When it comes to religion, public schools must obey two legal requirements that are hard to reconcile: let it be, and push it away. These are the clashing and equally forceful commands contained in the First Amendment to the U.S. Constitution.
The Constitution uses 16 words—known as the “religion clauses”—to create rules about how faith and government interact. One clause gives citizens the right to freely exercise religious convictions; the other prohibits government (including taxpayer-funded public schools) from establishing religion, meaning granting favorable treatment.
Yet, because the Constitution is so brief about what’s expected and so vague on how to do it, the result has been years of conflict and strife. The main questions:
What it really amounts to is being fair. Unlike private schools, public school districts are bound by the Constitution, which forces them into a delicate balance. Board members and school administrators are required to allow personal acts of religious faith but to simultaneously avoid any appearance that religion (or any particular religion) enjoys special status. The U.S. Supreme Court has the final word in resolving disputes about what the Constitution permits or forbids.
Among the issues that have reached the High Court:
Can a school district allow students to conduct prayers over the loudspeaker and before kickoff at a varsity football game? (No)
Does a religious student club get the same rights and privileges as other student clubs? (Yes)
Is a school district required to give equal access to an outside organizations that provide after-school religious instruction to young children? (Yes)
Is a moment of silence really a cloaking device for prayer? (Sometimes)
Are the words “under God” in the pledge of allegiance unconstitutional in schools? (Undecided)
The duty to uphold the Constitution is a fundamental difference between public schools and religious schools. While government-sponsored schools must stay neutral (often called separation of church and state), private schools are not similarly bound. The contrast is stark: parochial and religious schools openly inculcate religion while teaching reading, writing, and mathematics.
Increasingly, public school leaders describe being seized by a powerful vise grip. On one side: local and national religious organizations that push, then sue if they believe religion is being denied. On the other: civil liberties groups, equally aggressive and equally willing to use federal courts to thwart coziness between religion and school practices.
These types of cases have been around for decades, but as the United States has become increasingly polarized along religious lines, disputes and subsequent lawsuits over religion in the schools have drawn widespread attention on a local, state, and national level.
The following examples show what that tightrope looks like on a day-to-day basis.
OK: Teaching about the Bible, the Torah, or other sacred texts and their influence on human behavior. No one denies that religion has strongly motivated behavior in the United States and around the world. Acknowledging that fact in the curriculum does not raise First Amendment concerns.
Wrong: Teaching sacred documents with devotion or as singular truth. It crosses the line when a teacher or school district portrays one religion or religion in general as the preferred belief.
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OK: Allowing a student to wear a T-shirt, wrist band, or neckwear expressing religious belief. As long as the item is not vulgar, insulting, or otherwise inappropriate, school officials cannot interfere with that kind of personal statement.
Wrong: Forbidding such items or giving special treatment to believers. Problems arise when, for example, a teacher gives higher grades to students who mention “God” in their homework assignment, or district policy prohibits a skull cap (worn by Jewish boys) or Hijab (headscarf worn by Muslim girls) because of their religious connection. The toughest calls under the Constitution come when courts have to balance religious freedom against safety concerns. For example, a student has a right to pray between classes, but can not kneel in the hallway and create a hazard for other students trying to pass. As well, school officials have a keen interest in preventing gang affiliations, but would be hard-pressed to forbid a student from wearing a religious garment that happened to coincide with gang colors.
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OK: Allowing a school-sponsored Gospel Choir that performs praise songs. While the music originates from church, the choir is learning principles of performance, vocal control, and other artistic concepts by participating. The words of faith are viewed as secondary.
Wrong: Forbidding students or staff to pray between classes or penalizing them for being absent for religious holidays. Contrary to some popular criticism, religion has not been driven out of the schools. As long as a student is not disrupting the normal flow of the school, he or she can say a prayer as desired. Also, in general, students should be allowed time away (briefly during the school day or for a single day or more) to comply with religious tenets.
Generally, conflicts between religion and public schools fall into three categories:
Inside Acts—Arise within school buildings and are based on actions of students or staff (e.g., student religious clubs, clothing and symbols, passing out faith-based literature).
Outsider Access—Includes efforts by external organizations that wish to spread religious messages or use the facility for worship.
Curriculum Concerns—Includes issues such as Intelligent Design, the theory that an “intelligent cause” is the best explanation for the complexity of life (Discovery Institute, 2006), or a full-semester high school course on the Bible.
For non-experts, it can be frustrating to try to make heads or tails of court decisions. Cases can be misleading and seemingly contradictory about what’s allowed.
A few things are clear under the Constitution, however. These absolutes are what distinguish public schools from their private or religious K–12 counterparts. The bright lines in the Establishment and Free Exercise Clausesstrike a peace accord that allows believers and skeptics to peacefully co-exist.
School districts may not endorse (or appear to be endorsing) religious activities in school sponsored activities. What that means in practice is that schools may not give special treatment to believers nor special prominence to activities that highlight religion. The Establishment Clause, in other words, is the Constitutional device that prevents public entities like schools from taking sides with the faith-based community. The need for the divide harkens back to the founding of this country, when the potential for religious strife was a real threat to the unity of a new nation.
A 1971 case called Lemon v. Kurtzman remains the leading case on the Establishment Clause and continues to guide the courts in deciding when a school district’s action violates the First Amendment. Courts ask a series of three questions in this order:
Does it have a secular (non-religious) purpose? That question was key in a 1985 potent “moment of silence or voluntary prayer” case. The U.S. Supreme Court sought to determine whether there was a secular purpose behind a state law passed by the Alabama legislature. Looking at the evidence, justices determined that the morning practice was a back-door way of persuading children to pray, and struck the law down. Therefore, at the outset of a case courts ask: Does the challenged activity have a religious (sectarian) purpose or are there sound secular reasons motivating school officials?
Does it advance or inhibit religion? Asking this question gives judges a sense of the neutrality of the practice. Something that advances religion would be a classic Establishment Clause violation. An example would be charging a general fee for a service but exempting religious clubs from the cost. Likewise, inhibiting religion is unconstitutional, and might occur if school districts do the opposite with their fee schedule.
Does it cause excessive entanglement with religion? In short, does the government involvement with a religious activity stretch so deep that it is indistinguishable from the religious nature itself. This question seeks to prevent schools and other activities from doing everything they can to support religion and stopping short of saying it out loud. Cooperation with religious causes and accommodation are both permissible, but entanglement occurs when the Constitution puts a halt to the relationship. An example might be an alternative high school where each week the primary speakers at a mandatory assembly are clergy or religious leaders who talk about morality. Entanglement might be an even greater problem if it is only one denomination that is being preferred.
Each question is a hurdle to be crossed. If the answer to the first question is yes, then the case proceeds. The Court’s answer to the second and third questions must be no. If the answer is wrong at any stage, then usually an “establishment of religion” is found and the district loses.
The Lemon test remains the standard by which cases are judged. Other theories have been developed by the Supreme Court to make the Lemon test less potent, but it has never been overridden. A case continues forever as prevailing law unless the U.S. Supreme Court outwardly repudiates it and overturns it.
In the 1984 Lynch v. Donnelly case, U.S. Supreme Court Justice Sandra Day O’Connor took the first two Lemon questions and said they amount to an “endorsement test.” Really, she said, courts should look for whether schools are in effect endorsing religion. That view has been influential. While O’Connor’s interpretation does not override Lemon, some courts have adopted her approach in deciding conflicts.
By contrast, U.S. Supreme Court Justice Anthony Kennedy wrote strongly that the better approach was the “coercion test.” In Lee v. Weisman he wrote that unless government coerces people to support or participate in religion against their will, the religious clauses are not violated. That view, explained in a 1992 case about prayer at graduation ceremonies, would allow for a closer collaboration between government and religion than might otherwise be permitted under O’Connor’s idea or the idea that schools must be “neutral.”
The Lemon test was revisited in 1997 in a case called Agostini v. Felton. The Court said courts should ask whether government indoctrination has occurred, and whether the recipients of government benefit are defined by religion.
The Lemon test, the endorsement test, the coercion test, the Felton question about indoctrination, and the underlying idea of neutrality can all potentially apply when someone challenges a school as violating the Establishment Clause. The fact that there is no single test that can be applied and different theories that could be deployed by the Court depending on the issue is what makes the outcomes unpredictable and causes school officials—and quite candidly school law attorneys—to be confused and occasionally wrong. While that makes for headaches, in some ways the uncertainty is absolutely in line with Constitutional law itself—forcing judges to make decisions by balancing interests on a case-by-case basis rather than on generalizations. Except for the items that are at the margin, it is almost impossible to say on a knee-jerk basis whether an action is or is not an establishment of religion. Decisions by the Supreme Court and federal courts keep moving the line. These days, courts tend to have a broader definition of the Establishment Clause and permit a tighter bind between religion and schools than courts 30 years ago.
Often this question comes into bright contrast in December, with Christmas, Hanukkah, Ramadan, and the non-religious Kwanzaa converging and competing for attention. It is where Establishment and Free Exercise intersect most clearly.
Accusations fly that school officials are establishing religion by plays, music, holiday displays, or discussions in class. Equally fervent accusations fly that school districts are squelching the free exercise of religion by not permitting certain observances in class or during school hours.
Sorting out what’s permitted and what’s forbidden can be excruciating. And, again, no single Supreme Court decision will lead to the “right” answer. To reach a neutral rendering on holiday displays, the Court has settled into a hodgepodge rule that requires school and other public officials to in some way balance the various religious symbols and to include non-religious symbols.
Free Exercise Clause
Students can pray in school, if they are not disrupting normal activities.
Students can be released from class for ritual prayer or leave school early for religious instruction.
School staff and students can wear religious symbols. Staff items cannot contain proselytizing messages, like “I love Allah and you should too.”
A teacher may not refuse to teach a portion of the approved curriculum on religious grounds.
The Free Exercise Clause is commonly combined with the First Amendment Free Speech Clause to combat “viewpoint discrimination.” Religious speech cannot be treated differently simply because of the subject.
Some summarize the twin Constitutional directives this way: Freedom of religion and Freedom from religion. In recent years that duality has been a magnet for lawsuits. For instance, from 1990 to 2001 the National School Boards Association wrote friend-of-the court briefs in 21 religion cases heard by the U.S. Supreme Court or federal appeals courts.
Of all the places where Free Exercise applies, the situation that captures public imagination most is the one of prayer. When, where, and how students can pray often becomes a source of conflict. The general rule is that students are free to pursue their faith in school as long as they are not disruptive. Therefore, they can pray silently in class but cannot disrupt a lesson with a spoken prayer. Students can pray during lunch periods or other down time, but cannot skip academic classes to pray. The exception, however, is that some religions require ritual prayer at certain times and in certain ways. Schools have predominantly made provisions for that to happen. There’s also a line to be drawn between private individual prayer (often OK) and public group prayer (usually not OK).
So where are the hot spots?
Religious holidays versus the academic calendar. Controversy flared in Michigan in October 2005, because the state scheduled exams during the Muslim holy days of Ramadan and the Jewish holy days of Rosh Hashannah and Yom Kippur. The incident highlights the growing need for school leaders to be aware of and sensitive to religious observances.
School-sponsored speech. The key 1992 Supreme Court decision, Lee v. Weisman, struck down a school district’s practice of inviting clergy to lead prayer at graduation. More recently: In October 2004, a federal appeals court sided with a Florida school district, saying officials were right to remove a student’s religious message from the mural she painted for a school beautification project. The case, Bannon v. School District of Palm Beach County, was appealed to the U.S. Supreme Court, which in October of 2005, declined to hear it.
Concerns about subtle religious inculcation. Into this category fall issues such as posting the 10 Commandments and school involvement by the faith-based community. School officials must be mindful that outward acts carry the risk that viewers or listeners could mistakenly believe that the district is officially supporting religious sentiment.
Student group and outside group access. On the side of student groups is The Equal Access Act, a federal law that applies to secondary schools. Key case: Board of Education of Westside Community Schools v. Mergens. Likewise, outside groups will continue to push for opportunities to spread their view. Key case:Good News Club v. Milford Central School.
Expressions of Faith by Staff Members. Faculty advisors of religious clubs and technology issues, such as employees who place religious taglines at the end of e-mail, are just two instances where conflict has occurred. Developments in this area call for school officials to balance the rights of the employee and the special needs of school environment.
Teaching About Religion. Including a 2005 book, The Bible and Its Influence, and curriculum that examines the Bible’s affect on literature, art, history, and culture are potential hotbeds of contention. The Fairfax, Virginia-based Bible Literacy Project says about 300 school districts are considering the course. While the idea of teaching and learning about religious subjects is standard, schools must resist the temptation to tilt the curriculum toward a particular religion or otherwise compromise their non-committal stance.
Class assignments. As long as the religious aspects meet assignment requirements, there is no problem. The challenge: When work will be displayed or the student uses a class speech to preach to a captive audience.
As we look to the future, the battle will surely continue. Scholars say the United States is home to more than 2,000 religions and about 400,000 churches, synagogues, and mosques. The public’s schools are a natural battleground, supporting 90 percent of all school-aged children nationwide. Public schools are also where youngsters develop values—particularly at young, impressionable ages.
Equally challenging is the fact that federal and U.S. Supreme Court decisions keep shifting the standards and expectations for public schools—another hurdle that private schools need not clear. The Constitution ensures that every student who receives public schooling has the opportunity to express his or her sincerely held belief, or to be free from the unwelcome pressure to believe at all.
Americans United for Separation of Church and State. Prayer And The Public Schools: Religion, Education & Your Rights. Washington: D.C.
Haynes, C. C. & Thomas, O. (2001). Finding Common Ground: A First Amendment Guide to Religion and Public Education. Nashville: TN.
National School Boards Association, Council of School Attorneys. NSBA Amicus Involvement in Religious Cases. Alexandria, VA
National School Boards Association, Council of School Attorneys. (August, 2001). Religion & Public Schools: Striking a Constitutional Balance. Alexandria, VA.
The Bible Literacy Projecthttp://www.bibleliteracy.org/Site/index2.htm
The Discovery Institute
United States Department of Education. (1998). Secretary’s Statement on Religious Expression. Washington, D.C.
Key U.S. Supreme Court Cases
Agostini v. Felton, 117 S. Ct. 1997 (1997). This case held that public school teachers can tutor private school students inside private schools. Important also because it shifted the way in which courts judge whether schools are violating the Establishment Clause and overturned Aguilar v. Felton.
Aguilar v. Felton, 473 U.S. 402 (1985). This case prohibited a New York public school teacher from offering tutoring inside parochial schools. Resulted in mobile trailers outside private religious schools. Overturned 12 years later by Agostini v. Felton.
Abington School District v. Schempp, 374 U.S. 203 (1963). This case struck down a Pennsylvania statute that required bible reading at the start of the school day.
Board of Education of Westside Community Schools v. Mergens, 496 U.S. 226 (1990). The Court determined in this case that the Equal Access Act (requiring schools to let religious student clubs in secondary schools meet on campus) does not violate the Establishment Clause, but acts to protect student religious and political speech against discrimination.
Bannon v. School District of Palm Beach County, No. 03-13011 (11th Cir. October 12, 2004). In this case, a Principal removed religious message from a student mural. The National School Boards Association filed an amicus brief in the case urging the court to approve the principal’s actions.
Engel v. Vitale, 370 U.S. 421 (1962). This case held that school districts could not require students to say a nonsectarian prayer.
Good News Club v. Milford Cent. Sch., 533 U.S. 98 (2001). This case held that school districts cannot forbid religious groups from using school facilities when it allows all other civic and recreational groups to use the same facilities.
Lee v. Weisman, 505 U.S. 577(1992). This case held that a public school’s practice of inviting clergy members to offer short and nonsectarian invocation and benediction prayers at graduation ceremonies violated the Establishment Clause. The Court said it effectively coerced students into participating in a religious exercise.
Lemon v. Kurtzman, 403 U.S. 602 (1971). This case created the three-part establishment clause test that still survives today, although it has been adapted somewhat.
Santa Fe Ind. Sch. Dist. v. Doe, 530 U.S. 290 (2000). This case decided that a school district policy that allows and encourages student-initiated prayer, at high school football games, over the school’s public address system, by a speaker representing the student body, violates the Establishment Clause.
Stone v. Graham, 449 U.S. 39 (1980). This case held that a Kentucky law requiring the posting of the 10 Commandments in every public school classroom was unconstitutional because it did not have a secular purpose.
Wallace v. Jaffree, 472 U.S. 38 (1985). This case held that an Alabama law requiring each public school to start the day with a moment of “silent meditation or voluntary prayer” was unconstitutional.
This is part of a document prepared by Edwin C. Darden for the Center for Public Education. Darden is an attorney, writer, and consultant specializing in school law and public policy.
Posted: April 5, 2006
Copyright 2006 Center for Public Education