by Max Brantley
The state Board of Education put out for public comment today rules written by the Department of Human Services to enforce the state statute that is supposed to prevent religious instructions in schools that receive money under the Arkansas Better Chance program for pre-schools.
Board members showed some dissatisfaction with the proposal after Breck Hopkins, attorney for DHS, made it clear that the rule was drawn to allow religion in the schools, before or after the seven hours of instruction required to be provided by the ABC program, which is funded by the state Education Department.
Could he guarantee this was constitutional, in light of the fact that children will be in the facilities longer than seven hours and that the institutions will be relying on public dollars to heat the buildings and maintain them and, perhaps, pay teachers? Sam Ledbetter, a lawyer, asked the question. "It's not that simple," Hopkins said. It could depend on the panel of 8th Circuit judges that heard the case, Hopkins said.
Board Chair Ben Mays said he didn't see how DHS could say the minute the seventh hour was over, that was the end of the public's assistance in operation of the school. He said he wasn't inclined to support the rule as it was written. Ledbetter noted that the state assistance wasn't awarded by the hour, but paid per student. He wondered how they could adopt a rule that said that money was "only paying for a seven-hour day."
Hopkins said it had done its best to come up with a "middle of the road" solution. It seems clear that meant a rule that allowed religion but could dodge a court challenge. Sad.
As Ledbetter noted, under the DHS theory, any public school in Arkansas could provided religious instruction after it completed the required six-hour school day.
Hopkins argued that the state can't discriminate against religious institutions. It is not discrimination if no school may have religious instruction. They are free to choose not to participate under those rules. Mays said he preferred that the rule apply from the time a child arrived until the time he went home, not just for seven hours.
It was noted that no parent had complained about religion in the daycares. The issue arose after Americans United for Separation of Church and state wrote specifically about religious exercises conducted in pre-schools operated by Rep. Justin Harris and Sen. Johnny Key.