From Hilsenrath v. School District of the Chathams, decided yesterday by the Third Circuit (Judge Thomas Hardiman, joined by Judge Arianna Freeman):
During the 2016–2017 school year, C.H. was a seventh-grade student at Chatham Middle School. He was enrolled in a mandatory World Cultures and Geography class taught in part by long-term substitute Christine Jakowski. The class canvassed world regions to help students "gain a greater sense of the world around them" and "become active and informed global citizens." Many resources for the class, such as "calendars, handouts, assignment and project directions, and grading guidelines," were located on Google Classroom.
The class was organized into seven units, six of which focused on a different region of the world. Within each of these units, students explored the history and culture of the highlighted region, which sometimes included studying its predominant religion. During the Latin America unit, students learned about Christianity. And in the East Asia unit, students viewed PowerPoint slides and videos about Buddhism and Hinduism. The curriculum implemented state standards, including that students will be able to "[c]ompare and contrast the tenets of various world religions."
Students encountered Islam during two class periods within the "Middle East and North Africa" (MENA) unit, both taught by Ms. Jakowski. The first lesson was presented through a set of PowerPoint slides entitled "Teaching Critical Thinking[:] Making Generalizations with Content." That presentation instructed students that "[a] generalization is a broad, universal statement of understanding based on specific facts and data" and cautioned that "[s]ome are valid" and "others are invalid or faulty." To test students' understanding, the final slide directed them to identify generalizations in a hyperlinked YouTube video and to label them either "valid or faulty."
That five-minute video, entitled "Intro to Islam," contains images and written text. Instead of a voiceover, the video features background music and Arabic chants. The first half of the video alternates between quotations from the Quran and a series of questions and answers about Islam, including:
- "What is Islam?" "Faith of divine guidance for Humanity, based on peace, spirituality and the oneness of God."
- "Who is Allah?" "Allah is the one God who created the heavens and the earth, who has no equal and is all powerful."
- "Who is Muhammad (S)?" "Muhammad (Peace be upon him) is the last & final Messenger of God. God gave him the Noble Quran."
- "What is the Noble Quran?" "Divine revelation sent to Muhammad (S) last Prophet of Allah. A Perfect guide for Humanity."
- "What does history say about Islam?" "Muslims created a tradition of unsurpassable splendor, scientific thought and timeless art."
After about two minutes, the video turns to a discussion of "Islamic Art and Architecture," as well as other Muslim contributions to society. Finally, text on the last substantive slide reads "May God help us all find the true faith, Islam … Ameen."
The second class in the MENA unit introduced students to "the 5 Pillars of Faith" and the "impact/significance of them in the Muslim culture." This lesson included a different PowerPoint presentation, entitled "Introduction to Islam." The slides gave students a broad overview of Islam, including: the symbol of Islam; key figures in Islam; the Quran; demographic statistics about Muslims; and a summary of the Five Pillars of Islam. The slides also included a hyperlink to a YouTube video entitled "The 5 Pillars of Islam."
"The 5 Pillars of Islam" is an animated cartoon. The video features a conversation between two children, a non-Muslim named Alex and a Muslim named Yusuf. Curious, Alex asks Yusuf a series of questions about Islam. Yusuf responds by explaining that "Muslims believe that there is only one God," whose name is "Allah" and who "is the creator of everything." After describing the Five Pillars, Yusuf invites Alex to join him in prayer. The video closes by providing an email address and a website through which viewers can "organise a mosque tour, or order an information pack."
At the end of the second lesson, students completed a "Scavenger Notes Activity," a worksheet instructing them to "[t]ake notes using the slides" and to "[f]ill in the blanks AND correct the false information" scattered throughout. One section of the worksheet read as follows:
Pillar 1: Belief/Faith (Shahadah)
The basic statement of the Islamic faith:
"There is no god but _______ and _______ is his messenger."
This statement is the centrifugal force to their religion.
Although Ms. Jakowski presented both sets of PowerPoint slides to the students, she did not show either video in class or explicitly instruct the students to view them. C.H. nonetheless watched the "Intro to Islam" and "5 Pillars" videos at home with his mother, Libby Hilsenrath. Concerned about the MENA curriculum, Hilsenrath emailed administrators and aired her complaints at a school board meeting in February 2017. At a later meeting, the Board defended its curriculum as a proper application of the school's policy on religion in the classroom. But citing "disruption," the school ultimately removed the video links from the MENA unit PowerPoint slides.…
Hilsenrath sued, "claiming that the school's MENA curriculum violated the Establishment Clause of the First Amendment." No, said the Third Circuit:
[In recent decisions], the Court "instructed that the Establishment Clause must be interpreted by reference to historical practices and understandings." This kind of historical inquiry "requires serious work." And that work is especially challenging here because "free public education was virtually nonexistent at the time the Constitution was adopted." But "[h]istorical tradition can be established by analogical reasoning," and history teaches that established churches often bore certain "telling traits":
First, the government exerted control over the doctrine and personnel of the established church. Second, the government mandated attendance in the established church and punished people for failing to participate. Third, the government punished dissenting churches and individuals for their religious exercise. Fourth, the government restricted political participation by dissenters. Fifth, the government provided financial support for the established church, often in a way that preferred the established denomination over other churches. And sixth, the government used the established church to carry out certain civil functions, often by giving the established church a monopoly over a specific function….
Hilsenrath first argues that the Board coerced her son into religious practice when it subjected him to "direct proselytizing." … But not all school activities touching on religion amount to "formal religious exercise." … [W]e must look at the whole record to discern the "proper context" in which an ostensibly religious activity took place. For example, while a teacher might recite the Ten Commandments as an act of worship, she could also use them to introduce students to the fundamental tenets of a major world religion. Context is key.
The record here shows that the Board did not proselytize. Even assuming students were compelled to watch the "Intro to Islam" and "5 Pillars" videos—a point which the parties dispute—they did so "as part of a secular program of education." The videos were embedded in PowerPoint slides entitled "Introduction to Islam" and "Making Generalizations with Content," which were presented during two sessions of a year-long class that also covered Christianity, Judaism, Buddhism, and Hinduism. In short, the MENA lesson was "integrated into the school curriculum" as part of "an appropriate study of history, civilization," and "comparative religion." …
[T]he Board assigned videos to help students "understand what a generalization is and the benefits and consequences of using them" and to "explore the 5 Pillars of Faith and be able to explain the impact/significance of them in the Muslim culture." Because the "Intro to Islam" and "5 Pillars" videos were presented in an academic rather than devotional context, they do "not come close to crossing any line" separating permissible curricular materials from impermissible proselytization….
Hilsenrath next argues that, even if the Board did not coerce students or otherwise proselytize, its curriculum still matches a hallmark of religious establishment because it favors Islam over other faiths. But even assuming the Establishment Clause requires equal treatment in primary and secondary school curricula, the record does not show favoritism here. Besides Islam, C.H. and his classmates were introduced to Christianity, Judaism, Buddhism, and Hinduism. And the World Cultures and Geography course represented only a sampling of the expansive world religions curriculum offered at the School District of the Chathams. As early as kindergarten, students learn about religious holidays such as Hanukkah and Christmas. That instruction continues through high school, when students analyze, among other things, "the doctrinal disputes … that fueled the Protestant Reformation."
Hilsenrath counters that, unlike the instruction on other religions, the MENA lesson "extol[led] Islam over all other faiths and encourage[d] conversion to the religion." This argument once again ignores context. It is true that the creator of the Intro to Islam video described Allah as "the one God" and Islam as "the true faith." But the videos were embedded within PowerPoint slides that refer to Muslims exclusively in the third person, repeatedly describing what "Muslims believe." The "Introduction to Islam" worksheet did the same, detailing Muslim beliefs and practices only from the perspective of a nonbeliever….
The United States of America is not Sparta, where children were considered wards of the state. Parents are the first and most important teachers of their children. But once children enter public school, the curriculum is dictated by local government policy, typically by an elected school board. That local arena is the proper place for debate and discussion about curricular matters. Our role as a federal court is limited to upholding constitutional rights. So we express no opinion about the propriety of the curriculum at issue, except to hold that it does not bear any of the hallmarks of religious establishment….
Judge Peter Phipps concurred in the judgment:
This Establishment Clause challenge comes at a time when the "one-size-fits-all test" from Lemon v. Kurtzman (1971) has been emphatically rejected, and there is no longer any lurking constitutional mandate of secularism in governmental affairs. To fill the jurisprudential void occasioned by Lemon's demise, the Majority Opinion uses a 'hallmarks' test: whether the challenged action bears any characteristics historically associated with an established church.
That approach has the salutary feature of being grounded in this nation's history and tradition, but I posit that history and tradition are more effective as exegetical tools for construing the text and structure of the Constitution than as freestanding constitutional norms. In addition, the use of the hallmarks test by the Majority Opinion leaves at least two critical questions unanswered: (i) whether governmental action that offends only one of the hallmarks is sufficient for an Establishment Clause violation, or whether the hallmarks should be considered in the aggregate; and (ii) if one or more of the hallmarks of an established church are present, whether that is dispositive of an Establishment Clause violation, or whether the government can justify its offending practice as comporting with history and tradition.
In my view, a hallmarks test applied to states through incorporation is not needed to conclude that the materials about Islam assigned to seventh-grade students at Chatham Middle School do not establish a religion. Instead, all that is needed is a recognition that teaching on matters of religion or even encouraging religious belief or practice in public school does not constitute a "law respecting an establishment of religion." Indeed, one of the other organic documents of the United States, the Northwest Ordinance of 1787, encouraged the teaching of religion in schools: "Religion, morality, and knowledge, being necessary to good government and the happiness of mankind, schools and the means of education shall forever be encouraged." Thus, with the lifting of the constitutional mandate of secularism, teaching about religious matters in a public school does not violate the Establishment Clause. For that reason, the instructional materials about Islamic beliefs, practices, and modes of worship do not offend that constitutional provision, and I respectfully concur in the judgment….
Ruby Kumar-Thompson (Cleary Giacobbe Alfieri & Jacobs) represents the school defendants.
The post Third Circuit: No Establishment Clause Violation in School Lessons on Islam appeared first on Reason.com.
