Panelists: David E. Fitzkee, Assistant Professor of Law, U.S. Air Force Academy, Linell A. Letendre, Assistant Professor of Law, U.S. Air Force Academy, John Tillery, Senior Protestant Chaplain, 10th Air Base Wing Community Center Chapel, U.S. Air Force Academy.
The following article, prepared by the panelists, summarizes their presentation at the symposium. The views presented are the authors' and do not necessarily reflect the official policy of the U.S. Air Force Academy, the U.S. Air Force, the Department of Defense, or any other governmental agency.
Religious Background at USAFA
During parts of 2004 and 2005 the U.S. Air Force Academy (USAFA) was the object of widespread national media attention arising from complaints, mostly by students, concerning religious insensitivity or bias. USAFA was named in the headlines of such major newspapers as the New York Times,[i] the Washington Post,[ii] the Los Angeles Times,[iii] USA Today,[iv] and many other newspapers and magazines.[v] This article provides background concerning religious sensitivity issues at USAFA, overviews the First Amendment's Free Exercise and Establishment Clauses as they relate to institutions of public higher education such as USAFA, and explains measures USAFA took to promote respect for spiritual diversity.
Students at USAFA are predominately Christian (about 85%), according to information they provide.[vi] About 10% self-identify as having no religious preference or being atheist, with the remaining 5% being Jewish, Buddhist, Muslim, Hindu, or other religion. Moreover, USAFA cadets collectively are more religious / spiritual than many college students.[vii]
Differences in the perceptions of Christians and non-Christians concerning the religious climate at USAFA first surfaced in spring 2004. From March through August 2004 USAFA administered three routine surveys of students, faculty, and staff to assess the institutional climate in various important areas. Some questions assessed the religious climate. These surveys revealed that Christians were much more likely than non-Christians to believe that USAFA supported their religious freedom and that people at USAFA respected people with religious beliefs different from their own.[viii]
These significant differences in perception were reinforced by several well-publicized incidents alleging religious insensitivity or promotion of religion.[ix] The selected examples that follow lend credence to the perceptions of non-Christian cadets that their religious freedoms and beliefs were not always respected. The citing of these examples does not necessarily imply any legal wrongdoing. These highly summarized examples do not include possible mitigating circumstances and are offered to illustrate how those with minority religious beliefs at USAFA could reasonably feel marginalized.
During several occasions in 2003 a very senior military officer at USAFA made or wrote comments in official contexts (mandatory assemblies, e-mails) that some interpreted as advancing religion in general or evangelical Christianity in particular. In December 2003 the Christian Leadership Ministries, a private organization, paid for a full-page Christmas message in the USAFA newspaper. The ad, which had been run in substantially similar form every December since 1991, said, "We believe that Jesus Christ is the only real hope for the world" and quoted a biblical verse. Over 250 people— many in positions of some authority, such as teachers or department heads— allowed their names to be printed endorsing the message. The names did not include military rank but were organized by academic department or organization.
In February 2004 cadets placed a flyer advertising the movie "The Passion of the Christ" on every chair in the cadet dining facility, violating rules concerning the posting of advertisements. Some cadets felt they were being proselytized. In November 2004 the head football coach, a strong Christian, displayed a banner in the team locker room proclaiming "I am a Christian first and last. I am a member of Team Jesus Christ."
These incidents led to several visits to USAFA and reports from groups or individuals invited to USAFA or directed there by higher headquarters. The most comprehensive was the Report of the Air Force Headquarters Review Group.[x] Among the report's conclusions were that some religious insensitivity existed at USAFA (failing to demonstrate respect for minority religious values) but no official religious discrimination; that USAFA did not always give appropriate consideration to minority religions when scheduling events and activities (which sometimes conflicted with holy times of minority religions); and that there was a lack of clear guidelines concerning the line between permissible and impermissible religious expression.[xi]
Legal Aspects of Spirituality in Higher Education
After determining that religious insensitivity issues existed, the next step was to resolve whether these issues were a problem from a legal standpoint and, if so, why. The guiding constitutional law principle comes from the First Amendment's Religion Clauses, which provide that "Congress shall make no law . . . respecting an establishment of religion, or prohibiting the free exercise thereof."[xii] These two clauses create an inherent tension that pulls a public university in two different directions: a public school cannot take action promoting religion and on the other hand, in doing so, a school must be cautious not to stifle the free exercise of religion. The Supreme Court has analogized this feat to navigating the narrow channel between the Scylla and Charybdis in Greek mythology.[xiii]
On one side of this narrow channel, a public university must be cognizant of the Establishment Clause and its limitations anytime government action can be viewed as benefiting or promoting religion. The overarching rule in Establishment Clause jurisprudence is that the government must be neutral with respect to religion – both between types of religion and between religion and non-religion.[xiv] The main Establishment Clause test to determine whether government action maintains this neutrality was developed in the seminal case of Lemon v. Kurtzman,[xv] which involved two states giving money to private religious schools. The Supreme Court announced a three-part test for determining the constitutionality of governmental action challenged under the Establishment Clause.[xvi] First, the governmental action at issue must have a secular purpose. Second, "its principal or primary effect must be one that neither advances nor inhibits religion."[xvii] Third, the governmental action "must not foster 'an excessive government entanglement with religion.'"[xviii] When courts use the so-called "Lemon test," the governmental action must pass all three parts of the test to be consistent with the Establishment Clause.
The Lemon test has faced vast criticism as a confusing and unworkable test.[xix] Although the Court has declined to overrule it, in some Establishment Clause cases the Supreme Court has not focused on the Lemon test and has applied other tests. Two of the significant alternative tests used by the Court are the endorsement test and the coercion test. The endorsement test asks whether a reasonable observer familiar with the history and facts of the situation would believe the government endorsed religion (either a particular religion or religion over non-religion.)[xx] The coercion test evaluates whether the government coerced anyone to support or participate in religion or its exercise.[xxi] When analyzing an Establishment Clause issue, public universities must evaluate their actions using all of the aforementioned legal tests.
On the other side of the narrow channel, public universities must also guard against action that burdens the free exercise of religion. Any action aimed at religion receives "strict scrutiny" by the courts requiring such action to be justified by a compelling governmental interest and be narrowly tailored to advance that interest.[xxii] If a government action is neutral towards religion and applies generally to all individuals regardless of religion, then the courts will apply a "minimum scrutiny" standard and generally uphold the government action.xxiii Free exercise of religion issues are often closely linked with freedom of speech issues, which require further legal analysis.
After gaining a general understanding of the narrow channel of the Religion Clauses, it is important for public university officials to recognize areas in which religious issues are likely to arise. Cases have reached the Courts of Appeals level on issues involving prayer at graduation services or more routine events like staff meetings, religious displays on campus, and religious speech in the classroom. Being cognizant of potential legal issues from the outset may help an institution avoid the national media scrutiny which the Air Force Academy endured.
Compared to civilian institutions, the Air Force Academy faces a much more difficult challenge in navigating the narrow channel of the Religion Clauses because of the coercion and endorsement tests. Having a chain of command and formalized rank structure naturally leads to issues of coercion and may lead a reasonable person to believe that the government is endorsing religion based on the military status of our faculty. The Academy had to scrutinize issues ranging from religious items in an instructor's office to prayer at official functions to how much an instructor can say about his or her personal religious background when introducing him or herself to a class. After recognizing the religious insensitivity issues at USAFA and analyzing them under the Religion Clauses, the Academy developed a program called Respecting the Spiritual Values of all People (RSVP.) This training was based not only on sound legal principles but also on basic common sense and respect for others' religious beliefs.
USAFA's Program of Respecting the Spiritual Values of all People
It is of no small importance that the RSVP I was originally designed by a select team of chaplains, lawyers, and Air Force officers to be the first lesson of a three lesson program designed to promote respect for and understanding of others' religious beliefs. This paper describes RSVP I, which addresses "Foundational Principles." RSVP II, "Understanding World Religions," was recently developed and is being implemented starting in January 2006. RSVP III, now programmed as the final lesson, is entitled "Command Scenarios" and is currently being developed.
This diverse team ensured the project was well defined and balanced. The original construction of the RSVP I training module endeavored to articulate a clear and appropriate "Goal" for the training, state and explain the "Challenges" in achieving that goal, and conclude with "Solutions" that were matched to the "Challenges."
With the overriding goal of the training to create a culture of spiritual respect, while at the same time raising awareness of spiritual issues impacting cadets, some of the foremost topics RSVP I addressed were those of personal responsibility, leadership responsibility, and diversity in the Air Force. From these primary topics, three major challenges surfaced: (1) to acknowledge the importance of spiritual expression; (2) to recognize spiritual and cultural bias, and; (3) to overcome disrespectful behaviors that negatively impact mission accomplishment. The RSVP I development team presented a proposed solution – designed to demonstrate the importance of spirituality to operational effectiveness, educate the Air Force community to the value of spiritual diversity, and apply existing Department of Defense Directives (DoDD) and Air Force policies regarding spiritual respect and religious expression – to the USAFA leadership in October 2004.
After extensive discussion and vigorous debate, RSVP I continued to grow and develop. This process fully engaged not only the senior leadership, staff, and faculty of USAFA but also all levels of command, to include Congressional, State, and DoD level and the Secretary of the Air Force. With this vast knowledge and experience base, a new goal was created: to create a culture of spiritual respect by understanding DoD and Air Force policies and encouraging a higher level of respect for each person's religious rights. The challenges: "Recognize Spiritual and Cultural Bias," that "Spiritual Expression is More than Worship," "Sharing Spiritual Space" (requires sensitivity), and that "Disrespectful Behavior Negatively Impacts Mission Accomplishment."
This refined goal, along with the four new challenges, were similar to the team's original intent with the primary difference in the publication of the following specific guidelines: "Proselytizing declarations of faith are inappropriate," "Do not use position to promote personal agenda," "Post religious items on bulletin boards only," "Official Email: Declarations of faith prohibited," and "Do not use official position to promote SPIRE."[xxiv]
The first official presentation of RSVP I was on November 2, 2004. After this initial screening to 300 senior military and cadet leaders at the USAF Academy, RSVP I was further refined. Thereafter, each training session was delivered to small groups by a team of three presenters: a commander, Judge Advocate General (lawyer), and chaplain. These three instructors, with their separate and distinct roles, provided diversified backgrounds for addressing questions and providing answers across a broad spectrum of experience and expertise.
Ten teaching teams were put together and a robust "train the trainer" program ensued. The RSVP I training was to begin in February 2005 but was delayed until March 2005 to resolve a contracting issue that had arisen.[xxv] RSVP I training was and is mandatory for all military and civilian personnel assigned to USAFA, including students, faculty, staff, and all other base support personnel. To date it has been presented to over 12,000 people.
The RSVP I presentation in its final form is one hour long and utilizes the full spectrum of audio visual elements. The RSVP I development team produced numerous scenario vignettes, based upon reported incidents of spiritual insensitivity, to show more appropriate ways of handling spiritual diversity in the Air Force setting. These vignettes were integrated into the slide presentation to give examples of good and bad ways to handle certain incidents, stimulate thought and discussion, and give the training greater visual interest. Additionally, several "spiritual insensitivity" scenes from popular movies were integrated into the presentation for similar purposes.[xxvi] The RSVP I project is published in both CD and DVD formats, including a full "talking head" version that is completely self-contained. In addition, a shortened instructor's version and an adaptation for Basic Cadet Training were developed to meet the broadening instructional requirements.
The overall success of RSVP training will not be known until after all three RSVP lessons have been given and the training assessed.
i See Laurie Goodstein, Air Force Academy Staff Found Promoting Religion, N.Y. Times, June 23, 2005, at A12.
ii See Alan Cooperman, Air Force to Probe Religious Climate at Colorado Academy, Wash. Post, May 4, 2005, at A03.
iii See David Kelly, Non-Christian Air Force Cadets Cite Harassment, L.A. Times, Apr. 20, 2005, at 18. iv See Patrick O'Driscoll, Air Force Academy Wrestles with Alleged Religious Bias, USA Today, May 4, 2005, at 2A.
v See, e.g., David Van Biema, Whose God is Their Co-Pilot?: The U.S. Air Force Academy faces charges that it has allowed rampant evangelization on campus, Time, June 27, 2005 at 61.
vi See Roger A. Brady, The Report of the Headquarters Review Group Concerning the Religious Climate at the U.S. Air Force Academy 5 (22 June 2005), available at http://www.af.mil/pdf/HQ_Review_Group_Report.pdf (providing the background and chronology of events at the Air Force Academy, with specific findings and recommendations).
viii See, e.g., Pam Zubeck, Rosa: Bias Fix Will Take Time, The [Colorado Springs] Gazette, June 4, 2005, at A1, available at http://afa.gazette.com/fullstory.php?id=5041 (reporting that "84 percent of Christian cadets and faculty feel that the academy supports their religious freedom, while only 58 of non-Christians feel that way" and that "92 percent of Christian faculty and staff members say people at the academy respect individuals whose religious views and faiths are different from theirs, while only half of the non-Christians concurred").
ix See Brady, supra note 6.
Id. at i-v (executive summary).
xii U.S. Const. amend. I. These provisions extend also to the states and their sub-divisions by incorporation into the Due Process Clause of the Fourteenth Amendment. Cantwell v. Connecticut, 310 U.S. 296, 303 (1940).
xiii Thomas v. Review Bd. of Ind. Employment Sec. Div., 450 U.S. 707, 721 (1981) (Rehnquist, J., dissenting) ("By broadly construing both [Religion] Clauses, the Court has constantly narrowed the channel between the Scylla and Charybdis through which any state or federal action must pass in order to survive constitutional scrutiny.") In Greek mythology, Scylla, a sea monster, lived underneath a dangerous rock on one side of the Strait of Messia and opposite the whirlpool Charybdis. Syclla threatened passing ships and in the Odyssey ate six of Odysseus' companions. Micha F. Lindemans, Scylla, Mar 3, 1997 available at http://www.pantheon.org/articles/s/syclla.html (last visited Dec. 11, 2005).
xiv McCreary County v. ACLU, 125 S.Ct. 2722, 2733 (2005).
xv 403 U.S. 602, 612-614 (1971).
xvii Id. (citing Bd. of Educ. v. Allen, 392 U.S. 236, 243 (1968)).
xviii Id. at 613 (quoting Walz v. Tax Comm'n of New York City, 397 U.S. 664, 674 (1970)).
xix See, e.g., Lamb's Chapel v. Center Moriches Union Free Sch. Dist., 508 U.S. 384, 398-399 (1993) (Scalia, J., concurring) (collecting criticisms of Lemon test); Thomas C. Marks, Jr. & Michael Bertolini, Lemon Is a Lemon: Toward a Rational Interpretation of the Establishment Clause, 12 BYU J. Pub. L. 1 (1997).
xx County of Allegheny v. ACLU, 492 U.S. 573, 592-94 (1989).
xxi Lee v. Weisman, 505 U.S. 577, 587 (1992).
xxii Church of the Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520, 531-32 (1993).
xxiii Employment Div., Dep't of Human Res. v. Smith, 494 U.S. 872, 878 (1990).
xxiv SPIRE is an acronym for "Special Programs in Religious Education," optional meetings of cadets in diverse religious groups for part of one evening a week, in furtherance of cadets' right to freely exercise their religion.
xxv See Pam Zubeck, Last-minute bid could delay training on religious diversity, The [Colorado Springs] Gazette, Feb. 11, 2005; available at http://afa.gazette.com/fullstory.php?id=4542.
xxvi No fewer than twelve cadet vignettes were produced even though only one was featured in the final product. Additionally, scores of well-known movies were screened and no fewer than ten movies were seriously evaluated.