core of a religious tradition certainly deserve the most forceful and focused constitutional attention." (40)

Continued uncertainty in the area of permissive accommodation accompanied the arrival of two new Justices to the Court in 2005. If their backgrounds are any guide, Chief Justice Roberts and Justice Alito seem most likely to join Justices Scalia, Kennedy, and Thomas to form a new "accommodationist" majority. (41) Additionally, the Bush Administration has "support[ed] [the] accommodationist trend with administrative policies and its position in amicus curiae briefs." (42)

In the final analysis, it may be useful to analogize religious liberty in the public schools to free speech in the public square. A free society must encourage more protection and practice greater accommodation of religious observances, whether of majority or minority faiths, to maintain a healthy, pluralistic society. (43) The Court will never be able to shield religious minorities from all references to the majority religion. The only thing left to do then is either to allow the government to censor all religious expression in the public square or to "strengthen [religious minorities'] own identities and be proud of who they are [rather than] insist that the majority give up its own celebration to accommodate them." (44)

II. CARVER ELEMENTARY SCHOOL: A CASE STUDY IN PERMISSIVE ACCOMMODATION

In April 2007, an elementary school found itself at the center of a national firestorm over the limits of permissive accommodation for Muslim students. (45)

A. The Arabic Language Program

Carver Elementary School, a primary school with students in kindergarten through eighth grades, has traditionally served a diverse immigrant population. (46) In the years following the 1993 raid on Mogadishu, thousands of Somali Muslim refugees came to San Diego to escape the violence. (47) Days before the 2006-2007 school year began, an experimental Arabic language charter school that had served many of these Somali refugees was closed and more than 100 students were relocated to Carver Elementary School. (48)

The Superintendent for the San Diego Unified School District had long been trying to make the district's schools competitive by "offer[ing] culturally relevant and academically unique programs to lure students back from charter and private schools." (49) With little time to plan, administrators decided to keep the Arabic program students separated from the rest of the Carver students; in addition, the Arabic program students were given a separate lunchtime and separate recess time to accommodate their prayer schedules. (50) The principal at Carver hoped to "create a magnet program that would attract students from throughout the district ... [with] foreign-language programs [that would] appeal to non-Arabic and non-Muslim families." (51)

In response to requests from the predominantly Muslim parents of the transferred students, Carver administrators attempted to find a way to allow these students time for their daily noon prayer. (52) The school officials consulted the Department of Education's guidelines and decided that students would be allowed the option to pray during their afternoon recess. (53) Similarly situated Muslim high school students are constitutionally entitled to use non-instructional time to pray or engage in religious study. (54) However, primary school children require constant supervision during breaks and free time. To accommodate prayer in such a setting, the school asked a Muslim teacher's aide to be in the room during the afternoon recess. (55)

B. The Rising Controversy

In early April, a substitute teacher at Carver went on a conservative radio talk-show and alleged that the school was engaged in "religious indoctrination." (56) The substitute said that she was handed a lesson plan that included one hour of time set aside for prayer. According to the substitute's statement, a teacher's aide came into the classroom during this hour, closed the blinds, and led the students in prayer, making the substitute feel "extremely uncomfortable, [and] intimidated." (57) After investigating the incident, the district determined that the aide was praying alongside the children but was not leading the prayer. (58) The district believed that her conduct fell squarely within the Department of Education guidelines (59) and accommodated the religious needs of students as mandated by a previous court ruling. (60)

In the months that followed the substitute's allegations, a media frenzy engulfed the school district. The school was condemned as an "embryonic madrassa" on the Fox News program, The O'Reilly Factor. (61) An editorial that appeared in Investor's Business Daily referred to the school as a "budding madrassa" engaged in a "stealth jihad" and compared the program to the Taliban, stating that Islam "wish[es] us ill [and] pray[s] for the demise of our system of government." (62) Even some Muslims criticized the program, urging fellow Muslims to "stand up to attempts by Islamists to Islamize western society on behalf of the name of Muslims." (63)

The Superintendent of the San Diego Unified School District defended Carver's program:

      At Carver, we provide afternoon recess for students to play,
   pray, talk, study or just have a break. Some Muslim students use
   this time for a prayer that, according to their faith, must be
   prayed during a specific time window each afternoon. That occurs at
   recess. Students of other faiths are free to pray or not pray, as
   they wish, but teachers and staff are prohibited from encouraging
   or discouraging prayer or from praying with students.

      Carver students are growing daily in their understanding of and
   respect for America. Each morning they salute the flag and
   participate in patriotic exercises....

      All San Diegans should be proud that this community, without
   fear or prejudice, opened its arms to these refugee children from a
   different land, language, culture and religion, and in typical
   American fashion, gave them the great gifts of education, freedom
   and hope. (64)

Parents of Carver students seemed accepting of the district's plan. One guardian, who is a Christian with two grandchildren in the Arabic-language program, argued that the Muslim children should be "'given the freedom' to pray." (65) Another parent whose Carver student was not in the program said that he supported giving Muslim students the opportunity to pray, so long as the "teachers are doing their job, and his son's education is not affected." (66)

Supporters in the community also defended the school, noting that the accommodation was "legal, if not mandatory." (67) In one letter to the editor, a member of the community urged others to "be proud of the school and community for accommodating these children from a war-torn world." (68) The community member also urged San Diego residents to "applaud[] Carver Elementary for taking the steps to make these children feel comfortable and welcome here in their new home." (69)

C. Threatened Legal Action

The Carver program brought more than just media attention; it brought legal controversy. Lawyers from all sides of the accommodation debate were quick to weigh in on behalf of powerful interest groups. An attorney for the school argued that the district was well aware of the "hazards of making the wrong decision" (70) after the Ninth Circuit had forced the district to permit students at a high school to hold a Bible study during lunch. (71) As a result of that ruling, the school was "careful about restricting students' right to their own private religious expression." (72) The school's attorney further noted that "[t]he district's obligation in response to a request that a prayer must be performed at a particular time is to treat that request the same as it would treat a student's request to receive an insulin shot at a particular time." (73)

The legal justifications offered by the school, however, did not prevent several groups from threatening to bring civil actions against the district. Americans United for Separation of Church and State called the school's policy "a violation of the First Amendment's establishment clause." (74) The Thomas More Law Center referred to the policy as a "double standard that favor[ed] one religious group over others." (75) Although the American Civil Liberties Union decided to "remain[] silent" until the school announced a resolution, (76) its San Diego legal director added that "his organization will monitor ... changes related to accommodating prayer." (77) On the other side, the Pacific Justice Institute called on the school to expand the policy to make a "'daily prayer time' for students of all faiths to pray and invit[e] religious leaders in to facilitate the prayer times." (78) When local reporters asked one law professor to comment on the constitutionality of the Carver program, he simply said that the Supreme Court's First Amendment jurisprudence was "notoriously erratic." (79)

D. The Future for Carver

In the end, Carver Elementary School officials were unable to justify the risk of litigation and bowed to the mounting legal and media pressures. Less than four months after the substitute teacher brought her accusations on the radio, the school announced that it would end the afternoon recess that students had used for prayer. Instead, the school stated that the children would be able to use their lunch period to pray. The year-round school traditionally had staggered 30-minute lunch periods. Although the school has not announced the exact time, it is assumed that one of the lunch periods will fall during the Zuhr prayer time. (80) Younger students who are not required to pray will be assigned to the earlier lunch, while older students will have the option to pray during the later lunch period. (81) Unfortunately, this new policy will mean that students are "ultimately forced to choose between eating lunch and praying the mid-day prayer required by their faith." (82)

Given the increasing pressure on public schools to compete for students and the shrinking budgets for extracurricular programs, it comes as no surprise that Carver decided not to roll the dice in court. Although it is unclear whether the result at Carver would have been different if the Court's permissive accommodation jurisprudence were more clear or if the state of attorneys" fees were different, Carver is nevertheless an important example of the shrinking space that exists between the Establishment and Free Exercise Clauses, as well as the practical pressures faced by school boards around the country.

III. PERA: AN END TO FIRST AMENDMENT BLACKMAIL

On January 29, 2007, just months before Carver Elementary School was thrust into the limelight, Senator Sam Brownback reintroduced the Veterans' Memorials, Boy Scouts, Public Seals, and Other Public Expressions of Religion Protection Act of 2007 (PERA) as S.415. His action received a flurry of media attention. (83) More than a year after the House of Representatives had passed a version of PERA in the waning days of a Republican-controlled Congress, (84) Senator Brownback explained that "many small towns [continue to] comply with the demands of the ACLU rather than risk going to trial and paying hundreds of thousands of dollars in legal fees to the ACLU if they lose the case." (85)

If PERA becomes law, it will be instrumental in redefining the "play in the joints" between the Free Exercise and Establishment Clauses and enhancing religious tolerance in the United States. Currently, fear of litigation "can often cause governmental entities to enact policies that discriminate against religious speech or practice" (86) even before those entities consider permissive accommodation policies. Although the incentives to avoid litigation exist in every area of constitutional law, they are considerably stronger in permissive accommodation cases. The inconsistent status of current constitutional doctrines governing the Establishment Clause and the added threat of attorneys' fees under [section] 1988 "inevitably lead governmental units to discourage or even to prohibit public expressions of religion, even if those expressions do not violate the Establishment Clause." (87)

A. Why PERA Will Prevent Future Abuses like the Chilling of Carver's Program

Establishment Clause jurisprudence has developed significantly since the Court's decision in Engel v. Vitale (88) in 1962. Forty-five years later, the passage of PERA would acknowledge that [section] 1988 no longer serves its original purpose. Rather than permitting plaintiffs to have their day in court, the attorneys' fee provision may be preventing the litigation of many Establishment Clause claims.

The result of this change in [section] 1988's function threatens the very religious liberty that the Establishment Clause was designed to protect. Courts, then, are not currently determining the "edges" (89) of religious liberty; rather, interest groups with narrow agendas are drawing those boundaries further and further away from the Founders' original understanding. Section 1988 has become a thumb on the scale in favor of anti-accommodationist policies, not because courts are ruling that the Establishment Clause demands that result, but because school boards like San Diego's cannot afford to risk the enormous sums of money that a loss in court would take away from their children's educations.

Instead, national interest groups provide school boards with a simple choice: stop doing a certain activity or run the risk of a costly lawsuit. This choice is exactly the kind of choice that would be unconstitutional if it were offered by the federal government. (90) Although there is no constitutional prohibition on groups like the ACLU creating such choices, the potential for a narrowing of free exercise rights in these circumstances is nevertheless real. Individual, one-time actors such as schools may be willing to cut deals with repeat litigants like the ACLU. When aggregated with the deals cut by many other one-time players, these deals hurt society's interest in religious freedom.

B. The History of PERA

The impetus behind PERA can be traced back to the Court's decision in Employment Division v. Smith. (91) The Smith Court held that the Free Exercise Clause is not violated by a "valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes)." (92) Believing that "the Supreme Court had erred in its interpretation of the free exercise clause in Smith," Congress then passed the Religious Freedom Restoration Act of 1993 (RFRA) (93) to "restore free exercise law to the status that existed prior to Smith, when the Court applied the compelling government interest test to most religious liberty challenges." (94)

In 1997, the Supreme Court, in City of Boerne v. Flores, (95) invalidated RFRA as it applied to the States, thereby gutting the majority of the protection created by RFRA. (96) Justice Kennedy, writing for the majority, and joined by Chief Justice Rehnquist and Justices Stevens, Scalia, Thomas, and Ginsburg, held that "[l]egislation which alters the meaning of the Free Exercise Clause cannot be said to be enforcing the Clause [under the Fourteenth Amendment because]... Congress does not enforce a constitutional right by changing what the right is." (97)

In the aftermath of City of Boerne, Congress again sought to introduce legislation that would protect religious freedom. In the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA), (98) Congress once again attempted to apply strict scrutiny to burdens on the free exercise of religion. RLUIPA, however, was more narrowly drawn than RFRA. (99) RLUIPA applied only to prisoners and land use and made numerous references to enumerated powers to buoy its constitutionality. (100) In 2005, the Court upheld RLUIPA. (101)

PERA, like RLUIPA, is part of Congress' ongoing attempt to protect religious freedom and free exercise of religion in the states. Although RLUIPA made it easier for some religious liberty claimants to prevail in the courtroom, Congress sought to find other ways of chipping away at the damage done by Smith and Boerne. In a statement on the floor of the House of Representative, Representative John Hostettler argued that PERA would "prevent mere threats of the legal system to intimidate communities, States, and groups like the American Legion into relenting" in the face of "the exorbitant attorneys fees of the [Indiana Civil Liberties Union]." (102)

In light of this history of Congress' legislative attempts to protect religious freedom, PERA's limitation on attorneys' fees for plaintiffs litigating Establishment Clause violations makes sense from two perspectives. First, from a functional standpoint, permissive religious accommodations are most likely to be challenged as establishments of religion, and PERA puts both parties on equal footing. Second, as a formal matter, the other rights protected by [section] 1983 "generally relate to violations of individuals rights, whereas Establishment Clause claims relate more to violations of a structural provision of the Constitution." (103) PERA recognizes this distinction by redrawing the lines of [section] 1988.

C. Constitutionality of PERA

Not everyone, however, has been convinced of PERA's merits. Professor Erwin Chemerinsky has described PERA as "a disturbing achievement by those who seek to undermine our nation's commitment to fundamental freedoms laid out in the Constitution," adding that "[s]uch a bill could have only one motive: to protect unconstitutional government actions advancing religion." (104) The ACLU has sent letters, issued press releases, and waged multiple campaigns opposing PERA, arguing that "the very purpose of this bill is to make it more difficult for citizens to challenge violations of the Establishment Clause, raising serious constitutional concerns." (105)

Despite these concerns, there are strong arguments that the Court should uphold PERA. First, Congress has the power to pass PERA. Because Congress has indicated that PERA would affect only "program[s] or activit[ies] that receive Federal financial assistance," not state governments per se, PERA would probably not be invalidated for the reasons that doomed RFRA. (106)

Second, PERA would not violate the Establishment Clause. PERA's purpose is facially neutral and entirely secular. The Supreme Court has traditionally used the three-prong test originally developed in Lemon v. Kurtzman (107) to assess the constitutionality of statutes that are challenged under the Establishment Clause. First, the government's actions must have a legitimate secular purpose. (108) The Supreme Court has been reluctant to find that the government was motivated by an illegitimate purpose under Lemon, and this prong may be dispositive. (109) Indeed, the McCreary County Court held that "a legislature's stated reasons will generally get deference." (110) In the case of PERA, Congress' stated purpose is entirely secular: "to prevent the use of the legal system in a manner that extorts money from State and local governments, and the Federal Government, and inhibits such governments' constitutional actions." (111)

Under the second prong of the Lemon test, the government's action must have "a principal or primary effect ... that neither advances or inhibits religion." (112) Like RLUIPA, PERA is narrowly drawn so as to permissibly advance a legitimate legislative end within Congress" authority. (113) Opponents might argue that PERA advanced religion by making it marginally harder for plaintiffs to bring claims, but just as the Court found that the "removal of government-imposed burdens on religious exercise is more likely to be perceived 'as an accommodation of the exercise of religion rather than as a Government endorsement of religion,'' (114) so too can PERA be seen as a removal of a thumb on one side of the scale rather than the addition of a thumb to the other. No one has argued that PERA would violate Lemon's third prong, which requires that the government's actions must not result in excessive entanglement with religion. (115)

In addition, analysis under the Establishment Clause rubric would have to recognize that PERA is a law affecting the remedies available to litigants, not a "law respecting an establishment of religion." (116) As such, any analysis "driven both by the nature [of the challenged practice] and by our Nation's history" (117) will militate in favor of PERA's constitutionality. Any incidental effect that PERA might have in discouraging the removal of religion from America's public life is no more than a "[r]ecognition of the role of God in our Nation's heritage" and a reflection of the "'unbroken history of official acknowledgement by all three branches of government of the role of religion in American life from at least 1789.'" (118)

Finally, PERA would not violate the Equal Protection or Due Process Clauses through its distinction between Free Exercise and Establishment claimants. PERA merely prevents prevailing Establishment Clause plaintiffs from recovering attorneys' fees; it does not affect plaintiffs' rights during the trial phase. Furthermore, the recovery of attorneys' fee is not a fundamental interest recognized in the Constitution. (119) The situation created by PERA is more akin to the discharge of a fee that is related to a fundamental right. (120) Plaintiffs, however, are not being asked to pay a fee to the government to enjoy a fundamental right. They are paying an independent party after vindicating their fundamental right. (121) In such a case, the denial of attorneys' fees does not rise to the level of a practical denial of a fundamental right. (122)

Simply put, PERA would return plaintiffs to the status quo that existed before [section] 1988 was enacted thirty years ago.

IV. CONCLUSION

Thirty years ago, local school boards consistently, if unintentionally, violated the Establishment Clause under any of the Court's so-called tests. (123) Today, however, courts are refereeing much closer calls. If indeterminacies, such as found in the Establishment Clause, are the very thing that makes the Constitution endure, (124) Congress must be able to ensure that the questions concerning the application of the Establishment Clause are properly litigated.

Schools like Carver Elementary School must be encouraged to stand up for programs that seek to accommodate the religious needs of their students beyond what the Free Exercise Clause demands. Although one cannot be certain that Carver's program would have been upheld as constitutional, it is clear that its constitutionality was a question that should have been left to the courts and not to the veiled threats of narrowly focused interest groups. Because of those threats, bills like PERA may be the only way to give effect to students' free exercise rights.

As Alexis de Tocqueville observed nearly 150 years ago, Americans have long believed religion to be "necessary to the maintenance of republican institutions." (125) In order to preserve the American experiment of a pluralistic society, schools like Carver must be allowed to flourish within the play in the joints envisioned by the Framers of the First Amendment.

(1.) 494 U.S. 872 (1990).

(2.) See Martha McCarthy, Religious Influences in Public Schools: The Winding Path Toward Accommodation, 23 ST. LOUIS U. PUB. L. REV. 565, 567 (2004) ("Th[e] stringent test [set forth in Lemon v. Kurtzman, 403 U.S. 602 (1971)] has been replaced by a judicial approach that employs an endorsement standard, a coercion test, a modified Lemon analysis, or perhaps all three, depending on the situation.... Some courts have appeared to fold the endorsement standard into the coercion test or have otherwise combined elements from different standards in evaluating the constitutionality of specific claims." (footnotes omitted)).

(3.) See, e.g., Good News Club v. Milford Cent. Sch., 533 U.S. 98 (2001) (requiring an elementary school to allow a religious club access to its facilities after school); Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290 (2000) (prohibiting student-led prayer at football games); Zobrest v. Catalina Foothills Sch. Dist., 509 U.S. 1 (1993) (allowing a school district to provide a sign language interpreter to a student at a parochial school); Wallace v. Jaffree, 472 U.S. 38 (1985) (prohibiting Alabama public schools from leading a one-minute moment of silence); Engel v. Vitale, 370 U.S. 421 (1962) (prohibiting a school board from requiring daily prayer at its schools); Zorach v. Clauson, 343 U.S. 306 (1952) (upholding a school's "released time" program that provided off-site religious education); see also Wallace, 472 U.S. at 111 (Rehnquist, J., dissenting) (discussing the absurd results of the Court's Establishment Clause jurisprudence, and noting that "[r]eligious instruction may not be given in public school, but the public school may release students during the day for religion classes elsewhere, and may enforce attendance at those classes with its truancy laws").

(4.) Although the Roberts Court has not taken any cases that substantively interpret the Establishment Clause, Chief Justice Roberts delivered the opinion for a unanimous Court in Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418 (2006), interpreting the Religious Freedom Restoration Act of 1993, 42 U.S.C. [section] 2000bb, and holding that the government had not shown a compelling interest when it outlawed a sacramental tea used by a religious sect. Chief Justice Roberts also joined Justice Alito's opinion in Hein v. Freedom from Religion Foundation, Inc., 127 S. Ct. 2553 (2007), in which the Court denied taxpayer standing to challenge actions of the White House Office of Faith-Based and Community Initiatives for violations of the Establishment Clause.

(5.) Walz v. Tax Comm'n of the City of New York, 397 U.S. 664, 669 (1970).

(6.) 42 U.S.C. [section] 1983 (2000).

(7.) For example, California faces a "$366 million funding gap in the education part of the state budget," which has resulted in cuts to several school programs. Carol Ness, State budget woes spoiling Fresh Start, S.F. CHRON., June 6, 2007, at B1. For a national perspective, see Joseph Van Harken, Budgets Cut Student Experience, CNN.com, Aug. 20, 2003, http://www.cnn.com/2003/EDUCATION/08/13/sprj.sch.cuts/.

(8.) See H.R. 725, 110th Cong. (2007).

(9.) The American rule provides that "all litigants, even the prevailing one, must bear their own attorney's fees," subject to "bad-faith and other statutory and contractual exceptions." BLACK'S LAW DICTIONARY 92 (8th ed. 2004).

(10.) U.S. CONST. amend. I.

(11.) McCreary County v. Am. Civil Liberties Union of Ky., 545 U.S. 844, 879 (2005).

(12.) Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290, 313 (2000) (quoting Engel v. Vitale, 370 U.S. 421, 430 (1962)).

(13.) Zorach v. Clauson, 343 U.S. 306, 313-14 (1952).

(14.) Patrick M. Garry, A Congressional Attempt to Alleviate the Uncertainty of the Court's Establishment Clause Jurisprudence: The Public Expression of Religion Act, 37 CUMB. L. REV. 1, 19 (2006).

(15.) Noah Feldman, A Church-State Solution, N.Y. TIMES MAGAZINE, July 3, 2005, at 28.

(16.) Thomas v. Anchorage Equal Rights Comm'n, 165 F.3d 692, 717 (9th Cir. 1999).

(17.) See Donovan ex rel. Donovan v. Punxsutawney Area Sch. Bd., 336 F.3d 211 (3d Cir. 2003) (holding that a mandatory activity period was non-instructional time for the purposes of the Equal Access Act); Ceniceros ex rel. Risser v. Bd. of Trs., 106 F.3d 878 (9th Cir. 1997) (holding that a religious club at San Diego's University City High School could not be denied permission to meet at lunch when secular student clubs were allowed to do so, as lunch was "non-instructional time" under the Equal Access Act); Hsu v. Roslyn Union Free Sch. Dist., 85 F.3d 839 (2d Cir. 1996) (holding that a mandatory activity period was non-instructional time for the purposes of the Equal Access Act).

(18.) See Press Release, Becket Fund for Religious Liberty, Muslim Prayer Protected in Texas Public School (Dec. 20, 2005), available at http://www.becketfund.org/index.php/article/453.html.

(19.) Michael W. McConnell, Accommodation of Religion: An Update and a Response to the Critics, 60 GEO. WASH. L. REV. 685, 685 (1992).

(20.) Cf. Fraternal Order of Police v. City of Newark, 170 F.3d 359 (3rd Cir. 1999) (opinion by Alito, J.) (striking down a mandatory shaving policy for police officers that included an exemption for medical, but not religious, reasons because it demonstrated hostility to religion); Church of the Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520, 532 (1993) ("[T]he First Amendment forbids an official purpose to disapprove of a particular religion or of religion in general.").

(21.) See, e.g., Cutter v. Wilkinson, 544 U.S. 709, 720 (2005) ("[T]he Act qualifies as a permissible legislative accommodation of religion that is not barred by the Establishment Clause."); Children's Healthcare Is a Legal Duty, Inc. v. Min De Parle, 212 F.3d 1084, 1104 (8th Cir. 2000) ("[T]here can be constitutionally permissive accommodations beyond what is required by the Constitution."); see also McConnell, supra note 19, at 710 ("[Employment Division v.] Smith obviously did not shrink the scope of permissible accommodation, and in light of its grounding in judicial restraint, the opinion may augur an expansion.").

(22.) Tex. Monthly, Inc. v. Bullock, 489 U.S. 1, 18 n.8 (1989); see also Employment Div. v. Smith, 494 U.S. 872, 890 (1990) ("[T]o say that a nondiscriminatory religious-practice exemption is permitted, or even that it is desirable, is not to say that it is constitutionally required....").

(23.) Jonathan E. Nuechterlein, The Free Exercise Boundaries of Permissible Accommodation Under the Establishment Clause, 99 YALE L.J. 1127, 1146 (1990).

(24.) Id. at 1129.

(25.) McConnell, supra note 19, at 691.

(26.) Ira C. Lupu & Robert W. Tuttle, The Faith-Based Initiative and the Constitution, 55 DEPAUL L. REV. 1, 4 (2005).

(27.) Feldman, supra note 15, at 28.

(28.) Then-professor McConnell pointed to Madison's proposed amendment to exempt religious objectors from military service. The defeat of this provision actually bolsters the strength of permissive accommodations as a historical practice because it was defeated by those who argued that such exemption should be left to the legislatures. See McConnell, supra note 19, at 693, 714.

(29.) Id. at 693.

(30.) See id. at 692 ("Under conditions of the modern welfare-regulatory state, benign neglect ceases to be benign.").

(31.) Tara P. Beglin, Note, "One Nation under God," Indeed: The Ninth Circuit's Problematic Decision to Change Our Pledge of Allegiance, 20 ST. JOHN'S J. LEGAL COMM. 129, 149 (2005).

(32.) Oren Dorell, Some say schools giving Muslims special treatment, USA TODAY, July 26, 2007, at 4A, available at http://www.usatoday.com/news/nation/ 2007-07-25-muslim-special-treatment-from-schools_N.htm.

(33.) P.J. Huffstutter, A Safety Hazard or Special Treatment?, L.A. TIMES, July 30, 2007, at A9.

(34.) See Randy Dotinga, Public schools grapple with Muslim prayer, CHRISTIAN SCI. MONITOR, July 12, 2007, at 1, available at http://www.csmonitor.com/2007/0712/p01s03-ussc.html. Professor Feldman referred to this as an example of "dual use" permissive accommodation, whereby "things can be at once secular to one person and religious to another." Noah Feldman, Universal Faith, N.Y. TIMES MAGAZINE, Aug. 26, 2007, at 13.

(35.) See Dotinga, supra note 34.

(36.) See id.

(37.) Ellis West, The Case Against a Right to Religion-Based Exemptions, 4 NOTRE DAME J.L. ETHICS & PUB. POL'Y 591, 632 (1990).

(38.) Wallace v. Jaffree, 472 U.S. 38, 56 (1985) (striking down a moment of silence because the enacting legislature was motivated by an explicitly religious purpose).

(39.) See, e.g., Tex. Monthly v. Bullock, 489 U.S. 1 (1989) (striking down a tax exemption for religious periodicals).

(40.) Ira C. Lupu, The Trouble with Accommodation, 60 GEO. WASH. L. REV. 743, 757 (1992).

(41.) See Julie F. Mead, Preston C. Green & Joseph O. Oluwole, Re-examining the Constitutionality of Prayer in School in Light of the Resignation of Justice O'Connor, 36 J.L. & EDUC. 381, 405-06 (2007); Christopher B. Harwood, Evaluating the Supreme Court's Establishment Clause Jurisprudence in the Wake of Van Orden v. Perry and McCreary County v. ACLU, 71 MO. L. REV. 317, 349 (2006) (discussing briefs written by John Roberts before he became a judge, in which he "urged the Court to replace the Lemon test with an Establishment Clause test allowing for more government support for religion," and noting Justice Alito's vote to allow for student-initiated prayer at high school graduation ceremonies and his statement that "he became interested in constitutional law primarily because of his 'disagreement with the Warren Court's decisions' with respect to, inter alia, the Establishment Clause").

(42.) McCarthy, supra note 2, at 595-96. McCarthy notes that "the [No Child Left Behind] Act requires school districts to certify to the state educational agency that no school policy prevents or denies participation in constitutionally protected prayer in public elementary and secondary schools." Id. at 592.

(43.) Professor Feldman offered an example of such a society during a prayer service commemorating the victims of the attacks of September 11th, 2001, which was officiated by a Roman Catholic archbishop, an African-American Methodist minister, the Baptist preacher Billy Graham, a rabbi, and an imam. Feldman, supra note 15, at 28.

(44.) Id.

(45.) Carver is located in California's second largest school district.

(46.) See Helen Gao, Arabic program offered at school, SAN DIEGO UNION-TRIB., Apr. 12, 2007, at B-1.

(47.) See Carl A. Cohn, Op-Ed., A good school gets a bad rap, SAN DIEGO UNION-TRIB., Aug. 1, 2007, at B-7.

(48.) See Helen Gao, Legality of Arabic class questioned, SAN DIEGO UNION-TRIB., Apr. 11, 2007, at B-1.

(49.) Gao, supra note 46.

(50.) Id.

(51.) Id.

(52.) According to Islamic teachings, prayers must be said five times a day while facing Mecca. Specific times, dress, and rituals must be observed. See Bilal Zaheer, Accommodating Minority Religions Under Title VII: How Muslims Make the Case for a New Interpretation of Section 701(j), 2007 U. ILL. L. REV. 497, 501-02 (2007). The Zuhr prayer usually falls between 1 p.m. and 2 p.m.--squarely within the school day for most Muslim students. Helen Gao, Prayer OK at lunch, not classes at Carver, SAN DIEGO UNION-TRIB., July 27, 2007, at B-1.

(53.) These guidelines advise school administrators that students may "pray or study religious materials with fellow students during recess, the lunch hour, or other noninstructional time to the same extent that they may engage in nonreligious activities." DEP'T OF EDUC., GUIDANCE ON CONSTITUTIONALLY PROTECTED PRAYER IN PUBLIC ELEMENTARY AND SECONDARY SCHOOLS (2003), available at http://www.ed.gov/policy/gen/guid/religionandschools/ prayer_guidance.html.

(54.) See supra note 17.

(55.) See Gao, supra note 48.

(56.) Zaid Shakur, Conservative media attacks kids' program in San Diego, S. CAL. INFOCUS, August 2007, http://www.infocusnews.net/content/view/15946/346/.

(57.) Paula Zahn Now (CNN television broadcast July 11, 2007).

(58.) See Gao, supra note 52.

(59.) The Guidelines state that teachers and administrators "are prohibited by the Establishment Clause from encouraging or discouraging prayer, and from actively participating in such activity with students," but that they "may, however, take part in religious activities where the overall context makes clear that they are not participating in their official capacities." DEP'T OF EDUC., supra note 53.

(60.) In Ceniceros ex rel. Risser v. Bd. of Trs., 106 F.3d 878 (9th Cir. 1997), the Ninth Circuit held that a high school within the San Diego Unified School District had discriminated against a group of students when it refused to let a bible study group meet during lunchtime while allowing meetings for secular groups.

(61.) The O'Reilly Factor (Fox News Network television broadcast July 10, 2007); see also Frank J. Gaffney Jr., Good and bad news, WASH. TIMES, July 31, 2007, at A17; Paula Zahn Now, supra note 57.

(62.) Editorial, Jihad in Schools?, INVESTOR'S BUS. DAILY, July 10, 2007, at A12, available at http://www.ibdeditorials.com/IBDArticles.aspx?id=268874251390676.

(63.) M. Zuhdi Jasser, Accommodation as an Islamist Political Instrument, FAMILY SECURITY MATTERS, July 27, 2007, http://www.familysecuritymatters.org/ homeland.php?id=1186309.

(64.) Cohn, supra note 47.

(65.) Helen Gao, Muslim prayers in school debated; S.D. elementary at center of dispute, SAN DIEGO UNION-TRIB., July 2, 2007, at A1 (quotation marks omitted).

(66.) Id.

(67.) Id.

(68.) Azaam Samad, Letter to the Editor, Superintendent praised for Carver school support, SAN DIEGO UNION-TRIB., Aug. 9, 2007, at B9.

(69.) Id.

(70.) Dotinga, supra note 34.

(71.) See Ceniceros ex rel. Risser v. Bd. of Trs., 106 F.3d 878 (9th Cir. 1997).

(72.) Gao, supra note 65 (quotation marks omitted).

(73.) Id.

(74.) Charles C. Haynes, School prayer in San Diego: New twist in old debate, GANNETT NEWS SERV., July 25, 2007.

(75.) Id.

(76.) Dotinga, supra note 34.

(77.) Gao, supra note 52.

(78.) Haynes, supra note 74 (quotation marks omitted).

(79.) Gao, supra note 65.

(80.) See Gao, supra note 52.

(81.) Id.

(82.) Press Release, Becket Fund for Religious Liberty, supra note 18.

(83.) Press Release, Office of U.S. Senator Sam Brownback, Brownback Reintroduces Public Expressions of Religion Act (Jan. 29, 2007), available at http://brownback.senate.gov/pressapp/record.cfm?id=268117.

(84.) See Diana B. Henriques, In the Congressional Hopper: A Long Wish List of Special Benefits and Exemptions, N.Y. TIMES, Oct. 11, 2006, at A20 (reporting that H.R. 2679 passed by a vote of 244-173 on September 26, 2006).

(85.) Dustin McNab, Bill would halt legal fees for ACLU in church-state cases, CHRISTIAN EXAM'R ONLINE, Apr. 2007, available at http://www.christianexaminer.com/Articles/Articles% 20Apr07/Art_Apr07_12.html.

(86.) Garry, supra note 14, at 1-2.

(87.) Id. at 3.

(88.) 370 U.S. 421 (1962)

(89.) See supra note 11 and accompanying text.

(90.) See Nollan v. Cal. Coastal Comm'n, 483 U.S. 825 (1987) (holding that conditioning a building permit on the granting of an easement was unconstitutional without the offer of just compensation by the government); see also South Dakota v. Dole, 483 U.S. 203, 211 (1987) (noting that federally-imposed conditions are unconstitutional if they are "so coercive as to pass the point at which 'pressure turns into compulsion." (quoting Steward Machine Co. v. Davis, 301 U.S. 548, 590 (1937))).

(91.) 494 U.S. 872 (1990).

(92.) Id. at 879 (quoting United States v. Lee, 455 U.S. 252, 263 n.3 (1982) (Stevens, J., concurring in the judgment)) (quotation marks omitted).

(93.) 42 U.S.C. [section] 2000bb et seq., invalidated by City of Boerne v. Flores, 521 U.S. 507 (1997).

(94.) Carolyn N. Long, Congress, the Court, and Religious Liberty: The Case of Employment Division of Oregon v. Smith, in CONGRESS CONFRONTS THE COURT: THE STRUGGLE FOR LEGITIMACY AND AUTHORITY IN LAWMAKING 79, 85-86 (Colton C. Campbell & John F. Stack, Jr. eds., 2001).

(95.) 521 U.S. 507 (1997).

(96.) Id.

(97.) Id. at 519.

(98.) 42 U.S.C.A. [section] 2000cc et seq.

(99.) Compare RFRA, 42 U.S.C. [section] 2000bb et seq., with RLUIPA, 42 U.S.C.A. [section] 2000cc et seq.

(100.) See CHRISTOPHER L. EISGRUBER & LAWRENCE G. SAGER, RELIGIOUS FREEDOM AND THE CONSTITUTION 268 (2006); see also RLUIPA.com, http://www.rluipa.com.

(101.) See Cutter v. Wilkinson, 544 U.S. 709 (2005).

(102.) 152 CONG. REC. H7389, H7393 (2006).

(103.) Garry, supra note 14, at 1; see also Lee v. Weisman, 505 U.S. 577, 591 (1992) ("The Free Exercise Clause embraces a freedom of conscience and worship that has close parallels in the speech provisions of the First Amendment, but the Establishment Clause is a specific prohibition on forms of state intervention in religious affairs with no precise counterpart in the speech provisions.").

(104.) Erwin Chemerinsky, Legislating Violations of the Constitution, WASHINGTONPOST.COM, Sept. 30, 2006, http://www.washingtonpost.com/wp-dyn/content/article/ 2006/09/29/AR2006092901055.html.

(105.) Press Release, American Civil Liberties Union, Letter to the Senate Urging Opposition of (S. 3696) the Public Expressions of Religion Protection Act of 2006 (Aug. 2, 2006), available at http://www.aclu.org/religion/gen/263161eg20060802.html.

(106.) See Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418 (2006) (applying RFRA to constrain the federal government).

(107.) 403 U.S. 602 (1971).

(108.) See id. at 612.

(109.) See, e.g., McCreary County v. Am. Civil Liberties Union of Ky., 545 U.S. 844, 859 (2005) ("[W]e have found government action motivated by an illegitimate purpose only four times since Lemon, and 'the secular purpose alone may rarely be determinative.'" (footnote omitted)) (quoting Wallace v. Jaffree, 472 U.S. 38, 75 (1985) (O'Connor, J., concurring in the judgment)).

(110.) Id. at 864.

(111.) Veterans' Memorials, Boy Scouts, Public Seals, and Other Public Expressions of Religion Protection Act of 2007, H.R. 725, 110th Cong. (2007).

(112.) Lemon, 403 U.S. at 612 (1971).

(113.) In Cutter v. Wilkinson, 544 U.S. 709 (2005), the Court upheld RLUIPA despite fears that "[the statute] 'impermissibly advance[d] religion by giving greater protection to religious rights than to other constitutionally protected rights.'" Id. at 718 (2005) (quoting Cutter v. Wilkinson, 344 F.3d 257, 264 (6th Cir. 2003)).

(114.) Id. at 720 (quoting Corp. of Presiding Bishop of the Church of Jesus Christ of Latter-Day Saints v. Amos, 483 U.S. 327, 349 (1987) (O'Connor, J., concurring in the judgment)).

(115.) Lemon, 403 U.S. at 613.

(116.) U.S. CONST. amend. I. In fact, it was the old [section] 1988 that ran the risk of "fostering a pervasive bias or hostility to religion, which would undermine the very neutrality the Establishment Clause requires." Rosenberger v. Rector & Visitors of the Univ. of Va., 515 U.S. 819, 846 (1995).

(117.) Van Orden v. Perry, 545 U.S. 677, 686 (2005).

(118.) Id. at 686-87 (quoting Lynch v. Donnelly, 465 U.S. 668, 679 (1984)); see also Marsh v. Chambers, 463 U.S. 783, 786 (1983) (upholding a tradition of Judeo-Christian invocations before legislative bodies as a practice "deeply embedded in the history and tradition of this country").

(119.) See Walker v. Bain, 257 F.3d 660, 667 (6th Cir. 2001).

(120.) See United States v. Kras, 409 U.S. 434 (1973) (upholding a filing fee for discharge of debt in bankruptcy).

(121.) In some cases, plaintiffs argue that the government has a constitutional duty to pay interest groups like the ACLU, which has an annual budget of $150 million. See Tony Perkins, Op-Ed., Let ACLU Protest on its Own Dime, SHREVEPORT TIMES, Nov. 25, 2006.

(122.) Unlike cases where the Court has mandated that a fee be waived, claimants have other means to vindicate their rights. They may, for example, represent themselves, retain a private pro bono attorney, or join with other plaintiffs with a similar interest. Cf. Boddie v. Connecticut, 401 U.S. 371 (1971) (holding that a state may not deny petitioners the right to divorce based solely on inability to pay a fee because the state has a monopoly on granting divorces).

(123.) See, e.g., Sch. Dist. of Abington v. Schempp, 374 U.S. 203 (1963) (striking down laws that required religious activity in public schools, such as reading the Bible).

(124.) As suggested by Justice Souter in McCreary County v. Am. Civil Liberties Union of Ky., 545 U.S. 844, 879 (2005).

(125.) ALEXIS DE TOCQUEVILLE, DEMOCRACY IN AMERICA 293 (J.P. Mayer ed., 1969).