Service Learning Requirements, Part III

My interest in this situation has increased overnight. I've been concentrating so much on the election recently that I didn't notice the controversy brewing in my own backyard.

First, here's a web site that seems to have sprung up in opposition to the propopsed ban. There you can find links to relevant court cases and the letter from ACLJ Counsel Geoffrey Surtees to Academic Policy Committee Chairman Kent Syverson, one of only two of the ten APC members to oppose this ban.

The letter itself is a good summation of legal arguments against the proposed amendment to UW-Eau Claire's service learning guidelines, and I recommend downloading it and reading it.

The proposed amendment to the service-learning guidelines reads:

"Please note: Religious instruction, religious proselytization, conducting religious services or projects requiring belief or affiliation are not acceptable as service-learning experiences, since they are generally viewed as constituting a violation of the Establishment Clause of the U.S. Constitution."

Citing Widmar v. Vincent and Capitol Square Review and Advisory Bd. v. Pinette, ALCJ Counsel Surtees notes

As an initial matter, "religious proselytization, conducting religious services or projects requiring belief or affiliation" does not, by itself, violate the Establishment Clause. To the contrary, Supreme Court case law is clear that religious instruction is constitutionally protected speech.

Although the language of the proposed service learning amendment claims that religious service learning activities would violate the Established Clause, "not one case involving similar facts supports this assertion."

Citing Rosenberger v. Rectors and Visitors of Univ. of Va, Surtees writes (in what seems to be the key passage of the letter):

Permitting students to participate in community activities which include religious instruction--such as teaching Sunday school, for example--so that they might fulfill their mandatory service learning requirement simply does not constitute government advancement or endorsement of religion. It does not do so because the choice of the student to participate in the religious community service is the private choice of the student and the student alone--not the University's. If the University actively encouraged students to participate in religious-based programs, the result, of course, might be different. Where, however, the University takes a religion-neutral stance with respect to the types of community service students may engage in, the University is not violating the Establishment Clause, but complying with it. The fact that it is the student performing the community service involving religious instruction, and not employees of the University makes all the legal difference, for it is the student who is speaking, not the University.

As I noted earlier, the students themselves develop their own service learning programs, which are then approved by faculty. They are not faculty-initiated nor apparently faculty-directed. However, the language of the proposed amendment--which was added without approval by the APC--has allowed faculty to reject religious service-learning projects for the last two years. Surtees suggests that this could create a situation of "entanglement."

Moreover, discriminatory treatment of religious instruction, which the proposed amendment creates, would require state employees to make a judgment about what is and is not religious. This creates constitutional problems of "entanglement" under the Establishment Clause.

Quoting Widmar:

[State officials] would need to determine which words and activities fall within "religious worship and religious teaching." This alone could prove an impossible task in an age where many and various beliefs meet the constitutional definition of religion. . . . There would also be a continuing need to monitor group meetings to ensure compliance with the rule.

Ironically, out of fear of being saddled a lawsuit, the University has likely opened themselves to being saddled with a lawsuit.

I have to admit that when I first read the language of the proposed amendment, I felt it was reasonable. And I'm sure UW-EC Service Learning Director Donald Mowry felt the same. But after reading the above, I've gone the other way. The simple solution, and the solution I'd like to see for reasons I outlined earlier, would be for UW-EC to dump the service learning requirement. But that's not likely to happen. It seems like when the issue is the intersection of religion and public education, the only guarantee is recalcitrance on the part of the educators. Here's hoping they may loosen their grip enough to think this through clearly.

I've yet to read clear legal arguments supporting the proposed amendment, but I'll keep my eyes open. I'm sure of where I stand, but I'm willing to consider the opposing view.

There were meetings on the UW-EC campus Monday and yesterday (which I've only just learned about), and there will be another one on Monday, November 23rd. (I may have to excuse myself from work early to attend this one.) I've also noticed a familiar name as a contact on the freeUWEC website, and I hope to get some further comments soon.

Again, UW-EC is one of only five public universities nationwide to have a service learning requirement. What gets decided here will undoubtedly set a legal precedent for any other schools wishing to add a similar requirement.

Previous posts on this subject are here and here.