Zero Tolerance for Religion

Nat Hentoff is one of the rarest things: a political activist who is genuinely surprising.  On occasion, at least.  He leans, for example, to the pro-life side on abortion.  On freedom of speech, he is strictly libertarian.  Hence this story, from USAToday.

Every year, the Frenchtown Elementary School in New Jersey presents an after-school talent show, open to kids from kindergarten through eighth grade. The performers can choose to play an instrument, dance, create a skit or select a song.

This past school year, a second-grader decided to sing Awesome God. But during rehearsal, the teacher in charge, on hearing the title and lyrics, told the child that principal Joyce Brennan would have to approve that song. Brennan contacted the attorney for the school district.

Brennan then explained in a letter to the child's mother that the song was "inappropriate for a school-run event with a captive audience of, in many cases, quite young children because of its religious content."

Accordingly, a lawsuit has been filed in the chronic civil war in our public schools between the First Amendment's Establishment Clause and its Free Exercise of Religion requirement. The case landed in U.S. District Court in New Jersey.

In the Frenchtown Elementary School's case, the American Civil Liberties Union of New Jersey is supporting the child plaintiff. Attorney Jennifer Klear, who took the case on behalf of the ACLU, filed a brief to the court. In it, she made the essential — and to me, obvious — point that it was the child who chose the song, not the school.

Now I will try to be genuinely surprising.  First, it is clear, as Hentoff says elsewhere in the article, there is no First Amendment violation in letting a student sing a religious song that she or he chose as part of a general program.  This is in no sense a state-sponsored religious activity. 

Second, I disagree that the student has a First Amendment right to choose the song.  School officials should have a broad discretion in deciding what categories of content are appropriate for such programs.  Only if the school were to discriminate in a partisan fashion would there be a legal problem.  If they allowed Jewish songs but not Muslim ones, or vice versa, that would cross the line.  Excluding religious songs in general is permissible under the Constitution.

Third, what is constitutionally permissible may nonetheless be stupid.  Excluding religion means literally excluding whole centuries of Western Art and Music.  One of the first musical presentations I enjoyed on the Northern State University campus was a Native American drum ceremony.  I thought it was marvelous.  Excluding religion categorically makes education poorer.  I say open the doors to all comers.