Does God Belong in Public Schools?

Vol. 15 No.9 (September 2005), pp.863-866

DOES GOD BELONG IN PUBLIC SCHOOLS? by Kent Greenawalt. Princeton, NJ: Princeton University Press, 2004. 296pp. Cloth. $29.95 / £18.95. ISBN: 0-691-12111-7.

Reviewed by Thomas F. Powers, Department of Political Science, University of Minnesota Duluth. Email: tpowers [at] d.umn.edu

This is a useful book for anyone wanting to understand the intersection of religion, public education, and constitutional law in the United States, probably especially educators and education policy-makers. Kent Greenawalt surveys a wide array of legal controversies arising in the context of America’s public schools and takes up the thorny questions in that policy sphere with an unfailing commitment to being fair to both (or all) sides in every controversy. He is a thoroughly knowledgeable, conscientious guide to a complex subject.

Greenawalt has been teaching at the Columbia University law school since 1965. He is a University Professor and a past U.S. Deputy Solicitor General (1971-1972). His father argued ZORACH v. CLAUSON (1952) before the Supreme Court (arguing against “release time” for religious students in public schools – the decision went the other way). Greenawalt has written seven previous books, five with Oxford University Press (this is his second with Princeton). Two earlier books, RELIGIOUS CONVICTIONS AND POLITICAL CHOICE and PRIVATE CONSCIENCES AND PUBLIC REASONS treated in a more focused way specific questions pertaining to the liberal understanding of religion. This is a more practical book, considering more issues and treating them more legally than theoretically.

To repeat, throughout Greenawalt goes out of his way to be meticulously fair, especially to the position of religious conservatives, as he traverses the complex maze of cases and controversies that fall under the heading of religion in the public schools. The spirit of the book as a whole is well captured by its closing paragraph: “As virtually all our chapters illustrate, some issues are easy to settle from a constitutional point of view, but others are extremely difficult, calling on us to evaluate them from a fair and generous appreciation of the religious diversity of our society and the central place of religious liberty in our constitutional order. There is no last word on this subject” (p.187). Greenawalt does not see it to be his task here to provide a new theory of religion and politics or any “final” interpretation of the religion clauses of the First Amendment.

Though informed by the work of contemporary academic political theory (he begins with a chapter mining the insights of Stephen Macedo, John Tomasi, and Amy Gutmann), Greenawalt is on the whole content to follow the general drift of the Court’s First Amendment holdings, taken as a whole, on questions of public education. “[G]ood educational practice in the United States should be substantially guided by the values of the religion clauses” (p.153). Without following the [*864] Court’s every step, he returns again and again to its decisions (or sometimes the lack of them) to assess prayer or moments of silence in school settings, access to public school facilities for religious groups, the debate over creationism and evolution, how public schools should deal with teaching subjects that touch on religion, directly or indirectly, and the religious free exercise and free speech rights of students and their parents in the context of the public schools. At important points, Greenawalt acknowledges the influence of Warren Nord’s 1995 book, RELIGION AND AMERICAN EDUCATION. (Appropriate to a book on public education, Greenawalt does not here discuss the many cases dealing with aid to religious schools.)

But of course the “values of the religion clauses” to which Greenawalt would point us are notoriously contested, not to say hopelessly so, as a result of the political debate over them between champions of (roughly) separationism and accommodationism. While striving to be fair at every point, Greenawalt leans to the former point of view. He has no quarrel with the LEMON test and he often finds himself in agreement with the Court’s progressives and with Kennedy and O’Connor, but rarely if ever cites the opinions of the Court’s conservatives. He follows well-known political theorists on the left but rejects originalist readings of the First Amendment (which would surely permit, for example, prayer in school) as courting “disaster” (pp.43-44).

What ultimately holds this complex book together is Greenawalt’s own considered opinion of the many different legal controversies that arise in the world of public education. Thus, it is primarily a normative/prescriptive work that proceeds almost entirely within the confines of existing legal debate. It is written in the style of many law review essays (some of the material here reworks the same).

To get a sense of the book as a whole, it is useful simply to list the different positions he takes on various issues. While prayer in public schools is not acceptable, moments of silence may be, at least if undertaken in a proper spirit. Symbols in public schools that effectively endorse religion (religious murals or, say, a depiction of the Ten Commandments) are not acceptable. Religious music may be part of a public school program, if it tends neither to promote nor inhibit religious views. Aspects of religious holidays may be observed, as long as they “have become secular” (p.55). Religious students should have equal access to public school facilities, although the question of public funds and the meaning of the Court’s holding in ROSENBURGER v. RECTOR (1995) in particular is open to question. While conceding that religion does not receive the attention it deserves as a topic in several relevant classroom subjects, Greenawalt nevertheless insists that public schools must avoid at all costs appearing to teach religion. “The obvious remedy for religion’s present neglect is for schools to say more about it, while withholding judgments about religious truth” (p.86). On the question of evolution, Greenawalt stakes out a “middle course” between teaching Biblical creationism on the one hand and denying religion any voice in the science curriculum on the other. Teaching creationism is, in effect, teaching religion and so should be avoided. But it [*865] is acceptable to teach the limitations of evolutionary theory, to raise questions about the evidence for it, and to suggest that “intelligent design is one conceivable component of a full theory of how complex life developed” (p.117). Similarly, teachers addressing religious topics in the classroom should be guided by a certain wariness and avoid, above all, the extremes of teaching religion as true on the one hand and openly attacking it on the other. Sex education, for example, should affirm respect for GLBT students (without necessarily endorsing any particular sexual lifestyle), but teaching pre-marital abstinence as the only acceptable approach to sexual matters would be effectively to teach an impermissibly religious point of view. Religious dress for teachers is almost certainly protected as a matter of free exercise right, but dress codes for students have been consistently upheld by the courts.

I found myself agreeing with Greenawalt most of the time. But the questions he treats are hotly contested, and it is not clear that an approach guided above all by a commitment to an even-handed moderate-left view of the questions is superior to more harshly partisan positions taken by either side in current debates. In a way, the more partisan positions are more interesting and useful because they press hard questions furthest and expose problematic premises to the light of day. While this book does cover a lot of ground, practically and legally, it will nevertheless appeal mainly to those who begin by agreeing with its author’s sense of things.

It is also tempting, given the controversial topics he considers, to want him to address bigger questions he leaves alone. One could read this book and not know that religious liberty has come under considerable and sustained fire in recent years, and one would like to know the ground of the confidence Greenawalt evinces in his moderate-left interpretation of the religion clauses (see, e.g., Carter 1993; Fish 1997; Gedicks 1995; Owen 2001; Smith 1995; Sullivan 2005). For an argument that goes to fundamentals, one will need to look elsewhere (beginning, to be sure, with Greenawalt’s own books on religious conviction and conscience).

Such considerations probably do not amount to criticisms of this book, which certainly rises to the highest standard one could expect of legal writing on public policy matters. Greenawalt does a good job leading anyone unfamiliar with the issues through a complicated legal, practical, educational, moral, and political thicket. Even someone who disagrees with him will learn here the outlines of both this area of the law and the debates about it.

REFERENCES:

Carter, Stephen L. 1993. THE CULTURE OF DISBELIEF: HOW AMERICAN LAW AND POLITICS TRIVIALIZE RELIGIOUS DEVOTION. New York, NY: Harper.

Fish, Stanley. 1997. “Mission Impossible: Settling The Just Bounds Between Church and State.” 97 COLUMBIA LAW REVIEW 2255-2333.

Gedicks, Frederick Mark. 1995. THE RHETORIC OF CHURCH AND STATE: A CRITICAL ANALYSIS OF RELIGION CLAUSE JURISPRUDENCE. Durham, NC: Duke University Press. [*866]

Greenawalt, Kent. 1991. RELIGIOUS CONVICTIONS AND POLITICAL CHOICE. New York, NY: Oxford University Press.

Greenawalt, Kent. 1995. PRIVATE CONSCIENCES AND PUBLIC REASONS. New York, NY: Oxford University Press.

Nord, Warren A. 1995. RELIGION AND AMERICAN EDUCATION. Chapel Hill: University of North Carolina Press.

Owen, J. Judd. 2001. RELIGION AND THE DEMISE OF LIBERAL RATIONALISM: THE FOUNDATIONAL CRISIS OF THE SEPARATION OF CHURCH AND STATE. Chicago, IL: University of Chicago Press.

Smith, Steven D. 1995. FOREORDAINED FAILURE: THE QUEST FOR A CONSTITUTIONAL PRINCIPLE OF RELIGIOUS FREEDOM. New York, NY: Oxford University Press.

Sullivan, Winnifred Fallers. 2005. THE IMPOSSIBILITY OF RELIGIOUS FREEDOM. Princeton, NJ: Princeton University Press.

CASE REFERENCES:

LEMON v. KURTZMAN, 403 U.S. 602 (1971).

ROSENBERGER v. RECTOR AND VISITORS OF THE UNIVERSITY OF VIRGINIA, 515 U.S. 819 (1995).

ZORACH v. CLAUSON, 343 U.S. 306 (1952).

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