Battering The Wall Of Separation: Child's Play?

One of the aphorisms quoted frequently in law school is, "Hard cases make bad law." This means that when the facts are particularly favorable to one side, or when one party is very sympathetic, courts might stretch the law to fit those facts. Recently, though, a "hard case" is making good law about religion in the public schools.

Religious Right groups and their allies are now looking for ways to chip away First Amendment rights while spouting platitudes about "free speech" at the same time. Enter Zachary Hood, who as a first grade student at a New Jersey public school was told he could not read a story from a children's Bible to his classmates after he had been chosen to bring something from home to share with the class.

Zachary's mother decided to literally make a federal case out of this matter, and his lawyers have been in court for years, trying to prove that their client was "censored." Add to the mix that the particular story, about Jacob and Esau, did not contain any direct reference to God, and even columnists like Nat Hentoff have been boosters of Hood's claim.

But the federal courts have found the young boy's case less persuasive. In fact, four federal judges, including the trial court judge and three appellate court judges, have ruled against Zachary's claim of "censorship." They have sided with the teacher's discretion in handling the delicate issue of the appearance of government promotion of religion. They found no anti-religious bias on her part and no hostility toward her student.

Here was a teacher trying to be careful in dealing with this delicate subject in a classroom full of young children of various faiths. She was concerned that since this was a school assignment and she was introducing the student to the class, it could appear that she was promoting religion. After all, 6-year-olds are not constitutional scholars able to readily separate the imprimatur of the school from the personal views of a fellow student. Zachary's teacher allowed him to read the story to her as a means of reasonably accommodating his oral presentation of an important story. In other words, when courts looked at these facts, they saw a teacher exercising reasonable judgment, not the tyrannical actions of a bigot.

Zachary's lawyers, predictably, are considering an appeal to the Supreme Court. They may have competition, because other right-wing lawyers have drummed up a similar case in New York. This one involves a kindergartner named Antonio Peck. His class had been studying recycling and other ways to help the environment. When assigned to do a poster on this subject, he cut out some words from a Christian magazine, drew the globe, and made it clear that God is the answer to pollution.

His teacher did not think that was an appropriate response to the assignment, so he redid the project. This time he drew a picture of some people disposing of trash but on the side added a robed figure praying. The school was concerned about that one too, and ended up hanging the poster in a way to obscure the Jesus figure. Another federal case, and a national media outpouring.

In one brief appearance on cable's Court TV, I was confronted by Antonio, his mother, their lawyer and the hostile host who made it clear that she was behind Antonio 110 percent. I don't believe it would have been a problem if the school had hung up Antonio's picture intact, but I also don't think we need federal judges cooking up guidelines for public schools to use in grading kindergarten art homework.

Interestingly, when Antonio was asked whether the school decision made him feel bad, he said "no." That stark admission led both the mother and the host to "rehabilitate the witness" by saying he really had been hurt and that he was just "acting brave."

The anti-separationists love these cases. They feed the delusion that rampant hostility to Christianity rules American classrooms. This is, of course, nonsense. In fact, what is far more often the case is that religious majorities work overtime to proclaim themselves the owners of the roost.

The day the Supreme Court decided to hear the public school football game prayer case, many network and cable news programs aired over and over a video of a young woman in a band uniform marching into a sports announcer box with supportive school officials standing with her to offer a Christian prayer over the public address system.

What the news programs did not point out was that this case was originally filed by Roman Catholic and Mormon students who put up with years of religious harassment from some students and even school officials and simply grew tired of it. That band member must have known that her action was yet another jab at her peers who professed a different religious worldview. I am reluctant to call such an act a prayer.

So far, the cases of children's assignments and athletic event prayer have generally gone the way real separationists want. The Supreme Court could undo those decisions later this term and next year. If the justices do, those hard cases will turn into just the kind of bad law my law school professors warned me about over 20 years ago.

Barry W. Lynn is executive director of Americans United for Separation of Church and State.