The 6th Circuit Court of Appeals recently concluded that it was permissible for a public school district to send its students to a Christian school for “alternative school services.” The court held that the arrangement, which was in effect for about seven years, did not violate the Establishment Clause. There was no direct religious instruction, and the students “encountered only de minimis religious references” at the school, such as Bible quotes on report card forms.
The case is a strange one. The Jefferson County Board of School Commissioners (Tennessee) was in a pinch due to severe budget cutbacks. They had a duty to provide alternative services (like our DAEPs) but needed to figure out a way to do it at less expense. So they shut down their own alternative schools, and contracted with a Christian school to provide the services. The opinion does not explain why the arrangement with the private school was so much cheaper, but apparently, it was. The Director of the Board figured they would save $170,000/year.
Suits that challenge religious practices are often brought by the ACLU or some “secular humanist” organization but that was not the case here. This case was brought by two teachers who lost their jobs as a result of the decision to close the alternative school operated by the county. One of the judges thus characterized the case as “an employment contract dispute masquerading as an Establishment Clause case.”
We don’t anticipate a fact situation like this coming up in Texas, where DAEPs are well established, and mandated by law. But the case is interesting because it adds to the confusing mess of the law pertaining to religion and the public schools.
Courts have told us that it is not OK to hold the high school graduation in a church, Doe ex. rel. Doe v. Elmbrook School District, 687 F.3d 840 (7th Cir. 2012) (en banc); and it is not OK to display a framed painting of Jesus in the school hallway, Washegesic v. Bloomingdale Public Schools, 33 F.3d 679 (6th Cir. 1994). But it is OK to send a bunch of kids to a Christian school over a period of several years.
There are few areas of the law more confusing than the role of religion in the public schools. Tread carefully, and with the advice of your school district’s lawyer! This case is Smith v. Jefferson County Board of School Commissioners, decided by the 6th Circuit Court of Appeals on June 11, 2015.
And speaking of Tennessee, religion, and public schools—be sure to check the Daily Dawg tomorrow!
DAWG BONE: JUDGES CONTINUE TO STRUGGLE TOWARD CONSISTENCY IN RELIGION CASES.