Back to School Primer on Yoga, Mindfulness, Public Schools, and the Establishment Clause
Legal challenges are to be expected as a field develops and, in this context, might well be considered developmentally appropriate. They can also offer a hidden blessing.
Students are heading back to school this month and, if you’re one of the many teachers who integrate mindfulness, yoga, or both into your classroom now is a good a time to take a look at your program through a constitutional lens. I’m posting a mash-up of two articles that I wrote last year to help jumpstart your review. Part one is a brief primer on the Establishment Clause and part two offers tips to help ensure that your program is neutral with respect to religion.
A brief primer on the establishment clause
The Constitution of the United States set up a system of governmental checks and balances that specify what the government can do. The first 10 Amendments to the US Constitution, known as the Bill of Rights, protect our individual liberties by specifying what the government cannot do. The very first clause, of the very first of these ten Amendments, is the Establishment Clause and it requires the government to be neutral with respect to religion. Over the past twenty-five years, courts have considered a handful of cases that have used the Establishment Clause to challenge teaching yoga and similar practices in public schools.
When it comes to testing whether words or actions violate the Establishment Clause, context is determinative.
Just because an activity has roots in religion doesn’t mean it violates the Establishment Clause or similar state laws.
Courts generally, but not exclusively, use the Lemon Test (named after Lemon v. Kurtzman, a 1971 Supreme Court case) to determine whether a program with religious roots passes constitutional muster.
Programs with religious roots must: (1) have a secular purpose, (2) have a primary effect that neither advances nor inhibits religion, and (3) not foster excessive state entanglement with religion.
Parents and children can be sincerely offended by a school program, but it raises an Establishment Clause claim only if it fails to meet one or more of these three criteria.
Several school-based activities that have been found to be unconstitutional are: (1) inviting clergy to offer invocation and benediction prayers at formal graduation ceremonies for high schools and middle schools, (2) daily readings from the Bible, (3) daily recitation of the Lord's Prayer, (4) distributing Gideon Bibles to fifth grade public school students, (5) posting the Ten Commandments in every classroom, (6) requiring the teaching of evolution science with creation science or not at all, (7) beginning school assemblies with prayer, and (8) teaching a Transcendental Meditation course that includes a ceremony involving offerings to a deity.
The Supreme Court has not yet decided whether moments of silence are constitutional, although they did strike down an Alabama law that required a mandatory moment of silence for meditation or voluntary prayer. After looking at the law's legislative history, and how it was implemented, the court decided that the Alabama statute didn't have a secular purpose.
Many States have enacted moment of silence laws, and some of them make moments of silence mandatory. Lower courts have held that neutrally crafted moments of silence statutes are constitutional and a number of constitutional scholars believe that the Supreme Court will agree.
Elementary school programs are looked at with extra care because: (1) young children’s life experiences are limited and their beliefs often have as much to do with their environment as with their own choices, and (2) children might feel that they have to participate in religious exercises, even though they have the right to sit them out, due to subtle, unspoken and indirect pressure from their teachers and peers.
Tips
Here are a few things I encourage schools to do, and a few things I encourage schools to guard against. I've also included several tips to help ensure that a program is neutral with respect to religion. These guidelines are by no means a complete set of best practices, but I’ve found them to be a helpful starting point in conversations with school administrators, classroom teachers and concerned parents.
I encourage
Approach the work with a long view. More often than not, the development of mindfulness requires a shift in perspective and shifting perspectives tends to be a long and bumpy process. With the long view in mind, focus more on the goodness of what you’re doing now, rather than the long-term results.
Start small, either in the classroom or after-school.
Pace the expansion of your program to growing support among parents, teachers, administrators, and students. Don't push a program forward before building significant backing for it within the broader school community.
It's not unusual for popular support to outpace the resources you have available, and/or your school's development of internal expertise. When that happens, pace the expansion of your program to your resources and expertise, not to popular support.
School communities are made up of many interlocking segments – school administrators, classroom teachers, specialist teachers, school counselors, students and their parents. Once you have support within these groups, identify a few stakeholders in each segment who have a genuine interest in bringing mindfulness into the school and who have a personal mindfulness, meditation or yoga practice. Create a working committee with a representative or two from each segment to:
Identify the committee’s motivation and goals with the understanding that motivations and goals often differ, and that's okay.
Focus on commonalities rather than differences. Where do motivations and goals overlap and how can common goals be achieved?
Identify the most effective way to reach each segment of the community. Classroom instruction for children, for instance. Or, letters home and a monthly sitting group targeted toward parents. For teachers and school counselors, perhaps the administration would offer an in-service day and scholarships for outside trainings and/or personal meditation retreats.
Identify the most effective way for the different segments to communicate with each other and share what they learn.
Elements of mindfulness are almost always integrated into existing programs already, even though they may not be called mindfulness. Identify those elements and develop a common language for all mindfulness-based work within the system.
Integrate mindfulness into complimentary pre-existing programs like social emotional learning programs, optional after school programs, or physical education.
Find outside resources to:
Advise in the creation of a mindfulness and/or meditation program that is tailored to your needs and your community.
Provide gentle, consistent and long-term training and support.
I guard against
Starting big. Instead, I encourage schools to start small and build their program based on what they learn in the school of hard knocks. It's helpful to view the integration of mindfulness into the fabric of a school as a marathon, not as a sprint.
A one size fits all approach.
A belief that a top-down approach is more meaningful than a bottom up approach and vice versa.
Cheerleading for the mindfulness and meditation movement itself, or for a specific program.
Well-meaning attempts to defend mindfulness, by focusing on differences rather than commonalities among and between current programs and approaches.
Schools looking for a quick, trendy, one-off mindfulness program, without offering the community adequate training and follow-up support.
To help ensure that a school-based program is secular
Involve your own staff in the development, implementation and supervision of your school mindfulness program.
Develop internal resources rather than relying exclusively on outside mindfulness experts or providers.
Take care that the visual aids and other teaching tools used in the classroom are neutral, in other words, that they don’t have a religious connotation.
Ask classroom teachers and outside mindfulness facilitators to leave home any objects that might have an express or implied religious connotation.
Use neutral bells or tone bars, rather than singing bowls or finger cymbals.
Use secular children’s books, posters, poetry, art, articles, and current events to teach universal themes like kindness, patience, acceptance and compassion.
Refrain from using Sanskrit, Pali or other ancient names for yoga poses or meditation practices.
Refrain from chanting.
Remember, for the program to be seen as neutral, it's best not to include elements or words that are thought to be religious, spiritual or metaphysical.
Legal challenges are to be expected as a field develops and, in this context, might well be considered developmentally appropriate. They can also offer a hidden blessing: The heightened attention of a possible legal challenge will hopefully raise the bar for everyone - curriculum developers, trainers, and those being trained - by encouraging more collaboration, more continuing education, and greater care in the design and implementation of school-based programs.
A final note
I'm posting this article for general informational purposes only and it is not intended as legal advice. You should contact your attorney to obtain advice with respect to any particular question, issue or problem.