He's right, and this is a serious problem. Far too many administrators and teachers simply don't know even the most basic things about what is and isn't allowed in public schools in terms of religion. That's why we get situations coming up where some kid is told he can't hand out candy canes with bible verses attached to them, or can't read their Bible during lunch. In 1994 and again in 2000, the Department of Education tried to fix this by sending out a document to every public school in the nation explaining what the law says, but it appears that most schools didn't bother to do anything with it. As Haynes notes:

From northern California to southern Florida, we encounter far too many superintendents who are reluctant to touch religion with the proverbial 10-foot pole. Following the let-sleeping-dogs-lie approach to administration, they start to think about First Amendment solutions only after a fight breaks out. By then it's often too late to avert a bitter legal battle that divides the community and erodes support for public education.

Even school districts with "religion policies" buried somewhere on the shelf still get into trouble because nobody remembers what the policies say. Earlier this year we were invited to speak in a large Texas school district that is facing a lawsuit over how religion is treated in their schools. In the complaint, a number of parents charge (among other things) that their children were prohibited from sharing their faith during the school day. It turns out that all of the alleged violations would not have happened if teachers and administrators had followed existing district policy. But when we asked site administrators about those policies, no one knew about them, much less whether teachers were applying them properly.

I would bet that's the case in 90% of the schools around the country, probably more. He also provides an excellent example of what schools should do:

By contrast, the school district in Richardson, Texas, was smart enough to buy the fire truck before the fire. Under the leadership of Carolyn Bukhair, superintendent from 1996 through 2004, the district appointed a task force of parents, religious leaders and school staff to develop guidelines for religious practices that cover everything from student prayer to religion in the curriculum. Rather than reacting to a crisis or lawsuit, this superintendent acted out of her conviction that bringing stakeholders to the table and involving them in decision-making creates stronger public schools.

But Richardson's adoption of a comprehensive policy was only the beginning. Bukhair made sure the community was informed about the policies, administrators and teachers received in-service training on the issues and a process for dialogue was established. The task force became the Religious Practices Advisory Committee charged with addressing religion in the schools on an ongoing basis. Conflicts and challenges still come up in Richardson (that's inevitable in any school district), but the schools and community have a process and a forum for dealing with the issues without litigation and division.

If only that would happen more often. Haynes also points out that there are still some particular situations that haven't been resolved, and some controversy over the legal advice the Bush administration has given to schools:

Although the Bush-era guidance tracks much of what is found in the national agreements of the 1990s, watchdog groups such as Americans United for Separation of Church and State argue that the new guidelines go too far by endorsing student religious expression at school-sponsored events. Even though the lower courts are divided on where schools should draw the line on student religious speech at graduation and other school programs, the DOE now takes the position that school officials may not restrict students' religious (or anti-religious) speech if student speakers are selected by "genuinely neutral, evenhanded criteria" and students retain "primary control" over the content.

It's fair to say that the new DOE guidelines push in the direction of encouraging school officials to allow more student religious expression before captive audiences at school events and in classrooms. In the view of some civil liberties groups, the DOE is stating what it wants the law to be rather than where the law actually is under current Supreme Court rulings. Nevertheless, most First Amendment experts would probably agree that if the school creates a "free-speech forum" at school events, during which time students are free to express themselves religiously or otherwise, schools may not censor religious or anti-religious speech. Of course, many administrators will view this approach as risky since such a forum would have to be open to all kinds of speech, including speech critical of religion or the school.

This disagreement about how to handle student religious expression in front of a captive audience is a reminder that some questions about what the law requires in a public school are still contested. Nevertheless, most of the current DOE guidance as well as the earlier guidelines endorsed by many national groups reflect broad consensus on most issues involving religion in the schools. If translated into local policies and practices, these agreements can help school districts build trust and support in the wider community.

I actually agree with the DOE guidelines in regard to allowing religious speech even with a captive audience as long as the speakers were chosen according to some objective criteria and if the content of the speech is determined by the student and not the school (that's why I think that the school was wrong in the Britanny McCombs case). But that's a fairly unsettled legal question. Still, if schools would have some sort of coherent policy on those matters, they would avoid a lot of problems.

Unfortunately, not all the essays in the issue are as accurate as the one by Haynes. Colby May, an attorney with Pat Robertson's American Center for Law and Justice, has an article that contains a highly dishonest representation of the Kitzmiller ruling. He writes:

Many school leaders would be surprised to learn that the Supreme Court said the following about evolutionary theory in Edwards v. Aguillard in 1987: "We do not imply that a legislature could never require that scientific critiques of prevailing scientific theories be taught. . . . [T]eaching a variety of scientific theories about the origins of humankind to schoolchildren might be validly done with the clear secular intent of enhancing the effectiveness of science instruction."

In other words, the intent of educators is all-important in considering whether a particular decision relating to evolutionary theory will be upheld by the courts. While the Supreme Court held that a school may teach "a variety of scientific theories about the origins of humankind" if it has the "clear secular intent of enhancing the effectiveness of science instruction," schools may not alter the content of classroom instruction solely for the purpose of supporting or harming a particular religious view. An alleged religious motivation was the primary problem in the Pennsylvania court case.

This is a distortion both of Edwards and Kitzmiller. Intent was only one aspect of both cases, and a relatively small one (particularly in Kitzmiller). To claim that the "primary problem" in the Dover case was the "religious motivation" of the board is to ignore about 90% of the ruling and all of the voluminous detail it goes into regarding the effect prong and the endorsement test. May clearly implies that if the school board just didn't show a religious purpose, the policy would have been constitutional; the ruling very, very clearly shows how absurd that claim is.

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