Islam in The Public Schools--Part 3--Was "Religious Activity" Taking Place at Excelsior School?

This is Part 3 of this series on Islam in the public schools, in particular the decision in Eklund v.Byron Union School District. The parents of a seventh-grader sued the school district (and the superintendent of schools, the teachers, and the principal of the Excelsior school), claiming that the use of an "interactive educational module" simulating the five pillars of the muslim religion violated the Establishment Clause of the First Amendment of the Constitution (at least as it is currently interpreted).

The undisputed facts of the case are found in the two previous posts regarding this dispute. I say "undisputed" because the judge ruled on cross-motions for summary judgment in favor of the defendants, and summary judgment is only appropriate when there is no genuine issue of material fact (there's nothing for a jury to decide, because the parties basically agree on the facts) and the moving party is entitled to judgment as a matter of law.

Before I get to the judge's reasoning, I want to address the facts just a little bit more...the reason I went to the trouble of getting the opinion was so I could see whether the "facts" reported on various websites were the "facts" the judge ruled on. To be fair, there were some differences. NewsMax reported that children were required to play "jihad (holy war) games"--in fact the game was a "haaj (pilgrimage) game"--in terms of the religious content, this may be a distinction without a difference, but at least they weren't advocating Islamic violence.

Moreover, students were not "required" to choose a muslim name or wear Islamic garb as has been reported--they were "encouraged" to do so. NewsMax also reported that this was an "intensive three-week course in California government schools," making it sound as though this module is taught to every California seventh grader as a matter of state policy, when in fact it is not...the module at issue was not even used in every seventh grade world history class in the Excelsior School plaintiffs attended.

With these facts in mind, let's look at the judge's opinion...First of all, Judge Hamilton disposed of any thought that she was going to order the school to stop teaching the "interactive educational module" regarding Islam. Both of the named child-plaintiffs had completed the course, and would never be in seventh grade history again, and so the judge ruled that, insofar as they sought an injunction against the school to stop the teaching of the module, they no longer presented a "live case or controversy" and therefore were not entitled to the equitable relief of a court order prohibiting the use of the module...the claim was moot.

Though not entitled to equitable relief, however, the students were also suing the school district, the superintendent, the teachers of seventh grade history, and Excelsior's principal for damages. The court found the superintendent and the district immune from suit, as they were acting only in their official capacities, and the Eleventh Amendment bars damage claims against state agencies acting officially. At this stage, therefore, only nominal damage claims against the teachers and the principal for violation of the Constitution remained in the suit.

According to the opinion, "All parties agree that the school district is entitled to teach students a basic history of Islamic religion and culture. The parties instead dispute whether role-playing games, and the details of this particular role-playing game, are a proper way to do so."

According to the court, the Establishment Clause is violated if: 1) a school coerces a student into participating in religious activities, even if the coercion is subtle and indirect, and even if students may opt out of the activity, or; 2) the activities in question advance or endorse a particular religion.

The remainder of this post will cover the court's analysis of the first Establishment Clause test--whether the students were coerced into participating in religious activities.

In discussing the first test, the court avoided having to analyze whether the Eklund children had been coerced into participating in the educational module because, according to the court, the activities in question did not rise to the level of participating in religious activities. The court reasoned that an objective observer would not have considered the students "to have performed any actual religious activities in their seventh grade world history class." They did not actually proclaim the "Shahada", pray five times a day facing Mecca, donate to charity as an act of faith, fast for the whole month of Ramadan, or make a real pilgrimage to Mecca. They only "approximated" these activities.

The court noted that the Ninth Circuit has already held that it is acceptable to discuss witchcraft and instruct students to pretend to cast magic spells, since these are just "fantasy activities...that happen to resemble religious practices." Brown v. Woodland Joint Unified Sch. Dist., 27 F.3d 1373, 1382 (9th Cir. 1994).

The court also stated that, if there was a subjective lack of spiritual intent on the part of the students, an objective observer would not conclude that "religious activity" was taking place. In other words, if the children's state of mind is not "worshipful" toward the activity, there is no "religious activity."

I find this analysis incredible. First of all, even a "moment of silence" has been held to constitute religious activity, as has saying "under God" during the Pledge of Allegiance in Judge Hamilton's very Circuit. Yet the recitation of portions of muslim prayers, symbolic fasting and charitable donation are not. The court seemed to make much of the fact that, although the students did a portion of activities that would be Islamic, they never did the complete Islamic rituals...apparently, anything short of actually proclaiming the divinity of Allah, praying five times a day facing Mecca, fasting for a month, charitably donating as an act of faith, and traveling to Mecca is permissible. In the court's words, the activities were "analogous...[but]...not actually the Islamic religious rites."

Then, the court buttresses it's argument by saying that "'fantasy activities...that happen to resemble religious practices'" are not religious exercises violative of the Establishment Clause. (Quoting Brown). While claiming to use an objective test, the court is really saying that whether or not activities will pass constitutional muster will depend on whether the court finds the practice in question to be a "fantasy activity" or "real religion"...a highly subjective factual inquiry that calls into question whether the court should ever have entertained these motions for summary judgment.

Finally, the idea that a "subjective lack of spiritual intent" by the students establishes that no religious activities tool place is laughable. The whole purpose of this prong of the Establishment Clause test is to ensure that student are not coerced into religious activities. Their "spiritual intent" or lack thereof should not be material to the test, since obviously people being coerced lack the requisite intent the court would require. Nonetheless, the court concluded that there was no religious activity and therefore no coercion into religious activity.

The Eklunds' still had one more arrow in their quiver...the court could find that, even if there was no religious activity, the unit advanced or endorsed Islam...

Tomorrow--Endorsement of Islam?