All Things Not Being Equal: Reconciling Religious Expression in the Public Schools

Abstract

The Supreme Court’s stance on school prayer shifted in 1990 with the Court’s decision upholding the Equal Access Act (Board of Education v. Mergens). The presumption that a regime of secularity was neutral toward religion was all but rejected, replaced by an assertion that true neutrality meant evenhanded treatment of religion with its nonreligious counterparts. This embrace of equality as the norm for religious expression has led to an “equality creep” into public school contexts where it often does not belong: curriculum-related and school-sponsored functions. This development has led to an inconsistent application of the leading curriculum decision – Hazelwood School District v. Kuhlmeier – within the context of student religious expression. This article re-familiarizes readers with the values and concerns that informed school-prayer jurisprudence before equality became the dominant norm. It then explains the appropriate context for application of equality principles for student religious speech occurring within the school environment. In the rush to ensure that students – in particular, those with an evangelical perspective – have the same opportunity to express themselves religiously as do students engaged in non-religious expression, we have lost sight of the countervailing values that for years informed the jurisprudence covering religious expression in the public schools. There has been an over-extension of equality principles, and it is due for a course correction. Finally, this article critiques Supreme Court and lower court holdings and a Texas law that have misapplied equality principles in hybrid or school-sponsored contexts involving student religious expression. In particular, it asserts that the correct reading of Hazelwood permits schools to engage in viewpoint preferences involving curriculum-related activities, as well as many school-sponsored events, such that “equal treatment” of student religious expression in many school contexts is not warranted.