WTE: The First Amendment had a good ten days

In a letter dated August 31, 2020, Peter Kirsanow, member of the U.S. Commission on Civil Rights, wrote to Jenny Durkan, Mayor of Seattle, Washington. He was following up on an August 26 inquiry sent from the US Department of Justice’s Employment Litigation Section to Seattle’s city attorney.

Both letters were concerned with a June, 2020 training for the city’s 10,000 employees titled, “Internalized Racial Superiority for White People.” Employees were segregated by race and told that “all white people are racist.” This dogma was presented as an undisputable article of faith.

The commissioner reminded Durkin that Title VII of the 1964 Civil Rights Act makes it “unlawful employment practice for an employer . . . to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s race, color, religion, sex, or national origin.” It makes no exceptions for this religion called “critical race theory” (CRT).

Only days later, Russell Vought, Director of the Office of Management and Budget (OMB) sent a memorandum that read, “Executive Branch agencies have spent millions of taxpayer dollars… ‘training’ government workers to believe divisive, anti-American propaganda.” The memo directed agencies to “identify all contracts or other agency spending related to any training on ‘critical race theory.’”

While the president continues “to support all Americans, regardless of race, religion, or creed,” it continued, “[t]he divisive, false, and demeaning propaganda of the critical race theory movement is contrary to all we stand for as Americans and should have no place in the Federal government.” Vought’s memo promised that the OMB “will shortly issue more detailed guidance.” Both actions prevent the government from establishing the religion of CRT.

Then, on September 9, the Department of Education (DOE) secretary, Betsy DeVos announced the finalization of rules to “Protect Free Inquiry and Religious Liberty” in educational settings. “This administration is committed to protecting the First Amendment rights of students, teachers, and faith-based institutions,” she wrote. “Students should not be forced to choose between their faith and their education, and an institution controlled by a religious organization should not have to sacrifice its religious beliefs to participate in Department grants and programs.”

As is clear from this statement, the rules cover two distinct and complementary aspects of the First Amendment. Government-run schools must not infringe on a student’s freedom to speak and exercise religion on campus; and government must not pressure religious organizations into policies that contradict their educational mission.

In the U.S. Constitution, these complementary concerns are expressed by the “non-establishment clause,” and the “free exercise clause,” respectively. “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” These two clauses are not in competition with one another, but mutually supportive.

This constitutional commitment stands in stark contrast to the ethos of the French Revolution. At the heart of that bloodbath was an atheistic impulse to expunge religion from public life by a strict “separation of church and state.” America’s founders, on the contrary, wanted the robust involvement of every religious person in making and framing America’s laws. The First Amendment protected free exercise and prohibited government-established religions so that believers themselves could debate in the public square.

Clearly the Department of Education understands this. That’s why it makes a sharp distinction between government-run schools and religiously controlled schools. Both may benefit from government education money without discrimination. Government-run schools, as agencies of the government itself, must strictly protect First Amendment rights. On the other hand, religiously controlled schools are required only to adhere to their own stated policies.

The government has no business dictating to a religious school what it may or may not teach. Those who teach there and those who attend there do so voluntarily and with the reasonable expectation that the doctrine of the religious body will be taught, defended and lived out on its campus.

Likewise, the government-run school has a responsibility under the First Amendment to allow all students, professors and student organizations to articulate, defend and live out their religion without penalty or disadvantages placed upon them in the classroom or in campus life.

For years, now, we have seen groups like InterVarsity Christian Fellowship and the Fellowship of Christian Athletes banned from government campuses merely for articulating their beliefs. Meanwhile, we have also seen religious schools pressured into promoting teachings and practices that contradict their official doctrine as a condition of participating in government programs. The DOE rules are carefully balanced to stop both abuses.

President Trump’s departments of education, justice and the OMB, have been busy protecting your First Amendment rights. They deserve your thanks.

Also published in the Wyoming Tribune Eagle, September 18, 2020.