This handbook was developed with the help of IU Law professor Alex Tanford while I was at the ICLU, and was subsequently distributed to all members by the Indiana School Superintendents Association. It is an attempt to explain the operation of the religion clauses in the public school context, and is intended to be an accurate reflection of the law, not as advocacy for or against any particular interpretation.
Handbook On Religion In The Public Schools
The First Amendment
The First Amendment prohibits government from endorsing or sponsoring religious beliefs or religious observances; it also prohibits government from burdening the individual expression of religious beliefs or observances. Put another way, in each case, public school officials should ask themselves two questions: 1) Will my decision promote a particular religious belief, endorse religion generally, or cause students to participate involuntarily in a religious observance?; and 2) Will my decision interfere with a student’s right to the free exercise of his or her religion or conscience? Several basic principles should be kept in mind:
O School officials may not advance or endorse any particular religion or sect, and may not prefer religion to non-religion.
O Teachers may teach about religion in appropriate academic settings, such as history class. but may not teach from a sectarian "perspective" or endorse a particular belief system.
0 Students have the right to maintain their own religious beliefs. They may not be pressured to participate in any religious activity, or in activities which violate their beliefs.
O Students have the right to practice their religion as long as it does not disrupt discipline or the school’s educational mission.
O School officials should try to accommodate reasonable requests for the private expression of religious beliefs.
State Action –The Role of Government
Much of the confusion about the law governing religion in the schools can be traced to misunderstanding of a key concept: state action. The First Amendment (and the entire Bill of Rights) applies only to action taken by government. It does not apply to individual voluntary action. Individuals can violate other laws, including civil rights laws, but only action by government can violate someone’s Constitutional rights.
Public schools are government. The Supreme Court has held that the First Amendment is binding on all levels of government, including state and local government and specifically including public school corporations. Thus, for purposes of our analysis, government includes public schools, the school board, and the teachers, bus drivers, and volunteers who make them work.
Remember –if government is not involved, neither is the First Amendment.
1. ACTIONS BY SCHOOL OFFICIALS
QUESTION: John Jones is principal of Yellow Brick Middle School. He is upset at what he sees as a decline in morality and decides that each school day will begin with a brief, non-denominational prayer. He begins each prayer by saying "Your participation in this prayer is voluntary." Is Principal Jones within the law?
ANSWER: No. Mr. Jones is an employee of government: the local school corporation. Because he is acting as the government, he cannot endorse or sponsor a religious observance. The mere recitation that the prayer is voluntary does not matter. In this situation, a student cannot avoid drawing the conclusion that the school is endorsing and sponsoring the religious activity (here, the prayer).
QUESTION: Purple River Elementary School begins the school day with a salute to the flag. Timmy and Tommy, children of a devout Jehovah’s Witness family, refuse to salute, stating that to salute the flag would violate their religious beliefs. Their teacher believes this is disrespectful. May he require them to write an essay on the history of the flag as punishment for their refusal to honor it?
ANSWER: No. A public school teacher is considered a state actor. Therefore, he may not violate Timmy and Tommy’s First Amendment right to exercise their religious beliefs (the Free Exercise Clause). The government cannot force a student to salute the flag; and cannot punish a student for refusing to do so. Although he may not realize it, the teacher is infringing on the students’ religious beliefs.
QUESTION: Mary is a contract bus driver for the Rural County Schools. Every morning before she opens the door to drop her students off at school, she says the following brief prayer over the bus loudspeaker: "May Jesus bless your day and bring you sunshine. Amen." A parent complains to the school principal, who says there is nothing she can do, because Mary is not an employee of the school. Is the principal right?
ANSWER: No. Every person performing an official school function is considered a school official, and their acts are considered state actions. No state actor may promote her religious beliefs, nor impose them on students, however benign her intentions.
2. ACTIONS BY UNPAID VOLUNTEERS
QUESTION: David is retired. He volunteers his time to act as a school crossing guard two blocks away from Lincoln Elementary School. He asks the assistant principal if he may hand out free coloring books on the life of Jesus to any student who wants one. Should the assistant principal allow it?
ANSWER: No. Even though he is an unpaid volunteer, David is acting on behalf of the school, and is therefore considered a state actor. He may not distribute religious materials while "on duty" any more than a teacher could.
ANSWER: No. It is considered state action when private citizens are permitted to use school premises during school hours and in the presence of school personnel. Under such circumstances it would inevitably appear that the school was sponsoring the Bible distribution and thus endorsing the religion being promoted by the Good News organization.
QUESTION: A group of parents are concerned that the Tri-City Middle School does not spend enough time teaching fundamental moral values. They raise private money and have copies of the Ten Commandments printed and framed for every classroom. At the bottom of each copy appears the following disclaimer: "Prepared, paid for, and distributed by parents of many denominations. By permitting this to be posted, the school does not intend to endorse any particular religion." May the school allow the parents’ group to hang the posters? ANSWER: No. The school controls what is posted on its walls. Neither the fact that a parents’ group plans and pays for the posters nor the disclaimer negates state action. Because the Supreme Court has held that the Ten Commandments are clearly a religious document, a/lowing copies to be posted around the school would give the appearance that the school endorses the religious message. After all, actions speak louder than words.
3. PASSIVE SUPERVISION BY SCHOOL OFFICIALS
QUESTION: School policy requires that all student groups have a faculty advisor, who must be present at all meetings of the student group. A student religious group called Youth Crusade has been meeting on Wednesdays after school in a classroom. Their faculty advisor is always present, but does not actively participate. Is this constitutional?
ANSWER: Yes. The courts have held that passive supervision of students engaged in private religious expression is not state action. The school must allow the student group to meet under the Equal Access principle, and it has a duty to parents to provide supervision for the extra-curricular activities, so there is a legitimate non-religious purpose for the teacher’s presence. (Note: the Equal Access Act by its terms applies only to secondary schools.)
4. ACTION BY INDIVIDUAL STUDENTS
QUESTION: Susie rides the bus to her public school. She enjoys bringing her Bible to read on the bus. The bus is owned and operated by the school system. Can Susie be allowed to read her Bible during the time she is on the bus?
ANSWER: Of course Susie can read her Bible. Just because the state owns the bus, does not mean that it is responsible for everything that happens on it. Here, the Bible reading is an entirely voluntary action by an individual. Susie’s Bible reading is protected against interference by the school corporation under the free exercise clause of the First Amendment.
5. ACTIONS BY GROUPS OF STUDENTS
QUESTION: Green Tree High School has an annual event called Senior Honors Day at which scholarships and other awards are handed out by the school principal. The Senior Class officers arrange to have the class vote on whether to have prayer at the ceremony. The class votes in favor of prayer, 180 to 15. The class president asks the principal to make time available at the start of the assembly for a student volunteer to give a brief prayer. After all, he says. America is a democracy, and in a democracy the majority rules. Should the principal put the student volunteer on the program?
ANSWER: No. Although many aspects of our democracy are decided by majority rule, the other important thing to remember about the Bill of Rights is that its provisions and guarantees are not subject to vote. We cannot vote to ban certain books. We cannot vote to outlaw religious beliefs with which we may disagree. We cannot vote to suspend someone’s right to trial by jury. The rights that are guaranteed to individuals by the Bill of Rights are expressly withdrawn from majority rule. Indeed, the Bill of Rights was originally designed to protect individuals against the tyranny of the majority. In our example, the school corporation is sponsoring the assembly. School personnel will preside. Attendance is compulsory and the program will take place during instructional time. An observer, attending the ceremony, would conclude that the prayer was sponsored and endorsed by government.
FOLLOW-UP QUESTION: The same students get together to plan the same assembly. However, instead of voting to begin with a prayer, they vote to begin with a short speech by the class valedictorian. The principal knows that the valedictorian has strong religious beliefs, and is worried that he might talk about the importance of religion or say a prayer. Should the principal demand the right to review the speech in advance in order to eliminate any religious reference?
ANSWER: No. Although Courts have not issued rulings directly on point, the First Amendment does not prohibit an individual speaker from making religious references; it only prohibits government from endorsing that message. This speech should be treated like all other student speeches. If it is the practice to have all student remarks "pre-approved" by the principal or other school officials, then this speech should be reviewed and religious references removed. The fact that a speech has been cleared by the school will suggest that its contents have been approved. If student speakers are not generally required to clear their remarks with the school, this speech should not be reviewed either – under these circumstances, there is little danger that the religious contents will be perceived as being endorsed by the school.
The issue of prayer in the schools has been a divisive one in many school systems.
You can generally find the right path through this thicket if you remember three basic principles:
O School officials may not in any way direct, encourage, support, or endorse prayer during school hours or as part of any official school function.
O An individual student may engage in non-disruptive prayer in his or her free time or outside of regular school activities. (Or, of course, in a silent prayer at his desk before a test!)
0 Students as a group may gather outside regular school hours for voluntary prayer, but may not bring prayer into the regular school day (even by majority vote).
1. PRIVATE PRAYER BY A STUDENT
QUESTION: Ms. Numbers, the 8th grade math teacher, is walking through the school cafeteria during lunch. She notices Johnny bowing his head in what appears to be a silent prayer before digging into his beef Manhattan. She walks up to Johnny and tells him that such activities must stop — because prayer in the public schools is against the law. Is Ms. Numbers right?
ANSWER: No. Despite the rhetoric on radio talk shows, truly voluntary prayer by individual students has always been perfectly legal. No school official has had anything to do with Johnny’s praying. No government official (including Ms. Numbers) has the right to interfere with his non-disruptive, entirely voluntary prayer occurring during free time.
FOLLOW-UP QUESTION: A group of students meet every morning before school at the flagpole to pray together. The Vice-Principal can see this from his window. Should he tell the students to stop?
ANSWER: No. This is also voluntary private prayer. School officials should not intervene as long as the activity does not interfere with discipline or disrupt the school’s educational function.
2. PRIVATE PRAYER BY A TEACHER
QUESTION: Coach Majkowicz, the football coach at Van Buren High School, supervises study hall during third period. He sits at a desk in front of a classroom, while students who have a free period use the time to study, read, or do homework. Majkowicz uses this 45-minutes to read his Bible. He often bows his head and prays silently. Should the principal ask Majkowicz to stop doing this?
ANSWER: This is a close case. Courts have held that Coach’s Bible reading would constitute an endorsement of religion under these circumstances, Coach Majkowicz is performing his official duties and is therefore acting on behalf of the school. If teachers supervising study hall generally have the right to read anything they want, Coach should be allowed to read the Bible, as long as it can be done in a way that prevents the appearance that the school is endorsing the practice,
3. STUDENT INITIATED GROUP PRAYER
QUESTION: The week before graduation, Durwood High School has Senior Honors Day which includes an assembly. This assembly is planned by the Senior Class officers. It usually includes a speech by the class president and the presentation of awards to seniors by the principal. The assembly is held in the auditorium during regular school hours. Attendance at the event is technically voluntary — a student may go to study hall instead — but all seniors usually attend. This year, Senior Class President Kirby wants to include a prayer to solemnize the occasion. The other officers agree, and they decide to seek a student volunteer to give this prayer . When the principal finds out, he calls Kirby and says the prayer will have to be deleted from the program. Kirby argues that the First Amendment requires school officials to be neutral, neither favoring nor being hostile towards religion, and requests that the principal not interfere with the students’ decision, Should the principal change his mind and permit the prayer?
ANSWER: No. Senior Honors Day is 8n official school function on school grounds during the school day. School officials are in charge of it – everyone knows that assemblies in the auditorium are controlled by the school. Just because planning has been delegated to the students does not relieve the school of responsibility for it – Since everyone knows that the principal could prohibit inappropriate activities at the assembly (for example, if students planned a wet T-shirt contest), if he permits the prayer to take place, it will appear that he endorses it. The fact that it is technically “voluntary” is irrelevant – it is still an official school function, not an extra-curricular activity.
FOLLOW-UP QUESTION: After the principal’s refusal to allow the prayer, the senior class officers circulate a ballot among the senior class asking for a vote on the issue. The class votes 135-5 to include prayer. Senior Class President Kirby comes back to the principal and asks him to reconsider. Because of the vote and the publicity in the local paper, Kirby says, no one will think the school is endorsing the prayer. Should the principal allow it?
ANSWER: No. Remember that the Bill of Rights is not subject to majority vote- it protects the rights of the 5 students who voted against the prayer. No vote of the senior class can change the fact that having prayer at Honors Day would be using the power of the state to force students to participate in a religious exercise with which they disagreed.
FOLLOW-UP QUESTION: The principal again tells the senior class officers they may not have a group prayer. Class President Kirby is determined to circumvent this decision. Without telling anyone, he decides to lead a prayer anyway at the start of his speech. As he begins, he says: "Members of the senior class. It would be hypocritical to have a day honoring the senior class without pausing a moment to / honor God who makes it all possible. I offer this short prayer: Thank you God for giving me the privilege of an education and good friends. Amen." Most of the class stands during the prayer. The principal is sitting on the stage next to the speaker’s podium. Should he do anything to stop Kirby’s prayer?
ANSWER: No. The First Amendment does not prohibit an individual speaker from making religious references, or praying. It only prohibits government from sponsoring, facilitating or endorsing that message. No school official has had anything to do with this prayer -it comes as a surprise to them. Therefore, there is no state action, and this prayer is not prohibited. Instead, the Free Speech rights of Kirby should be respected.
4. MOMENTS OF SILENCE
QUESTION: The Zabriskie County School Board has voted to permit each school principal to begin the day with a moment of silence as long as the principal prefaces it with a statement that students may use it to reflect on the day to come, for private meditation, or to pray to the God of their choice. The principal of Sherman Peabody Middle School, decides to institute the moment of silence. When a parent complains, she explains that she is not endorsing a particular religion nor even religion in general, so there is nothing wrong with the practice. Is the principal right?
ANSWER: Probably. Moments of silence are particularly difficult issues to resolve. In many cases, they are merely subterfuges designed to circumvent the rule against spoken prayer. Courts have uniformly struck down moments of silence if they think the true purpose is to promote religion. However, if the courts believe that the School Board’s purpose was truly neutral, then the moment of silence will probably be constitutional.
5. PRAYER AT ATHLETIC EVENTS
ANSWER: Yes. Coach is a government official, who is sponsoring a religious observance with the members of his team. The fact that the students accept the practice does not make it constitutional.
ANSWER: Yes. He should ask Coach to take steps to reduce the likelihood that such prayers will occur in the future. Because Coach has previously encouraged and facilitated the prayers, he will have to take some positive action to reduce the likelihood they will happen in the future. He has gathered the students in a circle and suggested that one of them lead the prayer. He has set the prayers in motion, and cannot now simply remain neutral and let the students "decide" to pray –they all know he wants them to.
FOLLOW-UP QUESTION: After the principal requires Coach to discontinue the practice of prayer before each game, several of the students on the basketball team decide to meet privately, before each game, without Coach present, to pray. They ask Coach to give the team two minutes alone in the locker room before the game for a team meeting. Coach agrees. When they are alone, the students clasp hands and pray. Coach eavesdrops and finds out that they are praying. Should he tell the students to stop?
ANSWER: No. The students are meeting voluntarily, with no school officials present, and no student has complained that he is being coerced into participating. Private prayer is permitted under the Establishment Clause. The government (the school system) may not interfere with private, non-disruptive religious observances.
6. GRADUATION PRAYERS
QUESTION: Melville High School graduation is approaching. Ms. Budd is the senior class adviser and is in charge of planning the event. She always puts together a committee of seniors to help plan the agenda. The seniors tell her they want a non-sectarian invocation and benediction to solemnize the occasion and preserve a Melville tradition. May Ms. Budd do what the students want?
ANSWER: No. Graduation is an official school event. Prayer may not be part of the official program, whether it is led by a member of the clergy, a teacher, or a student volunteer. The desire to solemnize the event and preserve tradition does not make prayer constitutional.
FOLLOW-UP QUESTION: At Chavez High School, the valedictorian always gives a speech. The choice of topic is left to the student. All graduation speakers are given guidelines, which include the time allotted for each and a reminder that grammar and content will reflect upon the quality of the education that the school has provided. The guidelines also urge each speaker to refrain from inappropriate or insensitive remarks. Last year I the valedictorian included a brief prayer as part of her valedictory. Afterwards, several parents complained to the principal. Should the principal do anything differently this year to make sure no prayer is given?
ANSWER: Probably no. As long as the student is genuinely free to choose any topic for her speech (including a lewd or sacrilegious one), she may choose to talk about religion and even to pray out loud. That’s freedom of speech and It Is also protected by the First Amendment.
TO SUM UP:
1) In order for there to be a constitutional violation, there must be government action.
2) The right to practice one’s religion, the right to act in accordance with one’s individual conscience, and the right to be free of government-imposed religious activity are not subject to vote.
3) Academic or other discussion of religious topics (so long as government is not sponsoring or endorsing a particular belief) is not a religious observance and is not unconstitutional.
What should a teacher do? The National Council for Social Studies has developed guidelines for when religion is appropriate in a public school curriculum. A copy of those guidelines is included in the appendix, but the essence of the guidelines is:
O Teachers may not proselytise or use a ‘religious perspective" that prefers one religion over others.
O Schools may teach religion in appropriate classes (i.e., history, art, social studies, etc.)
O Study about religions should be descriptive, should not ask students or called-upon teachers to relate their personal religious experiences.
v and should be conducted in an environment free of advocacy.
n Schools should make reasonable accommodations for students who ask to be excused from certain segments of the curriculum for religious reasons.
1. TEACHING ABOUT RELIGION
QUESTION: Mr. Bufftead1es early American history. In the course of his lectures on the early colonies, he spends a great deal of time discussing the divisions between the Church of England and the various denominations which were then considered Evangelical. He describes the impact of those religious divisions on laws passed by different colonies. After a couple of weeks, he receives a letter from a parent, objecting to the inclusion of religious material in the curriculum, and demanding that it be omitted. Should Mr. Buff eliminate the discussion?
ANSWER: No. There is a world of difference, legally, between saying "Christianity or Judaism or Is/am has been of great historic importance, and this is how" and statements such as "Christianity is the true religion. H The first statement is an academic fact. The second is an attempt to indoctrinate or to endorse a particular religious belief the academic study is appropriate; the attempt at indoctrination is illegal.
QUESTION: The Darwin County School Board is considering a proposal to add an elective course to the high school curriculum called "Religions in Human Culture," It would be taught in the social studies department and would introduce students to the similarities and differences among five of the world’s major religions: Buddhism, Christianity, Hinduism, Islam and Judaism. May they add this course?
ANSWER: Yes. The Supreme Court has said many times that the constitution does not forbid objective teaching about religion.
QUESTION: The Huxley County School Board is considering a proposal to add an elective course to the high school curriculum called "The Bible as literature." The course proposal specifies that it will take a non-sectarian, non-proselytizing approach. May they add this course?
ANSWER: In theory, yes. Although several such courses have been ruled unconstitutional, the courts have held that such a course would be constitutional if it could be taught as history or literature and not as divinely inspired – an extremely difficult proposition.
2. WHEN STUDENTS BRING RELIGION INTO CLASS
QUESTION: Ms. Nice teaches kindergarten. One day for "Show-and-Tell," one of the students, Missy Nightingale brings a videotape of herself singing a religious song and doing a dance. Ms, Nice decides not to permit the girl to show the videotape. Missy’s parents complain. Did Ms. Nice do the right thing?
ANSWER: This scenario is one of the most hotly debated religion-in-the-schools issues. A court has held that Show-and-Tell is part of the regular curriculum of the kindergarten class. The teacher exercises control over it, making sure the items displayed are appropriate for young children. Certainly we would expect Ms. Nice to intervene if a student wanted to light a string of firecrackers left over from the Fourth of July. Because the teacher must control what items get displayed In Show~ and- Tell, she may be found to be promoting religion by allowing the child to present overtly religious material.
3. WHEN PARENTS OBJECT TO THE CURRICULUM AS ADVOCATING SECULAR HUMANISM OR OFFENDING THEIR BELIEFS
QUESTION: The Sensible School District has adopted a new reading program for students in the upper elementary grades. Called "Reading is Fun" the program encourages children to participate by choosing books from a reading list assembled by the teachers, and by doing a brief book report. Participation is voluntary , but the students reading the most books will win happy faces, free pizzas and similar incentives. At a school board meeting, 300 angry parents from a local church demand that the curriculum be discontinued. They allege that the books on the list are "anti-Christian" and "satanic,’. and offend their beliefs. The teachers who use the books angrily dispute the characterization of the materials. and point to their widespread use elsewhere. Must the school board drop the program?
ANSWER: No. The program is voluntary and those who object to its content need not allow their children to participate. Parents have a right to withdraw their children from activities which are incompatible with their own beliefs, whether the teachers believe those beliefs are well founded or not. They do not have a right to demand that the school system impose their beliefs on other people’s children. Parents who wish to have their children participate in "Reading for Fun" are entitled to enroll them. Parents who do not wish to have their children participate are entitled to withdraw them.
ANSWER: Yes. Although teachers and school administrators have an obligation to accommodate Danny’s religious beliefs to a reasonable extent, the Courts have held in these situations that the school is not obligated to excuse Danny from a required course. The First Amendment does not protect individuals from exposure to ideas they may find offensive. The Courts have also held that "creation science" is not science but a religious belief Its addition to the curriculum in the manner desired by Danny’s father would violate the First Amendment because it would amount to endorsing or sponsoring a particular religious dogma
QUESTION: A group of angry parents confront Principal Gray and threaten to take their complaint to the school board. They allege that the curriculum at Muddy Middle School is teaching the religion of Secular Humanism. They demand that the curriculum be changed in order to reflect genuine neutrality. which they say requires giving equal time to Christian beliefs. Principal Gray refuses and the parents take their request to the school board. The school board asks its attorney for advice. Must the curriculum be changed?
ANSWER: No. Although there may be a "religion" of secular humanism, the courts have held that obedience to the Establishment Clause (i.e., religious neutrality) is a.Qt the same thing as teaching the religion of Secular Humanism and that Secular Humanism is not being advanced in the public schools. The mere fact that the curriculum is non-religious, or contradicts or undermines some aspects of some religion’s theology is not the same as teaching a contrary set of religious beliefs. The absence of religious indoctrination in the classroom is mandated by a respect for the individual consciences of the students, not by hostility to any particular religious belief or to religion in general. There are over 2000 religions in the world. If schools were required to give equal time to all of them, in order to "balance" the regular non-religious curriculum, the educational function of the schools would stop. Schools may not, of course, give preferential treatment to one religion over other religions.
QUESTION: Missy’s parents believe that sex outside of marriage is a sin. They object to the school teaching a course in sex education because they believe it encourages immoral behavior. They want the course removed from the curriculum, or in the alternative, they want Missy excused from participating in it. What should the principal do?
ANSWER: The courts have held that schools may offer sex education classes despite the claims of parents that doing so is hostile to their religion. However, individual students with religious objections may be excused from such classes, since they are not central to the school’s educational mission.
4. LIBRARY BOOKS
QUESTION: One group of parents objects to the fact that the school library contains copies of the Bible and other religious books. Another group of parents objects that the library contains books on witchcraft which are anti-Christian. A third group objects to the Tarzan books because they do not portray proper family values. A fourth group objects to Kurt Vonnegut novels because they express approval of euthanasia and extra-marital sex which is offensive to their religious beliefs. Should poor Ms. Prim, the librarian, remove any of these books?
ANSWER: No. The library is there for the benefit of all students. Although the librarian should respect the wishes of parents who do not want their children to have access to certain materials, she is under no legal duty to remove books because some parents disapprove of them. Parents may make choices for their own children, but may not force those choices on other people’s children.
5. RELEASED-TIME PROGRAMS
QUESTION: Hiatus Elementary School has a released time program for religious
instruction. Every Wednesday from 1:00-2:00, any fifth grader whose parents request it is released from school to attend religious instruction at the Calvary Church of Christ. Any student who does not want to participate may spend the hour in the library, on the playground. or in the computer room. School officials notify parents of the availability of the program and keep track of the permission slips, but do not otherwise have anything to do with it. The children are escorted to church by parental volunteers. A Muslim family objects that the program serves only Christian children, and a non-religious family objects that it violates the Establishment Clause. Should the school end the program?
ANSWER: No. Courts have held that released time programs such as these are constitutional as long as four conditions are met. 1) The school must provide a reasonable alternative for children who do not want to participate. State law requires that non–participants have free time and access to the library, playground, music and art facilities. Additional activities, such as playing with computers, are also reasonable; giving them extra schoolwork is not, because it punishes those who "opt out." 2) The program must be available to all faiths. The Muslim child must be allowed to leave school to receive religious instruction in his faith. 3) The school may not encourage students to participate, provide facilities, or become involved in helping to run the program. In our example, the Muslim family must make their own arrangements to find religious instruction for their Child; the school may not. 4) Under state law, no more than 2 hours of religious released time per week is permitted, and it does not count toward the required 6.5 hours of daily instructional time.
TO SUM UP:
1) Religion can, indeed must, be addressed in the course of academic study — particularly (but not exclusively) the role religion has played in history, art and music. Any such inquiry must be academically sound and free of advocacy.
2) Schools must respect the consciences of students and their parents, and should make reasonable accommodations where those accommodations will not unduly burden the school.
3) Schools cannot substitute (or give "equal time" to) sectarian religious beliefs –that is, schools may not teach religious dogma. Schools may teach about such beliefs (for example, in a course or unit on comparative religions), but may not proselytise or endorse
The First Amendment prescribes government neutrality toward religion. This means government can neither advantage nor disadvantage activities based upon their religious content. Again, the critical issue is whether an activity is sponsored by government or whether it is private. When the Supreme Court upheld the Equal Access Act, which applies to public secondary schools and colleges, it did so noting the "crucial difference between government sPeed1 endorsing religion, which the Establishment Clause forbids, and private speech endorsing religion, which the Free Speech and Free Exercise Clause protect" Therefore. religious groups and activities should be treated exactly like non- religious groups and activities, If the school has a chess club, It must permit students to form a Bible club, If the school allows community groups to use the auditorium, it must allow religious groups the same privilege
1. EXTRA-CURRICULAR STUDENT ACTIVITIES
QUESTION: The Spiffy Schools Chess Club meets after school every Thursday; the Science Fiction Book Club meets after school on Wednesdays, Charlie, the school janitor, makes sure the rooms are open for the meeting and locked after the meeting concludes Charlie remains on the premises during the meetings to be sure that no emergencies arise A group of students has just started the "Koran Club" devoted to reading devotional passages from that holy book. They ask Principal Strait for permission to meet on Tuesday afternoons. Should he give permission?
ANSWER: Yes. The school cannot refuse. By allowing other extra-curricular activities on school property the school has created a limited open forum. The mere presence of Charlie the janitor does not constitute endorsement or sponsorship. The school, as government, cannot treat the Koran Club differently merely because its purpose is religious.
FOLLOW-UP QUESTION; The Chess Club has a faculty adviser who teaches chess and takes them to tournaments. The Science Fiction Book club has a faculty adviser who leads the discussion and takes them to Star Trek conventions. The students who have formed the Koran Club want to have a faculty adviser to help teach them about the Koran and take them to a religious convention. They argue that they must be treated ‘just like every other club". Must the principal arrange for a faculty adviser?
ANSWER: The school may supply a staff member to supervise the Club, but that person may not actively participate.
QUESTION: Sunnydale School District has adopted a policy that only curriculum-related clubs may meet at the school. Curriculum-related student groups include a French Club, Mathematics Club, and student orchestra. The rule provides that no other groups may meet on the school premises. A Bible study class has formed and ask to be allowed to meet on the school grounds Must the school allow the Bible club meeting?
ANSWER: No. The school has adopted a rule that does not create a limited open forum. That is, the school has adopted a policy that only clubs specifically connected to the curriculum will be allowed to meet on school grounds The school has not "singled out" religious groups for treatment different from others -the rule applies equally to the Chess Club, the Scuba Club and any other non-curriculum related club. Accordingly, the rule is lawful
QUESTION: The East Pasture school system decides to establish a limited open forum and permit. a variety of clubs to meet on school grounds during non-instructional time. It does have a rule, however, that no "non-school person" may attend these meetings Reverend Smith objects, saying that it is unconstitutional to bar him from attending sessions of the after school Bible club. Must the school board allow him to attend?
ANSWER: No. The school has a right to make a rule that prohibits non-school attendees. What the school could not do is discriminate among the student groups; that is, it could not pass a rule allowing outsiders to attend non-religious clubs but prohibiting them from attending religious ones
2. USE OF SCHOOL FACILITIES BY NON-STUDENTS
QUESTION The town of Tanford has a population of 10,000. The only large auditorium in town is in the high school. The school has always let community groups use it after school hours The Girl Scouts, tile League of Women Voters, and the Lockjaw County Nonpertioans have held meetings there. No fee is charged. Reverend Steeple asks the principal for permission to use the auditorium for a revival meeting when the Charismatic preacher Jimmy Joyous comes to town. The principal refuses, because he believes this is an inappropriate use of the facility. Did he act correctly?
ANSWER: No. If school facilities are regularly made available to community civic groups, they must be made available to religious groups on the same basis.
TO SUM UP:
1) The equal access rules require that public secondary schools and colleges allow religious clubs and activities to use school facilities on the same basis as other, non-religious activities.
2) If non-curricular (extracurricular) clubs can use school facilities, so can religious ones, but the school may not sponsor those clubs. If the school allows its building to be used by community groups, it cannot refuse access to groups because they are religious.
3) If the schools decide to deny access to all extracurricular and private groups, they may do so.
Many holidays occur throughout the school year that are directly or indirectly religious: Yom Kippur, Christmas, Ramadan, Good Friday, Mardi Gras, and Halloween to name a few. At such times, schools must make reasonable accommodation for students who wish to observe the holidays. Teachers may take the occasion to teach students about the holiday and its meaning, but must be careful not to endorse or criticize a particular religion.
QUESTION Reindeer Heights Elementary School is preparing to celebrate the winter holiday season. At a faculty meeting, the coach says that he has been reading the headlines in the local papers and is certain that no acknowledgement of the holiday season is appropriate. “We’ll get sued." he warns. "I read that the Supreme Court said that we can’t even discuss the holidays in school." Is the coach right?
ANSWER: No. Although the courts have made no definitive ruling on recognizing religious holidays in the schools, it is probably permissible to use the occasion to provide secular instruction about religious traditions. Teachers may not promote or celebrate the particular religion(s) involved, nor may a school selectively recognize and teach about only those holidays celebrated by a majority of their students, which would be an implied endorsement.
QUESTION: Mr. Lopez teaches social studies. He has a wide variety of religious symbols in his middle school classroom. He uses the Menorah to teach about the Jewish holiday of Hanukkah; a Crèche to illustrate what Christians celebrate at Christmas; and he employs a variety of religious symbols sacred to the Islamic and Buddhist traditions among others. In each case, the symbol is used as an example and aid to teaching about that particular religion’s holidays. A member of the school board, visiting Mr. Lopez’s classroom demands that he remove the symbols because they are illegal. Is he right?
ANSWER: No. The use of religious symbols, provided they are used only as examples of cultural and religious heritage, is permissible, as long as a single religion is not given preferential treatment Teaching about religious holidays is constitutional; celebrating religious holidays is not.
QUESTION: Cornfield High School marks the Christmas holiday each year by presenting a living nativity scene, and "retelling” the Christmas Story. Only student volunteers are used, and no credit is given to them. Two local parents, who are not Christian, object. They claim the practice violates the First Amendment Are they right?
ANSWER: Yes. A nativity scene is clearly religious in nature, and participation in its creation in this case has only a religious purpose. Erecting Crèches or Menorahs to mark religious holidays -to celebrate those holidays -is not allowed. Christmas trees, Santa Claus and other seasonal but non-devotional symbols are acceptable. In short while recognizing the holiday season, none of the school activities in December should have the purpose) or effect, of promoting or inhibiting religion.
QUESTION: Ms. Cheery’s art class is preparing for a Halloween Party. Each child will create a costume which can then be used for trick or treat. Ms. Cheery gets a call from the mother of Stanley, one of her students. Stanley’s mother explains that she considers Halloween a pagan holiday involving devil-worship that offends her religion and endorses Satanism. She asks that the party be cancelled Must Ms. Cheery cancel the party?
ANSWER: No. The school is not advancing or endorsing Satanism by celebrating Halloween. Whatever the historical origin of the holiday, it has become a secular one in our society.
FOLLOW-UP QUESTION: Stanley’s mother then asks that Stanley be excused from class on Halloween, because the holiday is offensive to their religious beliefs. "Oh that is so silly!" says Ms. Cheery. "He’ll miss all the fun." Stanley’s mother becomes very angry .Who is right?
ANSWER: Stanley’s mother is right. She is asking something very reasonable: for her son to be excused from a Hmited specific event, in order to honor her son’s religious freedom and freedom of conscience. Excusing Stanley from making the costume will not adversely affect his educational development. While there is no Supreme Court case on point, the Free Exercise Clause and the Religious Freedom Restoration Act would seem to require excusing Stanley from the Halloween exercise.
QUESTION: Sandy belongs to a small religious sect with numerous holidays. She frequently asks to be excused from class In order to attend religious services. She always turns in makeup work that is assigned, and is an excellent student, but her science teacher marks her down an entire grade for frequent absences. Is this proper?
ANSWER: No. As long as the student is doing the work and the religious absences ~re legitimate, she should not be penalized for honoring the dictates of her conscience.
QUESTION: Ms. Harmony teaches music at Intersection Middle School. The manager of Mega Shopping Mall calls her to ask if the school chorus will come to the Mall on December 1 to sing Christmas Carols. What answer should she give him?
ANSWER: The school chorus may go to the Mall. Ms. Harmony should select a program that includes plenty of non-religious songs like “White Christmas" and “I Saw Mommy Kissing Santa Claus. " She may include traditional religious carols, as long as they do not dominate the program. In this context, the activity is clearly related to the secular commercial aspect of Christmas, not its religious nature. If a similar invitation comes from the Free Methodist Church, however, Ms. Harmony should decline.
TO SUM UP:
1) Schools can teach about religious holidays, but cannot do so selectively and cannot celebrate them.
2) Schools may recognize holidays with appropriate, non-religious symbols and pageants.
3) Schools may not penalize students for absences to attend religious holiday observances.
No school is required to permit materials to be distributed by outside groups or individuals on school grounds. The educational mission of the school generally requires that it control what material is given to students, however. if the school decides to allow such distribution of materials, it must also permit religious literature to be handed out. Of course, no school official may be involved in the distribution of religious materials.
QUESTION’ Bobby is a fifth-grade student in the Foggy Valley Schools. One day, he comes home with a new bible, which he explains has been given to each of the children by a nice man who came to Bobby’s class that day. Bobby’s mother inquires and discovers that a group called the Good News Service Corps has handed out Bibles to fifth graders every year for the past twenty years, The teacher explains that it is a gift and that the children may accept the gift or refuse it Distribution occurred during class time and in the presence of the teacher. Bobby’s mother says such a practice violates Bobby’s constitutional rights. Is she correct?
ANSWER: Yes. In a recent case in Rensselaer, Indiana, the court held that the distribution of Gideon Bibles violated the Establishment Clause. Because Bible distribution occurred on the school premises, during school hours, and in the presence of school personnel, it was inevitable that children of "tender years" would assume that the school was sponsoring the bible distribution and thus endorsing the religion being promoted.
QUESTION: Johnny Gee comes from a family of very active evangelists. Although he is only 8, Johnny has seen his older siblings and his father hand out religious tracts at various gatherings. One day, he brings a number of tracts from home and, during recess. gives them to other children on the playground. His teacher confiscates the pamphlets and forbids Johnny from passing them out ever again. There is no school policy forbidding the exchange of information among the children, and during recess children have previously exchanged information about little league, birthday parties and up-coming movies, and have exchanged baseball cards and similar memorabilia. Did the teacher act correctly?
ANSWER: No. It is improper for the teacher to interfere with Johnny when the school has permitted other students to exchange written materials. No one could reasonably assume that the distribution was sponsored or endorsed by the school. The activity did not occur during instructional time, and was not supervised or administered by school personnel. It was a voluntary individual act and may not constitutionally be prohibited simply because the content of the material is religious.
QUESTION: Kennedy Elementary School principal John Fitzgerald receives numerous requests from community groups that they be able to announce activities to students. The Cub Scouts, the Children’s Museum, the YMCA Summer Camp, the Youth Soccer League, and the Pirouette Dance Academy have all asked that an information sheet be passed out. Principal Fitzgerald decides to set up an information table and bulletin board in the lobby of the school for the distribution of such literature. A few weeks later, he passes the table, and notices that almost all the literature on it is religious. Should he remove the religious literature?
ANSWER: No. Once he has created a public forum, by allowing some groups to pass out information, he may not restrict literature based solely on its religious content. He may, however, limit the forum to information about specific activities appropriate to young children — leaving announcements for Bible camp and youth prayer meetings, but removing comic books on the life of Jesus or Moses, for example. All such rule must be generally applicable, however. It may not "target" only religious materials.
TO SUM UP:
1) Public schools may neither sponsor nor endorse religion. Allowing religious organizations to distribute materials on school grounds during the school day amounts to endorsement and is thus unconstitutional.
2) Schools may constitutionally enact a rule prohibiting all student-initiated distribution, or confining students to a particular time, place and manner for such exchanges. Any such rule, however, must be "content neutral." It cannot single out religious materials for treatment different from treatment of other materials.
3) The younger the students, the more impressionable, and the more concerned the Courts will be about the appearance of endorsement by teachers and school administrators.
Teachers’ Religious Freedom
Teachers are in the difficult position of being both private citizens and state actors. As state actors, they must refrain from supporting or endorsing religion. As private citizens, they have the right to freely exercise their religious beliefs. These two principles often conflict in the school setting. In general, during the school day I teachers must refrain from engaging in personal religious activities when they are within view of students.
QUESTION: As we said earlier, Coach Majkowicz supervises third period study hall. He sits at the desk in front of the room to maintain discipline, but otherwise has no teaching responsibilities. Students are free to read or do their homework, and Coach wants to read his Bible during study hall.
ANSWER: As indicated previously, this is a Close question. Most courts have ruled that this would violate the Establishment Clause because from the students’ perspective} Coach Majkowicz is the official school authority in charge of that class. As a state actor, he may not use this position to endorse religion. However, if teachers are generally free to read anything they want, and act only to maintain classroom discipline, then Coach probably may be allowed to read his Bible.
QUESTION: May Coach Majkowicz read his Bible and pray in the Teachers’ Lounge during his own free period?
ANSWER: Of course. In this case, he is "off duty” out of view of the students and may freely exercise his religious beliefs in a non-disruptive way.
QUESTION: Steven Steinberg is a devout Jew who teaches sociology at Hoover High School. The school has a dress code for teachers that specifies that "No visible religious clothing may be worn while teaching." Steinberg has been told that he must stop wearing a yarmulke to class. He asks the principal to reconsider, because such a rule conflicts with his right to freely exercise his religion. Should the principal rescind the rule?
ANSWER: No. The Courts have generally upheld school regulations prohibiting the wearing of religious garb while teaching. Such prohibitions help maintain the school’s neutrality vis-à-vis religion.
FOLLOW-UP QUESTION: Mr. Steinberg is the only devout Jew teaching at Hoover High School. There are few Jewish students in the school, so classes have always been held on Jewish holidays. Steinberg asks to be excused from teaching his classes on the major Jewish holidays. The principal is undecided. Should he allow Steinberg to miss class?
TO SUM UP:
1) Teachers have rights as private citizens. So long as they are acting in that capacity and not as agents of government, the free exercise clause protects their religious activity.
2) When teachers are acting in their official capacity, they are subject to the restrictions that apply to government generally.
3) Schools must make reasonable accommodation to teachers for religious observances.