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Supreme Court Declines Appeals on Religion in Public Education

While the opening of arguments over the federal health care law was the main focus for the U.S. Supreme Court on Monday, it was also a regular day for opinions and orders.

And on its orders list, the high court declined to take up two interesting appeals involving religion in public education.

One involved an Idaho charter school challenging a state decision that it could not use "sectarian or denominational" religious materials in its curriculum, which upended its plans to use a "great books" curriculum that would include the Bible, the Koran, the Book of Mormon, works of Confucius, and others.

The other was an appeal from a California teacher who was ordered by administrators to remove banners from his classroom with such expressions as "In God We Trust" and "One Nation Under God."

In the Idaho case, the Nampa Classical Academy was asking the the high court to step into its dispute with Idaho state education authorities over a curriculum that was to include religious texts.

The academy says in court papers that it did not seek to promote any particular religious but use a "classical" curriculum that relied on primary sources instead of "textbooks that have been subject to oversimplification" and "historical revisionism."

It planned to use any religious texts objectively, "not to inculcate sectarian dogma or influence students' religious beliefs," the academy's planners said.

The state board of education initially assured the charter school it could use religious texts, and the state approved a charter for the school in 2008, court papers say. In 2009, however, the Idaho Public Charter School Commission prohibited Nampa Academy from using religious documents and texts. The commission relied on counsel from the state attorney general, who said the Idaho Constitution barred any "sectarian" or "denominational" materials from being used in the public schools.

The charter school sued state officials on First Amendment free speech grounds. Both a federal district court and a panel of the U.S. Court of Appeals for the 9th Circuit, in San Francisco, held that as a charter public school, the academy was a political subdivision of the state and thus could not sue the state.

The 9th Circuit panel concluded that one teacher had standing to sue, but that the First Amendment does not give charter school teachers, students, or parents a right to have primary religious texts included in the school curriculum.

"Because Idaho charter schools are governmental entities, the curriculum presented in such a school is not the speech of teachers, parents, or students, but that of the Idaho government," the 9th Circuit said in a June 2011 decision. "The government's own speech is exempt from scrutiny under the First Amendment's speech clause."

The appeals court also said the state's policy did not violate the First Amendment's prohibition against government establishment of religion.

In its appeal to the Supreme Court, the Nampa charter school said most schools and colleges would "collect accolades" for a rigorous curriculum that addressed the influence of Martin Luther's works on the Reformation, or explored biblical foundations for Herman Melville's Moby Dick.

"Most circuits—following this court's lead—acknowledge religion's place in education and that the establishment clause does not prohibit a school from using religious materials in an objective fashion," the academy said.

The Supreme Court requested a response from the state, which had not initially filed one. In the response, Idaho raised several procedural doubts about the appeal, and stressed that the states have the authority to set the public school curriculum.

The justices declined without comment to hear the appeal in Nampa Classical Academy v. Goesling (Case No. 11-786).

The second appeal deals with a teacher's self-described "non-curricular" classroom speech, involving banners with the slogans mentioned above, as well as "God Bless America" and "God Shed His Grace on Thee," among others.

Bradley R. Johnson, a veteran calculus teacher at Westview High School in the Poway Unified School District in California, was ordered by administrators in 2006 to remove the banners from his classroom.

The teacher contended the phrases were simply patriotic sentiments and variations of language found in documents such as the Declaration of Independence. District officials told Johnson that he had to remove the banners because the display of the slogans without context promoted a "Judeo-Christian" viewpoint.

Johnson complied, but he sued the district under the First and 14th Amendments of the U.S. Constitution, as well as under the California Constitution. In 2008, a federal district judge ruled for Johnson, saying the school district had created a limited public forum for teachers to express their views and Johnson's banners "communicate fundamental political messages and celebrate important American shared historical experiences."

But in a September 2011 decision, a 9th Circuit court panel said the district court had failed to analyze Johnson's banners as speech by a government employee.

"Because the speech at issue owes its existence to Johnson's position as a teacher, Poway acted well within constitutional limits in ordering Johnson not to speak in a manner it did not desire," the 9th Circuit court said.

In his appeal to the Supreme Court, Johnson said his case would present a good vehicle for clarifying the speech rights of teachers. But the school district argued in its brief that teachers in elementary and secondary schools have no "academic freedom" in their classroom speech and that there was no split in authority on that among the federal appeals courts.

The Supreme Court declined without comment to take up the appeal in Johnson v. Poway Unified School District (No. 11-910).

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