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A School Law Primer Religion: Legal Pointers for Public Schools

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A School Law Primer Religion: Legal Pointers for Public Schools A School Law Primer Religion: Legal Pointers for Public Schools Reviewed and updated by Deryl A. Wynn McAnany, Van Cleave & Phillips, P.A., and A. Dean Pickett Littleton, Colorado Presented at the 2015 School Law Seminar, March 19-21, Nashville, Tennessee © 2015 National School Boards Association. All rights reserved. A School Law Primer Religion: Legal Pointers for Public Schools Updated March 2015 Reviewed and updated by Deryl Wynn, McAnany, Van Cleave & Phillips, P.A., Kansas City, Kansas, and Dean Pickett, Littleton, Colorado Contents Page OVERVIEW 2 CONSTITUTIONAL AND STATUTORY PROVISIONS 4 LANDMARK CASES 4 MAJOR PRINCIPLES 6 I. PRAYER IN SCHOOL 6 A. Generally B. Individual and Group Prayer C. Prayer at School-Sponsored Activities D. Prayer at School Board Meetings II. RELIGIOUS EXPRESSION 10 A. Generally B. Student Distribution of Religious Literature C. Distribution of Religious Literature by School Personnel D. Wearing Religious Attire III. CURRICULUM ISSUES 13 A. Use of Religious Materials for Instruction B. Objections to Curricular Materials C. Student Use of Religious Material in Assignments and Other Classroom Activities D. Religious Displays E. Religious Celebrations F. Release Time IV. ACCESS TO SCHOOL FACILITIES BY RELIGIOUS GROUPS 22 A. Viewpoint Discrimination B. Equal Access Act C. Other Facilities Use Questions V. PUBLIC AID TO PRIVATE SCHOOLS 25 A. Transportation B. Textbook Loan Programs C. Reimbursement for or Loan of Instructional Material and Equipment D. Testing E. Supplemental and Related Services F. Tuition Assistance PUBLIC AID TO RELIGIOUS SCHOOLS Table 30 CASES SUMMARIES 32 2015 National School Boards Association. All rights reserved. 1 OVERVIEW “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech . .” U.S. CONST. amend. I. The First Amendment to the United States Constitution guarantees religious freedom and freedom of speech in separate clauses that are often in tension with one another. One prohibits the establishment of religion by the government, one prevents the government from infringing on an individual’s free exercise of religion and one protects speech, including certain speech on religious topics. This primer examines how the courts have interpreted these three clauses within the public school environment. Establishment Clause The U.S. Supreme Court has long held that the Establishment Clause prohibits the government from: (1) designating an official religion, (2) supporting a specific denomination or religion, or (3) promoting religious activity. In a landmark case, Lemon v. Kurtzman, 403 U.S. 602 (1971), the U.S. Supreme Court established a three-part test to determine if a government action challenged under the Establishment Clause passes constitutional muster. The Lemon test asks whether the government action: (1) Has a legitimate secular purpose; (2) Has a primary effect which neither advances nor inhibits religion; and (3) Does not create an excessive entanglement between church and state. If the government action fails just one of the three prongs of the Lemon test, then the action will be considered in violation of the Establishment Clause. The Lemon test has since been modified, or at least put aside on a case-by case basis, by three major cases: First, in Wallace v. Jaffree, 472 U.S. 38 (1985), relying on Justice O’Connor’s concurring opinion in Lynch v. Donnelly, 465 U.S. 668 (1984) regarding a recurring holiday display on town property, the Court, focusing on the K-12 school environment and young children’s susceptibility, placed greater emphasis on whether the activity appears to endorse religion or a religious activity. It modified the Lemon test to ask: (1) Whether the actual purpose is to endorse or disapprove of religion; and (2) Whether the actual effect creates a message of governmental endorsement or disapproval. Second, the U.S. Supreme Court ignored the Lemon test in Lee v. Weisman, 505 U.S. 577 (1992), using a newer standard established by Justice Kennedy in County of Allegheny v. ACLU, 492 U.S. 573 (1989), which also involved recurring holiday displays on public property. The Court focused on and found impermissible coercion in the context of 2015 National School Boards Association. All rights reserved. 2 school-sponsored commencement prayer. Striking down a school practice of having clergy deliver a non-sectarian prayer at a junior high school graduation, the Court found that government coercion to participate in a religious exercise violated the Establishment Clause. Third, in Agostini v. Felton, 521 U.S. 203 (1997), the Court used a compilation of factors to evaluate state aid to students attending private religious schools. Overturning an earlier decision, the Court held that providing remedial services on private, religious school premises is permissible. The Court so held because the practice does not: (1) Result in government indoctrination; (2) Define its recipients in relation to their religion; and (3) Create excessive entanglement between government and religion. While federal courts have consistently held that Lemon continues to be viable, many school law experts believe that which Establishment Clause analysis a court chooses to apply will vary based on the facts of the case. For example, in McCreary County, Ky. v. ACLU-KY, 545 U.S. 844 (2005), involving the constitutionality of a Ten Commandments display at a courthouse, the Supreme Court’s decision turned on the secular purpose prong of the Lemon test, and the Court explicitly refused to abandon this prong in the case. However, in Van Orden v. Perry, 545 U.S. 677 (2005), involving the constitutionality of a Ten Commandments display at the Texas Capitol grounds, a plurality of the Court declined to apply the Lemon test at all because of the “passive” nature of the display. Free Exercise The Free Exercise Clause guarantees individuals the right to worship as they choose. However, this right is not absolute. While an individual is free to believe whatever he or she wants, he or she is not always free to act on those beliefs. The government may prohibit or regulate certain practices, such as snake handling, for which there is a compelling interest to do so, e.g., public safety. Applying this principle in the K-12 context, the U.S. Supreme Court concluded in Wisconsin v. Yoder, 406 U.S. 205 (1972), that enforcing a state compulsory attendance law against the Amish infringed on their free exercise of religion rights. The Court found that the state’s interest in educating Amish children past the eighth grade was outweighed by the religious free exercise rights of the Amish. In 1990, the Court issued an opinion that substantially modified the Free Exercise Clause analysis. Although not directly involving public education, the decision in Employment Division v. Smith, 494 U.S. 872 (1990), has implications for free exercise challenges that may arise in schools. In Smith, the Court upheld a state statute preventing the claimants from collecting unemployment benefits due to smoking peyote, despite the fact that it was used in their religious ceremonies, saying there was no free exercise violation. The Court found that it was a neutral law that had only an incidental effect of burdening a 2015 National School Boards Association. All rights reserved. 3 particular religious practice. The government was not required to show a compelling interest to justify the law. While Employment Division v. Smith has been partially overturned by the Religious Freedom Restoration Act of 1993 (RFRA) and the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA), it is still applicable in the public education context. Free Speech Increasingly, those who sue school districts over policies they feel encroach on their religious liberties have been framing their challenges not as matters of free exercise, but as free speech. See, e.g., Walz v. Egg Harbor Twp. Bd. of Educ., 342 F.3d 271 (3d Cir. 2003) (elementary school student’s First Amendment rights were not violated by the school’s restrictions on his distribution of pencils and candy canes containing religious messages during classroom holiday parties). Where a school’s actions treat religious expression or viewpoints differently from non-religious viewpoints or expression, courts increasingly have found unconstitutional viewpoint discrimination under the Free Speech Clause. See, e.g., Orin v. Barclay, 272 F.3d 1207 (9th Cir. 2001) (abortion protester’s free speech rights were violated when he was arrested for referring to God and the Bible; the community college created an open forum by giving him permission to protest on campus, and no narrowly tailored, compelling state interest was served by prohibiting his religious expression). CONSTITUTIONAL AND STATUTORY PROVISIONS U.S. CONST., amend. I Equal Access Act, 20 U.S.C. § 4071 (2005) LANDMARK CASES Everson v. Board of Education of Ewing Township, 330 U.S. 1 (1947) McCollum v. Board of Education of School District No. 71, 333 U.S. 203 (1948) Zorach v. Clauson, 343 U.S. 306 (1952) Engel v. Vitale, 370 U.S. 421 (1962) School District of Abington Township v. Schempp, 374 U.S. 203 (1963) Board of Education of Central School District No. 1 v. Allen, 392 U.S. 236 (1968) Epperson v. State of Arkansas, 393 U.S. 97 (1968) Lemon v. Kurtzman, 403 U.S. 602 (1971) Wisconsin v. Yoder, 406 U.S. 205 (1972) Meek v. Pittenger, 421 U.S. 349 (1975) Stone v. Graham, 449 U.S. 39 (1980) Widmar v. Vincent, 454 U.S. 263 (1981) Mueller v. Allen, 463 U.S. 388 (1983) Lynch v. Donnelly, 465 U.S. 668 (1984) Edwards v. Aguillard, 482 U.S. 578 (1987) Allegheny County v. Greater Pittsburgh ACLU, 492 U.S. 573 (1989) Board of Education of Westside Community Schools v. Mergens, 496 U.S. 226 (1990) Lee v. Weisman, 505 U.S. 577 (1992) 2015 National School Boards Association.
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