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The California Teacher Whose Superiors Worry His Teaching Is Too Religious:
Does He Have a Strong First Amendment Case?


Friday, Dec. 24, 2004

In Cupertino, California -- a Silicon Valley suburb best known as the home of Apple Computer -- a public school fifth-grade teacher named Stephen Williams has sued his Principal, Superintendent and school board in federal court for failing to allow him to incorporate references to God and religion into his classroom teaching as often as he thinks is appropriate.

Williams's Complaint alleges that the school has prevented him from adequately introducing his students to authentic historical documents that, according to Williams, give a realistic sense of how important the ideas of religion and Christianity were to the framers of our Constitution.

Williams protests, for instance, that his bosses have rebuffed his efforts to give his students historical tracts including excerpts from the Declaration of Independence, excerpts from various state constitutions, excerpts from George Washington's journal, and excerpts from John Adams's diary.

Williams's lawsuit has struck a deep national nerve. (The issue of Christianity in public schools has generated a lot of controversy this year; many conservative religious groups have recently threatened legal action over the removal of Christian religious references and symbols from winter holiday celebrations in public schools.)

The Cupertino school district has been flooded with emails from people on all sides of the issue, from all around the country. Meanwhile, Williams - who is being represented by a conservative public interest group (the same group defending California's refusal to recognize same-sex marriage) - has appeared on many prominent radio and television shows, including the Hannity and Colmes show on Fox.

Williams alleges that because of their aversion to religion, his superiors have violated his First Amendment rights - specifically, his right to speak and his right to the free exercise of his religion. According to his Complaint:

This case is about the First Amendment rights of Stephen Williams, a public school teacher and orthodox Christian. The defendants have systematically censored Williams's choice of supplemental handouts because those handouts - chiefly excerpts of primary source documents from America's founding era, or from state constitutions - contain some religious content. Defendants have ordered Mr. William (but no other current teacher) not to distribute any supplemental handout unless it appears on a list of authorized handouts that applies only to Williams. This is a violation of the First and Fourteenth Amendments. . . .

Critics of Williams, by contrast, have suggested that if he were allowed to teach as he seeks to do, his proposed references to religion in class would be so extensive, pervasive and heavy-handed as to violate the First Amendment's prohibition on government actions "respecting an establishment of Religion."

In fact, the crucial First Amendment issues in this case may end up being very different than the ones people are now focusing on.

The Flaw in the Way the Legal Issues Seemed to be Framed: The One-Way Ratchet Feature of the Establishment Clause

With all due respect to the people who are discussing this case in front of their TVs and at water coolers, I think the public debate has largely been misframed. The key question is not, as many people seem to think, whether Williams's proposed references to religion in class would violate the Establishment Clause. To be sure, if Williams were proposing to do things that contravene the Establishment Clause, his superiors would be justified in reining him in.

But even assuming his proposed lesson plans that make reference to religion would not violate the anti-establishment idea (and we don't have enough facts to answer this question one way or the other), the school authorities could still be within their legitimate power to prevent Williams from doing what he wants to. The crucial, if underappreciated, point is that a public school does not have any obligation to include as many religious references into its curriculum as the Constitution allows. The Establishment Clause sets an outer limit on how much religion may be included in public life; it does not dictate any minimum religious content.

To use a mechanical metaphor, the Establishment Clause is a one-way ratchet. (The failure to appreciate this one-way ratchet character also plagues many of the groups who object to the omission of Christian symbols, songs and references in school "Christmas" celebrations these days.)

The Illusory Right of "Academic Freedom" of Public K-12 Teachers, When Government Itself is the Speaker

In the Williams case, some may respond by invoking, as Williams appears to, notions of "academic freedom" that teachers enjoy under the First Amendment. The idea is that so long as a teacher is not violating the Establishment Clause - or any other limitation imposed by the Constitution -- he has substantial leeway to teach his class children in the way he thinks will be educationally best. The reality, however, is that individual K-12 teachers do not - in spite of some loose language and rhetoric out there - enjoy broad First Amendment rights of "academic freedom."

To be sure, the government cannot tell private school teachers what to say or what books to use. But in the public school context, government is itself the speaker. As the Supreme Court has repeatedly recognized, government expresses itself through the subjects and topics it decides to cover, the precise curriculum it chooses, and the lesson plans it approves.

In the famous Board of Education v. Pico case involving whether a school district could remove books from a school library because of objections to their content, even the most First Amendment-protective of the Justices observed that "the Court has long recognized that local school boards have broad discretion in the management of school affairs. . . . [L]ocal school boards must be permitted to 'establish and apply their curriculum in such a way as to transmit community values,' and . . . . 'there is legitimate and substantial community interest in promoting respect for authority and traditional values be they social, moral or political."

In other words, government can itself express a point of view - and this point of view may be a less religious point of view than the Establishment Clause would permit - when government prescribes textbooks and classroom content standards. As the Court has put the point, "[m]uch like a university selecting a commencement speaker, [and] a public institution selecting speakers for a lecture series, a public school prescribing its curriculum . . . by its nature will facilitate the expression of some viewpoints instead of others." In order to transmit its message, government will necessarily have to keep individual teachers from going their own ways.

Thus, a school board or a Superintendent or a Principal can certainly choose in a social science curriculum to emphasize aspects of our nation's founding other than the religious convictions of the framers, because these educational administrators feel in their professional judgment that the non-religious themes are more important. And they could make the same decision simply because they want to steer clear of any Establishment Clause problem or avoid parental complaints.

Just last Term, in Locke v. Davey, the Supreme Court affirmed that there is "play in the joints" of the religion clauses of the First Amendment. The Court there held that even if a state's funding of a religious vocational education would not have violated the Establishment Clause, the state's decision not to do so - to avoid getting close to the Establishment Clause line -- did not reflect impermissible hostility to religion.

The Limitations on Government's Exclusion of Religion and Religiosity

This does not mean, of course, that a school can affirmatively send a message - through its treatment of Williams or in any other way - that religion or religiosity is bad. Thus, if the Cupertino school authorities have singled out Williams's classroom for special oversight simply because they dislike his evangelical zeal, or in order to send a message to students that religion or Christianity is wrong, then there could be a constitutional problem.

But if school authorities have singled out Williams for special review simply because he is the only teacher who even approaches the Establishment Clause boundary in his teaching style -- and the school wants to steer well clear of that line -- or because the school thinks some of his lesson-plan ideas simply don't make good pedagogical sense, or because parents have complained about his references to religion, then he has no First Amendment claim.

At the end of the day, although obviously some key facts need to be developed, Williams's beef with his bosses may be more about what makes for good educational policy, and what viewpoint the Cupertino community should try to express, and less about First and Fourteenth Amendment rights he enjoys.

Vikram David Amar is a professor of law at the University of California, Hastings College of Law in San Francisco. He is a 1988 graduate of the Yale Law School, and a former clerk to Justice Harry Blackmun. He is a co-author of the Cohen and Varat constitutional law casebook, and a co-author of several volumes of the Wright & Miller treatise on federal practice and procedure. Before teaching, Professor Amar spent a few years at the firm of Gibson, Dunn & Crutcher.

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