Does Banning Religious Texts in Public Schools Violate the Establishment Clause?

An interesting case out of the 9th Circuit back in August, Nampa Classical Academy et al. v. Goesling (the panel consisting of Judges Reinhardt, W. Fletcher, and Rawlinson, who concurred only in the result), in which an Idaho Public School Commission adopted a policy banning  outright the use of public funds to purchase all “sectarian and denominational texts” for instructional use in public school classrooms.  Apparently there is a provision of the Idaho constitution which provides, in relevant part, as follows:

No sectarian or religious tenets or doctrines shall ever be taught in the public schools, nor shall any distinction or classification of pupils be made on account of race or color. No books, papers, tracts or documents of a political, sectarian or denominational character shall be used or introduced in any schools established under the provisions of this article, nor shall any teacher or any district receive any of the public school moneys in which the schools have not been taught in accordance with the provisions of this article.

The provision seems to me to be talking about proselytism in public schools; otherwise, it would really and truly mean that no “political” books or documents could be used in public school education, a rather perplexing position — ‘no U.S. Constitution in public schools!’  But I guess the Idaho school commission came up with a different interpretation.  There are speech claims and other standing issues involved here which knocked the case out, but what about the religion clause issue?  The policy may be rather knuckle-headed, but does it violate the Establishment Clause? 

ADDENDUM: I suppose somebody might think that including religious texts as part of secular instruction would itself violate the Establishment Clause.  Indeed, it appears that the district court thought this very thing: “If the Defendants allowed the Plaintiffs’ proposed curriculum, they would be in violation of the Establishment Clause.”  Nampa Classical Academy v. Goesling, 714 F. Supp. 2d 1079, 1093 (D. Idaho 2010).  That a school commission or school district would think this is regrettable, but these are not legal bodies and so the misunderstanding is not too surprising.  But that a district court could be this completely wrong about the law is mystifying.  In no way is it improper for a public school to include religious texts in the regular curriculum.  That’s been true historically since the founding of the country, and it was stated explicitly in Abington v. Schempp by Justice Clark.  What a strange mistake.

The 9th Circuit dismissed any such claim summarily:

The Commission’s policy does not violate the Establishment Clause, which generally prohibits governmental promotion of religion, not governmental efforts to ensure that public entities, or private parties receiving government funds, use public money for secular purposes. (5)

I think this is a deeply misleading statement of the purposes of the Establishment Clause.  Suppose a public school commission decided that all religions were false and that atheism was true, and that for that reason, no religious texts were to be used in the classroom.  That certainly qualifies as a “secular purpose” for the policy and it might well motivate the decision about how to spend public money.  Or suppose that the commission decided that religious texts were dangerous to the proper secular formation of students’ minds, and that they, and they alone, should be forbidden for that reason.  That is also a “secular purpose” for a policy banning the use of public money to purchase religious texts.  The commission would essentially have put itself in the position of the arbiter of religious truth and falsity, and that is precisely one of the core concerns of the Establishment Clause.  Now, it may be that the commission did not have these aims in mind when it banned the use of public money for the purchase of  religious texts.  But this claim was disposed on a motion to dismiss, before the presentation of any evidence.  A petition for cert. in the case has been filed (note that the other problems with the case may be fatal to its proceeding).  (h/t Religion Clause blog)

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