LITTLE ROCK — A state lawmaker last week called on the Legislature to reject a proposed rule banning preschools from using state money for religious activities, but legislative leaders say a line between church and state has to be drawn somewhere.
The state Department of Human Services has proposed a rule stating that preschools receiving money from the Arkansas Better Chance program conduct no religious activities unless they occur outside of a seven-hour school day.
The rule is intended to comply with the First Amendment, which states in part, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”
DHS officials say the agency already was instructing schools not to use ABC money for religious activity but it has not previously had a ban in its written rules.
The rule must go through a 30-day public-comment period and be reviewed by the Legislature’s Administrative Rules and Regulations Subcommittee and the Arkansas Legislative Council. The Legislature cannot stop a state agency from adopting a rule over its objections, but DHS likely would give serious consideration to an unfavorable review by the body that sets its budget.
Independent reporting for Pine Bluff & Jefferson County since 1879.
Rep. Justin Harris, R-West Fork, owns the Growing God’s Kingdom preschool in West Fork, which received $534,600 in ABC money for the current school year. The proposed rule was promoted by a complaint about Harris’ school from the Washington-based group Americans United for the Separation of Church and State.
Sen. Johnny Key, R-Mountain Home, also owns two Christian-themed schools that receive ABC money — Noah’s Ark Preschool and Open Arms Living Center, both in Mountain Home. They received $194,000 and $97,200, respectively, for the current school year. Key did not return a call Friday seeking comment.
Harris said in a news conference Wednesday the Legislature should reject the proposed rule. He said he may sue the state if the rule is put in place.
“Let’s say we’re not going to have an outside group (Americans United) tell us what to do,” he said.
Sen. Percy Malone, D-Arkadelphia, co-chairman of the Administrative Rules and Regulations Subcommittee, said Friday he had not read the proposed rule, but “I do support separation of church and state.”
Malone said that if the state were to fund instruction in the Christian faith, it could not say no to funding the teaching of other beliefs.
“I don’t want to be part of creating a situation in Arkansas where … every cult or every religious belief is being taught to children in Arkansas using Arkansas taxpayers’ money,” he said.
Rep. James Word, D-Pine Bluff, the subcommittee’s other co-chair, said he has been wrestling with the issue.
“If they were actually teaching a religious course and using DHS money for that particular purpose, and having employed someone for that particular reason, then I would feel like they are in direct violation of DHS policy, but the mere fact that they may do a prayer or something of that nature, I don’t really feel that that’s in direct violation of the polices that DHS has set out,” he said.
Word said he might be in favor of tweaking the proposed rule but is not inclined to oppose it outright.
“As a state legislator, we are sworn to uphold the Constitution,” he said.
House Speaker Robert S. Moore Jr., D-Arkansas City, said he had not read the proposed rule, but he would not expect lawmakers to reject a ban on using public funds for religious activities.
“If that’s the import of the rule, then I think that’s consistent with our interpretation of the Constitution,” he said.
Harris does have some support in the Legislature. Rep. Kim Hammer, R-Benton, a chaplain at Saline Memorial Hospice in Bryant, said lawmakers should oppose the rule.
“The parents have the right to choose whether they want their children to go to those centers that offer that or not,” he said. “Some parents want their children to be exposed to that, and we shouldn’t necessarily deprive them of that on the basis of the argument that DHS is making.”
Harris told reporters Wednesday that in his view, “there is no separation from church and state” in the Constitution.
John DiPippa, law school dean at the University of Arkansas at Little Rock, said that although the phrase “separation of church and state” comes from a letter by Thomas Jefferson, not the First Amendment, there is no debate among constitutional scholars about whether a constitutional separation of church and state exists. The debate is over how much separation there should be, he said.
Those who advocate for less separation may be forgetting that the First Amendment not only protects government from religion but also protects religion from government, DiPippa said.
Without the separation, “religions could start compromising on deeply held beliefs because there’s a lot of money being dangled in front of them,” he said.
Since the 1960s, as the government has increasingly extended aid to organizations such as religious schools and charities, the issue has continued to crop up, he said.
“Over the years the court has developed a notion of neutrality, where if the money is given for a neutral purpose — food service or transportation or books, things like that — and it’s available to everybody without regard to religious status, then that’s OK,” DiPippa said.
Confusion can arise when groups that are pervasively religious receive government money — when, for example, a nun teaches a secular class in a room with crosses on the wall, or students close their secular textbook and then have a prayer.
“Once the state starts giving money away on a neutral basis and includes religious organizations in it, there are some really hard lines to draw and it becomes very difficult to separate them out,” DiPippa said.