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Alan has framed the predicate factual inquiry. The problem, of course, is that the line between the two – history and proselytizing – is exceedingly indistinct. In the hands of some teachers, there is simply no line at all. In the hands of others, there might be one. The old, old pre-incorporation cases, in their own way, do a good job of exploring the problem. (Whether they SOLVE the problem is another matter altogether.)
At the level of constitutional policy analysis, as applied rather narrowly to the public school setting, the question really is whether one should adopt a formalist or a functionalist approach to the problem of the indistinct line. If one were to take the former course, two rules appear to emerge: (1) ban the historical and thus ban the proselytizing, (2) don’t ban the historical and be agnostic about the proselytizing. A functionalist approach would suggest: look closely at the facts in the case to determine if it is possible, given the facts, to have the historical and to ban proselytizing. Where the facts aren’t clear, or are inconclusive, one has to have a default (i.e. formalist) rule -- either the first or the second -- that now kicks in.
NONE of these approaches particularly appeals to me. There is a raft of external considerations (external to the public school setting) that, I think, should be factored in. But here I go about context again. I do think that there are large questions at stake here. Five gets you ten that the teacher was peddling majoritarian religion in one form or another.
-----Original Message-----
If we are talking about a teacher distributing
historical materials that include references to religion for the purpose of
discussing them from an historical perspective, I would think the teacher has a
pretty good argument. If we are talking about a teacher distributing historical
materials that include references to religion as a pretext for starting
discussions intended to promote the teacher's own religious beliefs, I think
the school quire properly restricted such activities. I have no basis for
knowing what actually transpired in this case -- but as an abstract legal
matter, those two alternatives identify the poles of the continuum. |
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