by Max Brantley
The Arkansas Department of Human Services has proposed a new rule to clarify that state money may not be used to provide religious instruction in pre-schools that receive public tax money.
Is there wiggle room for those who want to inject religion in their programs? That is, I think, a question not yet answered.
Bottom line: Public funds may not be used for religious instruction. But the rules clearly open the door for religious instruction outside the seven-hour day required by the Arkansas Better Chance program. A quick reading would seem to make it difficult for a school to offer religious instruction even after that seven-hour day if it's done by employees or in facilities paid with public money. Even then, the DHS notes the difficulty of providing a non-coercive way for children to opt out of religious instruction in an institution without being singled out. Generally, says DHS:
The question in every case is whether state funds impermissibly aid a religiously based or affiliated entity in discharging its religious mission. The answer will be controlled by the particular facts of each case.
The new rule, however, explicitly allows religious instruction to be undertaken at these institutions, after the end of the program's required seven-hour day. The rule says, however:
Each ABC provider that also offers religious activities must maintain documentation that it has informed parents and guardians in writing that no religious activity will be paid or subsidized by public funds or occur in any manner suggesting governmental endorsement of any religion or religious message.
A DHS Q&A notes that people individually can sing and pray privately as they choose. It also says religious materials may be posted on a wall in a religious institution where such material customarily appears.
In the end, I'd guess the key will be the spirit with which these rules are received by, among others, state Rep. Justin Harris and state Sen. Johnny Key, two Republican legislators who have provided religious instruction in pre-schools they operate in West Fork and Mountain Home, respectively, with the aid of, in total, some $2 million in public money.
Americans United for Separation of Church and State had complained about the religious instruction during the day at both legislators' businesses and the state undertook a review, though both were open about simple Bible readings and prayers done daily during the day. Key has indicated more willingness to comply with constitutional guidelines than Harris, who has said he'd consider continuing to provide it after the regular school day if possible.
I've sought comments from Americans United (closed for the day in Washington when the memos were issued about 5 p.m.) and from Key and Harris.
Here is the proposed rule. (It is at the very end of the link and underlined.)
Here is a list of questions and answers about the subject.
The DHS summary memo to providers of the program says:
You may be aware of recent complaints that some Arkansas Better Chance/Arkansas Better Chance for School Success (ABC) Programs include religious activities. The Establishment Clause in the First Amendment to the
U.S. Constitution prohibits public aid for religious worship or instruction. Court decisions interpreting the Establishment Clause make it clear that ABC materials must be neutral with respect to religion, and that no religious activity may occur during the ABC day. As a result, the Division of Child Care and Early Childhood Education must:
1) Monitor First Amendment compliance during regular licensing visits to providers receiving public funds; and
2) Respond to complaints of First Amendment violations.
Providers found to be out of compliance with the Establishment Clause will be given 30 days to correct all Constitutional violations or lose public funding, subject to appeal.
The Department of Education and the Department of Human Services have developed a proposed rule to provide guidance about the Constitutional prohibitions. Compliance with the proposed rule will assure that public funds are not used for any religious activity.
The proposed rule will take effect after notice and public comment as required by the Arkansas Administrative Procedure Act. A copy of the proposed rule and answers to frequently asked questions are attached.