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October 1982 · Vol. 11 No. 4 · pp. 32–37 

The Flourishing of Conscience: Religious Accommodation in the Public Schools

Gerald D. Ediger


If individuals and groups are to enjoy meaningful religious freedom . . . we must ask whether, in the present age, religious tolerance must cease to be simply a negative principle and must become a positive commitment that encourages the flourishing of conscience. 1

While often compatible, the free exercise and nonestablishment clauses of the United States’ Constitution 2 have, equally as often, proven to be conflicting mandates. 3 Governmental action to protect the religious autonomy of one individual or group can all too easily exceed this limited purpose. The excessive protection of some citizens’ right to freely exercise their religious beliefs can amount to an establishment of those beliefs, and can thereby infringe upon the religious autonomy of other citizens. Thus, a leading constitutional scholar, Lawrence Tribe, has suggested that “the interplay of the two clauses will almost always prove more decisive than either clause viewed in isolation.” 4

Tribe distinguishes between “governmental actions arguably . . . compelled by the free exercise clause” and governmental actions supportive of religion, in ways that clearly violate the nonestablishment clause. 5 Stated another way, his analysis of prevailing case law indicates that the state can go beyond a postured neutrality toward the religious concerns of its citizens—beyond the mere provisioning of religious institutions with services, available to all citizens, such as police and fire protection; rather, in Tribe’s view the state can, indeed must, regard religious conscience in an affirmative manner, and positively safeguard its free exercise. Between the extremes of governmental actions which directly advance religious objectives and those governmental actions that are superficially neutral but inherently hostile, Tribe characterizes a “zone of permissible accommodation.” 6 {33}

Two recent trial court decisions have respectively held that the teaching of creation science in the public schools falls outside this “zone,” and that the teaching of evolution is not an establishment of secular religion. 7 While these are not appellate decisions and are only binding on the parties to the litigation, this author’s opinion is that the Supreme Court would uphold these decisions due to the Court’s rulings in areas which similarly involve religious speech in public classrooms. Having reached this conclusion, for reasons requiring lengthy constitutional analysis, the balance of this piece will be devoted to an examination of alternatives which can accommodate the diverse range of views on human origins.


Prefacing his discussion of the constitutionally guaranteed rights of religious autonomy, Tribe presents a case study of forbidden and permissible accommodations involving released time programs for religious instruction. 8 Tribe contrasts the two major Supreme Court cases in this area—McCollum v. Board of Education 9 and Zorach v. Clauson. 10 In both cases school authorities monitored instructor qualifications and class attendance by students in the released time program. The primary distinguishing characteristic between the cases was that in Zorach the students left the public school grounds to receive religious instruction, a practice the Court approved. The Court invalidated the program in McCollum which released the students to other parts of the school building.

In the opinion of this author, the program approved by the Court in Zorach presents an appealing model to be used in addressing the creation science dilemma. Classes could be offered in nearby churches or other public, but nongovernmental, buildings either as an alternative to or as a supplement to the regular science curriculum. This approach would have several positive features. First, it would avoid the objection that a particular religious view was being forced onto nonconsenting students. Second, it would be extremely cost-effective in comparison with setting up additional private schools in an era of increasingly scarce educational resources. Third, given appropriate amounts of organization, planning and fund-raising, such an approach could effectively defuse a volatile and divisive public issue.

Three other alternatives are available. First, private schools have always presented an alternative to public education. However, while the popularity of private schools appears to be growing, the cost of private education is beyond the means of many if not most North Americans. Second, home education is currently being tested in the courts against charges that it is incompatible with mandatory education laws. 11 While home education will probably be sustained on free exercise {34} grounds, 12 this alternative is even less practical than private education. Third, some have proposed a constitutional amendment. However, even if such an amendment were enacted, bitter local battles between adherents of varying theories of creation science, theistic evolution and nontheistic evolution would undoubtedly increase rather than decrease. More objectionable, especially from an Anabaptist perspective, is the fact that such an amendment would specifically allow the establishment of religion, with all the attendant political manipulation of religion which that implies. 13

Those with the means or opportunity to secure private education may feel unaffected by such issues, yet education is never a truly private undertaking. Nuances of this debate no doubt effect private schools as well. At the same time, private groups play an important role in shaping public education. While there are constitutional limits on the extent to which public schools can be influenced, an examination of the released time alternative indicates that public education need not result in a governmental monopoly.


The following discussion obviously expresses this author’s concerns; nevertheless, these concerns are presented because they show promise as a common ground on which adherents of numerous perspectives can agree. Furthermore, these concerns are “political” in a very broad sense—in the sense that public goals, and methods of obtaining those goals, are involved.

First, the debunking of pseudo-science should be a concern shared by advocates and educators of varying perspectives. In this regard, advocates of creation science have criticized evolution theory as being unscientific and as a manifestation of secular humanism. 14 Whatever the nexus between evolutionary theory and secular humanism, any body of knowledge which is held out as a science falls short of its scientific objective to the extent that it is taught uncritically, as dogma. To the extent that advocates of creation science demand that evolution science be science, the avowed objectives of evolution science are served. To this extent, some of the objections to the teaching of evolution can be satisfied without offering creation science as an alternate model in the curriculum. It is not inconceivable that classes can be taught, indeed are taught, in such a manner as to leave one student with the belief that evolution does not stand up to scientific scrutiny, another student with the ambition to unearth the “missing link,” and yet another student with the profound relief that gym class is the next hour.

A second concern relates to the manner in which the protection of another’s right to express a divergent view protects one’s own rights. {35} While the motivation for protecting another’s right of expression may be enlightened self interest, the voicing of such a concern may require an act of political courage. Amazingly, such acts are not uncommon. One example that comes to mind is the decision of the officers of the American Civil Liberties Union to risk the continued existence of their organization by choosing to defend the right of Nazis to publicly assemble in a predominantly Jewish community. Whatever one’s feelings toward that incident, it demonstrates the realization that the exclusion or suppression of one perspective, however reprehensible, threatens the exclusion of one’s own views from the public forum. Applied to the present issue, there are no doubt secular humanists who are as concerned about the exclusion of creation science from the classroom as are those advocates of creation science who find themselves directly affected—if only because of the recent exclusion of their views from the classroom. 15

The third concern relates to the use of the adversary system as the primary, if not the only, method of dispute resolution. On this point the views of the Chief Justice, the Christian Legal Society and traditional Anabaptism converge. 16 While litigation is clearly preferable to violent self-help methods, excessive litigation’s deleterious effects on both society and the party opponents—not to mention the judicial system itself—has led many to examine alternative methods of dispute resolution, including arbitration and counseling. An even more practical reason for avoiding litigation is the danger of losing and setting bad precedent, or even worse, winning and setting bad precedent. Any Supreme Court opinion that upheld the teaching of creation science in public schools would be used innumerable groups claiming to be able to validate their religious beliefs in scientific terms, and would open the door to a bizarre collection of “sciences.” For example, in Malnak v. Maharishi Mahesh Yogi 17 the inclusion of Transcendental Meditation (TM), the “Science of Creative Intelligence,” in a public school curriculum was challenged. The TM advocates presented scientific studies demonstrating the beneficial physiological effects of this practice, but a federal appellate court found it an invalid establishment of religion. Had Malnak been decided the other way, it would have been a good precedent to cite in a brief in support of the teaching of creation science. Surely such a result should give even the most ardent advocates of creation science reason to pause.


This author’s limited grasp of the theological and scientific complexities of this issue has led to a certain amount of anxiety in approaching the subject matter. It was therefore reassuring to discover a {36} meditation by Dietrich Bonhoeffer in which he also expressed a feeling of inadequacy in approaching the subject of cosmic origins:

How do you know of the beginning, stranger, you who write this sentence? Have you seen it, were you there in the beginning? Does not your God himself say to you, ‘Where were you when I laid the foundation of the earth? Answer if you have understanding.’ 18

Bonhoeffer’s counsel concerning the relative importance of this issue is also timely, when one considers the emotion which the creation story and evolution have continued to generate since the advent of Darwin:

(T)he creation story should be read in church in the first place only from Christ, and not until then as leading to Christ. We can read towards Christ only if we know that Christ is the beginning, the new and the end of our world. 19

Legal ethics compel zealous advocacy; at the same time a certain detachment is required lest one fall prey to the charge of champerty. Perhaps Christian advocacy requires a similar balancing. Zeal has always been a hallmark of those who are committed to the gospel. Yet a profound sense of detachment from this human life and its daily cares is also a fundamental Christian characteristic. While Christian zeal is apparent in any news article concerning creation science, it is equally apparent that anyone who seriously struggles with the question of human origins is reminded of the limits to understanding and of our own mortality. And it is in just such an encounter with our limits, in spite of our zeal, that we encounter God.


  1. Tribe, American Constitutional Law (1978) 14-7, at 834 (hereinafter “Tribe”). Appreciation is expressed for student papers and presentations on creation science in “Advanced Constitutional Law Seminar: Issues in Church and State,” at the University of Tulsa College of Law during the summer of 1981.
  2. U.S. Const. amend. I. While this piece is necessarily limited to United States’ law, see Hudon, Church, State and Education in Canada and the United States: a Study in Comparative Constitutional Law, 21 Les Cahiers Droit 461 (1980).
  3. See, e.g., Choper, The Religion Clauses in the First Amendment: Reconciling the Conflict, 41 U. Pitt. L. Rev. 673 (1980).
  4. Tribe, supra note 1, at 834.
  5. Tribe, spura note 1, at 822.
  6. Tribe, supra note 1, at 823.
  7. Segraves v. California, No. (Calif. Super. Ct. 1981); McLean v. Arkansas Bd. of Educ., 50 U.S.L.W. 2412 (Jan. 5, 1982). {37}
  8. Tribe, supra note 1, at 323-25. See also, Ericson, The Neglected Open Door: Released Time Education, 24 Advocate 6 (1981); Buchanan, Accommodation of Religion in the Public Schools, 28 U.C.I.A.L. Rev. 1000 (1981); Swanson, Accommodating Religion in the Public Schools, 5 Neb. L. Rev. 425 (1980).
  9. 333 U.S. 203 (1948).
  10. 343 U.S. 306 (1952).
  11. A Richardson, Texas family was recently charged with violating compulsory education laws in spite of their claim that home tutoring was the only means of obtaining a Christian education for their children.
  12. See generally, Wisconsin v. Yoder, 406 U.S. 205 (1972) (state compulsory education laws held violative of free exercise of Amish religious beliefs).
  13. See, e.g., Kreider, “Anabaptists and the State,” in The Recovery of the Anabaptist Vision 191 (G. Hershberger ed. 1957) (hereinafter “Kreider”).
  14. Blinderman, Unnatural Selection: Creationism and Evolutionism, 24 J. Church & State 73 (1982); Melnik, Secularism in the Law: The Religion of Secular Humanism, 8 Ohio N.U.L. Rev. 329 (1981).
  15. Epperson v. Arkansas, 393 U.S. 97 (1968) (1928 Arkansas statute prohibiting the teaching of evolution held violative of nonestablishment clause).
  16. See 68 A.B.A.J. 257 (March 1982) (reporting on views of Chief Justice Burger on ‘new tools’ for dispute resolution); Kreider, supra note 13, at 193. The Christian Legal Society has opened numerous centers assisting in counseling and dispute resolution according to various news reports.
  17. 592 F.2d 197 (3rd Cir. 1979).
  18. D. Bonhoeffer, Creation and Fall (1937) (J. Fletcher trans. 1959), at 15.
  19. Id. at 12.
Gerald Ediger is a law student at the University of Tulsa Law School, Tulsa, Oklahoma.

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