17 Jan 2011

Nebraska education administrators get mixed messages from lawyers on legality of promoting religion in schools

Journal Star - Nebraska November 12, 2010

Attorneys speak to Nebraska administrators about religion in school

By MARGARET REIST / Lincoln Journal Star

The Far Side cartoon -- the one with a devil prodding a man to pick one of two doors -- got a laugh Friday from a group of Nebraska school administrators.

One door said, "Damned if you do." The other said, "Damned if you don't."

And it summed up the wide gray area school administrators face when balancing First Amendment protections involving religion and schools.

"I feel bad for you all as school administrators," said Jeff Downing, an attorney who represents groups recently targeted by ACLU Nebraska for promoting religion at school assemblies.

"There's some black, some white and lots of areas of gray," Downing said.

That the courts have not clearly defined the issue was one thing three attorneys who spoke to a group of public school administrators Friday agreed upon.

They disagreed on just how administrators should walk that balancing act.

The Nebraska Council of School Administrators invited the three attorneys -- ACLU Nebraska Legal Director Amy Miller, Downing and Karen Haase, who represents more than 100 Nebraska school districts -- to speak on the topic.

The issue made news recently when ACLU Nebraska wrote a letter to public school superintendents cautioning them against inviting groups who proselytize, and warning of possible legal action if they do.

The letter mentioned two men in particular: Ron Brown, an assistant Husker football coach who helped found a Christian ministry called Mission Nebraska, and Keith Becker, with the Kearney-based Todd Becker Foundation, who speaks against alcohol abuse and drunken driving.

While the First Amendment prohibits schools from promoting religion, it has never been used specifically regarding outside speakers, the attorneys said.

Miller argued that because Brown and Becker are open about their desire to spread their faith -- and admit that they've done it at school assemblies -- schools would be promoting religion by inviting them to speak.

Her letter warns them of the fact, making them liable if they proceed, she said.

Downing argued that a person can't be barred from speaking at a school simply because of his or her religious beliefs. And whether those speakers proselytized should be based on an "objective observer."

The ACLU, he said, is not objective because it is trying to further a specific agenda, he said.

"When it comes to the public schools, the ACLU shouldn't be the sole arbiter of what's appropriate," he said.

The First Amendment says public schools must be neutral on religion, Miller said.

"They can't be hostile toward religion, but they can't endorse religion," she said.

But they must balance that with protecting individual rights to free speech and equal access, Haase said.

Haase said schools must be careful to walk a straight line, not leaning too far either way.

"You can see what will happen whichever way you jump. Someone is going to have problems with what you do."

Haase advised Lyons-Decatur Northeast School District, which chose to have Becker speak in spite of the ACLU letter.

She advised the school district to have Becker sign a statement saying he wouldn't proselytize, to videotape the presentation and to stop the presentation if it crossed the line.

Miller said she hadn't pursued any action against Lyons-Decatur because no one had complained.

Haase told stories of school districts in other states, including one in Nashville, Tenn., that was sued by parents who accused them of promoting religion. The next year, the same district was sued for violating equal access of parents who wanted to advertise a prayer group.

There is no "safe" choice in such situations, she said.

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