Religious Liberty in the Educational System of the United States

From the 1980s to the Present

by Iwona Zamkowska (Author)
©2020 Monographs 310 Pages


Nearly a third of religious liberty cases decided by the U.S. Supreme Court addressed religion and education. Numbers that high, the problem definitely deserves consideration of international public. What were the main forces that shaped religious liberty in public education in one of its most formative periods? Did the introduction of religious liberty legal framework in public schools advance religious liberty of students as independent autonomous actors? The author discusses this cultural problem from a broad and complex perspective: both internationally recognized theory of a child’s religious freedom rights and the American models of religious liberty. To cover a wide spectrum of viewpoints, she analyses a broad selection of documents, from state and NGO publications to media coverage.

Table Of Contents

  • Cover
  • Title Page
  • Copyright Page
  • Acknowledgments
  • About the author
  • About the book
  • Citability of the eBook
  • Contents
  • List of Abbreviations
  • Introduction
  • Chapter 1 The Legal Basis for Religious Liberty
  • I The First Amendment Religious Liberty Clauses: Interpretation and Impact
  • a) The Main Legal Concepts Incorporated in the Provisions of the Clauses
  • b) The Lines of Interpretation of the Establishment Clause and Their Implication for Religious Liberty in Schools
  • c) The Lines of Interpretation of the Free Exercise Clause and Their Implication for Religious Liberty in Schools
  • The Shift toward Student-Initiated Neutral Religious Practices: The Moment of Silence and the Equal Access Model
  • a) A Moment of Silence
  • b) The Emergence of an Equal Access Model
  • c) The Position of a Student as an Autonomous Actor
  • III The Models of Religious Liberty: Freedom from Religion, Freedom of Religion and Freedom for Religion
  • a) Freedom of Religion
  • b) Freedom from Religion
  • c) Freedom for Religion
  • Conclusion
  • Chapter 2 Nonlegal Political Factors Shaping Religious Liberty in Education from the 1980s Onwards
  • I Political Factors
  • a) The Rise and the Agenda of the Religious Right
  • b) Religious Right’s Attempt to “Bring God Back to School”: Prayer Amendments and the Religious Freedom Restoration Act
  • II Culture Wars and Their Impact on Religion-School Debate
  • III Educational Factors: The New Consensus on Teaching about Religion and the Emergence of the Civic Public School Model in the 1980s
  • a) Educational, Demographic, and Administrative Factors Leading to the Emergence of the New Consensus
  • b) The New Consensus on Teaching about Religion and Its provisions
  • c) The Role of the New Consensus in Addressing the Conflict over the Place of Religion in the U.S. Education System
  • d) The Dissemination of the New Consensus Provisions: The Presidential Guidance
  • e) The New Consensus–Based Projects
  • f) New Measures to Facilitate the Implementation of the New Consensus Provisions: No Child Left Behind Act
  • Conclusion
  • Chapter 3 Religious Liberty of Students as the Participants of the Educational Process in Primary and Secondary Level Education: Curriculum- and Noncurriculum-Related Content
  • I Teaching about Religion and the Right of Students to Receive a Complete Education
  • II Curriculum-Related Religious Expression in Classroom Assignments and Class Discussion
  • III Exemption from Religiously Objectionable Classes
  • IV Excusal Requests to Participate in Religious Instruction or Festivals
  • V Noncurricular Religious Clubs and the Right of Student Groups to Freely Associate and the Distribution of Religious Literature
  • Conclusion
  • Chapter 4 Religious Liberty of Students as the Participants of Educational Process in the Primary and Secondary Level Education: Personal and Voluntary Religious Practices
  • I Prayer Before Meals and Tests
  • II Student Religious Expression at Graduation and Nongraduation Events as an Example of the Right of Student Religious Speech at a School-Sponsored Event
  • III “See You at the Pole” as an Example of a Group Prayer Event on the School Grounds during Noninstructional Time
  • a) The Requirement that the Event Be Student-Initiated and Student-Led
  • b) The Participation of School Officials
  • c) Truly Voluntary and Noncoercive Character
  • IV Student’s Attire as a Form of Religious Expression
  • V Special Dietary Needs
  • Conclusion
  • Conclusion
  • Summary
  • Streszczenie
  • Appendices
  • List of Tables
  • Bibliography
  • Index


In recent years the problem of religious liberty in public schools has received an increased international attention of both human rights organizations and world media. The newly released movie series God’s Not Dead 1 (2014) and God’s Not Dead 2 (2016) endeavored to appeal to international audiences to extend serious consideration to religion-school controversies growing rampant on American soil. The problem is thus important to investigate as it addresses vital and topical issues that both reveal the dynamic transformative processes occurring in present-day democracies and ones that may have a considerable impact on their future shape.

The controversies related to religious liberty in the United States are by no means confined to the sector of public education. However, the state-run elementary and secondary schools appear to be the most illustrative of the problem due to the compulsory character of public education, its formative function, as well as the highest record of legal cases decided in courts pertaining to religious freedom issues.1 Religion-school debate dates back to the beginnings of public education. However, the period of the 1980s onward appears to be most adequate for academic consideration as it was then that—for the first time in educational history—the government-adopted constitutional framework of religious freedom in public schools was defined as the New Consensus on Teaching about Religion in Public Schools was reached by a wide spectrum of diverse educational, religious, and political bodies.

Before discussing the subject in question, it is necessary to offer explanation on how the main concepts of liberty and freedom as well as religion and religious practice are used in the book. First, the concepts of liberty and freedom require clarification as each of them bears its own distinct meaning. Word liberty comes from the Mediterranean tradition expressed in a Latin noun libertas and its adjective liber, as well as in their Greek synonyms eleutheria and eleutheros. All of these ancient words carry an idea of separation and independence: separation, since they originally implied a person “who had been granted some ←13 | 14→degree of autonomy, unlike slave”;2 and independence, as they initially referred to someone who has been released or exempted from a condition of prior limitation, which most people in ancient Rome were born into. Being granted liberty originally involved the possession of privileges which were variable since an individual might be endowed with them or deprived of them by a higher power. As far as a religious belief is concerned, in the Mediterranean world liberty referred to the liberty of conscience, which carried the meaning of “being released from restraints.”3

Apart from liberty, another term used in the English-speaking word is freedom. Unlike liberty, it originated in North European tradition, where most people were born into a prior condition of freedom, and this condition was treated as a birthright enjoyed by all freemen. Therefore, the word carries a distinct meaning; it implies “tribal membership,” and the existence of rights among freeborn people which are “inalienable,” and not variable.4 This North European concept of freedom found its equivalent in the teachings of Christ expressed by St. Paul. It was later carried out by English Puritans as the idea of “soul freedom,” understood as “becoming one with God.” This freedom was considered to be a gift of God, and as such could not be taken away by any mortal power.5

Over the decades several distinct ideas of liberty and freedom were developed in English-speaking world. Some of them retained the distinctiveness of their original meaning, others used them interchangeably (as the 19th and 20th century English writers often did), or yet other ones coupled them.6 Concerning the context of religion, it seems that in American English there is also a degree of variety in this respect, evidenced among other things in the doubling of terminology.

Taking a historical perspective on the usage of these terms on American soil, it was the concept of liberty that appeared in the foundational documents coming from the 18th century since the issue of religious rights was debated in terms of civil liberties as opposed to human rights. This language was quite strong for decades, which is best evidenced in the 19th century Statue of Liberty. Even today it is the First Amendment’s guarantee of religious liberty that the American ←14 | 15→Civil Liberties Union (ACLU) claims to strive to safeguard. The talk of religious freedom became quite strong in the second half of the 20th century after the declaration of human rights, which listed freedom of religion as a fundamental human right. Much of the literature and legal language has followed suit.

In analytic passages throughout this book, we shall retain the original and literal meaning of the two words in some selected expressions. Liberty will be used in reference to ideas of independence, separation, and autonomy for individuals and groups, such as in “liberty of conscience.” Freedom will mean rights of belonging and full membership in a community of free people (whether a nation or humanity itself) as in “the freedom of speech” or “the freedom of religious exercise.” Otherwise, the two words will be used interchangeably in phrases such as “freedom (or liberty) of religion” and “religious freedom (or liberty).”

Other passages in this book include quotations from primary and secondary sources where liberty and freedom are used in other ways. The authors whose works have been cited in most cases consistently refer to either liberty or freedom. For instance, freedom is used by the following authors: by Sylvie Langlaude as she discusses the rights of children in an international law (religious freedom), by Michael Zuckert as he outlines the three concepts of freedom—freedom of/for/from religion, as well as in the entries of Encyclopedia of Religious Freedom (the freedom of religion). Word liberty as part of “religious liberty” phrase can be found in the New Consensus publications as well as other significant documents, such as the Williamsburg Charter. The New Consensus founders, however, echoing the Williamsburg Charter, use freedom as related to conscience (the freedom of conscience). Both forms, liberty and freedom, appear also in James C. Carper and Thomas C. Hunt’s encyclopedic publication The Praeger Handbook of Religion and Education in the United States. Here, unlike the New Consensus publications, liberty is used with reference to conscience,7 which seems to be another evidence of terminology doubling in this respect.

Because of their complexity and variability over the discussed historical period it is also recommended to define other pivotal concepts used in this book, namely, the concepts of religion and religious practice. With reference to religion, over the period in question its legal definition underwent a dramatic transformation, which has had significant implications for determining the legal framework of religious freedom in public schools. As Stein argues, due to the ever increasing religious diversity of American society, the initial rendering that assumes the existence of a “divine or superhuman power to be obeyed and worshiped, or the ←15 | 16→expression of such a belief” is no longer considered “expansive enough to deal with the breadth of religious experiences and spiritual endeavors in contemporary America.”8 In the new pluralistic paradigm, the author suggests, it is “[o];nly a very fluid definition of religion [that] can do justice to the multitude of different ‘religions’ and forms of spirituality.”

What is also symptomatic of the change is the transition from the object and a form of worship being arbitrarily defined by one of the existing religious systems to a more individualized and subjective perspective on the object of religious activity. For this reason, even the very term religious has been witnessed to be completely rejected by an increasing number of Americans and replaced with a more universal word spiritual.9 The term itself is considered by sociologists that represent the sociology of spirituality, to be—as its etymology suggests—like a wind: a fleeting and elusive phenomenon that can be experienced, observed, and described, but not defined.10 David Tacey points to the existence of a new paradigm that he describes as “all-inclusive spirituality.”11 According to Gordon Lynch, a sociologist of religion, this new style has a far-reaching program of transformation of religion and society.12

Since religion becomes an increasingly fluid term, its legal definition becomes a challenge, and so does the provision of legal protection of religious beliefs and activities, as Daniel O. Conkle observes: “Amid the welter of contemporary belief systems, it has become increasingly difficult to define religion in any coherent fashion. For purposes of religious liberty, one could attempt to confine religion to conventional understandings, but that path seems increasingly arbitrary.”13

←16 | 17→

Similar observations are made by Maciej Potz, as he states that over several decades “from theistic belief in God, religion has changed—in the legal sense—into the ‘highest value’ of any content, the fundamental belief that is the source of moral precepts.”14 In the light of these statements, it would be reasonable to adopt the broad definition of religion suggested by Potz to analyze its impact on the level of constitutional protection of religion in public schools.

Just as the concept of religion is not easily definable, so it is the case with religious practices. A corresponding legal term, religious activity defines it broadly as “any activity that primarily promotes or manifests a particular belief in or about a deity or an ultimate reality.”15 The sources analyzed in the publication do not provide an official definition of religious practices, apart from a working one formulated by Charles Haynes who simply explains the term as “students’ religious needs and requirements.”16 Since these needs and requirements are many and diverse, selection had to be made as to which of them to cover in this publication. After analyzing the sources, the author has decided to select religious practices that seem to be the most representative for the issue of religious liberty of students, as they are most debated and most widely covered in educational and legal documents pertaining to the subject.

The problem of religious liberty in world education as well as the educational system of the United States has been addressed in a rich literature. The study on religious freedom rights of children in international law was presented by Sylvie Langlaude in The Right of the Child to Religious Freedom in International Law, and controversial issues arising in the religion-school debate across the globe were discussed by R. Murray Thomas in his publication Religion in Schools: Controversies around the World (2006). With regards to American education, a comprehensive encyclopedic study of school-religion relations can be found in two-volume publication The Praeger Handbook of Religion and Education in the United States edited by James C. Carper and Thomas ←17 | 18→C. Hunt (2009). The evolution of debate about the place of religion in public schools is chronicled by Joan DelFattore in The Fourth R Conflicts over Religion in America’s Public Life, and the battle of school prayer has been recreated by Bruce J. Dierenfield in The Battle over School Prayer: How Engel v. Vitale Changed America (2007). Fritz Detwiler in Standing on the Premises of God: The Christian Right’s Fight to Redefine America’s Public Schools (1999) discusses the effect that the actions of the Christian Right have had on the shape of the religion-school debate. The constitutional underpinnings of church-state debates and the way they influenced the political, economic, and social debate on the issue, including their impact on education, have been demonstrated by Emma Long in Church-State Debate: Religion, Education and the Establishment Clause in Post War America (2012).

More specific study of the religious rights of the participants of the educational process has been presented in Finding Common Ground: A Guide to Religious Liberty in Public Schools (2001) and its updated version Finding Common Ground: A First Amendment Guide to Religion and Public Schools edited by Charles C. Haynes and Oliver Thomas (2007) and in the publication by Attorneys David C. Gibbs III and Barbara J. Weller, Making Sense of Religion in America’s Public Schools: Most Frequently Asked Public School Questions about Religion as It Relates to Student Rights, Teacher Rights, Curriculum, and Outreach (2013). The rights of Christian teachers were the focus of Christian Teachers in Public Schools: A Guide for Teachers, Administrators, and Parents by Julia K. Stronks and Gloria Goris Stronks (1999).

This study will complement the existing research by examining the religious freedom provisions from a broad and complex perspective that would incorporate the provisions of internationally recognized theory of the rights of a child to religious freedom, as well as the three models of religious freedom present in the American public square and a wide spectrum of viewpoints including liberal and conservative factions and the majority and minority faiths.

The topic is broad and complex and a thorough examination of religious freedom of all actors goes beyond the scope of my research. Therefore, the focus of this study is limited to the rights of students as central actors in the religion-school interplay. The relation between a child and the state is referred to in Robert Alexy’s model of a child rights.17 His theory was described by Sylvie ←18 | 19→Langlaude18 as the theoretical basis for her study on the rights of a child to religious freedom in international law. As Table 1 demonstrates, the theory distinguishes between negative and positive rights of a child against the state.19 The negative right protects a child’s religious freedom from the state’s interference. It means that the state must not interfere in the main relationship the child has; that is, with his family and the religious community. In practice, the noninterference embraces the nurturing process, both formal and informal.20 Informal nurturing occurs via “life in home, worship, prayers, initiation rituals and ceremonies,” while formal transmission of faith, via religious communities’ activities such as “worship, festivals, and a number of initiation rituals and ceremonies.”21 Specific religious education and instruction also fall under the category of a formal religious upbringing.

Tab. 1: Robert Alexy’s model of a child’s rights (Source: own elaboration)

Tab. 1

The state may not interfere either in the informal or formal nurturing, and must not “make it impossible or more difficult,” which involves the question of the state interference in a child’s participation in religious festivals, rituals, or ceremonies or “prevention or interference in formal religious education classes.”22 Another area that the negative rights of a child are applicable is wearing religious symbols at schools, as well as fasting or abstaining from certain types of foods.

Although it is not explicitly stated in the Alexy’s theory, one may argue that the state’s interference into a student’s nurturing may also occur at a deeper level, where it results with a tension between religious beliefs and practices represented by home and/or religious communities and school regulations, values, or curriculum content. And, thus, may disturb the primary relationship between a student and his family and religious community. Since the analysis of the state’s interference with the religious nurturing process conducted by third parties goes beyond the scope of the thesis, the author will limit the discussion to the spheres of school life that are regulated by the law, and reduce the analysis of the state’s ←19 | 20→interference in the family values to where it will be most evident and significant for the research results.

While negative rights protect a child from the state’s interference, positive rights include the provisions made by the state to protect a child’s religious freedom rights. The positive rights are triple and include protective rights, procedural rights, and substantive rights. Protective rights ensure the protection of the child’s religious liberty from the interference of third parties, i.e., both from parents and religious community. In the area of education, the state safeguards the right of the child to “make a choice after a certain age as to whether they want to carry on religious education classes, opt out, or chose an alternative subject.”23 In the absence of official religious education classes in the U.S. system of public education, the following chapter will attempt to examine if there are any other forms of school activities with religious content that require the state’s intervention in order to safeguard a student’s right of freedom to decide whether or not to attend.

Procedural rights, in turn, are related to the obligation of the state to help the child to protect his or her rights, which would include the right to start a legal ←20 | 21→proceeding or to take administrative procedures. In regard to these rights, the author will attempt to determine what, if any, provisions are made for a student to start a legal proceeding or to take administrative procedures if his religious freedom is infringed.

Substantive rights are the third subset of a positive right of a child according to Alexy’s theory. The rights are considered substantive if they are indispensable for the child’s religious freedom. Education is considered the most important area where the state is obliged to provide substantive benefits. “This is particularly important as there is a close relationship between the public nature of a school system and the private nature of religious freedom, and the child may want to carry out certain religious practices at school,”24 explains the author. Granting substantive rights to school children would generally involve the provision of religious accommodations such as the provision of special food at school or the opportunity to pray or worship during the day (e.g., a prayer room). This would include the issue of whether or not the state should provide for public religious education classes or be obliged to financially support these classes.

As the students’ rights frequently overlap with the rights of other actors, i.e., the state and the third parties, the criteria for the selection of religious practices will be primarily based on the provisions of the interest theory employed by Sylvie Langlaude. The theory stresses that the ‘important interest’ of the child in religion is for the child “to be brought up as a religious being, to belong to a religious community, and to interact with parents and the religious community.” Consequently, the author concludes, “the (legal) right of the child to religious freedom is the right of every child to be unhindered in their growth as an independent autonomous actor in the matrix of parents, religious community and society.”25 The status of the child as an ‘independent actor’ will form the basis for the discussion of the rights of American students that involve their independent autonomous decisions and choices.

The study analyzes the cultural phenomenon of religion and its representation in educational policy of American public education at a primary and secondary level. The problem is presented in historical perspective in order to demonstrate the formation of the concept of religious freedom in educational policy starting from the 1980s until the early 21st century. The topic is located in the domain of cultural studies as it specifically concerns religion: one of the core elements of culture in general and American culture in particular.

←21 | 22→

Out of the plethora of theories of culture that seem to correspond with the purpose of the study, one can name those which emphasize strife for dominion between particular groups within a multicultural society. An example of such theory would be one created by Terry Eagleton, who points to culture as a conflicting factor and one that leads to culture wars: “Culture, in brief, has passed over from being part of the solution to being part of the problem. It is no longer a means of resolving political strife, a higher or deeper dimension in which we can encounter one another purely as fellow humans; instead, it is part of the very lexicon of political conflict itself.”26 Similarly, the theory proposed by Immanuel Wallerstein (1990) defines culture as “an ideological battleground of the modern world system.”27

As much as it is true that the issue of religious liberty has been highly contentious in the American public square, these definitions seem not to portray the problem in its fullness. The theory that appears to address the complexity of cultural phenomenon in question more comprehensively is one proposed by a renowned political scientist and historian, William H. Sewell Jr. First of all, in his discussion of the concept, the author places special emphasis on the significance of institutions, which include, among others, religion and education, since it is “in and around [these] powerful institutional nodes that cultural practice is concentrated.”28 The dominant purpose of the practice performed in and by the institutions, as well as the sphere of their considerable investment, is identified as “the production, circulation, and use of meanings.”29 Culture is thus defined as “an institutional sphere devoted to the making of meaning.”30 The author argues that this understanding of culture is “particularly prominent in the discourses of sociology and cultural studies.”

←22 | 23→

It is not only the dominant institutions that contribute to these processes, however. The studies of culture need to pay equal attention to “the dispersed sites of resistance,”31Sewell asserts. Between dominant and oppositional groups, the author acknowledges, there is a constant interaction as “each undertakes its initiatives with the other in mind.” Actors that are considered to dominate the cultural landscape will attempt to “order meanings” and “impose certain coherence onto the field of cultural practice,” with various level of success.

However, the coherence is typically established “not as much by establishing uniformity as by organizing difference.” This process involves distinguishing between opposite categories including, among others, majority and minorities, and the legal and the criminal. The resultant coherence may be “far from the tight cultural integration,” but is supposed to “create a map of the ‘culture’ and its variants, one that tells people where they and their practices fit in the official scheme of things.” The map is marked by struggle and resistance on the part of those “relegated to its margins,” which very act is understood as a form of recognition of dominant meanings as dominant.

The coherence of this cultural landscape is thus “the product of power and struggles for power” and, therefore, “variable, contested, ever-changing, and incomplete.” It follows a certain order that involves “the prescription of (contested) core values, the imposition of discipline on dissenters, the description of boundaries and norms—in short, and the provision of a certain focus to the production and consumption of meaning.”32

In the model presented by Sewell, the cultural analysis will involve “the discernment of the shapes and consistencies of local meanings and the determination of how, why, and to what extent they hang together.”33 Drawing on the model, the author of this publication attempts to conduct the analysis with the aim to discern the shapes and consistencies of the meaning of religious liberty produced by the cultural institutions involved in the process, both the dominant and the oppositional ones, and the extend they succeed in reaching the common ground.

Due to the complexity and multifaceted character of religious belief and practice as well as the need to understand the senses attributed to them, it seemed the most appropriate to adopt a qualitative approach to research. In qualitative research, as Tim Rapley contends, it is possible to “refrain from setting up a ←23 | 24→well-defined concept of what is studied and from formulating hypothesis in the beginning in order to test them.”34 Since, as the author states, the concepts are rather developed and refined as the research progresses, the field of research for this study was specified in the course of analyzing the sources. The field was defined as the problem of religious liberty in the educational system of the United States from the 1980s to the present.

Qualitative researchers recognize that the field of study determines the use of specific methods and theories.35 Due to the above-formulated field, it seemed most adequate to adopt the description of the making of social situations as a research perspective, and constructionism as one of the theoretical positions assigned to this perspective.36 Relativists claim that concepts such as rationality, truth, reality, right, good, or norms must be understood “as relative to a specific conceptual scheme, theoretical framework, paradigm, form of life, society, or culture [and that] there is a nonreducible plurality of such conceptual schemes.”37

Within the framework of the adopted research perspective, collecting documents was selected as a method of data collection and the analysis of documents as a method of interpretation.38 Tim Rapley contends that text analysis focuses on the process of emergence, transformation, and mutation of ideas, practices, and identities as well as the mechanisms through which they become relatively permanent elements of the present. This type of analysis attempts to “understand and describe (historical) trajectory of the contemporary ideas, practices and identities we all currently just take for granted.”39 Given the historical nature of the field of study, this style of research often uses documents for exploration of specific topics and problems.40 That is why, within the scope of qualitative methods, the method of the analysis of documents appears to be the ←24 | 25→most appropriate to the field of study in terms of the methodology of qualitative research.

In this variant of the qualitative analysis, collecting the data is limited to conducting the selection of the collected material such as documents or newspaper articles.41 The sampling strategy involves generating an archive of documents for later analysis, i.e., “constructing a corpus of material, which then can be a starting point for sampling inside the materials in this corpus.”42 Among the documents that are used in qualitative educational research, Sharan B. Meriam specifies public records (institutional, mostly official, documents, such as court records, regulations, and statutes and decrees, as well as published statistical data that express intersubjective perspective); and any “texts of culture” in circulation in public domain, such as various types of publications, including internet publications and other forms of media coverage. A similar classification is suggested by Robert. C. Bogdan and Sari Knopp Biklen, who specify official documents (e.g., internal documents regulating school functioning, various forms of external communication of the institution, regulations governing the education system) and documents created by popular culture (e.g., media broadcasts of news, cultural, and social coverage).

In the study the following types of documents have been used to construct a corpus of material for the successive sampling:


ISBN (Hardcover)
Publication date
2021 (October)
student’s rights religious expression common ground equal access curriculum Culture wars
Berlin, Bern, Bruxelles, New York, Oxford, Warszawa, Wien, 2020. 310 pp., 4 tables.

Biographical notes

Iwona Zamkowska (Author)

Iwona Zamkowska is affiliated with the Kazimierz Pulaski University of Technology and Humanities in Radom. Her primary research area is the problem of religious liberty in public education in the United States of America. She is a board member of the Voice of the Martyrs Poland.


Title: Religious Liberty in the Educational System of the United States
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