99-16

You have requested my opinion on the constitutionality of three courses that are listed in the State Board of Education’s proposed curriculum that would authorize state funding to local school systems in Georgia if they offer those courses. The courses are: (1) a Virtual High School course to be taught through the Internet entitled "Scientific and Religious Perspectives on Life and Intelligence;" (2) "History of the Old Testament;" and (3) "History of the New Testament." You ask whether it is a violation of the state or federal constitution to offer those courses as electives in public high school. Unfortunately, the issues raised by your request are not susceptible to definitive responses since the method and context in which a course is taught will greatly influence the analysis of its constitutionality. I will, however, endeavor to give you my analysis of the issues so that the Board will be aware of the issues likely to be raised should it decide to approve these courses.

I. DESCRIPTION OF COURSES

In the materials provided to me, the courses in Bible history are described as designed to equip the student with a fundamental understanding of the important literary forms contained in the Bible, as well as the people and symbols often referred to in literature, art and music. They also emphasize the historic aspects of the Bible. The course outline does not show a chapter on the resurrection but there is a section dealing with the parables of Jesus. There also is a section in the outline that deals with Genesis that could lend itself to a teaching of the Christian beliefs regarding creation. The outline is attached as an exhibit to this opinion.

The Virtual High School Course is described as designed to "help students improve their critical reasoning skills through readings and discussion of the scientific and religious perspectives on life and intelligence." The course proposes to address such questions as whether it is ethical to clone human beings or modify our own genetic makeup and whether a computer will ever really think or have emotions. It is described as requiring critical reasoning and writing. The information provided my Office about this course was very sketchy and an inquiry to the "Virtual High School" which developed the course yielded no additional information. It appears that the course will be directed in large part at the discretion of the teachers, one of whom is suggested to be trained in theology. All three courses will be offered as electives.

II. CONSTITUTIONAL PROVISIONS

The federal and state constitutions differ in their treatment of the principles at issue here. I will discuss the courses in light of these varying principles.

A. THE FIRST AMENDMENT TO THE

UNITED STATES CONSTITUTION

The "establishment clause" of the First Amendment prohibits a state or the federal government from making a law "respecting an establishment of religion." See Lemon v. Kurtzman, 403 U.S. 602 (1971). In that case, the Supreme Court of the United States set out a three-part test by which courts may analyze governmental conduct under the Establishment Clause. In order to be declared constitutional, the activity: 1) must have a secular purpose; 2) must not have as its principal or primary effect advancement or inhibition of religion; and 3) must not foster "an excessive governmental entanglement with religion."

There have been several cases decided by the federal courts that deal specifically with the content of school curriculum. Beginning with the Supreme Court case of School Dist. of Abington Township v. Schempp, 374 U.S. 203 (1963), courts have recognized the value of teaching about religion and the history of religion, yet have consistently struck down practices or courses when the religious information or practice was not presented "objectively as a part of a secular program of education." The Court noted in Schempp that:

[I]t might well be said that one’s education is not complete without a study of comparative religion or the history of religion and its

relationship to the advancement of civilization. It certainly may be said that the Bible is worthy of study for its literary and historic qualities. Nothing we have said here indicates that such study of the Bible or of religion, when presented objectively as a part of a secular program of education may not be effected consistently with the First Amendment.

Id. at 225.

In spite of the above statement, the Schempp Court struck down a Pennsylvania statute requiring the reading of the Bible in public schools. Two Supreme Court cases dealing with the teaching of the Biblical theory of creation in the public schools have reached similar results. See Edwards v. Aguillard, 482 U.S. 578 (1987); Epperson v. Arkansas, 393 U.S. 97 (1968).

In 1964, this Office issued an official opinion in the wake of the Schempp decision noting that :

Public schools could . . . offer secular courses in comparative religion or religious history without being in violation of the United States Constitution. Nor would it be improper, where such a course is one which is secular in nature and objectively presented (i.e., not limited to a study of Christianity nor presented in a manner favoring Christianity over non-Christian religions), to read, study and discuss the Bible in connection with the course of study.

1963-65 Op. Att’y Gen. p. 573, 574.

However, the opinion went on to state:

I would think that any course limited to "Bible Study" or "Bible History" would most likely be declared by a reviewing court to have the furtherance of Christianity as its primary objective and hence be violative of the First Amendment of the Federal Constitution.

Id. at 576. Although issued thirty-five years ago, I am aware of no case law that would suggest that this opinion does not remain an accurate and reasonable interpretation of the law in this area.

A few federal district courts have considered the constitutionality of offering courses dealing with the Bible as history or literature. In Vaughn v. Reed, 313 F. Supp. 431 (W.D. Va. 1970), the court found that a religious education program could be offered in elementary school if the purpose was not religious indoctrination but was only objective instruction about religion. Compare Crockett v. Sorenson, 568 F. Supp. 1422 (W.D. Va. 1983) (enjoining the teaching of a Bible teaching program because the program was instituted as a religious exercise and because evidence indicated it was not being taught in an objective manner). In Wiley v. Franklin, 468 F. Supp. 133 (E.D. Tenn. 1979), the district court found that a Bible history course could be taught under a strict series of guidelines requiring close supervision by the local school board to ensure objectivity. In Gibson v. Lee County School Bd., 1 F. Supp. 2d 1426 (M.D. Fla. 1998), the court found with regard to the Old Testament portion of a Bible history course that the school system had satisfied the "secular purpose" prong of the Lemon test because the curriculum had been modified at the suggestion of counsel to delete sections and lessons that might offend the Constitution. However, the court found it could not make a ruling on the other two prongs of the Lemon test - excessive entanglement with religion and objective effect - without evaluating classroom performance. The court also found that the New Testament portion of the course was constitutionally infirm because it contained the Christian story of the resurrection and "the only reasonable interpretation of the resurrection is a religious interpretation," incapable of being taught as secular history. Id. at 1434. Finally, in Herdahl v. Pontotoc County Sch. Dist., 933 F. Supp. 582 (N.D. Miss. 1996), the district court noted that while the study of the Bible in public schools is not per se unconstitutional, a course entitled simply "The Bible" and later renamed "A Biblical History of the Middle East" could not survive constitutional scrutiny because it was not taught in an objective and neutral manner.

Three years ago this Office issued an opinion on the question of whether "creationism" could be included in the science curriculum in Georgia’s public schools consistent with the First Amendment. The conclusion was that "various theories regarding the origin of humankind may be validly taught in the public schools only if there is a ‘clear secular intent of enhancing the effectiveness of science instruction.’" The opinion went on to state that creation science "as a theory of the origin of matter, life, and the world may be referenced so long as it is with a secular intent to enhance the effectiveness of science instruction, but such theory may not be otherwise promoted or advanced given its inherently religious nature." 1996 Op. Att’y Gen. 96-6, p. 12.

Although the Bible history courses under present consideration are described in a manner that could arguably be characterized as secular, the State Board of Education has no knowledge of and no control over how these courses will actually be taught at the local level. That is a matter within the control of local school systems. See Ga. Const., Art. VIII, Sec. V, Para. I. As two district courts that have considered Bible courses pointed out:

[t]he ultimate test of the constitutionality of any course of instruction founded upon the Bible must depend upon classroom performance. It is that which is taught in the classroom that renders a course so founded constitutionally permissible or impermissible. If that which is taught seeks either to disparage or to encourage a commitment to a set of religious beliefs, it is constitutionally impermissible in a public school setting.

Gibson v. Lee County, 1 F. Supp. 2d at 1433 (quoting Wiley v. Franklin, 474 F. Supp. 525 (E.D. Tenn. 1979)).

In addition, the federal courts have been:

particularly vigilant in monitoring compliance with the Establishment clause in elementary and secondary schools.

Families entrust public schools with the education of their children, but condition their trust on the understanding that the classroom will not purposely be used to advance religious views that may conflict with the private beliefs of the student and his or her family. Students in such institutions are impressionable and their attendance is involuntary.

Edwards v. Aguillard, 482 U.S. 578, 583 (1987).

The State Superintendent of Schools has stated that education specialists within the Department of Education have examined the curriculum of the Bible history courses and determined that they have a secular purpose. That statement may be given judicial deference as it was in the Gibson case. However, should the courses be adopted and a suit filed challenging their constitutionality, other education experts may present evidence that the curriculum does not have a secular purpose. Thus, the Bible history courses at issue here may fail even the first prong of the Lemon test in that a court may find that they have a sectarian, not a secular, purpose. See Hall v. Board of Sch. Commissioners of Conecuh County, 656 F.2d. 999 (5th Cir. 1981). Regardless of how that question is determined, however, if the courses are actually taught in a manner that advocates or endorses Christianity, they will be declared unconstitutional. Therefore, I am unable to assure you that if a suit is filed the courses will survive First Amendment scrutiny. Further, as this Office has opined in the past, a course limited only to the history of the Bible is particularly susceptible to being found unconstitutional under federal constitutional precedent because it does not compare the beliefs of other religions with those of Christianity.

B. THE GEORGIA CONSTITUTION

The Georgia Constitution prohibits money from being "taken from the public treasury, directly or indirectly, in aid of any church, sect, cult, or religious denomination or of any sectarian institution." Art. I, Sec. II, Para. VII. This prohibition is similar to the federal establishment clause in that the problem it seeks to prevent is state discrimination against some religions by providing aid to others. Because the Georgia Constitution explicitly prohibits any "aid" to religion, a prohibition that is only implicit in the First Amendment, it has been interpreted to be more restrictive. See 1960-61 Op. Att’y Gen. p. 349.

In the context of religious displays on the grounds of the Capitol, this office has ruled that a Christian nativity scene on the Capitol grounds violated the state and federal constitutions because a viewer "could reasonably perceive that one particular religion has the support and approval of the state," and because state money was used to maintain the Capitol grounds. See 1990 Op. Att’y Gen. 90-38, p. 76. See also County of Allegheny v. ACLU, 492 U.S. 573 (1989) (placement of creche in county courthouse was a forbidden endorsement of Christianity). The same observation could be made about the Bible history courses at issue here. In spite of the theoretical objectivity of the course outlines, no other religion’s holy book is the subject of an approved course. Thus, because of the exclusivity of the courses, they could be viewed as endorsing Christianity, sending "a message to nonadherents of Christianity that they are outsiders in the political community." County of Allegheny, 492 U.S. 573, 629 (O’Connor, concurring).

Even if the courses are electives, public money, both state and local, will be spent to provide them. See O.C.G.A. §§ 20-2-140, -160. Although there has been little judicial interpretation of the "aid to religion" provision in the Georgia Constitution, it is susceptible to an interpretation that the use of public funds to present instruction on the Bible, particularly on the New Testament, without parallel instruction on the history and theory of other religions constitutes "aid" to Christianity as a preferred belief and thus violates the Georgia Constitution. Again, I am unable to assure you that the Bible courses will survive judicial scrutiny relating to the Georgia Constitution.

III. CONCLUSION

Based on the foregoing, it is my official opinion that courses that include reference to the Bible may survive First Amendment scrutiny only if their content is determined to be secular and they are taught in a secular, objective manner. In addition, I must caution that because the actual teaching of Bible courses will be supervised by local school systems, and not by the State Board of Education, the Board is not in a position to ensure that the courses will actually be conducted in accordance with constitutional standards. This issue should also be considered by the Board.

With respect to the State constitution, the use of public funds to teach the Bible courses in question may be held to constitute "aid" to a particular religion, i.e., Christianity, if appropriate instruction regarding other religions is not included or if the instruction is not offered in a neutral and objective manner.

Prepared by:

KATHRYN L. ALLEN

Senior Assistant Attorney General

EXHIBIT

National Council

On Bible Curriculum

In Public Schools

P.O. Box 9743

Greensboro, NC 27429

(336) 272-3799

BIBLE I

BIBLE II

"This curriculum has been prepared using the King James Bible, but school districts are free to use whichever translation they choose, or they may allow each student to use the translation of his or her choice. Sometimes the students can benefit from comparing translations in and out of class."

TABLE OF CONTENTS

Page

Objectives/Methods of Presentation ………………………………………………1

Resources …………………………………………………………………………2

Bible I …………………………………………………………………………….6

Topical Outline

Introduction

Objective

Outline

Suggested Activities

Period of Hebrew History

Translations of the Bible

Completed Outline

Worksheet Outline

The Lord's Prayer From Various Translations

Bible Book Letter Box

Structure of the Old Testament Chart

Genesis…………………………………………………………………………….19

Objective

Outline

Suggested Activities

Outline of Creation

Symbols of Creation Chart

Official Opinion 99-16

Visit

Hours