I looked over each of these assignments and I am dumbfounded by the assertion that these assignments inculcate belief. They seem well crafted to guide a student into studying the tenets of, and learning about, important aspects of the Christian religion, and about the connection between the Christian religion and the formation and progress of this Nation.
I disagree that Mr. Williams' assignment sheet, if authentic, is a "well crafted" history lesson for reasons already explicated in detail by others, particularly Ed Brayton. I also agree with all those who have stated that if the assignment sheet is authentic, Mr. Williams does not have much of a case.
But, the hypothetical issue Marty Lederman framed at the beginning of the week ("not whether the school may restrict Mr. Williams' preferred mode of teaching, but whether it must") is a much closer question.
And, I agree with Jim Henderson that Mr. Williams' purported assignments to learn about Easter are similar to the assignments to learn about Islam used by the Byron Union School District that were upheld last year by a federal judge in the Northern District of California and are now on appeal to the Ninth Circuit. See, for example, the amicus brief to the Ninth Circuit from the Californian School Boards And National School Boards Associations in pdf format at:
http://www.nsba.org/site/view.asp?TRACKID=&VID=50&CID=470&DID=34136
And, finally, I also agree with Jim Henderson that there is nothing per se unconstitutional about being a bad history teacher, about teaching only one side of a historical controversy, or even about teaching bogus history. If Mr. Williams were teaching only the viewpoint that Ronald Reagan was responsible for the fall of the Soviet Union or if Mr. Williams were using bogus evidence to deny the Holocaust, he'd be a bad teacher, but there's no Establishment Clause issue.
The subject about which Mr. Williams is teaching, however, is the historical relationship between the US government and religion ("the role of religion at the nation's founding" and "the reasons for the Establishment Clause in the First Amendment" according to paragraph 41 of his complaint), making the case a kind of "bank shot" endorsement case. Mr. Williams isn't so much directly endorsing religion as a state agent today (unless such facts come out), but, he is using one-sided and possibly bogus evidence to teach that the US government endorsed Christianity in the past. Williams' purported assignment sheet uses dubious sources to support the contentions that the US Constitution is "only for a moral and religious people" and the US government was "founded on Christian principles." I expect the "excerpted" sources listed in paragraph 40 of Williams' complaint will turn out to be similarly dubious and tendentious.
A more balanced debate on the subject could well be a valid history lesson in a public school, though it may be overly ambitious for the fifth grade. The study of the claim that our law is based on Christian principles could include Jefferson's letter to Dr. Thomas Cooper in which he argues "from the settlement of the Saxons to the introduction of Christianity among them, that system of religion could not be a part of the common law, because they were not yet Christians, and if, having their laws from that period to the close of the common law, we are able to find among them no such act of adoption, we may safely affirm (though contradicted by all the judges and writers on earth) that Christianity neither is, nor ever was a part of the common law." See this address:
http://www.stephenjaygould.org/ctrl/jefferson_cooper.html
Or, a balanced approach could include many other statements Jefferson made about Christianity like "And the day will come when the mystical generation of Jesus, by the supreme being as his father in the womb of a virgin will be classed with the fable of the generation of Minerva in the brain of Jupiter." See this address:
http://www.stephenjaygould.org/ctrl/jefferson_adams.html
Maybe Williams' distribution of GW Bush's National Prayer Day proclamation could be balanced with Madison's argument that such presidential proclamations should be unconstitutional (or maybe just contrast Madison's argument against his own religious proclamations as president). See this address:
http://www.stephenjaygould.org/ctrl/madison_livingston.html
Or, instead of tendentious excerpts, Williams could just supply all the documents available at this address:
http://press-pubs.uchicago.edu/founders/tocs/amendI_religion.html
Thus, though I agree with Jim Henderson that being a bad history teacher creates no constitutional issue "unless some standard can be identified that embodies the concerns of the First Amendment," when the subject being taught is the relationship between the US government and religion, Williams' one-sided, bogus approach does create just such Establishment Clause concerns (assuming the facts of the case turn out as I expect).
Allen Asch
erstwhile ACLU cooperating attorney
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