Letter to the Governor of California, Attorney General of California, and the State Superintendent of Public Instruction
The following is a letter written by the ACLJ to the Governor of California, Attorney General of California, and the State Superintendent of Public Instruction regarding the mandatory Islam course in public schools:
January 18, 2002
Dear Governor Davis and General Lockyer:
We understand that the Byron Union Elementary School District ("BUESD") has instituted a mandatory course for seventh grade History students which contains an elaborate section teaching the history and traditions of the Islam religion. The particular methods that BUESD and its agents have implemented in teaching this course section have led to a number of complaints by parents regarding violations of their and their children's First Amendment freedoms. By this letter, the American Center for Law and Justice ("ACLJ") would like to bring to your attention that the Islam course section discussed herein contains materials and requirements that unconstitutionally force students to engage in speech and practices which conflict with their religion in violation of the students' free speech and free exercise rights, as well as their parents' right to direct the education and upbringing of their children. Additionally, we question two specific exercises employed by the BUESD and its agents as violating the First Amendment's Establishment Clause.
The principal areas of practice of the ACLJ are federal constitutional law, including the First Amendment Religion and Free Speech Clauses, and federal civil rights law.(1) Moreover, ACLJ attorneys have directly represented various individuals and organizations in defense of accommodating practices that harmonize the religious liberties of students with the government's ability to implement a structured and unified curriculum. Consequently, the ACLJ's legal staff is familiar with the governing principles and precedents relating to situations where conflicts arise between a government-imposed curriculum and individual freedoms of students and their parents.
STATEMENT OF RELEVANT FACTS
We understand that the BUESD has implemented a religious history course containing, among other religions, the history, traditions, and tenets of Islam; this course section is taught over a period of three weeks. This three-week Islam course is taught from the textbook, "Across the Centuries"; implemental handouts are also used in conjunction with the text. The handouts include, among other things, a history of the life of Muhammad, the founder of Islam. While the school district has permissibly taught its students through memorization of particular tenets of the Islamic belief system (such as verses from the Koran, Islamic Proverbs, the Five Pillars of the Islamic Faith, or the study of ten of the most significant Islamic prophets), the school district has impermissibly crossed the line and violated the Establishment Clause.
We have been informed that as part of the course, students are required to pray "in the name of Allah the Compassionate the Merciful," and have been required to chant "Praise to Allah, Lord of Creation," in violation of the Establishment Clause. Moreover, the students are required to "pretend" that they are Muslims, wear Muslim clothing to school, stage their own Jihad via a dice game, and pick out a Muslim name from a list to "replace" their own name.
Of particular concern, the BUESD never sought parental permission for requiring student participation, nor sent home any notice of such course content. Of continuing concern, public reports have indicated that the BUESD is not the only California school district that is requiring constitutionally questionable teaching exercises of California public school students. Even though a number of parents voiced their objections to such course methodology, we understand that BUESD officials have not given even passing consideration to their legitimate objections.
STATEMENT OF RELEVANT LAW
The above facts indicate that the three-week Islam course at the BUESD has resulted in violating the individual First Amendment rights of a number of BUESD students and their parents. Specifically, the course section's requirements infringe on students' rights by forcing students' speech, and further, violate students' free exercise of religion rights. The course additionally violates the objecting parents' right to direct the education and upbringing of their children. Finally, certain aspects of the course violate the Establishment Clause.
I. The BUESD Must Not Infringe Its Students' Freedom of Speech.
"[S]tudents are entitled to freedom of expression of their views . . . . It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate." Tinker v. Des Moines Indep. Community Sch. Dist., 393 U.S. 503, 506 (1969). Moreover, school officials are ill-equipped and without legal warrant to assert absolute control over the thoughts, opinions, and expressions of students. The Supreme Court stated this constitutional principle succinctly:
In our system, state-operated schools may not be enclaves of totalitarianism. School officials do not possess absolute authority over their students. Students in school as well as out of school are "persons" under our Constitution. They are possessed of fundamental rights which the State must respect, just as they themselves must respect their obligations to the State. In our system, students may not be regarded as closed-circuit recipients of only that which the State chooses to communicate. They may not be confined to the expression of those sentiments that are officially approved.
Id. at 511.
The right to refrain from speaking is an implicit component of free speech. Under this component, the government may not compel a person to speak about, endorse, or subsidize topics which are objectionable to that person. See Lehnert v. Ferris Faculty Ass'n, 500 U.S. 507 (1991), reh'g denied 501 U.S. 1244 (1991); Keller v. State Bar of Cal., 496 U.S. 1 (1990); Abood v. Detroit Bd. of Educ., 431 U.S. 209 (1977); Wooley v. Maynard, 430 U.S. 705 (1977). Indeed, the Supreme Court has emphasized this point of law:
If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.
West Va. Bd. of Educ. v. Barnette, 319 U.S. 624, 642 (1943). Furthermore, the Seventh Circuit Court of Appeals, in Southworth v. Grebe, stated:
The Supreme Court has long recognized two necessary corollaries to the First Amendment's guarantee of free speech: the right not to speak, and the right not to be compelled to subsidize others' speech.
151 F.3d 717, 722 (1998) (citations omitted).
Undoubtedly, praying "in the name of Allah the Compassionate the Merciful," chanting "Praise to Allah, Lord of Creation," and the like has been, and would be, objectionable to a number of students as well as their parents. Compelling students to "pretend" to be members of a particular faith and to engage in related practices such as reciting religious verses or wearing religious clothing as part of the school curriculum forces the students to speak in a manner directly conflicting with their religious views and beliefs (unless a student is already a member of the Islamic faith). Forcing students to speak and participate in this manner is a violation of their right not to speak which is a corollary of their First Amendment right to free speech.
II. BUESD Officials Must Respect the Religious Exercise Rights of All of Their Students.
The First Amendment provides, in part, that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof . . . ." U.S. Const. amend. I. Beliefs which are rooted in religion are protected by the Free Exercise Clause of the First Amendment. Church of Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 531 (1993); Thomas v. Review Bd. of the Indiana Employment Security Div., 450 U.S. 707, 713 (1981). Religious beliefs do not have to be acceptable, logical, consistent, or comprehensive to others in order to merit First Amendment protection. Thomas, 450 U.S. at 714. Further, the Supreme Court has specifically rejected the notion that to claim the protection of the Free Exercise Clause, one must be responding to the commands of a particular religious organization. Frazee v. Illinois Dep't of Employment Security, 489 U.S. 829, 834 (1989).
Further, in considering free exercise claims coupled with other First Amendment claims (e.g., right to free speech), the Supreme Court has applied "strict scrutiny" to government actions burdening free exercise of religion, requiring the government to show that its action serves a compelling state interest and is the least restrictive means for achieving the government objective. Employment Div., Dep't of Human Resources of Or. v. Smith, 494 U.S. 872, 881-82 (1990); Wisconsin v. Yoder, 406 U.S. 205, 233 (1972); Sherbert v. Verner, 374 U.S. 398, 402 (1963).
In this case involving the BUESD, there is certainly a conflict between students' religious beliefs and the course requirements imposed on them which requires students to participate in Islamic rituals. Requiring students to pray "in the name of Allah the Compassionate the Merciful," to chant "Praise to Allah, Lord of Creation," to "pretend" to be members of a particular faith, and to wear religious clothing as part of the school curriculum compels students to engage in exercises that may directly conflict with their religious beliefs. Moreover, these curriculum requirements are clearly not the least restrictive means to accomplish the state's educational objectives since, at least with regard to some students, the requirements go beyond mere impartation of knowledge. Thus, the curriculum requirements in the Islam section of the seventh grade History course in the BUESD unconstitutionally burden the religious beliefs of a number of BUESD students, unless those students are allowed to opt out of the objectionable assignments. At a minimum, therefore, all the parents who have already voiced their concern in this matter to BUESD officials should be informed that their children will be allowed to opt out of the objectionable requirements upon request, before class and not after.
III. BUESD Officials Must Not Violate the Parents' Right to Direct the Upbringing and Education of Their Children.
The United States Supreme Court has recognized that parents have a "fundamental interest" in guiding "the religious future and education of their children." Yoder, 406 U.S. at 232. Indeed, "[t]his primary role of the parents in the upbringing of their children is now established beyond debate as an enduring American tradition." Id.
The parents of BUESD students have a fundamental liberty interest in the care and control of their children. Such an interest is perhaps the oldest of the fundamental liberty interests recognized by the United States Supreme Court. Troxel v. Granville, 530 U.S. 57, 65 (2000). Just recently in Troxel, the Supreme Court reaffirmed the liberty interest of parents to care for and control their children's upbringing. The Court held that "[i]t is cardinal with us that the custody, care, and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder." Id. (quoting Prince v. Massachusetts, 321 U.S. 158, 166 (1944)).
The parents of BUESD students also have a free exercise right to raise their children as their faith dictates. As mentioned earlier, when government action burdens both a constitutionally protected right and the Free Exercise Clause of the First Amendment, the action is subject to strict scrutiny. Employment Div., 494 U.S. at 881-82.
The Supreme Court's decision in Pierce v. Society of Sisters, 268 U.S. 510 (1925) is also significant in the current situation in that the Court, in Pierce, recognized the right of parents to direct the upbringing and education of their children in making decisions about education. Pierce, 268 U.S. at 534-35. Wisconsin v. Yoder is equally significant because it held that when parents' decisions about the education of their children are based upon a free exercise right combined with the parental right to direct the religious upbringing of their children, the state's action that conflicts with parental decisions must be subjected to strict scrutiny. 406 U.S. at 233.
According to the Supreme Court, there are two key interests served by education. They are, 1) inculcating the "fundamental values" that are necessary for students to be citizens in a democratic system; and 2) equipping students with the basic skills necessary to be self-sufficient in modern society. Board of Educ., Island Trees Union Free Sch. Dist. No. 26 v. Pico, 457 U.S. 853, 864 (1982). School curricula must, therefore, be geared to those two requirements and cannot go any further if doing so would infringe on an individual's fundamental right.
The BUESD has ignored the fundamental rights of certain parents in directing their children's education and upbringing when it instituted the course section regarding the Islamic faith, and further ignored all parental objections. The "primary role" of the objecting parents has been undermined by BUESD officials' imposing a requirement on their students to participate in Islamic religious rituals in the face of parental objections. To force the children of objecting parents to engage in such exercises blatantly violates those parents' recognized right to direct their children's education and upbringing.
IV. BUESD Officials Must Not Require Students to Pray to Allah, Nor Chant Praises to Allah, in Violation of Both Student and Parental Rights to Be Free from a Governmental Establishment of Religion under the First Amendment.
The BUESD has violated the fundamental rights of both students and parents by forcing its seventh grade History students to participate in Islamic religious rituals, rather than merely teaching about the existence of Islamic religious rituals. We are aware that schools may constitutionally teach about religion, which may include some text memorization or similar. For example, the Supreme Court held in Abington Township v. Schempp that
"the Bible is worthy of study for its literary and historic qualities. Nothing we have said here indicates that such study of the Bible or of religion, when presented objectively as part of a secular program of education, may not be effected consistently with the First Amendment.
Abington, 374 U.S. 203, 225 (1963) (emphasis added). However, portions of the Islamic section of the course in issue have not been taught objectively. Students have been required to participate in ritualistic exercises: 1) students have been required to pray "in the name of Allah the Compassionate and Merciful"; and 2) students have been required to chant "Praise to Allah, Lord of Creation." These exercises constitute unconstitutional religious indoctrination by the arm of the state of California, the Byron Union Elementary School District.
The ACLJ has avidly supported the proposition that schools may teach about religion, and may even use sacred religious texts, such as the Bible, as teaching tools. However, we also recognize that there is a First Amendment line that can be crossed when a school district, such as the BUESD, requires that its' students pray or chant to Allah. The "First Amendment does not forbid all mention of religion in public schools; it is the advancement or inhibition of religion that is prohibited." Committee of Public Educ. v. Nyquist, 413 U.S. 756, 788 (1973). The BUESD has crossed that impermissible line when it mandated student participation in Islamic religious rituals. What is particularly egregious here, we understand, is that the school district neglected even to request parental permission ahead of time. Parents were informed by their children after the fact.
The situation in this case directly conflicts with the Supreme Court's basic jurisprudence regarding the First Amendment public school officials may not indoctrinate their students by requiring students to pray an officially recognized state prayer. Engel v. Vitale, 370 U.S. 421 (1962). As such, the BUESD must cease and desist from requiring its students to pray to Allah and chant praises to Allah.
CONCLUSION
Fundamental constitutional rights have been violated in the BUESD, and also in other California school districts since the curriculum is being used state-wide. Public school officials must not impermissibly force objectionable religious speech or burden the religious beliefs of students. Therefore, we respectfully request that you advise the BUESD, and other school districts which have or intend to implement similar practices, of the above mentioned constitutional principles and First Amendment violations. Furthermore, it would be appropriate for your office to advise the school districts of California to eliminate from their curriculum any classroom activities which require prayers or chanting to Allah in addition to implementing a method of allowing parents to opt their children out of religiously objectionable classes and assignments.
Thank you in advance for your cooperation in this matter.
Very Truly Yours,
AMERICAN CENTER FOR LAW AND JUSTICE
Jay Alan Sekulow
Chief Counsel
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1. Counsel for the ACLJ have argued numerous cases on issues of federal constitutional law and civil rights in the United States Supreme Court and in the federal appellate courts. Those cases include: Board of Education v. Mergens, 496 U.S. 226 (1990); Lamb's Chapel v. Center Moriches Union Free Sch. Dist., 508 U.S. 384 (1993); Chandler v. Siegelman, 230 F.3d 1313 (11th Cir. 2000), reh'g en banc denied, 248 F.3d 1032 (11 Cir. 2001); in addition, ACLJ counsel have provided amicus briefs in a broad range of cases decided by the Supreme Court, including Good News Club v. Milford Central School Dist., 121 S.Ct. 2093 (2001).