Forging a common school: The use of public engagement, negotiated policy processes, and mediation to build consensus on religious issues in public education

This research examined the substantial increase in education-related First Amendment Religion Clause litigation during the past 50 years. The study collected data on the total number of reported Religion Clause cases since 1945 and specifically analyzed the final decisions reported in the 1990s with respect to the outcome and whether a written school district policy was at issue. Specifically, the study looked at court decisions in the categories of school prayer, access to school facilities by religious organizations, student religious expression, parental rights/free exercise, curriculum, holidays and religious symbols, student religious clubs, distribution of religious materials to students by religious organizations, teacher religious expression, and religious music.;The inquiry then explored the hypothesis that school leaders could reduce, if not eliminate, court battles over religious issues and values by implementing alternative dispute resolution (ADR). First, the study probed the theoretical basis for the use of ADR generally by analyzing recent First Amendment judicial opinions endorsing the concept as well as the major objections to ADR that have surfaced in the Supreme Court's Establishment Clause jurisprudence. Second, the research focused on the practice of ADR in the First Amendment arena by conducting a case study of a large school district that utilized a negotiated policy process and mediation to resolve a difficult conflict over religious values without litigation.;An analysis of the data led the researcher to conclude that the two ADR processes of negotiated rulemaking and mediation, particularly when structured around the concept of "public engagement," hold promise as ways to not only reduce First Amendment conflict in public education, but also to rejuvenate public support for, and confidence in, public schools. In addition, the researcher concluded that, although it is difficult to make accurate comparisons between litigation and alternative dispute resolution, school districts that implement negotiated policymaking and mediation prior to, or early in the stages of, First Amendment religious conflict may achieve a more positive outcome than they would in court.;After examining both the keys and obstacles to successful design and implementation of an ADR system in First Amendment matters, the study proposes several essential components of an institutional, long-term ADR program in public schools, including an office of public engagement, an ombuds, and mediation. The study also proposes reconsideration of the relationship between school boards and school attorneys, and suggests that superintendents obtain specific knowledge and skills regarding the First Amendment and dispute resolution in order to be effective educational leaders in the 21st century.