School Board Bans XP Rock from Sponsored Performance

The Rossford school board has banned a Christain rock band from performing during school hours as part of a spondored anti-drug assembly. This is viewpoint discrimination by the state, but the Constitution doesn't recognize recognize a freedom to speak from any ideological position, it distinguishes between religion and other forms of speech. Both religious and non-religious speech are free, unless the religous speech constitutes establishment. This limits the endorsement the state can give to a message if some part of its content is religious.

Hugh Hewitt has summoned the law bloggers with this question, "Does anyone believe that allowing a self-described Christian band to play at an anti-drug rally put on by a public high school violates the Establishment Clause [?]" My own approach is historical not legal, and my views are more or less full expressed in this March post, but I ended up writing this e-mail to Hugh which covers some of the same ground as I did in March, but with greater economy.

Hugh,
I approach this as a historian of ideas, not as a lawyer, but I have taken a course involving the Establishment Clause. As such I look at the law as a body of ideas that govern behavior, not as a series of enforcable (rule of law) rules backed by state power. As such, I detect two theories at work here which differ on the meaning of neutrality. One theory (the even-handed approach) argues that Establishment/ Free Excercise requires that religion get no special advantage or disadvantage, that it be treated even handedly. This, they argue is neutrality.The other theory is the disengagement theory. It states that government cannot be even-handed, so it should not get involved in religion at all. That seems to be the theory at work at the Rossford school board. Another thing we historians do a little differently than the lawyers, is that we don't ignore the thinking that has fallen out of favor or no longer guides the court.

Between Lemon v. Kurtzman (1971) and Aguilar v. Felton (1985) the court generall subscribed to these ideas, which lead to the disengagement type rulings that flow from Lemon: 1) even-handedness is impossible, neutrality demands disengagement, 2) teachers cannot be trusted to avoid religous teaching, so any religious connection with state money constitutes a subsidy and so establishment, and 3) the state is deciding who gets funds, not parents and not students, so the state is establishing religion by its actions.This is in stark contrast to the period from Everson (1946) to Board of Education v. Allen (1968), when the court believed even-handedness was possible and neutral, teachers could be trusted not to establish religion in the classroom, and parents were making the choice to send their children to parochial schools, and so the state was mearly serving them as citizens. Starting tenatively with Mueller v. Allen (1983) and gaining dominance in the court starting with Witters v. Washington Dept. of Services for Blind (1986) the court returned to a weaker version of the earlier view that even-handedness was neutral, teachers could be trusted, and parents were making the choices. Since 1986, religion has only failed to gain even-haneded access when the court found coercion.

While I know you will not be partial to the 1971-1985 period, recall that these rulings follow the Great Society (1965-1980) in which government greatly expanded its scope to solve social problems. Under such conditions where the state acts to assertivly solve social problems, the states involvement in religion would have been far more liable to pick winners and losers the way it did economically and socially (say through bussing or affirmative action). Its only after Reagan era deregulation and the adoption of more neo-liberal (markets solve social problems better than state action) policies that the court felt that state involvement in religion didn't require disengagement, but was better served by a more open allowance of even-handedness. However, those who came of age legally during the Lemon period (1971-1985) or those who would prefer a return to statism of the kind seen in the Great Society will still tend to view the disengagement definition of neutrality as the better one. Also, I think its important that since the American constitution preceeds the ideological age ushered in by the French Revolution, the constiution only dealt with the subject of religion in its guarntees of freedom of conscience. Religion was the freedom on conscience know to the framers, and since they eschewed faction and preceeded the French Revolution, there is no constitutional freedom of ideology. The courts have recognized a freedom of ideology through the freedoms of the speech and press, but without the prohibition that the government could not establish ideologies. As a result, the schools do advance all kinds of ideologies rejected by parents in the schools (this is a familiar theme on the Dennis Prager show) but since they are non-theist, they have a home in the schools. If you look at the way that government run public schools are ideological venues for leftist ideas, one can imagine how a Lemon era restriction on government schools were a kind of protection fo religion from intrusive, overweening government.