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The Establishment Clause, Secondary Religious Effects, and Humanistic Education

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The Establishment Clause, Secondary Religious Effects, and Humanistic Education The Establishment Clause, Secondary Religious Effects, and Humanistic Education The Supreme Court decisions proscribing prayer' and Bible reading2 in public schools provoked considerable public debate. That debate has con- tinued,3 fueled in part by fear that the removal of those religious practices from public schools would hinder the moral development of school chil- dren.4 A number of different, avowedly nonreligious, moral education pro- grams5 that purport to encourage and channel the moral development of the individual child have emerged in the wake of the prayer and Bible- reading decisions.6 Although diverse in method, all of these programs, un- like more traditional forms of moral training,7 reflect the influence of an educational philosophy known as Humanistic Education. The Humanistic Education movement, originally concerned primarily with counteracting the dehumanizing character of technocratic modern ed- ucation,' has evolved into a comprehensive social and moral philosophy' 1. Engel v. Vitale, 370 U.S. 421 (1962). 2. Abington School Dist. v. Schempp, 374 U.S. 203 (1963). 3. See N.Y. Times, Apr. 20, 1980, § 12, at 3, col. 1 (many groups still fighting to put prayer back in public schools; between 10% and 30% of public schools still refuse to comply with prayer decisions). 4. See, e.g., N.Y. Times, Jan. 24, 1980, § 2, at 10, col. 5 (some proponents of prayer believe that "crime, vandalism, and drugs are all results of ruling prayer from the schools"); cf D. BOLES, THE BIBLE, RELIGION, AND THE PUBLIC SCHOOLS 245-48 (1961) (proponents of Bible reading believe that its absence from public schools will lead to decline in moral standards). 5. See infra notes 48 & 49. This Note discusses some of the more widespread programs, including Values Clarification, Moral Development, sensitivity training, meditation, and fantasy guidance. 6. See Kirschenbaum, Recent Research in Values Clarification, in VALUES EDUCATION 71 (J. Meyer, B. Burnham, & J. Chovlat eds. 1975) (" 'Values clarification approach' has gained wide- spread popularity throughout American education."); NEWSWEEK, June 2, 1980, at 58 (more than 6000 school systems have offered values education courses, and more than 300,000 classroom teachers have attended workshops to learn how to teach values education); N.Y. Times, Mar. 19, 1980, § 3, at 1, col. 1 (values education still making inroads into American public elementary and secondary schools). 7. See HUMANISTIC EDUCATION SOURCEBOOK (D. Read & S. Simon eds. 1975) (discussing philos- ophy of Humanistic Education) [hereinafter cited as D. READ & S. SIMON]; E. SIMPSON & M. GRAY, HUMANISTIC EDUCATION: AN INTERPRETATION (1976) (describing various Humanistic Education programs); R. VALETT, HUMANISTIC EDUCATION 1 (1977) (drawing distinction between traditional education and Humanistic Education); Alschuler, Humanistic Education, in D. READ & SIMON, supra, at 62, 66 (describing Humanistic Education and how it differs from more traditional forms of moral training). 8. See C. PATTERSON, HUMANISTIC EDUCATION 10-18 (1973); Miller, An Education for the Whole Person, in THE PERSON IN EDUCATION 39, 41-42 (C. Schlosser ed. 1976). 9. See, e.g., E. SIMPSON & M. GRAY, supra note 7, at 67 (Humanistic Education concerned with any subject matter that relates people to themselves, to each other, and to external environments, and encompasses many social and economic issues); Newmann, Social Action and Humanistic Education, in HUMANISTIC EDUCATION 67 (R. Weller ed. 1977) (Humanistic Education calls for comprehensive examination of social structures and systems of meaning). 1196 Establishment Clause with specific implications for the design of curriculum,'" the relationship of teacher to student," and the role of education in society.' 2 Because sys- tematic instruction in values and morality can act to advance or inhibit religious beliefs," the widespread introduction of Humanistic Education programs in public schools raises important issues under the establishment clause of the First Amendment.' This Note takes a new look at the con- stitutional implications of government programs with secondary religious effects, using Humanistic Education in public schools as its main exam- ple. After examining present establishment clause doctrine in light of the historical purposes and values embodied in the clause, the Note argues that many forms of Humanistic Education, although not prohibited by present doctrine, pose a substantial threat to the core values of the estab- lishment clause. The Note concludes that even though the establishment clause permits the state to pursue compelling governmental interests through some programs having secondary religious effects, current forms of Humanistic Education cannot be justified and should be eliminated. I. The Contours of Establishment Clause Doctrine The Supreme Court's early establishment clause decisions, drawing heavily upon aspects of the historic struggle for religious freedom in America, identified strict separation of church and state as the fundamen- tal requirement of the establishment clause."5 Because a significant level of 10. See, e.g., THE PHILOSOPHY OF CURRICULUM (S. Hook, P. Kurtz, & M. Todorovich eds. 1975) (essays discussing implications of Humanistic philosophy for design of curricula for social sci- ence, natural science, history, and general education); S. SIMON, L. HOWE, & H. KIRSCHENBAUM, VALUES CLARIFICATION: A HANDBOOK OF PRACTICAL STRATEGIES FOR TEACHERS AND STUDENTS (1972) (illustrating how to implement Values Clarification approach in public schools). 11. See, e.g., L. RATHS, M. HARMIN, & S. SIMON, VALUES AND TEACHING 77 (1st ed. 1966) (discussing proper role of teacher in helping children form values); Rogers, The Interpersonal Rela- tionship in the Facilitationof Learning, in HUMANIZING EDUCATION: THE PERSON IN THE PROCESS 1 (R. Leeper ed. 1967) (role of teacher is to help students teach themselves, not to transmit knowledge or values). 12. See, e.g., L. RATHS, M. HARMIN, & S. SIMON, supra note 11, at 26 (although family plays limited role, educators should bear main burden for helping children define priorities and discover meaning out of confusion in modern society); Weinberg, The School, the Society, and the Individual, in HUMANISTIC FOUNDATIONS OF EDUCATION 71 (C. Weinberg ed. 1972) (educators must help shape moral and social outlook of children). 13. This Note deals primarily with certain explicit attempts by government to manipulate the moral orientation of children. Some commentators have argued, however, that public schools inevita- bly transmit and inculcate certain value judgments and are therefore constitutionally problematic whatever their official policies. See Arons & Lawrence, The Manipulation of Consciousness: A First Amendment Critique of Schooling, 15 HARV. C.R.-C.L.L. REV. 309, 316-17 (1980). The balancing test proposed in this Note finds a middle ground between this extreme position and the deference shown in present doctrine. See infra p. 1223. 14. U.S. CONST. amend. I ("Congress shall make no law respecting an establishment of religion. ....) 15. See, e.g., Everson v. Board of Educ., 330 U.S. 1, 18 (1947) (establishment clause erects "high and impregnable wall" between church and state); McCollum v. Board of Educ., 333 U.S. 203, 211- 12 (1948) (reiterating Everson standard). 1197 The Yale Law Journal Vol. 91: 1196, 1982 contacts between church and state inhere in the structure of modern soci- ety, the application of the separation standard consistently proved prob- lematic, and the Court eventually shifted to a set of more specific stan- dards. Doctrinal missteps in the course of the Court's transition, however, have obscured the role of two closely related underlying purposes of the establishment clause: preserving freedom of religious choice, and main- taining the state's neutrality in private religious activities. A. The Legacy of the Separation-of-Church-and-StateStandard The separation standard, as the Court originally formulated it, forbade almost all forms of government involvement with religion. The Court con- ceived the notion of religious "effect" as one way of expressing the ab- sence of the required separation: contacts between church and state were deemed to have an unconstitutional religious effect.'6 Because the early cases involved problems similar to those familiar to the framers of the First Amendment," the Court's initial reliance on the historical background of the establishment clause was understandable. The framers of the First Amendment undoubtedly viewed separation of church and state as a way of enforcing establishment clause values in the context of the extremely limited government with which they were famil- iar. The scale and diversity of government activities that characterize to- day's welfare state, however, have made contacts between church and state inevitable. Although that growth has not made the goals that the framers 16. Although the "effect" test was first formally announced as the constitutional standard in Ab- ington School Dist. v. Schempp, 374 U.S. 203, 222 (1963), earlier cases had informally applied it. See McGowan v. Maryland, 366 U.S. 420, 442-43 (1961) (noting that non-secular purpose and effect render enactment unconstitutional under establishment clause); Everson v. Board of Educ., 330 U.S. 1, 16-17 (1947) (discussing purpose and result of enactment at issue). The role of "effect" in formula- tions of the separation standard carried over, however, to confuse the application of the effect test when
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