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Making Civics Real: A Workshop for Teachers

Freedom of Religion Freedom of Religion — Other Lessons

In this article, Maria Gallo, director of legal studies and a teacher at Harry S. Truman High School in the Bronx, New York, presents three lessons on the First Amendment: The Establishment of Religion, The Free Exercise of Religion, and Putting It All Together: A Round Table Discussion. The lessons include extensive documentation on Supreme Court cases that are relevant to the lessons.

Controversial Issues in Practice
By Maria Gallo

Law-related education is a perfect vehicle for teaching controversial issues.

Among my students, I have found that the subject of religion and the state can provoke some very heated classroom discussion, of the kind that spills into the hall and on to the next class when the class ends. The intensity that students bring to the issue offers an excellent opportunity to train them to deal logically and rationally with subjects about which they feel passionately. I require them to learn to listen, seek out the facts, discuss, and debate. A vital goal is accomplished when the issue sparks a proper dialogue–not random rhetoric or generalizations, but talk that is logical, coherent, rational, and factual, even if passionate. And the ultimate success is when the dialogue is not of the teacher’s creation, and the teacher can purposely refrain from the discussion and simply watch.

The lessons outlined below deal with different aspects of church-state relations affected by the First Amendment. The lessons help students at various levels to improve their critical-thinking skills, and to learn more about the Constitution and the role of the judiciary in government. They also show students how, as active citizens, they can shape future trends.

The lessons have been used with a high school senior honors government class as a unit on the Establishment and Free Exercise Clause of the First Amendment. Our school has approximately 3,000 students, 97 percent of whom have minority backgrounds. The students are presently tracked into non-regents, regents, and honors level classes. A large number are immigrants from the Caribbean. I’m happy to say that we have a very diverse population in every way imaginable. The lessons are rooted in an eighth-grade lesson I developed for a law-infused curriculum, which I enhanced and expanded into a unit for my seniors. I have used these lessons with lower-functioning students as well as average students.

There is no magic formula for guaranteeing success for lessons on controversial issues. There are some fundamental prerequisites: knowledge of the unique classroom dynamics created by the intellects and personalities of students; use of materials and tasks to allow for the expansion of student skills and knowledge; a trusting atmosphere which invites inquisitiveness founded on respect for and sensitivity to the right of students to express themselves without ridicule, and encourages students to learn to separate differences of opinion from personal attacks; willingness to change classroom arrangements; and, most important, adaptability and flexibility on the part of the teacher. This adaptability and flexibility needs to be shown in the teaching of these, as well as other lessons. The lessons can be tailored to the needs of particular classes. The time allocated to each must be determined by the teacher vis-à-vis the students’ abilities, curriculum constraints, etc., but each lesson is created to go on for several days.

The lessons require prior knowledge among students of the role of the Supreme Court and its procedures for judging cases, as well as how cases are briefed in Court proceedings. Students should also have had experience with the cooperative learning arrangements used, so that the teacher can focus on providing a structure and set of guidelines to keep students on track, and act as a moderator/observer rather than spend time trying to organize students.

Lesson 1: The Establishment of Religion

Objectives:
Students are expected to:

  1. understand the Establishment Clause of the First Amendment from both a historical and contemporary point of view;
  2. trace the evolution of the controversy between the church, state and Constitution; and distinguish the various aspects of our society/lives it touches;
  3. describe the role of the Supreme Court in these conflicts;
  4. discuss the impact of the law and its decisions on this issue; and
  5. apply the various laws to contemporary situations.

Hypothetical Motivator: The lesson starts with the first of the three Hypothetical Cases Involving the First Amendment (see below), a scenario of state funding for textbooks.

Issue Debated: At what point does the relationship between church and state violate the Establishment Clause of the First Amendment?

Materials Used: (1) Texts of the First Amendment* and Fourteenth Amendment, (2) Opinions in Relevant Legal Cases for Lesson One (see below), (3) Hypothetical Cases Involving the First Amendment (see below).

Procedure:

  1. Kicking Off
    Place a transparency of hypothetical case #1 on the screen.

    1. Give your immediate reactions and opinions.
    2. Dissect the case. (This segment allows students to break down the scenario to determine what they need to know in order to deal with the question.)
  2. Searching for the Answer
      1. Read through the First Amendment and separate the Establishment Clause from the Free Exercise Clause.
      2. What is meant by the Establishment Clause?
      3. Why was the clause included in the First Amendment, (1) from a historical perspective and (2) in the light of the experiences of the framers?
      4. Should Jefferson’s “Wall” separating church and state exist? Does it exist?
  3. The Perspective of the Supreme Court
    This part of the proceedings requires students to form a jigsaw to discuss different aspects of the issue.

As prior reading, students are required to make themselves familiar with Cochran v. Louisiana. The assignments could vary from texts of related Supreme Court decisions (which my honor students do) to being given excerpts from or teacher-written descriptions of the case (regents or non-regents classes).

The pivotal questions are: how does the decision in Cochran v. Louisiana affect the outcome of our hypothetical case? And how has the court dealt with this issue since Cochran v. Louisiana?

It is now time to set up a jigsaw, which will help students answer the question properly. The following would be the set-up for a class of 35; teachers can adjust it according to class size.

  1. The class is divided into five groups of seven Justices. Each group becomes a Supreme Court, and must choose its Chief Justice and fill out a Supreme Court personnel sheet.
  2. The class is then redivided, forming seven groups of five; each of these groups of five should have one member of the Supreme Court in them. These new groups are “expert groups,” each of which is assigned an appropriate case or cases from a list of Relevant Legal Cases which l provide them. Each of these groups becomes expert in the case(s) assigned to it. The work in the expert groups should run fairly smoothly. The teacher should check the worksheets of all students to make sure they understand the cases.
  3. Students then reconstitute their Supreme Court group, and take back to it and share with other members the expertise they acquired in their expert group.
  4. Each court is then required to review one of the hypothetical cases. As a “court” it must render a decision, and its members are responsible for writing out the majority opinion, as well as any concurring or dissenting opinion.
  5. The decisions are read and debated in an open class session, where students compare and contrast decisions. It is interesting to see how two different groups adjudicate the same case. The decisions are sometimes similar, but the reasons given for them rarely are.

The jigsaw is a wonderful cooperative learning technique. However, it requires a great deal of organization and patience on the part of the teacher. It should be used in simple forms before this unit, to avoid spending a great deal of time trying to keep students organized, which would lead to their becoming frustrated and not participating properly. The various worksheets should be designed to look formal, and their final versions should be posted around the room. This creates an appropriate atmosphere, and helps the teacher keep track of what is occurring.

  1. Conclusion
    The class discusses whether there is, in fact, a relationship between Church and State, or whether a Wall of Separation exists. Members consider the question, At what point does the relationship between church and state violate the Establishment Clause of the First Amendment? This allows students to pull together all the information acquired over the last few days and visualize a more complete picture. It should also leave the class with certain questions which could open the door for the next lesson.

* First Amendment to the Constitution: Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. Ratification effective December 15, 1791.

Relevant Legal Cases for Lesson One

The Issue of Establishment
Cochran v. Louisiana, 281 US 370 (1930). Supreme Court upheld Louisiana act providing funds for textbooks to all students in the state, regardless of the school they attend. Since the books were for secular subjects, the act was seen as benefiting students rather than religion.
Everson v. Board of Education, 330 US 1 (1947). Court upholds free transportation passes to all students.

Release Time
McCollum v. Board of Education, 333 US 203 (1948). Sending teachers into the public schools to teach religion during release time is a form of establishment.
Zorach v. Clauson, 343 US 306 (1952). Court upholds New York State act allowing release time for students to go to religion classes in their own churches.

Prayer in School
Engel v. Vitale, 370 US 421 (1962). Prayer composed by New York Board of Regents is a violation of the Establishment Clause.
Abington School District v. Schempp, 474 US 203 (1963). Pennsylvania law requiring that each school day begin with a reading from the Bible and the Lord’s Prayer is struck down.
Stone v. Graham, 449 US 39 (1980). Posting the Ten Commandments in Kentucky classrooms is held unconstitutional.
Wallace v. Jaffree, 472 US 38 (1985). Alabama statute requiring a moment of silence for meditation and/or voluntary prayer is unconstitutional.

Aid to Parochial Schools
Board of Education v. Allen, 392 US 236 (1968). Court allows for the free loan of books to all children in elementary and secondary schools, since they are for secular education.
Walz v. Tax Commission of New York City, 397 US 664 (1970). Tax-exempt status for religious institutions is upheld.
Lemon v. Kurtzman, 403 US 642 (1971). Establishes a three-prong test to determine if an act violates the Establishment Clause. The test is still used.
Tilton et al. v. Richardson et al, 403 US 672 (1971). The Supreme Court upholds “construction grants” to church-related colleges and universities.
Wolman v. Walter, 433 US 229 (1977). Public payment for field trips by parochial students is banned.
Mueller v. Allen, 103 S.Ct. 3062 (1983). Court upheld Minnesota law that allowed a tax deduction for tuition, textbooks, and/or transportation for any elementary or secondary school.

Holiday Displays
Lynch v. Donnelly, 52 L.W. 4317 (1984). Pawtucket (R.I.) city can include a Nativity scene as part of a seasonal display.
Scarsdale v. McCreary, 105 S.Ct. 1859 (1985). Private crèche scene displayed in the public park in Scarsdale is acceptable.
Allegney v. A.C.L.U., 106 L.Ed. 472 (1989). Two cases in one, with a split decision. (1) A private group’s donation of a crèche, displayed in a courthouse, is a violation of the Establishment Clause, but (2) a Christmas tree, lights, and a menorah in front of the building are not.

Hypothetical Cases Involving the First Amendment

  1. California passes a state law on school textbook funding. According to the law, all schools at the elementary and junior high school level will be eligible for full funding of all school textbooks.Schools are to submit a “population sheet” broken down by subject and grade level and a requisition sheet for each set of books needed. Once ordered, the school must submit publishing company bills for the actual titles and number of books ordered and received. These measures ensure a smooth funding process and eliminate the chance of any state funding for religious books in the parochial or sectarian schools.The law is challenged on the basis that it provides direct support to religious schools, and thereby promotes religion in direct violation of the First Amendment’s Establishment Clause. In directly supporting the activity of the religious schools, the state is claimed to be establishing religion.
  2. New York State passes a law allowing the public schools to institute a “minute of silence” before each class. The law states: A moment of silence at the beginning of each class can be a constructive way to bring the class together and ready the students to commence the work of the day.The law is challenged on the basis that a moment of silence can be used for prayer. Therefore the state is encouraging a religious activity and this violates the First Amendment’s Establishment Clause.
  3. In New York City, an educational complex has recently come under fire by a local civic organization. The complex contains a grouping of public school buildings on a large tract of city-owned land. The complex has two elementary schools, two junior schools, and one senior high school. In a clearing at the center of these buildings stands a six-foot-tall Norwegian Spruce tree. Each year, for the past 10 years, the children of the schools have decorated the tree and its surrounding area at Christmas. This has been done through the cooperative efforts of the history, English, and art departments of the five schools. The elementary school children make ornaments depicting the traditions of their own religious and ethnic backgrounds.The junior high students make small displays and dioramas based on a holiday depiction in a novel or play. The high school students create paintings and sculptures in various artistic styles. Their work often depicts scenes from other time periods, and other countries, etc. They create a creche as well as scenes of holiday shoppers on Fifth Avenue. Since its conception, the decorating of this clearing has become quite an event.All of the children participate, and all of their families are invited. The principals make small speeches, and the bands and chorus classes lead the singing. For the last two years, the mayor of the city has participated, and vows to continue to do so. He is quoted as saying “This is a wonderful event celebrating the mosaic which is our city and nation.”A local civic group is suing to stop this yearly display. They believe that every aspect is a violation of the Establishment Clause. The scenes are on city property. The materials are made during school time, using school supplies in a public school. And the mayor’s presence further reinforces governmental approval of a religious practice and belief.

Lesson 2: The Free Exercise of Religion

The hypothetical situations in Lesson 2 are more personal than those in Lesson 1. The discussions of Lesson 1 will have helped to ease students into debates, so that their opinions are not simply generated by feelings and they can step back and be more objective when they deal with a topic that goes directly to their personal value system and beliefs. Religious beliefs concerning blood transfusions or the acceptance of certain practices are very concrete issues, and students can be expected to voice some very strong opinions.

Objectives:
By the end of the lesson, students should be able to:

  1. sharpen their research skills;
  2. distinguish between the rights of an individual, those of a particular group, and the common good;
  3. discuss how conflict may arise between these three entities;
  4. apply historical and contemporary legal solutions to these conflicts in modem day dilemmas; and
  5. differentiate between the central issues of Establishment and Free Exercise.

Issue Debated:
What right, if any, does the state have to infringe on the Free Exercise of religion as guaranteed by the First Amendment?

Hypothetical Motivator:
Choose one of these two hypothetical situations:

  1. Stare law requires that parents provide their children with necessities, including adequate food, clothing, shelter, and medical care. A child is born with a serious illness requiring a blood transfusion in order to live. The child’s parents, who are Jehovah’s Witnesses, refuse permission for the transfusion because their religion prohibits this medical procedure. (Arbetman 1983)
  2. A city in North Carolina passes an ordinance prohibiting the handling of poisonous reptiles “in such manner as to endanger public health, safety, and welfare.” A religious cult that handled snakes as part of its religion’s ceremony refused to obey the law. (Arbetman 1983)

Materials Used:
(1) List of Relevant Legal Cases for Lesson Two (see below); (2) Scavenger Hunt Clues; (3) Hypothetical situations.

Procedure:

  1. Set the Stage
    1. In the hypothetical situation presented, what should the state do? What can the state do?
    2. What is the central issue here?
    3. How does the First Amendment deal with this?
  2. The Role of the Court
    The Scavenger Hunt. The technique used to involve students in the role of the Court is a “scavenger hunt.” The class is divided into groups of three or four. Each group should be given two lists: (1) a list of legal cases reviewed by the Court and (2) the scavenger hunt list which is a list of “clues,” consisting of issues reviewed in the legal cases (see next page). Each group must be assigned a different set of clues from the list. Using the case list, students are to find the cases that deal with or “match up” with their set of clues. There should be only two or three cases for each group of students.Once students have found the “matching cases” they must develop a worksheet explaining how the cases relate to their clues and what the Supreme Court decision and rationale was in each case. After the hunt, each group reports its cases and findings to the entire class. A class member may ask questions or get clarification at any time. Individual opinions are also accepted. Students are encouraged to make any connections with cases from other groups, as well as any preceding cases covered in class.The scavenger hunt can be fun. With some classes, the full cases from the Supreme Court Reporter are used; in others, workbooks or special excerpts are created for this unit. When the students begin sharing the findings it is helpful to set them up around the room in mini-panels, allowing each group to be seen, yet remain distinct. As each panel presents, all students should be taking notes.
  3. Coming Full Circle
    Return to the original hypothetical case: How might the Supreme Court rule in this case? How would you rule? What right, if any, does the state have to infringe upon the “free exercise” of religion as guaranteed by the First Amendment?There will be heightened discussion as the ruling on the case comes closer. It is easy for students to get sidetracked or to remain on one point too long, and the teacher will need gently to move them through all the questions while keeping the discussion objective and factual.

Relevant Legal Cases for Lesson Two

Reynolds v. U.S., 1879. Outlaws polygamy.
Pierce v. Society of Sisters, 1925. Struck down Oregon law requiring all students to go to public school, eliminating private schools.
Minerville School District v. Gobitis, 1940. Jehovah’s Witness not excused from saluting the flag in school.
W. Va. Board of Ed. V. Barnette, 1943. Reverses the decision in Gobitis.
Prince v. Massachusetts,1944. Parents must follow Massachusetts labor law if their children help sell religious literature (Jehovah’s Witness case).
Sherbert v. Vernel, 1963. State cannot deny unemployment benefits if employee quits due to a conflict between his/her job and religion.
U.S. v. Seeger, 1965. Allows for test of “religious beliefs” to include beliefs other than those of formal denominations.
Gillette v. U.S., 1971. Gillette was drafted and did not report for duty. Court ruled that he did not qualify for exemption under Selective Service Act, section 27.
Negre v. Larson, 1971. Negre was in the army, but wanted to be released. Court ruled against him as in Gillette.
Tilton v. Richardson, 1971. Court upheld “construction grants” for church-related colleges and universities.
Wisconsin v. Yoder, 1972. Compulsory school attendance forcing Amish children to continue school beyond 8th grade is struck down.
Wooley v. Maynard, 1976. New Hampshire law requiring the state motto to appear on personal cars is struck down.
Widmar v. Vincents, 1981. Students could use university buildings for religious meetings.
Thomas v. Review Board of Indiana Employment Security Division, 1981. State cannot deny unemployment benefits to workers who have a conflict between work and their religious beliefs.

Scavenger Hunt Clues

Group 1: Flag saluting as a form of idolatry; Jehovah’s Witnesses and Americanism
Group 2: Public School/Private SchooI Compulsory Attendance
Group 3: Conscientious Objectors v. War Duties
Group 4: Religious Practices v. State Laws; Marriage, Ceremonial participation/practices
Group 5: Labor Laws and Working Conditions
Group 6: Universities and Colleges–Same Limitations?
Group 7: State Laws and Religious Beliefs; Drivers Licenses and State Motto

Lesson 3. Putting It All Together: A Round Table Discussion

In a final lesson, students should verbalize and discuss the two broad issues that have emerged from the work done thus far. The suggested framework is a roundtable discussion, with the class divided into two or more groups, each with its own round table. Each member is assigned a particular task: the chairperson, timer, several recorders, and reporters etc.

All members receive a copy of an agenda with two issues for debate:

  1. The Establishment Clause and the Free Exercise Clause of the First Amendment can come into conflict with each other. To what extent can the conflict be resolved? What is the role and responsibility of the government and the individual citizen in seeking to resolve the conflict?
  2. How can the Free Exercise Clause, as an individual right, be balanced against the rights of the group, or society in general?Under each question, I sometimes list current examples in the news, and comments or questions that arose in the discussions of the previous days.While no consensus is expected in this exercise, everyone must answer both questions. Students should air all concerns and make sure that each member of their group has had the ability to express his/her view. In answering the two questions, students may use their notes and all other materials they wish to facilitate their discussion.In conclusion, students should share their conclusions and analyze the procedures they used throughout the unit. They evaluate the strengths and weaknesses of their group work and discussion throughout the unit. They must have time to reflect on the group dynamics and on their individual role in the unitOne of the broad issues on the agenda may be chosen by students for one of their writing assignments for the term.

 

Assessment:
In evaluating the performance of students, I recommend alternative modes of assessment. Students do get traditional tests in my class, but we are not limited to them. I often grade students on the worksheets completed in groups. Most panel discussions or debates are rated, as are the court decisions which students render. Their reflective pieces during processing can be included in a portfolio. Any of the issues or segments of this unit can be turned into a position paper or term paper for the course.

 

References

Arbetman, L.P., and McMahon, E. T, and O’Brien, E.L. Street Law: A Course In Practical Law. 2nd Ed. with N.Y. State Supplement. N.Y.: West Publishing Co., 1993.
Gallo, M. and Lesser, D. “Laws–Their Nature and Impact on Society.” Law-Related Education Curriculum, 7-12. Vol 2. New York: G/L Publishing, 1989.

Source: Social Education, Volume 60, Number 1, January 1996. Copyright 1996 National Council for the Social Studies

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