Religion In The Public Schools:
A Joint Statement Of Current Law
The Constitution permits much private religious
activity in and about the public schools. Unfortunately, this
aspect of constitutional law is not as well known as it should
be. Some say that the Supreme Court has declared the public
schools "religion-free zones" or that the law is so
murky that school officials cannot know what is legally
permissible. The former claim is simply wrong. And as to the
latter, while there are some difficult issues, much has been
settled. It is also unfortunately true that public school
officials, due to their busy schedules, may not be as fully aware
of this body of law as they could be. As a result, in some school
districts some of these rights are not being observed. The
organizations whose names appear below span the ideological,
religious and political spectrum. They nevertheless share a
commitment both to the freedom of religious practice and to the
separation of church and state such freedom requires. In that
spirit, we offer this statement of consensus on current law as an
aid to parents, educators and students. Many of the organizations
listed below are actively involved in litigation about religion
in the schools.On some of the issues discussed in this summary,
some of the organizations have urged the courts to reach
positions different than they did. Though there are signatories
on both sides which have and will press for different
constitutional treatments of some of the topics discussed below,
they all agree that the following is an accurate statement of
what the law currently is.
Student Prayers
1. Students have the right to pray individually or in groups or
to discuss their religious views with their peers so long as they
are not disruptive. Because the Establishment Clause does not
apply to purely private speech, students enjoy the right to read
their Bibles or other scriptures, say grace before meals, pray
before tests, and discuss religion with other willing student
listeners. In the classroom students have the right to pray
quietly except when required to be actively engaged in school
activities (e.g., students may not decide to pray just as a
teacher calls on them). In informal settings, such as the
cafeteria or in the halls, students may pray either audibly or
silently, subject to the same rules of order as apply to other
speech in these locations. However, the right to engage in
voluntary prayer does not include, for example, the right to have
a captive audience listen or to compel other students to
participate. Graduation Prayer and Baccalaureates
2. School officials may not mandate or organize prayer at
graduation, nor may they organize a religious baccalaureate
ceremony. If the school generally rents out its facilities to
private groups, it must rent them out on the same terms, and on a
first- come first-served basis, to organizers of privately
sponsored religious baccalaureate services, provided that the
school does not extend preferential treatment to the
baccalaureate ceremony and the school disclaims official
endorsement of the program.
3. The courts have reached conflicting conclusions under the
federal Constitution on student-initiated prayer at graduation.
Until the issue is authoritatively resolved, schools should ask
their lawyers what rules apply in their area.
Official Participation or Encouragement of Religious
Activity
4. Teachers and school administrators, when acting in those
capacities, are representatives of the state, and, in those
capacities, are themselves prohibited from encouraging or
soliciting student religious or anti-religious activity.
Similarly, when acting in their official capacities, teachers may
not engage in religious activities with their students. However,
teachers may engage in private religious activity in faculty
lounges. Teaching About Religion
5. Students may be taught about religion, but public schools may
not teach religion. As the U.S. Supreme Court has repeatedly
said, "[i]t might well be said that one's education is not
complete without a study of comparative religion, or the history
of religion and its relationship to the advancement of
civilization." It would be difficult to teach art, music,
literature and most social studies without considering religious
influences. The history of religion, comparative religion, the
Bible (or other scripture)-as-literature (either as a separate
course or within some other existing course), are all permissible
public school subjects. It is both permissible and desirable to
teach objectively about the role of religion in the history of
the United States and other countries. One can teach that the
Pilgrims came to this country with a particular religious vision,
that Catholics and others have been subject to persecution or
that many of those participating in the abolitionist, women's
suffrage and civil rights movements had religious motivations.
6. These same rules apply to the recurring controversy
surrounding theories of evolution. Schools may teach about
explanations of life on earth, including religious ones (such as
"creationism"), in comparative religion or social
studies classes. In science class, however, they may present only
genuinely scientific critiques of, or evidence for, any
explanation of life on earth, but not religious critiques
(beliefs unverifiable by scientific methodology). Schools may not
refuse to teach evolutionary theory in order to avoid giving
offense to religion nor may they circumvent these rules by
labeling as science an article of religious faith. Public schools
must not teach as scientific fact or theory any religious
doctrine, including "creationism," although any
genuinely scientific evidence for or against any explanation of
life may be taught. Just as they may neither advance nor inhibit
any religious doctrine, teachers should not ridicule, for
example, a student's religious explanation for life on earth.
Student Assignments and Religion
7. Students may express their religious beliefs in the form of
reports, homework and artwork, and such expressions are
constitutionally protected. Teachers may not reject or correct
such submissions simply because they include a religious symbol
or address religious themes. Likewise, teachers may not require
students to modify, include or excise religious views in their
assignments, if germane. These assignments should be judged by
ordinary academic standards of substance, relevance, appearance
and grammar.
8. Somewhat more problematic from a legal point of view are other
public expressions of religious views in the classroom.
Unfortunately for school officials, there are traps on either
side of this issue, and it is possible that litigation will
result no matter what course is taken. It is easier to describe
the settled cases than to state clear rules of law. Schools must
carefully steer between the claims of student speakers who assert
a right to express themselves on religious subjects and the
asserted rights of student listeners to be free of unwelcome
religious persuasion in a public school classroom.
a. Religious or anti-religious remarks made in the ordinary
course of classroom discussion or student presentations are
permissible and constitute a protected right. If in a sex
education class a student remarks that abortion should be illegal
because God has prohibited it, a teacher should not silence the
remark, ridicule it, rule it out of bounds or endorse it, any
more than a teacher may silence a student's religiously-based
comment in favor of choice.
b. If a class assignment calls for an oral presentation on a
subject of the student's choosing, and, for example, the student
responds by conducting a religious service, the school has the
right -- as well as the duty -- to prevent itself from being used
as a church. Other students are not voluntarily in attendance and
cannot be forced to become an unwilling congregation.
c. Teachers may rule out-of-order religious remarks that are
irrelevant to the subject at hand. In a discussion of Hamlet's
sanity, for example, a student may not interject views on
creationism.
Distribution of Religious Literature
9. Students have the right to distribute religious literature to
their schoolmates, subject to those reasonable time, place, and
manner or other constitutionally- acceptable restrictions imposed
on the distribution of all non-school literature. Thus, a school
may confine distribution of all literature to a particular table
at particular times. It may not single out religious literature
for burdensome regulation.
10. Outsiders may not be given access to the classroom to
distribute religious or anti-religious literature. No court has
yet considered whether, if all other community groups are
permitted to distribute literature in common areas of public
schools, religious groups must be allowed to do so on equal terms
subject to reasonable time, place and manner restrictions.
"See You at the Pole"
11. Student participation in before- or after-school events, such
as "see you at the pole," is permissible. School
officials, acting in an official capacity, may neither discourage
nor encourage participation in such an event.
Religious Persuasion Versus Religious Harassment
12. Students have the right to speak to, and attempt to persuade,
their peers about religious topics just as they do with regard to
political topics. But school officials should intercede to stop
student religious speech if it turns into religious harassment
aimed at a student or a small group of students. While it is
constitutionally permissible for a student to approach another
and issue an invitation to attend church, repeated invitations in
the face of a request to stop constitute harassment. Where this
line is to be drawn in particular cases will depend on the age of
the students and other circumstances.
Equal Access Act
13. Student religious clubs in secondary schools must be
permitted to meet and to have equal access to campus media to
announce their meetings, if a school receives federal funds and
permits any student non-curricular club to meet during
non-instructional time. This is the command of the Equal Access
Act. A non-curricular club is any club not related directly to a
subject taught or soon-to-be taught in the school. Although
schools have the right to ban all non-curriculum clubs, they may
not dodge the law's requirement by the expedient of declaring all
clubs curriculum-related. On the other hand, teachers may not
actively participate in club activities and "non-school
persons" may not control or regularly attend club meeting.
The Act's constitutionality has been upheld by the Supreme Court,
rejecting claims that the Act violates the Establishment Clause.
The Act's requirements are described in more detail in The Equal
Access Act and the Public Schools: Questions and Answers on the
Equal Access Act*, a pamphlet published by a broad spectrum of
religious and civil liberties groups.
Religious Holidays
14. Generally, public schools may teach about religious holidays,
and may celebrate the secular aspects of the holiday and
objectively teach about their religious aspects. They may not
observe the holidays as religious events. Schools should
generally excuse students who do not wish to participate in
holiday events. Those interested in further details should see
Religious Holidays in the Public Schools: Questions and Answers*,
a pamphlet published by a broad spectrum of religious and civil
liberties groups.
Excusal From Religiously-Objectionable Lessons
15. Schools enjoy substantial discretion to excuse individual
students from lessons which are objectionable to that student or
to his or her parent on the basis of religion. Schools can
exercise that authority in ways which would defuse many conflicts
over curriculum content. If it is proved that particular lessons
substantially burden a student's free exercise of religion and if
the school cannot prove a compelling interest in requiring
attendance the school would be legally required to excuse the
student.
Teaching Values
16. Schools may teach civic virtues, including honesty, good
citizenship, sportsmanship, courage, respect for the rights and
freedoms of others, respect for persons and their property,
civility, the dual virtues of moral conviction and tolerance and
hard work. Subject to whatever rights of excusal exist (see #15
above) under the federal Constitution and state law, schools may
teach sexual abstinence and contraception; whether and how
schools teach these sensitive subjects is a matter of educational
policy. However, these may not be taught as religious tenets. The
mere fact that most, if not all, religions also teach these
values does not make it unlawful to teach them.
Student Garb
17. Religious messages on T-shirts and the like may not be
singled out for suppression. Students may wear religious attire,
such as yarmulkes and head scarves, and they may not be forced to
wear gym clothes that they regard, on religious grounds, as
immodest.
Released Time
18. Schools have the discretion to dismiss students to
off-premises religious instruction, provided that schools do not
encourage or discourage participation or penalize those who do
not attend.
20. Schools may not allow religious instruction by outsiders on
premises during the school day.
Appendix Organizational Signers of "Religion in the
Public Schools: A Joint Statement of Current Law"
American Civil Liberties Union
American Ethical Union
American Humanist Association
American Jewish Committee
American Jewish Congress
American Muslim Council
Americans for Religious Liberty
Americans United for Seperation of Church and State
Anti-Defamation League
Baptist Joint Committee
B'nai B'rith
Christian Legal Society
Christian Science Church
Church of Scientology
International Evangelical Lutheran Church in America, Lutheran
Office for Governmental Affairs
Federation of Reconstructionist Congregations and Havurot Friends
Committee on National Legislation
General Conference of Seventh-day Adventists
Guru Gobind Singh
Foundation Interfaith
Alliance Interfaith
Impact for Justice and Peace
National Association of Evangelicals
National Council of Churches
National Council of Jewish Women
National Jewish Community Relations Advisory Council (NJCRAC)
National Ministries, American Baptist Churches, USA
National Sikh Center
North American Council for Muslim Women
People for the American Way Presbyterian Church (USA)
Reorganized Church of Jesus Christ of Latter Day Saints
Union of American Hebrew Congregations
Unitarian Universalist Association of Congregations
United Church of Christ, Office for Church in Society
An ACLU Legal Bulletin
The Establishment Clause And Public Schools
"Congress shall make no law respecting an establishment of
religion, or prohibiting the free exercise thereof."
These opening words of the First Amendment to the Constitution
set forth a dual guarantee of religious liberty. Both the
Establishment Clause and the Free Exercise Clause operate to
protect the religious liberty and freedom of conscience of all
Americans. Quoting Thomas Jefferson, the Supreme Court has stated
that the Establishment Clause was intended to accomplish this end
by erecting a "wall of separation between Church and
State." Everson v. Board of Educ. of Ewing, 330 U.S. 1,
15-16 (1947).
It is one of the fundamental principles of the Supreme Court's
Establishment Clause jurisprudence that the Constitution forbids
not only state practices that "aid one religion . . . or
prefer one religion over another," but also those practices
that "aid all religions" and thus endorse or prefer
religion over nonreligion. Everson, 330 U.S. at 15. See Wallace
v. Jaffree, 472 U.S. 38, 53 (1985)("[T]he individual freedom
of conscience protected by the First Amendment embraces the right
to select any religious faith or none at all"); see also
County of Allegheny v. ACLU Greater Pittsburgh Chapter, 492 U.S.
573, 589-94, 598-602 (1989); Texas Monthly, Inc. v. Bullock, 489
U.S. 1, 17 (1989); Torcaso v. Watkins, 367 U.S. 488, 495 (1961).
For the past 20 years, the federal courts have utilized the
three-pronged framework first set forth in Lemon v. Kurtzman, 403
U.S. 602 (1971), to maintain the separation of government and
religion. Under the so-called "Lemon test," a court
must inquire (1) whether the government's action has a secular or
a religious purpose; (2) whether the primary effect of the
government's action is to advance or endorse religion; and (3)
whether the government's policy or practice fosters an excessive
entanglement between government and religion. See 403 U.S. at
612-13. In recent years, the Supreme Court has also frequently
asked whether the challenged governmental action constitutes an
impermissible "endorsement" of religion. See, e.g.,
Allegheny, 492 U.S. at 592 (inquiry is whether the government
"convey[s] or attempt[s] to convey a message that religion
or a particular religious belief is favored or preferred");
id. at 592-94; School District of the City of Grand Rapids v.
Ball, 473 U.S. 373, 390 (1985)("[A]n important concern of
the effects test is whether the symbolic union of church and
state effected by the challenged governmental action is
sufficiently likely to be perceived by adherents ... as an
endorsement, and by nonadherents as a disapproval, of their
individual religious choices").
I. GRADUATION PRAYER
The Supreme Court has long held that the Establishment Clause of
the First Amendment forbids school-sponsored prayer or religious
indoctrination. Over thirty years ago, the Court struck down
classroom prayers and scripture readings even where they were
voluntary and students had the option of being excused. See
School Dist. of Abington Township v. Schempp, 374 U.S. 203
(1963); Engel v. Vitale, 370 U.S. 421 (1962). The Court earlier
had struck down a "released-time" program providing
voluntary religious instruction in public schools during regular
school hours. See Illinois ex rel. McCollum v. Board of Educ.,
333 U.S. 203, 209-10 (1948).
More recently, the Supreme Court has held that a school district
may not require that students observe a moment of silence at the
beginning of the school day where the purpose of such a
requirement is that students use that time for prayer. Wallace,
472 U.S. at 40. In a similar vein, the Court has held that the
state may not require the posting of the Ten Commandments in
public school classrooms, Stone v. Graham, 449 U.S. 39, 41
(1980)(per curiam), and may not require the teaching of
"creation science" in public school science classes
where evolution is taught, Edwards v. Aguillard, 482 U.S. 578,
596-97 (1987).
The fundamental principle underlying all these decisions is that
the Constitution commands that public schools may not take sides
in matters of religion and may not endorse a particular religious
perspective or any religion at all.
A. The Supreme Court's Graduation Prayer Decision
In 1992, the Supreme Court held in Lee v. Weisman, ___ U.S. ___,
112 S.Ct. 2649 (1992), that prayer -- even nonsectarian and
nonproselytizing prayer -- at public school graduation ceremonies
violated the Establishment Clause of the Constitution. The
Supreme Court held that the inclusion of prayers as part of a
school-sponsored and school-supervised graduation ceremony
contravened the Establishment Clause both because of its
inevitably coercive effect on students and because it conveyed a
message of government endorsement of religion. See id. at 2655.
The Supreme Court focused on the subtle coercive pressures that
accompany any religious exercise conducted as part of a
school-sponsored event. The Court held that even though the
school district in Lee did not require students to attend
graduation in order to receive their diplomas, the students'
attendance and participation in graduation exercises was "in
a fair and real sense obligatory." Id. at 2655. As the Court
observed:
Everyone knows that in our society and in our culture high school
graduation is one of life's most significant occasions....
Attendance may not be required by official decree, yet it is
apparent that a student is not free to absent herself from the
graduation exercise in any real sense of the term
"voluntary," for absence would require forfeiture of
those intangible benefits which have motivated the student
through youth and all her high school years.
Id. at 2659. Because attendance at high school graduation
ceremonies is in effect not voluntary -- and because the
ceremonies themselves are an adjunct to and, in some sense, the
culmination of the public school curriculum -- the inclusion of a
religious program in graduation ceremonies violates the
Establishment Clause. As the Court stated in Lee:
The prayer exercises in this case are especially improper because
the State has in every practical sense compelled attendance and
participation in an explicit religious exercise at an event of
singular importance to every student, one the objecting student
had no real alternative to avoid.
Id. at 2661.
The Supreme Court in Lee also focused on the unavoidable
entanglement of government and religion that results from any
attempt by school officials to control the content of graduation
prayers, even if that control extends, as it did in Lee, only to
making sure that the prayers given are nondenominational. Under
Lee, school officials may not in any way "assist in
composing prayers as an incident to a formal exercise for their
students." Id. at 2657. As the Court explained:
The question is not the good faith of the school in attempting to
make the prayer acceptable to most persons, but the legitimacy of
its undertaking that enterprise at all when the object was to
produce a prayer to be used in a formal religious exercise which
students, for all practical purposes, are obliged to attend.
Id. at 2656.
The Court observed that the religion clauses of the First
Amendment "mean that religious beliefs and religious
expression are too precious to be either proscribed or prescribed
by the State." Id.
Contrary to protests voiced by the religious right, the Supreme
Court's holding in Lee is not anti-religious and does not
interfere with the rights of students, guaranteed by the Free
Exercise Clause of the First Amendment, to worship and pray
according to the dictates of their own consciences. As the
Supreme Court stated over three decades ago in Engel:
It is neither sacrilegious nor antireligious to say that each
separate government in this country should stay out of the
business of writing or sanctioning official prayers and leave
that purely religious function to the people themselves and to
those the people choose to look to for religious guidance.
370 U.S. at 435.
It is likewise clear that graduation prayer cannot be justified
as a permissible "accommodation" of religion under the
Free Exercise Clause of the First Amendment. Government efforts
to accommodate the religious beliefs and practices of individuals
are permitted under the Establishment Clause only when they
remove government-imposed burdens on the free exercise of
religion. See Lee, 112 S.Ct. at 2676-77 (Souter, J., concurring);
Allegheny, 492 U.S. at 601 n.51; id. at 631 (O'Connor, J.,
concurring).
The absence of prayer from a school's official graduation
ceremony does not impose any burden on the ability of students to
affirm their religious beliefs before or after the ceremony.
Nothing in Lee, for example, would prevent or prohibit
like-minded students from organizing a privately sponsored
baccalaureate service -- provided that it was held off school
grounds, was entirely voluntary, and was neither sponsored nor
supervised by school officials. See 112 S.Ct. at 2677 (Souter,
J., concurring).
B. Student-Initiated Graduation Prayer
1. The Fifth Circuit's decision in Jones v. Clear Creek
Indep. Sch. Dist.
This past year, a federal appeals court in Texas approved a
school board's policy allowing graduation prayer where a majority
of the graduating class had requested that a prayer be given by a
student volunteer at the school's graduation ceremony. Jones v.
Clear Creek Indep. Sch. Dist., 977 F.2d 963 (5th Cir. 1992),
cert. denied, ___ U.S. ___ 113 S.Ct. 2950 (1993).
As a technical matter, the decision in Jones only applies within
the three states comprising the Fifth Circuit (Texas, Louisiana
and Mississippi). More fundamentally, in our view, Jones
seriously misreads the Supreme Court's holding in Lee.
The Supreme Court made clear that its decision in Lee did not
turn on the fact that school officials made the decision to
include prayers in the graduation ceremony or the fact that the
principal selected the particular clergyman who gave the prayers.
Rather, the Court held that prayers at public school graduation
ceremonies carry the imprimatur of the state and, therefore,
impermissibly endorse religion because the prayers are included
as part of a program that is sponsored, supervised and controlled
b y the school and at which student attendance is, for all
practical purposes, obligatory. See 112 S.Ct. at 2657. Lee thus
stands for the straightforward proposition that when public
schools reserve time at a graduation ceremony for prayers, they
violate the Constitution by putting the power, prestige and
endorsement of the state behind whatever prayer is offered, no
matter who offers it.
As the Supreme Court observed, "the school district's
supervision and control of a high school graduation ceremony
places public pressure, as well as peer pressure, on attending
students" to act in a manner that signifies participation in
or approval of religious exercises that an individual student may
find repugnant to his or her own beliefs. 112 S.Ct. at 2658.
The Fifth Circuit in Jones relied in part on the fact that school
officials reviewed the student prayers to ensure that they were
nondenominational and nonproselytizing. 977 F.2d at 971.(1) Yet
this review by itself impermissibly involves school officials in
deciding which prayers are acceptable and which are not. As the
Supreme Court warned in its first school prayer decision,
"one of the greatest dangers to the freedom of the
individual to worship in his own way [lies] in the government's
placing its official stamp of approval upon one particular kind
of prayer or one particular form of religious services."
Engel, 370 U.S. at 429. In Lee, the Supreme Court reaffirmed this
basic tenet when it stated that "our precedents do not
permit school officials to assist in composing prayers as an
incident to a formal exercise for their students." 112 S.Ct.
at 2657.
This past summer, the Supreme Court decided not to review the
Fifth Circuit's decision in Jones. Over the past few months,
leaders of the religious right have claimed that the Supreme
Court's action is an endorsement of student-initiated prayer and
a vindication of Jones. That characterization is simply wrong as
a matter of law. The Supreme Court's decision does not indicate
approval of the result in Jones, nor does it transform the Fifth
Circuit's decision into a national precedent.
The Supreme Court grants review on writ of certiorari in only a
small fraction of the cases that are presented to it each year.
Its decision not to grant review in a particular case is wholly
discretionary and is rarely explained, as it was not in the J
ones case. See generally P. Bator, D. Meltzer, P. Mishkin &
D. Shapiro, Hart & Wechsler's The Federal Courts and the
Federal System, at 1855 (3d ed. 1988).
The Court has emphasized that a denial of certiorari is not a
decision on the merits and thus carries no precedential weight.
See Teague v. Lane, 489 U.S. 288, 296 (1989)("[A] denial of
a writ of certiorari imports no expression upon the merits of the
case")(quoting United States v. Carver, 260 U.S. 482, 490
(1923)(Holmes, J.)); Maryland v. Baltimore Radio Show, 338 U.S.
912, 917-19 (1950)(opinion of Frankfurter, J.). See generally 16
C. Wright, A. Miller, E. Cooper & E. Gressman, Federal
Practice & Procedure 4004, at 510-511 & n.20 (1977 &
Supp. 1993). As Justice William J. Brennan has explained:
A denial of certiorari is not an affirmance of the [lower] court
judgment as some erroneously think . . . . The denial does not
mean that the Court agrees with the result reached by the [lower]
court. . . . The Court may very well take the next case raising
the same question and reach a different result on the merits.
Lee v. Weisman, not Jones, is the law of the land, and Lee holds
that graduation prayer is unconstitutional.
2. Other decisions on student-initiated prayer
Following the Supreme Court's denial of certiorari in Jones, a
handful of federal courts have considered challenges to
student-initiated graduation prayers. Although the outcomes of
these cases have been somewhat mixed, the more well-reasoned
decisions, including a decision by the Court of Appeals for the
Third Circuit, have held that student-initiated graduation
prayers run afoul of the separation of church and state required
by the Establishment Clause of the First Amendment.
Federal courts in Iowa, New Jersey, and Virginia have held that
student-initiated prayers of the type at issue in Jones are
forbidden by the Establishment Clause. See ACLU v. Blackhorse
Pike Regional Bd. of Educ., Dkt. No. 93-5368 (3d Cir. June 25,
1993 ); Friedmann v. Sheldon Community Sch. Dist., Dkt. No.
C93-4052 (N.D. Iowa, May 28, 1993), vacated on standing grounds,
Dkt. No. 93-2375 (8th Cir. May 28, 1993); Gearon v. Loudon County
Sch. Bd., Dkt. No. 93-730-A (E.D. Va. June 21, 1993), stayed
pending appeal, Dkt. No. 93-1770 (4th Cir. June 23, 1993). (2)
In Blackhorse Pike, the Court of Appeals for the Third Circuit
enjoined a proposed student-initiated graduation prayer, noting
that:
the graduation ceremony is a school sponsored event; the fact
that the school board has chosen to delegate the decision
regarding one segment of that ceremony to members of the
graduating class does not alter that sponsorship, does not
diminish the effect of a prayer on students who do not share the
same or any religious perspective, and does not serve to
distinguish, in any material way, the facts of this case from the
facts of Lee v. Weisman.
Slip op. at 1.
In Friedmann, the United States District Court for the Northern
District of Iowa held that graduation prayers offered by
authority of a majority student vote "run head on into the
mandate of Lee v. Weisman" and are constitutionally
impermissible. Slip op. at 2. Likewise, in Gearon, the United
States District Court for the Eastern District of Virginia found
that a school district's protocol allowing students to vote for
the offering of a nonsectarian, nonproselytizing graduation
prayer violated the Establishment Clause. Slip op. at 4.
The Fifth Circuit's decision in Jones also runs contrary to the
decisions of other federal courts of appeal and that have
addressed the issue of student-initiated prayers at
school-sponsored events. In Jager v. Douglas County Sch. Dist.,
862 F.2d 824 (11th Cir.), cert. denied, 490 U.S. 1090 (1989), the
Court of Appeals for the Eleventh Circuit held that prayers at
public high school football games violated the Establishment
Clause, even though student clubs designated the individuals who
gave the prayers. Likewise, in Collins v. Chandler Unified Sch.
Dist., 644 F.2d 759, 762 (9th Cir.), cert. denied, 454 U.S. 863
(1981), the Ninth Circuit Court of Appeals held that
student-initiated prayer and Bible readings at school assemblies
violated the Establishment Clause, even though the prayers and
readings were given by student volunteers.(3) Finally, the Fifth
Circuit itself, in Karen B. v. Treen, 653 F.2d 897 (5th Cir.
1981), aff'd, 455 U.S. 913 (1982), held that the Establishment
Clause prohibited student volunteers from leading fellow
classmates in prayer, even though students could be excused from
participating. 653 F.2d at 901-02.(4)
As these cases demonstrate, Jones relies on a crabbed reading of
Lee that rests almost entirely on a distinction between
school-initiated and student-initiated graduation prayer that is
irrelevant to the analysis and result in Lee and that ignores the
inherently coercive nature of a religious exercise conducted as
part of an event convened and sponsored by the school.
The fact that a majority of students may ask the school district
to allow a prayer at graduation does not change the requirements
of the Establishment Clause. Indeed, the very purpose of the
Establishment Clause is to prevent a majoritarian government from
imposing particular religious beliefs -- or any religious beliefs
at all -- on individuals in our society who do not share those
beliefs. See West Virginia Bd. of Educ. v. Barnette, 319 U.S. 624
(1943). As Justice Jackson wrote for the Court in Barnette:
The very purpose of a Bill of Rights was to withdraw certain
subjects from the vicissitudes of political controversy, to place
them beyond the reach of majorities and officials and to
establish them as legal principles to be applied by the courts.
One's right to life, liberty, and property, to free speech, a
free press, freedom of worship and assembly, and other
fundamental rights may not be submitted to vote; they depend on
the outcome of no elections.
Id. at 638 (emphasis added).
The entire premise of the Bill of Rights is that individual
liberty must be safeguarded and must sometimes trump the desires
of the majority. High school students, by majority vote, may no
more use the machinery of the state to impose religion on a
minority of dissenters than may a majority of students ask the
school board to violate the First Amendment by engaging in
censorship or violate the Fourth Amendment by engaging in
unreasonable searches of students. As the Supreme Court declared
in Lee,
[W]hile in some societies the wishes of the majority might
prevail, the Establishment Clause of the First Amendment is
addressed to this contingency and rejects [it]. The Constitution
forbids the State to exact religious conformity from a student as
the price of attending her own graduation.
112 S.Ct. at 2660.
Notes
1. Even the Jones court limited its decision, however, to
non-sectarian prayers. The Fifth Circuit correctly indicated that
a student-initiated prayer that was sectarian or proselytizing
would run afoul of the Establishment Clause. See 977 F.2nd at
969.
2. Contra Harris v. Joint School District No. 241, 821 F.Supp.
638 (D. Idaho 1993), appeal docketed, No. 93-35893 (9th Cir. June
15, 1993.)
3. Notably, the Ninth Circuit in Collins found "no
meaningful distinction between school authorities actually
organizing the religious activity and officials merely
'permitting' students to direct the exercises." 644 F.2nd at
761.
4. Indeed, the Fifth Circuit itself no appears to have backed
away from the Jones court's exceedingly narrow reading of Lee. In
a subsequent case, Doe v. Duncanville Indep. Sch. Dist., 994
F.2nd 160 (5th Cir. 1993), the court struck down the practice of
offering prayers before high school basketball games. In Doe, the
Fifth Circuit recognized that Lee "is merely the most recent
in a long line of cases carving out of the Establishment Clause
what essentially amounts to a per se rule prohibiting
public-school-related or -initiated religious expression or
indoctrination." Id. at 165. II.
BIBLE DISTRIBUTION
Earlier this year, the United States Court of Appeals for the
Seventh Circuit ruled that an Indiana school district's policy
and practice permitting representatives of Gideon International
to distribute Bibles in public schools during school hours
violated the Establishment Clause of the Constitution. See Berger
v. Rensselaer Central School Corp., 982 F.2d 1160 (7th Cir.),
cert. denied, ___ U.S. ___, 113 S.Ct. 2344 (1993).
In Berger, the father of two elementary school children
challenged the local school district's longstanding practice of
allowing the Gideons to come into the public schools during
instructional hours and distribute Bibles to fifth-grade
students. Even t hough the teachers did not participate in
handing out the Bibles to the students, and even though the
Bibles were not used for pedagogical purposes, the Seventh
Circuit held that the in-school Bible distribution was "a
far more glaring offense to First Am endment principles"
than the nonsectarian graduation prayer at issue in Lee. See
Berger, 982 F.2d at 1169.
A long line of Supreme Court precedents establish that it is
impermissible for school officials to allow the machinery of the
state to be used to gather an audience for religious exercises or
instruction. See Illinois ex rel. McCollum v. Board of Educ., 333
U.S. 203; Engel, 370 U.S. 421. In McCollum, for example, the
Supreme Court struck down a program allowing religious
instructors to come into the public schools to teach sectarian
classes during school hours, at a time when students would be
free to attend the religious classes or remain in their regular
classes. The Court stated that:
Here not only are the State's tax-supported public school
buildings used for the dissemination of religious doctrines. The
State also affords sectarian groups an invaluable aid in that it
helps to provide pupils for their religious classes through use
of the State's compulsory public school machinery.
333 U.S. at 212.
It violates one of the Establishment Clause's most fundamental
principles to turn government power over to religion. As the
Supreme Court has recognized, the public school is the forum
through which basic norms of citizenship are transmitted to the
next generation and is thus a "vital civic institution for
the preservation of a democratic system of government." See
Abington Township, 374 U.S. at 230 (Brennan, J., concurring).
When government permits a religious group to take over part of
the school's facilities during instructional time, however
briefly, it strongly implies official endorsement of that
religion. In the Grand Rapids case, the Supreme Court stressed
the importance of avoiding any "symbolic link" between
government and religion. The Court held that the second
("effects") prong of the Lemon test will not be
satisfied where the government fosters a "close
identification of its powers and responsibilities with those of
any -- or all -- religious denominations." School District
of the City of Grand Rapids v. Ball, 473 U.S. at 385.
A school's participation in or supervision of the Gideons' Bible
distribution impermissibly suggests that the Gideons' program is
a valid part of a legally required education. The practice also
carries the unmistakable message that religion -- in this case,
Christian Bible study -- is the norm and the non-adherents are
something less than full members of the school community.
"When the government puts its imprimatur on a particular
religion, it conveys a message of exclusion to all those who do
not adhere to the favored beliefs." Lee, 112 S.Ct. at 2665
(Blackmun, J., concurring). See Wallace, 472 U.S. at 69
(O'Connor, J., concurring)(government endorsement of religion
violates the Establishment Clause because it "sends a
message to nonadherents that they are outsiders, not full members
of the political community, and an accompanying message to
adherents that the are insiders, favored members of the political
community"); see also Lynch v. Donnelly, 465 U.S. 668, 688
(1984)(O'Connor, J., concurring).
As the Seventh Circuit aptly observed in Berger:
the act of accepting a Bible in front of other students, with the
option of returning it later privately or choosing not to read
it, signals accord with the Gideons' beliefs. Presumably, the
fifth graders could make a public show of not accepting the
Bible, just as students could walk out of the graduation ceremony
in Lee, or leave during the scriptural reading in Abington, but
the First Amendment prohibits the government from putting
children in this difficult position.
982 F.2d at 1170.
Moreover, the Supreme Court repeatedly has emphasized the
impressionability of primary and secondary school children and
the pressure they are apt to feel from teachers, administrators
and peers to conform. As the Supreme Court recently observed in
Lee, "there are heightened concerns with protecting freedom
of conscience from subtle coercive pressure in the elementary and
secondary public schools" 112 S.Ct. at 2658. See Edwards,
482 U.S. at 584; see also Grand Rapids, 473 U.S. at 390
("The symbolism of a union between church and state is most
likely to influence children of tender years, whose experience is
limited and whose beliefs consequently are the function of
environment as much as of free and voluntary choice").
The Seventh Circuit also properly rejected the school district's
argument that barring the Gideons from distributing Bibles in the
public schools would violate the Gideons' First Amendment free
speech rights. It is well established that the free speech rights
of individuals and religious groups to engage in religious
expression must be subordinated to Establishment Clause concerns
where those individuals or groups seek to observe their religion
in a manner that unduly involves the government. See, e.g. ,
Engel v. Vitale, 370 U.S. 421 (students and teachers may not
recite prayers in school); McCollum, 333 U.S. 203 (teachers may
not provide religious instruction on public school property); see
also Berger, 982 F.2d at 1168. Religious groups such as the
Gideons remain free to promote Bible study and otherwise
proselytize in ways that do not carry the imprimatur of state
endorsement.
III. EQUAL ACCESS TO SCHOOL FACILITIES
The Establishment Clause issues are quite different where a
school district wishes to make its facilities available for use
by student or community groups during non-school hours. In such
cases, the Establishment Clause does not prohibit opening the
school's facilities to religious groups -- provided no elements
of school sponsorship or endorsement are present.
Indeed, once the school district opens its facilities for use by
students or members of the community during non-school hours, the
Free Speech Clause of the First Amendment requires that the
school district not discriminate based on the point of view of
groups seeking access to those facilities. See Cornelius v. NAACP
Legal Defense and Educ. Fund, Inc., 473 U.S. 788, 800 (1985);
Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37,
46 (1983).
This year, in Lamb's Chapel v. Center Moriches School District,
___ U.S. ___, 113 S.Ct. 2141 (1993), the Supreme Court held that
a school district violated the First Amendment free speech rights
of a local church by refusing to permit the church to exhibit, on
school property during non-school hours, a film series dealing
with family values and child-rearing from a religious
perspective, even though those same school facilities were open
to other groups in the community desiring to address the same
subjects from other perspectives. See id. at 2147-48.
The Supreme Court further held that allowing Lamb's Chapel to
exhibit its film series would not contravene the Establishment
Clause because the showing of the films "would not have been
during school hours, would not have been sponsored by the school,
and would have been open to the public" and because school
property "had repeatedly been used by a wide variety of
private organizations." Id. at 2148. The presence of these
four factors, the Court held, ensured that there was "no
realistic danger that th e community would think that the
District was endorsing religion or any particular creed" and
that the school's action satisfied the three-part test of Lemon.
113 S.Ct. at 2148.
In Lamb's Chapel, the school district had made school facilities
available for use by private community groups during non-school
hours pursuant to a New York law authorizing local school boards
to open school property to the community for "social, civil,
and recreational meetings and entertainments, and other uses
pertaining to the welfare of the community" so long as such
uses were "non-exclusive and open to the general
public." Id. at 2143-44 (quoting N.Y.E.L. sec. 414(1)(c)).
The school district, however, denied the request of Lamb's Chapel
and its pastor to show a religious film series because of the
school district's rule that school premises "shall not be
used by any group for religious purposes." Id. at 2144. The
Supreme Court found that the school district engaged in
impermissible viewpoint discrimination in allowing community
groups to use school facilities to address family and
child-rearing issues from non-religious perspectives but in
denying Lamb's Chapel access to school property to address the
same issues from a religious point of view. See id. at 2147-48.
The question of when a religious group's use of government
property presents a valid claim of equal access and when,
instead, granting it access crosses the line into government
endorsement of religion can be a difficult one to answer. Though
the answer inevitably turns on issues of context and on the facts
of the particular case, the Supreme Court's decision in Lamb's
Chapel provides some helpful guideposts to assist school
districts in this area.
In Lamb's Chapel, the proposed use of the public school
auditorium was limited, occasional, and comparable to other uses
already permitted by the school district. The proposed use was to
occur in the evenings, well after school hours. The activity was
not uniquely religious, like worship or prayer; it was open to
the public; it concerned a subject of general interest addressed
to the entire community; and it was not to be promoted by the
school. See id. at 2144-46.
The result clearly would be different, however, if a religious
group were to seek special access to public school students
during the school day. See McCollum, 333 U.S. 203; Berger, 982
F.2d 1160. Any request by a religious group for special
privileges -- including access that is significantly different in
either quality or quantity from the access granted to other
student or community groups not available to secular groups --
would raise serious Establishment Clause problems. See Texas
Monthly, 489 U .S. at 17.
IV. RELIGIOUS HOLIDAY PARTIES
In the past year, some religious activists have encouraged public
school districts to ignore the Supreme Court's Establishment
Clause rulings and to celebrate the religious significance of
holidays such as Christmas as part of the regular school
curriculum. It is clear, however, from the Supreme Court's cases
dealing with public school education, as well as the Court's
decisions involving the public display of religious symbols, that
the Establishment Clause prohibits public schools from sponsoring
holiday observances -- including Christmas programs or Christmas
pageants -- that promote or emphasize the religious significance
of the holiday.
In two recent decisions, the Supreme Court has held that displays
of religious symbols such as nativity scenes on public property
contravene the Establishment Clause if they convey a message that
is primarily religious rather than secular. See Allegheny , 492
U.S. 573; Lynch, 465 U.S. 668 (1984). Under the test of Lemon as
refined in Allegheny, the government's display of religious
symbols violates the Constitution where the government's action
"has either the purpose of effect of endorsing
religion." Allegheny, 492 U.S. at 592-93. As Justice
O'Connor has formulated the endorsement test, the inquiry is
whether an "objective observer," familiar with the
government's practice and acquainted with Free Exercise values,
would view the governmental action a s an endorsement of
religion. See Wallace, 472 U.S. at 76 (O'Connor, J., concurring).
In Lynch, for example, the Court upheld a city's display of a
nativity scene together with various secular symbols of
Christmas, including a Christmas tree and Santa Claus house. See
Lynch, 465 U.S. at 679-85. In Allegheny, however, the Court ruled
that a city's display in the County Courthouse of a creche with a
banner proclaiming "Glory to God in the Highest"
constituted an impermissible endorsement of religion under the
Establishment Clause. See Allegheny, 492 U.S. at 598-602. The
Court in Allegheny emphasized the importance of both the setting
of the religious symbols and their "patently Christian
message." Id. at 601.
As discussed in preceding sections, the Supreme Court has been
especially vigilant in the public school context to ensure that
schools do not engage in practices that convey a religious
message or imply an endorsement of religion. One of the reasons
for the Court's heightened concern in the school cases is its
recognition that elementary and secondary school students are
more impressionable than adults and more susceptible to official
pressure and peer pressure to conform to what they may perceive
as a school-sponsored religious orthodoxy. See, e.g., Lee, 112
S.Ct. at 2658.
Holiday observances in public schools which focus on the
religious significance of Christmas to Christians, rather than on
those aspects of the holiday that have become part of our
country's secular culture, carry precisely the dangers of
religious endorsement and subtle coercive pressure that have led
the Supreme Court to mandate a strict separation of church and
state within the public schools.
Thus far, few courts have addressed the issue of public school
observances of religious holidays. In Florey v. Sioux Falls
School District 49-5, 619 F.2d 1311 (8th Cir.), cert. denied, 449
U.S. 987 (1980), the Eighth Circuit ruled that public schools may
hold holiday observances, such as Christmas concerts or programs,
so long as the programs deal with the "secular or cultural
basis or heritage of the holidays." Id. at 1317. The court
approved a school district policy that allowed public schools to
observe only holidays that had a secular as well as a religious
basis and provided that religious symbols "may be used only
as a teaching aid or resource and only if they are displayed as a
part of the cultural and religious heritage of the holiday and
are temporary in nature." Id. The court contrasted these
permissible observances with what it regarded as a clearly
unconstitutional practice: a responsive discourse between teacher
and students about the importance of the birth of Jesus. See id.
at 1317 -18.
Florey holds that public school observances of religious holidays
may address the religious aspects of the holiday only as part of
a "secular program of education." Id. at 1317. This
requirement is consistent with Supreme Court decisions stating
that academic study of religion, or religious texts, is not
forbidden in the public schools so long as religious topics are
"presented objectively as part of a secular program of
education." Abington Township, 374 U.S. at 225; accord
Stone, 449 U.S. at 41 (noting that the Bible may constitutionally
be used as part of the secular study of history or comparative
religion).
While it is clear that the Constitution does not forbid the mere
mention of religion in the public schools, it is also clear from
the Supreme Court's Establishment Clause decisions that the
public schools may not observe religious holidays in a manner
that has the effect of promoting or endorsing the religious
themes associated with those holidays.