The Censoring Of Zachary

Measured in terms of America's traditional causes of discord--antagonisms arising from class, race, ethnicity and religion--there never has been more domestic tranquillity. Yet the sulfurous wrangling about religion in the fight for the Republican presidential nomination has made many Americans anxious about uncivil aggressiveness by some Christian factions bent on using government for sectarian purposes. But some Christians believe they are on the receiving end of aggression by government. Consider how growing up in America feels to Zachary Hood.

In 1996, when he was a first grader in a Medford, N.J., public school, his teacher rewarded students' reading proficiency by allowing them to bring from home, and read to the class, a story of their choice. The only requirement was that the selections be of age-appropriate brevity and complexity. Zachary chose the story "A Big Family" from "The Beginner's Bible." This is the complete text:

"Jacob traveled far away to his uncle's house. He worked for his uncle, taking care of sheep. While he was there, Jacob got married. He had twelve sons. Jacob's big family lived on his uncle's land for many years. But Jacob wanted to go back home. One day, Jacob packed up all his animals and his family and everything he had. They traveled all the way back to where Esau lived. Now Jacob was afraid that Esau might still be angry at him. So he sent presents to Esau. He sent servants who said, 'Please don't be angry anymore.' But Esau wasn't angry. He ran to Jacob. He hugged and kissed him. He was happy to see his brother again."

Although this mentions neither God nor God's manifestation in miracles, Zachary's teacher refused to allow him to read this "because of its religious content." The teacher said it amounted to reading the Bible and "might influence" other students. When Zachary's mother complained, the school principal backed up the teacher, saying the reading was "the equivalent of praying" and saying that Zachary and his mother "don't appear to be public-school material."

The choice of "A Big Family" was Zachary's second offense. When at Thanksgiving his kindergarten teacher assigned each student to make a poster of something for which he or she was thankful, Zachary drew a picture of Jesus. It was hung, with all his classmates' posters, in the hall outside the classroom. But school officials took it down because it had a religious theme. This was upsetting to Zachary, and his teacher got the poster put back up.

The incident about "A Big Family" sent Zachary's mother to court, where she is now represented by the Becket Fund, a Washington public-interest law firm specializing in defense of religious liberty. The trial court--the case is being appealed--supported the school. The court acknowledged that regulations of speech must be "viewpoint-neutral" and "reasonably related to a legitimate governmental purpose." But the court insisted that censoring Zachary's story was neutral.

Obviously if the story had been the same except that the names were Joe and Ed, it would not have been censored. But the court said: "It is irrelevant that the story had no overt religious theme; the speech was the book itself." The court said the censorship of Zachary's reading and poster had the reasonable pedagogical purpose of preventing the misperception by children that the school was endorsing religion.

But no school can function under the doctrine that it espouses whatever speech it permits. And two Supreme Court rulings and numerous decisions in other appeals courts have affirmed that, in the language of Zachary's mother's brief, "categorical discrimination against religious speech is in and of itself viewpoint discrimination." So when the court said the teacher only engaged in permissible subject-matter discrimination, because she presumably would have censored all religious viewpoints, it got matters exactly backward. Not that a religious viewpoint can be tickled out of "A Big Family." It was censored simply because it is known to come from a recognizable religious tradition, which makes the censorship viewpoint discrimination.

Had Zachary read a snippet from, say, the Koran, he probably would have been praised for his sensitivity to "diversity." As for the "impressionability" argument--that children might get the impression the school was endorsing religion--Zachary's mother says the argument backfires against the school: the only lesson the other children would learn from the censorship was that Zachary was being punished because he chose a Bible story.

Actually, it is the Medford school's clear hostility to anything Biblical that violated the Establishment Clause, which the Supreme Court has said requires "the government to maintain a course of neutrality among religions, and between religion and nonreligion." Government action must not have the "primary effect" of advancing or inhibiting religion. The court has said no law may "cast a pall of orthodoxy over the classroom," and orthodoxy can take the form of what the late Justice Arthur Goldberg called a "brooding and pervasive devotion to the secular and a passive, or even active, hostility to the religious." And Justice Sandra Day O'Connor has written that "the prohibition of all religious speech in our public schools implies... an unconstitutional disapproval of religion."

Today schools can require children to read "Heather Has Two Mommies" and other propaganda for "alternative lifestyles," and also can require that children not read something as innocuous as "A Big Family." Clearly there are more forms of extremism about religion than appear in the agendas of the most politically aggressive Christians. Given the Medford school's bullying of Zachary, he and his mother should take as a compliment the accusation that they may not be "public-school material."