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Attorney: Religious music, art at state-funded preschools can be OK

LITTLE ROCK — A proposed rule that would ban state-funded religious activities at Arkansas preschools would not ban religious songs and art if they are not presented in a way that amounts to religious instruction, legislators were told Tuesday.

The Administrative Rules and Regulations Subcommittee of the state Legislative Council gave the proposed rule a quick review Tuesday, a day after the House and Senate committees on education spent over three hours considering it. The rule is intended to ensure that providing state funds to religiously affiliated preschools through the Arkansas Better Chance early childhood education program does not result in violations of the First Amendment.

Breck Hopkins, chief counsel for the state Department of Human Services, told the Rules and Regulations Subcommittee that during the previous day’s hearing he was asked how the rule would affect religious songs and art but was not able to provide an immediate answer.

Hopkins said he could not find a court decision on that exact issue, but he said the 8th Circuit Court of Appeals has said that the study of religion is not forbidden when presented objectively as part of a secular program of education.

“It’s clear that religious songs can be sung in preschool day cares,” he said. “There’s certainly no absolute prohibition of that. But when the state goes to look to see if that activity crossed some line under the Establishment Clause, what we have to look for, for example, is: Is every song sung by the children religious? In that case it’s probably not going to be protected free speech.”

A song presented in conjunction with a religious lesson also would likely be considered a violation of the constitutional prohibition against government establishment of religion, Hopkins said.

Rep. Johnnie Roebuck, D-Arkadelphia, asked if that meant that a religious song would be permissible in a Christmas program if other, non-religious songs were included as well.

Breck said religious music would be permissible throughout the year, as long as the religious content does not predominate and the music is not presented as religious instruction. The same would apply to art, he said.

No one spoke against the rule at Tuesday’s hearing, but several people and legislators spoke against it during Monday’s hearing, among them Rep. Justin Harris, R-West Fork, owner of Growing God’s Kingdom preschool in West Fork.

The proposed rule was drafted in response to a complaint that Harris’ school was providing state-funded religious instruction.

The proposed rule would require that applications for ABC grants from sectarian programs be reviewed to assure that the programs would not use the money to violate the First Amendment.

The rule also would prohibit preschools that receive ABC funding from holding religious activities during the “ABC day,” which is defined as seven hours beginning with the first ABC activity of the day.

Also, any preschool that receives ABC funding would be required to maintain a separate bank account for state funding and not commingle that money with money from private sources. State funds could not be used to fund any religious activities at the schools, regardless of the time of day.

Harris said after Tuesday’s hearing he plans to speak against the rule again when the Legislative Council takes it up on Sept. 28. He said he may sue the state if the rule is implemented.

“When you take a sectarian group and take their application back and give it further review, more than you would a secular organization, that’s discrimination,” he said.

Harris said he did find Tuesday’s testimony encouraging, however.

“I think we did score a victory in the fact that we can continue to sing Christian songs,” he said.

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