Kevin Snider, chief counsel for the Pacific Justice Institute, a litigation group that typically defends Christians in the public square, argued the case before the 9th Circuit Court of Appeals. He describes a "curveball" thrown at the oral arguments by Judge Randy Smith. According to Snider, Smith hinted that a public school could be "run by a group that admits they are a religion but that doesn't mean it violates the disestablishment clause." In other words, Smith suggested, a school run by religious people that avoids religion in the classroom might pass constitutional muster.
In its narrow ruling, the court did not answer this question. But while Smith's suggestion that religious groups could sponsor a secular school has yet to find authoritative judicial voice, it has become widely accepted almost by silent consent.
The ACLU challenged a Muslim-sponsored charter school in Minnesota, alleging that it blurred the line. That school later closed for other reasons, making the challenge moot.
But the Ben Gamla Hebrew School in Florida has survived unscathed by teaching Hebrew and emphasizing Jewish culture but not teaching religion. Shortly after its 2007 founding, that school had a brief confrontation with Americans United for Separation of Church and State.
But the school revised its curriculum, said AUSCS associate legal director Alex Luchenitser, and "they are being very careful and aware that there are serious legal issues."
Steiner's philosophy underlies the theory but does not enter the classroom, says Will Stapp of the Alliance for Public Waldorf Education. "It's based on a developmental model, the unfolding of the human being, working from will-based to feeling-based to blossoming of abstract reason.
Stapp objects to the push toward rigid standards embodied in the No Child Left Behind law. "Developmental theory has been thrown out the window," he said. "Now sooner is better. Standards push younger and younger into kindergarten. Kids have to sit still. They use computers rather than play-based movement or activities with social development."
Responding to the charges of ritual in the Waldorf classroom, Maynard said that a visiting alien could reach the same conclusion about testing rituals in mainstream classrooms.
All educational philosophies rest on some transcendent base, Waldorf defenders argue. "When we become militant about anything, it becomes a belief system. We are here to create an open space for kids to grow and learn and think critically. If we are insisting on environmentalism or feminism or secular humanism, we are not creating that space," Allessandri said.