Another school year, another round of controversy about religion in public education. This fall, two new yet already divisive publicly financed schools are set to open: the Khalil Gibran International Academy in Brooklyn and the Ben Gamla Charter School in Hollywood, Fla. Both describe themselves as nonsectarian institutions that emphasize a particular language — Arabic and Hebrew, respectively — and both have been criticized on the assumption that they will be organized around the distinctive cultures (and thus religions) associated with those languages. Meanwhile, at the University of Michigan at Dearborn, a small firestorm has erupted over plans to install foot baths in school washrooms to help Muslim students perform the ablutions required for daily prayer.
In each of these cases, education officials seem to be making an effort to accommodate a religious community. And in each case, this perfectly understandable impulse has led to criticism that the concession oversteps the separation between church and state. The uproar over Khalil Gibran has reached a fever pitch, and the founding principal has already resigned.
Americans have been debating the place of God in schools almost uninterruptedly since public education got its start in the country nearly two centuries ago. As the United States becomes more religiously diverse, its collective uncertainty on this issue becomes all the more salient. The Supreme Court, with its confused and confusing doctrine on the establishment clause, has not provided the guidance to resolve these problems. The court tends to ask whether a state’s action has a “secular purpose” or whether it “endorses religion.” This reflects the widespread, everyday assumption that you can easily tell whether something is religious or secular. Yet in practice it can be hard to say. Indeed, to what extent the state’s action is religious or not is often precisely what needs to be explored.
The source of the confusion is the mistaken notion that the categories “religious” and “secular” are strictly binary, like an on-off switch. It’s true that some things are inherently religious, like a prayer or a church or a Torah scroll. (It would be impossible to make heads or tails of them without reference to their religious nature.) But it’s also true that many things that are not inherently religious are not inevitably secular either: they can be infused with religious meaning through the intention of a believer. A gymnasium or a warehouse has a perfectly secular use but also can be consecrated by worshipers who invoke God’s name there for purposes of worship. Examples of what you might call “dual use,” such things can be at once secular to one person and religious to another.
The most convincing interpretation of our constitutional tradition is that the government may not engage in or pay for conduct that is inherently religious but may accommodate religion when the steps taken to do so are not inherently religious in themselves. The phenomenon of dual use suggests a helpful way of restating this requirement: the state may expend resources to accommodate activities that are religious in the eyes of the believers as long as those activities can still be performed by the general public that interprets them as secular.
As it happens, the largest accommodations of religion are those that Americans rarely notice, precisely because the accommodations serve both religious and secular ends. Closing the government for one day a week, for instance, is not inherently religious; but if one day is to be chosen, it is perfectly reasonable to accommodate the traditional custom of Sunday Sabbath. It would be wrong to call the Sunday Sabbath “secular.” But the fact that many Americans loyally attend to their N.F.L. needs on the same day that many honor their faith shows that the religious character of Sunday is only one side of the dual-use coin.
By these lights, installing foot baths in the University of Michigan’s washrooms is a permissible, dual-use accommodation. It would be different if Michigan were planning to build ornate ablution fountains like those outside mosques. Those structures, designed to glorify God by preparing the faithful for prayer, are clearly religious in themselves; non-Muslims would never think to wash their feet in them. But Michigan’s showerlike basins will be functional in design and open to all, as evidenced by the jokes they have occasioned about the value to all college students of an occasional foot washing.
The public schools at the center of the other recent controversies, however, seem to represent accommodation of the single-use variety. Khalil Gibran, administered by the New York City Department of Education, is a watered-down, American version of the British and Canadian models of state-run religious schools catering to Muslims. The school’s name, borrowed from a noted Christian-born Lebanese-American writer of universalist sympathies, appears calculated to signal that the school is not narrowly Muslim. Yet Islam will presumably be taught — it would be educationally indefensible to teach Arab civilization without including it — and enrollment seems likely to include Muslim students in disproportionate numbers. It is difficult to imagine the city sponsoring such an institution without the impetus to maintain warm relations with its Muslim community in the wake of 9/11.
The Ben Gamla Charter School, for its part, claims it will teach Hebrew without inculcating religion. But the school, headed by an Orthodox rabbi, appears to be a version of the nondenominational Jewish community schools that have proliferated recently across the United States. The name Ben Gamla is taken from an Israelite high priest, said by the Talmud to have provided for Jewish schools throughout Judea.
Teaching religious ideas as an academic subject can, of course, be a prime example of dual use, since such ideas may be studied critically without embracing them. But if a school employs religion as the organizing principle for a curriculum inextricably intertwined with a single religious faith, dual use is unlikely to emerge. Studying religious doctrine as a set of ideas to be believed is inherently a religious act — in fact, Judaism traditionally considers the study of God’s word the very essence of religious devotion.
Although it cannot be known for certain before they have begun instruction, Khalil Gibran and Ben Gamla seem poised to teach religion as a set of beliefs to be embraced rather than as a set of ideas susceptible to secular, critical examination. What, after all, is the point of a Jewish cultural school if not to bring the students to appreciation and acceptance of Jewish values? And what are those values if not the outgrowth of Judaism’s millenniums of religious faith and practice? Not that Judaism without God is impossible. Secular Zionism sought to redirect yearning for God’s redemption toward a national homeland. Likewise, Arab nationalism was born from the effort to supplant Islamic religious membership with a secular, cultural identity. But in both cases, the surgery designed to excise God was only partly successful, and there is ample reason to anticipate a recurrence in the classroom as there has been in the rest of the world.
The encouraging news is that beyond the headlines and controversies, it is possible to find common-sense solutions to the problems of church and state in the schools. In the small coastal school district of Wiscasset, Me., this school year will see the continuation of a “wellness room” that was opened last spring for students and staff members to use outside of class time for the reduction of stress. No sooner had the wellness room been proposed than questions were raised about what stress-reduction practices would be permitted there. After all, prayer can reduce stress, and then there are the quasi-meditative practices like yoga and reiki, often of religious origin, which many Americans use for relaxation and recreation.
Fortunately for Wiscasset, the school superintendent, Jay McIntire, framed a sensible solution. His policy states that religious practice is allowed in school spaces outside of class time when it is not led or coordinated by school officials — which means that no practice of stress reduction would be excluded on religious grounds. The unspoken principle behind this rule is that the wellness room is an example of dual use: it may be used to reduce stress through religious and nonreligious means alike.
Even this reasonable policy, though, still requires the school administration to make the tough decision of which practices are in fact religious and to ensure that no school staff member administers those. There is no simple solution to this inevitable problem. Wiscasset’s policy is on the right track: it asks whether the practice involves acknowledgment of a higher power. Here, too, without the help of the courts or the legal academy, this unsung school district has come up with an approach deeply grounded in America’s church-state traditions: as long ago as 1776, the Virginia Declaration of Rights defined religion as that duty that every man owes to his creator.
Noah Feldman, a contributing writer for the magazine, is a law professor at Harvard University and adjunct senior fellow at the Council on Foreign Relations.
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