Ms. Chlorophyll is the pride of the teaching staff at Nutmeg High School. Despite her over twenty years in teaching, she retains a youthful enthusiasm for her subject and her students. She considers the student as a whole and augments her teaching with life lessons. On occasion, Ms. Chlorophyll even brings in bagels and juice for her students.
Given her child-centered approach, Ms. Chlorophyll was perfectly happy to oblige when Earnest, one of her AP biology students, asked her for certain accommodations. First, Earnest asked to be excused from the experiment with seeds, claiming that he was allergic. Then he asked to be excused during the unit on reproduction, claiming that such matters made him uncomfortable. Ms. Chlorophyll was fine with the first two requests, but she put her foot down when Earnest asked to do an independent study on "intelligent design" and be excused from attending class during the unit on evolution.
"This material is always in the AP test," Ms. Chlorophyll explained. "It is essential for any student taking AP Biology, and I must insist you stay in class."
"We'll see about that," Earnest said, and he went home to complain to his father, Earnest Senior, who shares his view that the theory of evolution conflicts with their religion. Father called Ms. Chlorophyll to clarify that they were not making a request, but rather a demand. As a believer, he explained, he could not tolerate his son's being exposed to this secular theory. Ms. Chlorophyll told him that she too is a believer and that the theory of evolution is not inconsistent with a divine presence, but the father ended the conversation by saying he'd see her at the next Board meeting.
Earnest Senior went online and found the Board's policy on complaints, and he was happy to see that the Board grants a hearing to anyone who has a complaint about the Nutmeg Public Schools. He and fifty of his closest friends came to the Board meeting last night.
"Ladies and gentlemen of the Board," Earnest Senior began. "We are here to stand up for a basic human right, the right to control the upbringing of our children. Ms. Chlorophyll is being totally inflexible by not granting our request that Earnest be excused from class discussion on evolution. If he does not do as well on the AP test, that is our problem, not yours. We simply want you to affirm my Earnest's right to not to hear about Charles Darwin, that Devil's spawn."
The crowd erupted into applause as Earnest sat down. Bob Bombast, however, was not cowed. "We can't agree to this request, Mr. Chairperson," he thundered. "I move that we deny this request, because we must keep church and state separate."
There was a pregnant pause as the other Board members tried to figure out exactly what Bob meant by that. However, rather than prolong the discussion, Mr. Chairperson asked for a second, which was promptly offered, and the Board voted unanimously to deny the request.
Earnest Senior and his claque got up noisily and started to leave. At the door, however, Earnest turned around and shouted back, "This is not over!"
Is it?
* * *
Whether this dispute is over is up to the Earnests, not the Nutmeg Board of Education. However, the Board's action was appropriate, albeit for the wrong reason. Bob missed an important distinction in his "analysis" of the problem. This is not a case about religion in the schools. It is a case about whether school personnel can maintain the integrity of the curriculum. The public school curriculum is not a smorgasbord from which students can unilaterally pick. Rather, children enrolled in the public schools are subject to reasonable school rules, including curriculum requirements. The statutes confer upon parents the right unilaterally to require excusal from family life education, HIV instruction and gun safety instruction. However, other requests for excusal are subject to the reasonable discretion of school officials.
Some parents have claimed that school personnel should defer to requests for excusal from certain curriculum requirements because their preferences are based on their religious beliefs. However, in a leading case involving the Fairfield Public Schools, Leebaert v. Harrington, the Second Circuit Court of Appeals ruled in 2003 that religious objections by parents do not trump the decisions of school officials. Rather, decisions to require exposure to specific areas of the curriculum will be upheld over parent objection unless those decisions are arbitrary or irrational. School officials may grant requests for modification in the curriculum (for that individual student) or excuse the student from the curriculum requirement altogether, as they see fit. But their decisions should not raise legal issues (not to say they won't).
By contrast, modification of the curriculum as requested by certain religious groups can and has raised the legal issue that Bob identified. After including reference to "intelligent design" in the curriculum and requiring biology teachers to warn students that evolution is just a theory, the Dover, Pennsylvania school board now finds itself in federal court, defending against claims that its actions violate the required separation between church and state. Kitzmiller v. Dover Area School District. Last year, the Cobb County Georgia school board found itself on the losing end of a similar argument after it had biology texts plastered with warning labels about the theory of evolution.
The situation in Nutmeg is completely different, and Ms. Chlorophyll is not required to provide alternative assignments or otherwise to modify the curriculum for Earnest. More generally, however, the Board of Education should take a look at its complaint policy. Of course, it is important to promote good communication with the public and to provide redress in appropriate circumstances. Any policy governing complaints, however, should include provision for a threshold review - is the requested hearing required by law (e.g., school accommodation hearings)? If not, does the board wish to hear the case? Absent a statutory requirement for a hearing, boards should make those decisions for themselves. Complaint policies should not put board members in the position where any dissatisfied parent (and his fifty closest friends) can seize the agenda and appear before the board for a hearing.
Thomas Mooney is a partner in the School Law practice.