Published June 09, 2003
MEDFORD, N.J. – A new Bush administration policy that has made it possible for students to express their religious convictions is facing challenges from activists who say the new rule violates the Constitution.
The policy, dubbed by some as "Zach's rules" after a young New Jersey boy whose family fought the restrictions, allows students to express their religious beliefs in homework, artwork and other written and oral assignments, and calls on teachers to judge and grade on academic standards and without discrimination.
"At last, we finally have 'teeth' in the guidelines that supposedly have governed school policies since the Clinton administration," said Seamus Hasson (search), president of the Washington-based Becket Fund for Religious Liberty (search).
The "Guidance on Constitutionally Protected Prayer in Public Elementary and Secondary Schools" went into effect in March as part of the No Child Left Behind Act (search). The rules instruct schools to show "neither favoritism nor hostility against religious expression," including at graduation ceremonies and assemblies.
Local schools must certify, in writing, that they don't discriminate "against student prayer or religious speech" in order to receive federal dollars under the Elementary and Secondary Education Act. The federal education secretary can bring enforcement action against schools that don't comply, including taking federal funds away from delinquent schools.
Opponents call it blackmail.
"At a time when state revenues are dwindling and public schools are cash strapped, it’s unconscionable that the Bush administration would bully schools in this manner," Barry Lynn, executive director of Americans United for Separation of Church and State (search), wrote in an April letter to directors of every state school agency.
Hasson is a former attorney for the Justice Department's Office of Legal Counsel, where his responsibilities included advising the Reagan administration on church and state issues. Earlier this year, his organization settled a lawsuit brought on behalf of Zachary Hood (search), the policy's namesake.
In 1996, Zachary drew a picture of Jesus on a poster and wrote "Thankful for Jesus" for a kindergarten class Thanksgiving assignment. His school in Medford, N.J., took it down from a hallway display.
A year later, he chose his favorite Bible story from his beginner's Bible to read out loud in class, but school officials wouldn't let him read it.
"They all made it feel like religion was a bad thing," Zachary told Fox News.
"Discriminating against religion is very un-American and very wrong," said Zach's mom, Carol Hood.
Since then, several courts in New Jersey ruled against Zachary's right to what his mom calls, "personal religious expression," despite guidelines issued in 1995 by the Clinton Education Department.
Under those rules, schools could neither foster nor preclude students from expressing religious views on their own and couldn't discriminate against students. Schools had to give students the same right to engage in religious activity and discussion as any other activity, the rules said, meaning that students can pray in a "nondisruptive manner" outside the classroom.
Schools couldn't endorse religious activity nor coerce participation, and administrators and teachers couldn't organize or encourage prayer exercises in the classroom.
In June 2000, the U.S. Supreme Court ruled 6-3 in a Texas case that prayer does not belong in public schools, even if students initiate and lead the prayers, for instance, at events such as football games.
Lynn and his backers say allowing prayer in school violates the First Amendment's establishment clause, which states that Congress "shall make no law respecting an establishment of religion."
In 1962, the U.S. Supreme Court cited that amendment when it decided that reciting school-sponsored prayers at public institutions was unconstitutional.
"The courts have ruled consistently that public schools may not sponsor religious worship. The Bush administration cannot change that fact merely by issuing a decree," Lynn wrote.
"I think this is going to create an enormous amount of confusion that will lead to a large number of lawsuits," Lynn said of the Bush guidelines.
Americans United says its legal team is ready and waiting to help any public school believed to be unjustly accused of violating the new guidelines.
"The idea of losing all your federal funding is an unprecedented attack on public schools," Lynn told Fox News.
But supporters of the policy say loss of funding is the only way to make schools obey.
"If Zach's rules had been in place when Zach first wanted to read from his beginner's Bible, he would have been allowed to without any question," said Hasson.
As for Zachary and his mom, they say they feel vindicated, and vow to continue to express themselves religiously, whenever they feel it's appropriate.
Fox News' Douglas Kennedy and Liza Porteus contributed to this report.