Reprinted with permission.  For background, see February 18, 2005, edition of State/Church Separation

“Schools are put in this terrible position where they get sued by both sides [on matters pertaining to religion] …. It’s litigation whiplash. In many situations, the only thing the schools can control is which side is going to sue them first.”

Julie Underwood, General Counsel for the National School Boards Association. Excerpted from the NSBA “Legal Clips,” Supreme Court Case on Public Displays of the Ten Commandments Could Overhaul the Legal Standard of Church-State Balance (December 2004).

 

I. THE FIRST AMENDMENT

 

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or of the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

 

The First Amendment of the United States Constitution primarily governs Church and State controversies. On the one hand, the First Amendment forbids school districts from establishing or promoting religion in the schools (the Establishment Clause). On the other hand, the First Amendment forbids school districts from prohibiting the free exercise of religion by students, staff and others (the Free Exercise Clause). Often, school districts find themselves caught between these competing interests.

 

 

 

A. The Establishment Clause

 

One of the first legal tests used to determine whether the Establishment Clause was violated was the so‑called “Lemon test.” This test was announced by the United States Supreme Court in Lemon v. Kurtzman, 403 U.S. 602 (1971). Under this test, a school district’s policy or program is permissible so long as it (1) has a secular purpose; (2) has a primary effect that neither advances nor inhibits religion; and (3) does not create excessive entanglement between school and religion.

 

In Lee v. Weisman, 505 U.S. 577 (1992), the Supreme Court abandoned the “Lemon test” for the “coercion test.” Under the “coercion test,” a violation of the Establishment Clause occurs when a school district directs a formal religious exercise in such a way as to oblige the participation of objectors.

 

More recently, in Agostini v. Felton, 117 S.Ct. 1997 (1997), the Supreme Court revitalized the Lemon test with some modification. The modified test adopts the first two prongs of the Lemon test, requiring the school district’s policy or practice to have (1) a secular purpose and (2) a primary effect that neither advances nor inhibits religion. Within the second prong of the test, the Court will consider whether state entanglement with religion has an effect that impermissibly supports or restricts religion.

 

B. The Free Exercise Clause

 

The Free Exercise Clause recognizes a student’s right to choose among types of religious training and observance, free from state compulsion. This includes the right of parents to control the religious upbringing and training of their minor students. Fleischfresser v. Directors of School District 200, 15 F.3d 680 (7th Cir. 1994).

 

In determining whether a violation of the Free Exercise Clause has occurred, courts consider whether the school district has placed a substantial burden on the religious beliefs or practices of a student. If so, courts further inquire whether the school district has a compelling governmental interest to justify the burden. Hernandez v. Commissioner, 490 U.S. 680 (1989); Wisconsin v. Yoder, 406 U.S. 205 (1972). In other words, when considering whether a school policy violates the Free Exercise Clause, courts balance the burden placed on a student’s exercise of religion against the school district’s interest in its policy. Fleischfresser, 15 F.3d at 689; Menora v. Illinois High School Association, 683 F.2d 1030 (7th Cir. 1982), cert. denied, 459 U.S. 1156.

II. COMMONLY ASKED FIRST AMENDMENT QUESTIONS

 

A. About School Prayer....

 

1. Can a school district sponsor prayer or a mandatory moment of silence?

 

No. The Establishment Clause prohibits school‑sponsored prayers and religious activities in schools, even when the prayer is nondenominational and participation is voluntary. See Engel v. Vitale, 370 U.S. 421 (1962); School District of Abington Township v. Schempp, 374 U.S. 203 (1963). Likewise, the United States Supreme Court struck down a state statute that authorized a one‑minute period of silence in public schools for “mediation or voluntary prayer.” Wallace v. Jaffree, 472 U.S. 38 (1985). The Court found that the legislative purpose behind the moment of silence was to permit prayer, therefore the statute was unconstitutional.

 

2. Can school districts incorporate prayer into graduation ceremonies? Can students be permitted to initiate a graduation prayer?

 

School district must not initiate graduation prayers. In Lee v. Weisman, 505 U.S. 577 (1992), the Supreme Court held that benedictions and invocations by members of the clergy at public school graduation ceremonies violated the Establishment Clause.

 

Federal appellate courts are split on whether student initiated prayer is a permissible part of graduation. Significantly, the Seventh Circuit held that a school district did not violate an injunction against prayers at graduation when senior high school students recited the Lord’s Prayer while assembling for processional, even though school officials found out about students’ plan two days prior to graduation. The court found that, although the school itself was prohibited from organizing or promoting prayer at graduation, it was not responsible for student‑initiated prayer at the ceremony. Goluba v. School Dist. of Ripon, 45 F.3d 1035 (7th Cir. 1995); see also Jones v. Clear Creek Independent School Dist., 977 F.2d 963 (5th Cir. 1992) (holding that a school district may allow public high school seniors to choose student volunteers to deliver nonsectarian, nonproselytizing invocations at their graduation ceremony when control over content is left to the discretion of the students); Chandler v. James, 180 F.3d 1254 (11th Cir. 1999) (holding that school policy allowing nonsectarian, nonproselytizing student‑initiated prayer at graduation ceremonies did not violate Establishment Clause).

 

On the other hand, in ACLU of New Jersey v. Blackhorse Pike Regional Bd. of Educ., 84 F.3d 1471 (3rd Cir. 1996), the court ruled that school board policy allowing students to vote on whether student‑led prayer would be delivered at graduation ceremony was unconstitutional under the Establishment Clause because it gave the impression of school sponsorship. See also Harris v. Joint School Dist #241, 41 F.3d 447 (9th Cir. 1994), judgment vacated as moot.

 

3. Can students initiate prayer at other school events?

 

Maybe. Like the question of student initiated prayer at graduation, courts are split regarding student initiated prayer at other school related events. In Doe v. Santa Fe Independent School Dist, 168 F.3d 806 (5th Cir. 1999), the Fifth Circuit held that policy allowing student‑initiated, student‑delivered, nonsectarian, nonproselytizing prayer at high school football games was unconstitutional, even though the same type of prayer is permitted at graduation ceremonies, because football games do not warrant the solemnity of prayer. This decision was affirmed by the United States Supreme Court in June of 2000.

 

4. Can a prayer be said prior to school board meetings?

 

No. See Coles v. Cleveland Board of Education, 171 F.3d 369 (6th Cir. 1999). Courts have ruled that prayer at school board meetings by a member of the clergy or the board itself violates the Establishment Clause because the board is an integral part of the public school system and students regularly attend and are involved in meetings.

 

5. Can a coach lead prayer prior to a school sporting event?

 

No. In Doe v. Duncanville Independent School Dist., 994 F.2d 160 (5th Cir. 1993), the court prohibited a basketball coach from initiating or participating in student prayers at basketball practices and games.

 

 

B. About Curriculum Content....

 

1. Do school districts have to modify curriculum when a parent raises religious objections to its content?

 

Maybe, but probably not. Most courts accept a school board’s discretion to make curriculum‑related decisions. For example, in Fleischfresser v. Directors of School District 200, 15 F.3d 680 (7th Cir. 1994), the Seventh Circuit upheld the school district’s reading program despite religious challenges from parents in the community. The court found that use of the challenged reading series did not substantially burden the parents or students from exercising their religious beliefs. The students were not compelled to do or refrain from doing anything of a religious nature. Moreover, the court found that school districts have a substantial government interest in selecting curriculum and providing a quality education. Therefore, the school district was permitted to continue using the reading series.

 

Nevertheless, if the burden on a student might be substantial and a reasonable modification can be made to accommodate the student’s religious belief, a school district may be well advised to make such minor modifications.

 

2. Can a student be exempt from physical education for religious reasons?

 

Yes, although school districts should first look at whether modifications to the physical education program can be made to accommodate the student’s religious beliefs. Moody v. Cronin, 484 F. Supp. 270 (C.D. Ill. 1979).

 

3. Can a school choir sing religious music at a holiday concert?

 

Yes. Courts have held that the inclusion of religious music in a choral program or concert is permissible provided the school district has a secular purpose for the inclusion of such music. For example, a well‑balanced choral program that includes some religious music solely for the secular purpose of increasing a student’s knowledge and skill will likely survive an Establishment Clause challenge. See Florey v. Sioux Falls School Dist., 619 F.2d 1311 (8th Cir. 1980); Doe v. Duncanville Independent School Dist., 70 F.3d 402 (5th Cir. 1995); Bauchman v. West High School, 132 F.3d 542 (10th Cir. 1997). However, to avoid violating students’ Free Exercise rights, schools should consider allowing students to opt‑out of the performance of religious music (alternative assignments may be given instead).

 

There is a fine line between teaching about religious holidays and celebrating religious holidays. Teaching about religion and religious holidays is generally constitutionally permissible. However, the United States Supreme Court has held that celebrating religious holidays in the educational context is constitutionally impermissible. School District of Abington Township, PA v. Schempp, 374 U.S. 203 (1963). For this reason, courts have consistently held that holiday programs may not focus on any one religion or religious observance and may not appear to endorse one religion over another or religion over non-religion.

 

Public performances or presentations of religious music, literature and art in the public school setting are permissible, as long as they are presented objectively as part of a secular program of education. A school district’s holiday program may constitutionally include some religious songs, provided that the program features mostly secular songs, and that the programs as a whole is primarily educational, secular, objective and nondenominational.

 

4. Can a school district restrict its teacher’s ability to discuss religion in the classroom?

 

Yes. Although teachers (like students) maintain their First Amendment rights at school, courts have generally held that school districts can control curriculum content and can restrict teacher actions when necessary to comply with the Establishment Clause. See Webster v. New Lenox School Dist. No. 122, 917 F.2d 1004 (7th Cir. 1990) (holding that school officials have authority to determine curriculum content, and finding the First Amendment did not give a teacher the right to introduce religion into his classroom by teaching Creation science in contravention of the established curriculum); Helland v. South Bend Community School Corp., 93 F.3d 327 (7th Cir. 1996) (holding that school district did not violate teacher’s Free Exercise rights when it prohibited him from reading the Bible in class); Marchi v. Board of Cooperative Educational Services, 173 F.3d 469 (2nd Cir. 1999).

 

C. About Student Rights....

 

1. Can a school prohibit students from distributing religious materials on school grounds?

 

Maybe. This question actually raises the issue of Free Speech (yet another clause of the First Amendment). Religious speech, like all other speech, is protected by the First Amendment and cannot be banned on the basis of viewpoint. In other words, schools cannot ban the distribution of religious materials solely because of their content, or because the school fears the perception of school sponsorship.

 

In Muller v. Jefferson Lighthouse School, 98 F.3d 1530 (7th Cir. 1996), the Seventh Circuit held that an elementary school student had the right to distribute invitations at school to a religious meeting, subject only to restrictions reasonably related to legitimate pedagogical interests. The Court allowed the school district to: (1) approve the non‑school sponsored materials prior to distribution; (2) include a disclaimer stating the materials were not endorsed by the school; and (3) regulate the time and place of distribution.

 

2. Can students be allowed absences from school for religious holidays?

 

Yes. An absence due to celebration of a religious holiday must be excused and the child must be allowed to make up all missed tests and assignments. 105 ILCS 5/26-2b.

 

3. Can students include religious objects in murals or other school artwork?

 

It depends. In Bannon v. School District of Palm Beach County, No. 03-13011 (11th Cir. October 12, 2004), the U.S. Court of Appeals for the Eleventh Circuit ruled that a high school principal did not violate a student’s First Amendment rights to free speech or free exercise of religion by requiring the student to remove religious messages from a mural she painted. The mural was part of a school-wide beautification project. The court held that (1) the school beautification project did not constitute a public forum; (2) the mural was school-sponsored speech; and (3) the principal’s decision was reasonably related to legitimate pedagogical objectives.

 

III. EQUAL ACCESS

 

A. The Equal Access Act, 20 U.S.C. § 4071 et seq.

 

The Equal Access Act requires secondary schools that allow any non‑curriculum related student club to use school facilities to provide the same access to all non‑curriculum related student clubs. In other words, if a high school permits a chess club or cheerleading squad to use its facilities, it must also permit a student bible study to use its facilities. See, e.g., Hsu v. Roslyn Union Free School Dist. No. 3, 85 F.3d 839 (2d Cir. 1996).

 

1. To whom does the Equal Access Act Apply?

 

The Act applies only to secondary schools (high schools) that have permitted non‑curricular student groups to use school facilities. It does not apply to elementary schools. It does not apply to non‑student organizations.

 

2. What does “equal access” mean?

 

Equal access means giving all non‑curricular student groups (regardless of the groups’ messages or purposes) the same access to building facilities, school newspapers, bulletin boards, public address systems, club fairs and yearbooks. See Board of Education of the Westside Community Schools v. Mergens, 110 S.Ct. 2356 (1990); Garnett v. Renton School District No. 403, 1994 U.S.Dist. LEXIS 14188 (W.D.Wash. 1994).

 

3. Can teachers or other school personnel sponsor or participate in non‑curricular student organizations?

 

The Act prohibits school district from sponsoring the meetings of non‑curriculum related student organizations. 20 U.S.C. 4071(c)(2). The Act defines “sponsorship” as promoting, leading or participating in a meeting, but excludes the assignment of a teacher, administrator or other school employee to a meeting for “custodial purposes.” 20 U.S.C. 4072(2). Further, the Act reiterates that employees or agents of the school present at religious meetings must be present in a non‑participatory capacity only. 20 U.S.C. 4072(c)(3).

 

B. Access of Non‑Student Organizations

 

Access to school facilities is also governed by the First Amendment. Generally, a school district that creates a “limited public forum” by making its facilities available to community organizations cannot discriminate against certain organizations based on viewpoint (including religious viewpoints). This principle applies to all public school districts, regardless of whether the Equal Access Act applies. Lamb’s Chapel v. Center Moriches Union Free School District, 508 U.S. 384 (1993). In this case, the United States Supreme Court held that school districts could properly allow religious organizations to use their facilities during non‑school hours. Id.