Do Bible Lessons in Schools Violate the First Amendment's Establishment of Religion Clause?

Do Bible Lessons in Schools Violate the First Amendment's Establishment of Religion Clause?

On January 18, 2017, a Wisconsin-based group, "[t]he Freedom From Religion Foundation," filed a federal lawsuit[1] in the United States District Court in the Southern District of West Virginia against the Mercer County Board of Education in Mercer County, West Virginia, among others, alleging that Mercer County's Bible in the Schools program “endorses one religion, improperly entangles public schools in religious affairs, and violates the personal consciences of nonreligious and non-Christian parents and students," and hence seeking to declare the Bible in the Schools program unconstitutional. The Bible in the Schools program would offer high school students with a course that would use the Bible and its imagery, poetry, history, and context to study the political, social, and economic impact it has had on both history and world culture. The Bible in the Schools program has already been taught at elementary and middle school levels in Mercer County.

The Complaint states that "[t]he bible classes are held weekly for 30 minutes in elementary schools and for 45 minutes in middle schools as a part of the regular school day," and that [t]he overwhelming majority of students participate in bible classes." The Complaint states that the Bible in the Schools program "has been administered by the Mercer County Board of Education" since 1986 and "provides bible study to elementary and middle school students in 19 public schools throughout Mercer County," that "[t]he Mercer County Board of Education has taken on all responsibilities for the program except financing," that "[t]he 'Bible in the Schools' program instills religious teachings in elementary and middle school students," that "Mercer County Schools [require] that, at a minimum, bible teachers possess 'a degree in Bible'," that "Mercer County Schools [provide] written lessons to all itinerant bible teachers" and "these lessons must be followed as given," that learning objectives include those for the Old Testament curriculum and the New Testament curriculum, that "[f]or example, Lesson 25 … includes images of Jesus being whipped and tortured … which is the core narrative of Christianity … [t]he overall purpose behind the lesson is to inculcate the biblical account of Jesus' death and resurrection," and that "[t]he bible lessons are similar to what a child might hear in a church's Sunday school."

Also named in the lawsuit as a plaintiff is Jane Doe, a parent of a Mercer County kindergarten student referred to as “Jamie Doe.”  In this regard, the Complaint further states that Jane Doe is an atheist and wishes to raise her child, Jamie Doe, without religion, and that “Jamie will either be forced to attend bible indoctrination classes against the wishes and conscience of Jane Doe, or Jamie will be the only or one of only a few children who do not participate.” 

While a reply has been filed in response to Mercer County schools' motion to dismiss for lack of standing[2] and a hearing on the motion has been set for June 19 in Beckley, West Virginia,[3] a question of interest remains outstanding as to whether and when the Bible in the Schools program violates the Establishment Clause of the First Amendment.

According to the First Amendment to the Constitution, "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof," which is incorporated to the states by the Fourteenth Amendment.  According to the United States Supreme Court in the seminal case of  Everson v. Board of Education, , the Establishment Clause prohibits any state government's endorsement of any religion over non-religion, or preference of one religion over another.[4]    

Particular to the public school environment, the Supreme Court in McCollum[5] establishes that it is impermissible for school officials to allow the machinery of the state to be used to gather an audience for religious exercises or instruction.  In particular, the Supreme Court struck down a program allowing religious instructors to come into the public schools to teach sectarian classes during school hours, stating that: "[h]ere not only are the State's tax-supported public school buildings used for the dissemination of religious doctrines. The State also affords sectarian groups an invaluable aid in that it helps to provide pupils for their religious classes through use of the State's compulsory public school machinery. This is not separation of Church and State."[6]  

In addition, and as the Supreme Court recognized in Abington,[7] when government permits a religious group to take over part of the school's facilities during instructional time, even if for a brief amount of time, it inevitably implies official endorsement of that religion.  There, the Abington school district administered and supervised the morning exercise in which its students recited verses from the Holy Bible and the Lord's Prayer during the school day as part of their curricular activities of attending school, and where the exercise was held in the school buildings with the participation of teachers employed in those schools. 

Moreover, in Lee,[8] the Supreme Court held that the Establishment Clause guarantees that "a government may not coerce anyone to support or participate in religion or its exercise."  In particular, the Supreme Court held that even though the school district did not require students to attend graduation with the state-sponsored religious activity in order to receive their diplomas, the students' attendance and participation in graduation exercises was "in a fair and real sense obligatory,"[9] and that "there are heightened concerns with protecting freedom of conscience from subtle coercive pressure in the elementary and secondary public schools."[10] 

There are many similarities here with Mercer County’s program as to those scholastic programs that were found to be unconstitutional. Here, the fact that Mercer County's Bible in the Schools program classes were offered weekly for 30 minutes in elementary schools and for 45 minutes in middle schools would appear to be consistent with the assertion that these bible classes were regular academic curriculum as endorsed by the Mercer County schools. 

Here, the fact that Mercer County's Bible in the Schools program classes were taught by specially appointed bible teachers with the instructional objectives directed to the Old and New Testament curriculum would appear to be consistent with the assertion that these bible classes were of religious nature and similar to those lessons ordinarily offered in Sunday's schools.

Like the sectarian classes program struck down by the McCollum Court, the Mercer County's Bible in the Schools program was taught on school hours, by religious instructors, in public school buildings supported by state taxes, and carried out in religious terms similar to those offered in Sunday schools.

Like the morning Bible exercise struck down by the Abington Court, the Mercer County's Bible in the Schools program was administered and supervised by the school personnel, was held in the school buildings with the participation of teachers specially appointed by the schools.

Finally, like the graduation prayer program struck down by the Lee Court, the Mercer County's Bible in the School program was impermissibly coercive in nature.  For instance, and as acknowledged by one former teacher, "[s]tudents in my class that did not participate in Bible, were ushered into a neighboring classroom," where they were left to play games or run errands for teachers instead of continuing the instructional day with their classmates.[11]  By choosing not to attend the Bible in the Schools program which was a popular and well supported program attended to by majority of the students in the district, the opt-out kids such as Jamie Doe would be under subtle, but inevitable, coercive pressure for choosing to behave so in a situation similar to that in Lee.  The Mercer County's Bible in the Schools program therefore appeared to carry with it the inevitable appearance and message that religion -- in this case, the Bible in the Schools -- was the norm, and those who did not participate in or conform to the practice would be something less than full members of the school community.

On the other side, the Mercer County school district may raise an argument that barring the Bible in the Schools program in the public school in Mercer County would violate the religious group's First Amendment free speech rights.  However, this argument may not stand because the free speech rights of individuals and religious groups to engage in religious expression such as prayers must be subordinated to Establishment Clause concerns where those individuals or groups seek to observe their religion in a manner that unduly involves the government via expenditure of school resources and employment of school personnel, among others.[12] 

Moreover, the public schools in Mercer County would still be with plenty of options if the Bible program is not offered during regular school hours at public school house.  For instance, the Bible program may be held during after-school hours, at a facility where public school resources or personnel are not to be necessarily involved.  The schools should be and will be welcoming to all student in the community. 

From what is described above, it appears that the Mercer County's Bible in the Schools program was being carried out in ways similar to those in McCollum, Abington and Lee, as struck down by the Supreme Court.  If the lawsuit is to survive the motion to dismiss and to proceed substantively, the Bluefield district court will likely find that the Mercer County's Bible in the Schools program violates the Establishment Clause of the First Amendment.