It recently came to my attention that the Texas legislature is considering legislation to require Texas high schools to offer Bible study classes in schools in which there are at least 15 students interested in the class. As usual, this ill-conceived piece of legislation is authored by Representative Warren Chisum. Assuming (major assumption) that the funding problems that currently plague the state can be fixed and we suddenly have thousands of dollars left over, is this legislation Constitutional?
The Court established what is now known as the Lemon Test in the 1971 case Lemon v. Kurtzman. It reads:
Every analysis in this area must begin with consideration of the cumulative criteria developed by the Court over many years. Three such tests may be gleaned from our cases. First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion…finally, the statute must not foster an excessive government entanglement with religion(internal quotations omitted)
The state legislature very carefully phrased their legislation to indicate only a secular legislative purpose. The Court has long held that intent grossly outweighs the technical wording, but the legislature has taken the necessary precautions to reasonably argue this prong of the test. The state can also argue that offering these classes merely offer information on a class and neither ‘advance nor inhibit’ religion. There are very few interpretations of this legislation that can pass the final prong of this test, the ‘excessive entanglement’ portion. There is no way for a school to offer a course on the Bible without necessarily having to teach one view of it over another. Even on minute details, schools would be forced to teach one view over another, forcing the government to become a proponent of one religious view over another.
The 1992 case Lee v. Weisman offers a similar conclusion. In Lee, the principal of a school invited a Rabbi to offer prayer at a school’s graduation ceremony. The Court ruled this ‘subtle coercive pressure’ to be in violation of the 1st Amendment’s free practice clause. Here is an excerpt from the opinion:
The undeniable fact is that the school district’s supervision and control of a high school graduation ceremony places public pressure, as well as peer pressure, on attending students to stand as a group or, at least, maintain respectful silence during the Invocation and Benediction. This pressure, though subtle and indirect, can be as real as any overt compulsion. Of course, in our culture standing or remaining silent can signify adherence to a view or simple respect for the views of others. And no doubt some persons who have no desire to join a prayer have little objection to standing as a sign of respect for those who do. But for the dissenter of high school age, who has a reasonable perception that she is being forced by the State to pray in a manner her conscience will not allow, the injury is no less real. There can be no doubt that for many, if not most, of the students at the graduation, the act of standing or remaining silent was an expression of participation in the Rabbi’s prayer. That was the very point of the religious exercise. It is of little comfort to a dissenter, then, to be told that for her the act of standing or remaining in silence signifies mere respect, rather than participation. What matters is that, given our social conventions, a reasonable dissenter in this milieu could believe that the group exercise signified her own participation or approval of it.
A prayer during a commencement ceremony and an optional class have important differences- the former is significantly more of an imposition on an unwilling student. Whatever the differences may be, both place social pressure on students to conform to a standard that the school is promoting.
You can track this legislation here.