Legal Commentary

?Separation of Church and State?

By Eugene Volokh

The Des Moines Register reports:

Dale Halferty, who has taught industrial arts at Guthrie Center High School for three years, was placed on paid leave Monday after he acknowledged to district officials that he told [a] student he could not build [a Wiccan] altar in class.

?But this kid was practicing his religion during class time, and I don?t agree[,? said Halferty.]

Halferty said he previously told another student he could not build a cross in shop class because he believes in the separation of church and state. ?I don?t want any religious symbols in the shop,? he said.

His viewpoint: ?We as Christians don?t get to have our say during school time, so why should he?? ...

Halferty said he ... decided allowing the student to make the altar ?was wrong on every level.?

?It scares me. I?m a Christian,? he said. ?This witchcraft stuff ? it?s terrible for our kids. It takes kids away from what they know, and leads them to a dark and violent life. We spend millions of tax dollars trying to save kids from that.?

Halferty?s actions strike me as quite wrong: Students shouldn?t be discriminated against in shop class based on the religiosity of their projects (whether the projects are crosses or Wiccan altars). Nothing in Establishment Clause caselaw, or broader ?separation of church and state? principles, requires this. Just as there?s no constitutional problem with students? using school property for student-run religious group meetings, so there?s no constitutional problems with their doing the same to build their own personally chosen religious projects.

Now of course the teacher may reasonably limit the topics, for instance if a shop teacher asks people to make bookcases (in which category crosses and tables wouldn?t fit, though bookcases decorated with crosses would), or if an English teacher asks people to write reports on 18th-century novels (in which category the Bible wouldn?t fit). And when the student is speaking to other students, who are required to listen, the teacher might likewise be able to exclude pro? or anti-religious advocacy.

But this is shop class; the student is making his own thing, not lecturing to classmates about why they should convert to Christianity or Wicca. I see no basis here for the sort of discrimination against religion that the teacher apparently engaged in, whether it is motivated by anti-Wiccan sentiment, or a misguided notion of ?separation of church and state.?

Likewise, the petition signed by 70 students (out of 185 total) ?saying they didn?t want witchcraft practiced at the school? strikes me as no more significant than a hypothetical petition demanding that Christian clubs not be allowed at the school, or for that matter that all religious clubs not be allowed (while nonreligious noncurricular clubs are allowed). If you don?t like another?s religion, you don?t have to practice it. You don?t have to engage in the religious practices that he brings to school. You don?t have to read the religious books that he brings to school (Halferty said ?the student kept returning to class with a book of witchcraft?). And you don?t have to worship using the religious objects that he makes in shop class, in a process that is just as educational to him as making a nonreligious table would be to a non-Wiccan student. Enjoy your own religion ? or your own nonreligious philosophy or set of hobbies or construction preferences ? and let others enjoy theirs.

Thanks to Prof. Howard Friedman (Religion Clause) for the pointer.

Full post as published by The Volokh Conspiracy on March 03, 2010 (boomark / email).