A School Law Primer Religion: Legal Pointers for Public Schools

Home , Establishment Clause, Religious school, School prayer

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

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

“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. All rights reserved. 4 Lamb’s Chapel v. Center Moriches Union Free School District, 508 U.S. 384 (1993) Zobrest v. Catalina Foothills School District, 509 U.S. 1 (1993) Kiryas Joel Village School District v. Grumet, 512 U.S. 687 (1994) Agostini v. Felton, 521 U.S. 203 (1997) Santa Fe Independent School District v. Doe, 530 U.S. 290 (2000) Mitchell v. Helms, 530 U.S. 793 (2000) Good News Club v. Milford Central School, 533 U.S. 98 (2001) Zelman v. Simmons-Harris, 536 U.S. 639 (2002) Locke v. Davey, 540 U.S. 712 (2004) Hibbs v. Winn, 542 U.S. 88 (2004) McCreary County, Ky. v. American Civil Liberties Union of Kentucky, 545 U.S. 844 (2005) Van Orden v. Perry, 545 U.S. 677 (2005) Christian Legal Society v. Martinez, 561 U.S. 661 (2010) Arizona Christian School Tuition Organization v. Winn, 131 S. Ct. 1436 (2011)

I. PRAYER IN SCHOOL

A. Generally

It is well settled that mandatory school prayer and Bible reading are prohibited by the Establishment Clause. Engel v. Vitale, 370 U.S. 421 (1962); School Dist. of Abington Twp. v. Schempp, 374 U.S. 203 (1963).

B. Individual Prayer and Group Prayer

Under the Free Exercise Clause, individual students and employees have a protected right to pray privately. Vocal student-initiated prayer, whether spoken by an individual or in a group setting, is permissible where no Establishment Clause concerns are present. It must be non-disruptive and is subject to the same constraints as other student speech in the particular setting.

The U.S. Supreme Court has noted that there is a “crucial difference between the state endorsing religious speech, which the Establishment Clause forbids and private religious speech which the Free Speech and Free Exercise Clauses protect.” Board of Educ. of Westside Cmty. Schs. v. Mergens, 496 U.S. 226 (1990).

Schools may want to accommodate requests to set aside a designated space for students to observe prayer rituals at certain times of the day as mandated by their religion (e.g., Islam). In granting such requests, schools should be careful to take steps to avoid any perception of school endorsement or sponsorship of religion. The school may also attach reasonable conditions to this practice to minimize any disruption and maintain order.

C. Prayer at School-Sponsored Activities

It is clear that the school may not orchestrate prayer at the beginning of the day, in classes or within the curriculum, during practices or athletic events, or at school assemblies or graduation ceremonies. However, individuals certainly may pray, on their own or in groups, at or during any of these activities. Engel v. Vitale, 370 U.S. 421 (1962); School Dist. of Abington Twp. v. Schempp, 374 U.S. 203 (1963); Lee v. Weisman, 505 U.S. 577 (1992); Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290 (2000).

1. Prayer in the Classroom

Students cannot be compelled to recite a state-composed prayer at school even if it is non-denominational. Nor may they be subjected to prayer

Under some circumstances, courts have permitted schools to start the day with a “moment of silence.” In Wallace v. Jaffree, 472 U.S. 38 (1985), the U.S. Supreme Court struck down an Alabama statute mandating the observance of a moment of silence “for meditation or voluntary prayer.” The Court did so because it found that the clear purpose of the statute was to return prayer to the schools.

Four federal appeals courts have approved state laws that mandate or allow a moment of silence in school. Bown v. Gwinnett Cnty. Sch. Dist., 112 F.3d 1464 (11th Cir. 1997) (no evidence of a religious purpose); Brown v. Gilmore, 258 F.3d 265 (4th Cir. 2001) (a law with a religious purpose may be constitutional as long as it also has a secular purpose); Croft v. Governor of Texas, 562 F.3d 735 (5th Cir. 2009) (the law served a secular purpose and did not have the primary effect of advancing or inhibiting religion); Sherman v. Koch, 623 F.3d 501 (7th Cir. 2010) (the law had a secular purpose (to calm students) and had neither the primary effect nor led to excessive entanglement with religion); but see May v. Cooperman, 780 F.2d 240 (3d Cir. 1985) (New Jersey’s statute lacked a secular purpose).

Generally speaking, the only way a school district can get in legal trouble for a moment of silence policy is where it is very obvious that the entire purpose or effect of the policy is to promote religion. See Wallace v. Jaffree, 472 U.S. 38 (1985).

2. Prayer at Graduation Ceremonies

In Lee v. Weisman, 505 U.S. 577 (1992), the U.S. Supreme Court held that school-organized prayer, even if voluntary and nonsectarian, violates the Establishment Clause. The Court concluded that the school district’s supervision and control of the graduation ceremony had a subtle, but coercive effect on students attending the ceremony “to stand as a group or maintain respectful silence during [the prayer].”

Lee has been read as standing for the proposition that organized prayer planned as part of any school program violates the Establishment Clause. However, there is some disagreement among the circuit courts on this question.

The Fifth and Eleventh Circuits have held that students may deliver nonsectarian, non-proselytizing invocations and benedictions at graduation ceremonies. In Chandler v. Siegelman, 180 F.3d 1254 (11th Cir. 1999), judgment vacated, 530 U.S. 1256 (2000), on remand, 230 F.3d 1313 (11th

 2015 National School Boards Association. All rights reserved. 7 Cir. 2000), the Eleventh Circuit held that student-initiated prayer at non- compulsory school activities is constitutional. The prayer must be genuinely student-initiated and not the product of a school policy that actively or surreptitiously encourages it. Adler v. Duval, 250 F.3d 1330 (11th Cir. 2001), reaffirmed this view, holding that a school policy permitting unreviewed, student-led messages at the beginning of graduation ceremonies is constitutional even though there is no restriction against prayer. The court so ruled, finding nothing in the policy that invited or encouraged religious messages. The court emphasized that under the policy, the school had no control over the content of any message delivered and did not review the message in advance.

The Third and Ninth Circuits, however, have concluded that student-led prayer at graduation ceremonies violates the Establishment Clause. Harris v. Joint Sch. Dist. No. 241, 41 F.3d 447 (9th Cir. 1994), vacated as moot, 515 U.S. 1154 (1995); ACLU v. Black Horse Pike Reg’l Bd. of Educ., 84 F.3d 1471 (3d Cir. 1996). In both cases, districts adopted graduation prayer policies allowing student-led prayer if a majority of the student body voted in favor of having prayer. The policies were modeled around the policy in Jones v. Clear Creek Indep. Sch. Dist., 977 F.2d 963 (5th Cir. 1992), which the Fifth Circuit found to be constitutional.

The Ninth Circuit also has held that school districts may censor sectarian, proselytizing content from graduation speeches. Cole v. Oroville Union High Sch. Dist., 228 F.3d 1092 (9th Cir. 2000); Lassonde v. Pleasanton Unified Sch. Dist., 320 F.3d 979 (9th Cir. 2003); see also Corder v. Lewis Palmer Sch. Dist. No. 38, 566 F.3d 1219 (10th Cir. 2009) (student’s First Amendment rights were not violated when the district made her apologize for delivering a sectarian, proselytizing graduation speech different than the one she submitted for review); but see Griffith v. Butte Sch. Dist. No. 1, 244 P.3d 321 (Mont. 2010) (district violated student’s First Amendment rights where religious remarks in her graduation speech were at the “other end” of the spectrum from sectarian and proselytizing, and no “objectively reasonable observer” could perceive them as bearing the imprimatur of the district where the district included a disclaimer of the presentations at graduation in the graduation program).

Religious music played at graduation ceremonies may also be subject to challenge. In Nurre v. Whitehead, the Ninth Circuit held that the school district did not violate a student’s right to free speech or the Establishment Clause when it denied her high school wind ensemble the opportunity to play a composition with a religious title at graduation. The court noted that it did not hold that all performances of religious music in the public school setting necessarily would be unconstitutional. Nurre v. Whitehead, 580 F.3d 1087 (9th Cir. 2009).

In Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290 (2000), the U.S. Supreme Court held that a policy permitting student-led “invocations” before football games violates the Establishment Clause. The Court refused to characterize the expression at issue as “private speech” because the messages were delivered over the school’s public address system by a speaker representing the student body, under the supervision of school faculty, and pursuant to a policy that encouraged public prayer. Under these circumstances, the Court determined the prayer to be school- sponsored.

D. Prayer at School Board Meetings

Courts are split over what standard to apply to determine whether prayer at school board meetings violates the Establishment Clause. Two circuits have refused to apply Marsh v. Chambers, 463 U.S. 783 (1983), which held that an opening prayer at a legislative session did not violate the Establishment Clause, and have instead applied the Lemon test and have struck down the prayers. Coles v. Cleveland Bd. of Educ., 171 F.3d 369 (6th Cir. 1999); Doe v. Indian River Sch. Dist., 653 F.3d 256 (3d Cir. 2011). In an unpublished opinion, the Ninth Circuit did not accept or reject Marsh, but instead held that school board prayers that were almost always “in the name of Jesus” violated the Establishment Clause’s requirement that one religion not be preferred over another. Bacus v. Palo Verde Unified Sch. Dist. Bd. of Educ., 52 Fed. Appx. 355 (9th Cir 2002). The Fifth Circuit ruled that prayers demonstrating a clear preference for Christianity were impermissible. Doe v. Tangipahoa Parish Sch. Bd., 473 F.3d 188 (5th Cir. 2006) (an en banc court subsequently dismissed the case for lack of standing at 494 F.3d 494 (5th Cir. 2007)).

Finally, the U.S. Supreme Court ruled in Town of Greece, N.Y. v. Galloway, 134 S. Ct. 1811 (2014), that prayers offered at a town council meeting did not violate the Establishment Clause. It remains to be seen whether a challenge to school board prayer would receive the same treatment by the Court.

In jurisdictions that have not yet decided whether prayer at school board meetings is constitutional, school boards may be best able to defend prayer that is nonsectarian and non-proselytizing, is not offered by board members, district employees or students but instead by invited clergy or guests, and where there is a clear and sincere offer for persons present to not participate or to excuse themselves during the prayer if they prefer to do so. For example, in a case involving prayer at county board of commissioners meetings, where Lee v. Weisman is not relevant, the court struck down a practice of reciting prayers that “frequently” contained references to Jesus. Joyner v. Forsyth Cnty., 653 F.3d 341 (4th Cir. 2011). As in other school contexts, the legally safest compromise may be to hold a moment of silence.

II. RELIGIOUS EXPRESSION

A. Generally

Abiding by the Establishment Clause sometimes conflicts with the rights to free expression and free exercise of religion. Outside school-sponsored contexts, student speech can be suppressed due to its content if it is disruptive, harmful, or pervasively vulgar, promotes illegal drug use, or infringes upon the rights of other persons. Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503 (1969); Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675 (1986); Morse v. Frederick, 551 U.S. 393 (2007). Permissible student speech remains subject to the terms and limitations of the forum in which it occurs and to reasonable time, place, and manner restrictions. These general principles apply to religious expression as well.

However, schools must be careful not to appear to endorse a religious message while allowing students to express themselves. Thus, student religious speech is permissible, provided the reasonable observer would not perceive school endorsement. Chandler v. Siegelman, 230 F.3d 1313 (11th Cir. 2000).

In the elementary and secondary school employment context, a school’s interest in avoiding an Establishment Clause violation generally trumps the free speech rights of school employees. Teachers can be directed to refrain from expressing religious viewpoints in the classroom or to students while they are required to be on school grounds at least during instructional time. See, e.g., Lee v. York Cnty. Sch. Div., 484 F.3d 687 (4th Cir. 2007); Peloza v. Capistrano Unified Sch. Dist., 37 F.3d 517 (9th Cir. 1994), cert. denied, 515 U.S. 1173 (1995); Bishop v. Aronov, 926 F.2d 1066 (11th Cir. 1991); but see Wigg v. Sioux Falls Sch. Dist. 49-5, 382 F.3d 807 (8th Cir. 2004) (elementary school teacher may participate in a Good News Club meeting after school at the school where she teaches because no reasonable observer would mistake her participation for the school’s endorsement of religion where the school day has ended and only students with parental permission can participate in the meetings).

Private speech among employees may not be treated in a different manner than other speech merely because the subject matter is religious, but employees do not have a right to speak about religious matters to other employees when the message becomes coercive. See, e.g., Venters v. City of Delphi, 123 F.3d 956 (7th Cir. 1997).

B. Student Distribution of Religious Literature

When school officials allow students to distribute other kinds of literature, the same rules should be applied to the distribution of religious literature. School policies may not prohibit distribution of materials based solely on religious

 2015 National School Boards Association. All rights reserved. 10 content. See, e.g., Hedges v. Wauconda Cmty. Unit Sch. Dist., 9 F.3d 1295 (7th Cir. 1993); Muller v. Jefferson Lighthouse Sch., 98 F.3d 1530 (7th Cir. 1996), cert. denied, 510 U.S. 1186 (1997). Time, place, and manner restrictions are acceptable. See, e.g., Walz v. Egg Harbor Twp. Bd. of Educ., 342 F.3d 271 (3d Cir. 2003) (affirming a school board’s decision to permit an elementary school student to distribute candy canes with religious messages only before school, after school, or during recess and not during class as reasonable time and place restrictions given the age of the audience and the proselytizing nature of the messages); M.A.L. v. Kinsland, 543 F.3d 841 (6th Cir. 2008) (holding that the hallways in a public middle school were a nonpublic forum and the school’s materials distribution policy that prevented a middle school student from handing out leaflets in the hallway was reasonable).

C. Distribution of Religious Literature by School Personnel

Decisions from the Ninth, Sixth, Fourth, and Third Circuits indicate that schools cannot treat requests by outside groups to have school personnel distribute religious materials in the classroom differently based on their religious nature. See Child Evangelism Fellowship v. Montgomery Cnty. Pub. Schs., 373 F.3d 589 (4th Cir. 2004) (“CEF I”); Child Evangelism Fellowship v. Montgomery Cnty. Pub. Schs., 457 F.3d 376 (4th Cir. 2006) (“CEF II”); Child Evangelism Fellowship of New Jersey Inc. v. Stafford Twp. Sch. Dist., 386 F.3d 514 (3d Cir. 2004); Rusk v. Crestview Local Sch. Dist., 379 F.3d 418 (6th Cir. 2004); Hills v. Scottsdale Unified Sch. Dist. No. 48, 329 F.3d 1044 (9th Cir. 2003).

For example, the Fourth Circuit held that where the school district allowed teachers to distribute materials from outside groups such as 4-H and the Boy Scouts, teachers had to distribute materials promoting the Good News Club. CEF I, 373 F.3d 589. In a later case, again involving the same parties, the school board changed its materials distribution policy to allow (or disallow) only specific outside groups (government agencies, day cares, youth sports leagues, etc.) to distribute materials regardless of their message, as long as the materials did not undermine the intent of the policy. CEF II, 457 F.3d 376. The Fourth Circuit rejected this policy because it gave the district “unfettered discretion to deny access to the take-home flyer forum for any reason at all—including viewpoint discrimination.” Id. at 386; but see Victory Through Jesus Sports Ministry Foundation v. Lee’s Summit R-7 Sch. Dist., 640 F.3d 329 (8th Cir. 2011) (upholding a district’s materials distribution policy that gave more access to specific “preferred groups” because such groups’ ties to the district/community was a rational basis for giving them more access in a nonpublic forum and other non-profit community youth organizations like the plaintiff could post flyers on the district’s website).

 2015 National School Boards Association. All rights reserved. 11 NSBA has created a chart with a full list of materials distribution cases accessible at http://www.nsba.org/sites/default/files/MATERIALS%20DISTRIBUTION%20I N%20SCHOOLS%20CASES%20CHART.pdf.

D. Wearing Religious Attire

Schools have substantial discretion in adopting dress code policies, and students generally have no right to be exempted from religiously neutral and generally applicable school dress rules. But schools cannot single out religious attire for prohibition. Religious messages on clothing and wearing of religious symbols should be regulated under the same rules as other student apparel. But schools should be careful not to adopt rules that burden students’ free exercise of religious rights without adequate justification. See, e.g., Cheema v. Thompson, 67 F.3d 883 (9th Cir. 1995); Menora v. Illinois High Sch. Ass’n, 683 F.2d 1030 (7th Cir. 1982); Chalifoux v. New Caney Indep. Sch. Dist., 976 F. Supp. 659 (S.D. Tex. 1997). State law may provide students greater freedom of religious expression than the U.S. Constitution. See A.A. ex. rel. Betenbaugh v. Needville Indep. Sch. Dist., 611 F.3d 248 (5th Cir. 2010) (requiring a Native American student to wear his long hair in a bun on top of his head or in a braid tucked into his shirt violated the Texas Religious Freedom Restoration Act; 13 states have adopted similar statutes).

In a few places, state statutes control whether teachers may wear religious garb to school. For example, Arkansas and Tennessee allow it; Pennsylvania and Nebraska prohibit it. In the other states where there is no applicable statute, courts have generally permitted teachers to wear religious attire, finding that the wearing of religious clothes by itself is not unconstitutional. E.g., Moore v. Board of Educ., 212 N.E.2d 833 (Ohio Comm. Pl. 1965); Rawlings v. Butler, 290 S.W.2d 801 (Ky. 1956); City of New Haven v. Town of Torrington, 43 A.2d 455 (Conn. 1945); Johnson v. Boyd, 28 N.E.2d 256 (Ind. 1940); Gerhardt v. Heid, 267 N.W. 127 (N.D. 1936); but see Zellers v. Huff, 236 P.2d 949 (N.M. 1951).

In a case involving the Pennsylvania prohibition on religious attire, the Third Circuit found that the restriction did not violate a Muslim teacher’s rights under Title VII of the Civil Rights Act of 1964. United States v. Board of Educ. for the Sch. Dist. of Philadelphia, 911 F.2d 882 (3d Cir. 1990); but see EEOC v. Reads, Inc., 759 F. Supp. 1150 (E.D. Pa. 1991); Nichol v. ARIN Intermediate Unit 28, 268 F. Supp. 2d 536 (W.D. Pa. 2003) (school district policy prohibiting school employees from wearing crosses violated the employees’ free exercise and free speech rights).

A. Use of Religious Materials for Instruction

Public school curricula may include teaching about religion or may use religious material. Abington Twp. v. Schempp, 374 U.S. 203 (1963); Edwards v. Aguillard, 482 U.S. 578 (1987). In Schempp, the Court stated that “[n]othing we have said here indicates that such study of the Bible or of religion, when presented objectively as part of a secular program of education may not be effected consistently with the First Amendment.” 374 U.S. at 225.

However, the curriculum may not endorse or inculcate religion. EEOC v. Kamehameha Schs./Bishop Estate, 990 F.2d 458 (9th Cir. 1992); Gibson v. Lee Cnty. Sch. Bd., 1 F. Supp. 2d 1426 (M.D. Fla. 1998).

In addition, teachers’ free exercise of religion rights do not authorize them to make their religious beliefs part of classroom instruction. Schools have a constitutional duty under the Establishment Clause to prevent teachers from inculcating religion. Marchi v. Board of Cooperative Educ. Servs. of Albany, 173 F.3d 469 (2d Cir. 1999). Likewise, teachers can be required to teach materials offensive to their religious beliefs. Peloza v. Capistrano Unified Sch. Dist., 37 F.3d 517 (9th Cir. 1994).

1. Teaching About the Origins of Life

The Louisiana legislature passed a statute requiring the teaching of creation science in public schools if evolution were taught. In Edwards v. Aguillard, 482 U.S. 578 (1987), the U.S. Supreme Court decided this requirement violated the Establishment Clause because it had no secular purpose. The primary effect was to promote the Christian belief in the literal meaning of the Book of Genesis in the Bible. See also Epperson v. Arkansas, 393 U.S. 97 (1968).

These opinions do not foreclose the possibility that creationism could be taught in public schools without violating the First Amendment. The Edwards Court noted that teaching a variety of theories about the origins of humanity with the clear secular intent of enhancing the school’s science program would be permissible.

The origins of life debate includes not just evolution and creationism – it also includes intelligent design, a theory that certain features of the universe and of living things are best explained by an intelligent cause rather than an undirected process such as natural selection. In Kitzmiller v. Dover Area Sch. Dist., 400 F. Supp. 2d 707 (M.D. Pa. 2005), a court held that a school district’s policy of reading a statement about intelligent design in high school biology classes violated the Establishment Clause.

At least two school districts have attempted to adopt disclaimers encouraging students to think critically about evolution. In Freiler v. Tangipahoa Parish Bd. of Educ., 185 F.3d 337 (5th Cir. 1999), the court held that an oral disclaimer stating that a discussion of evolution is not intended to dissuade the Biblical version of creation lacked a secular purpose and had the primary effect of protecting and maintaining a religious viewpoint. In Selman v. Cobb Cnty. Sch. Dist., 449 F.3d 1320 (11th Cir. 2006), the Eleventh Circuit held that whether a school board violated the Establishment Clause with the adoption of a disclaimer placed on science textbooks that described evolution as a theory and encouraged students to approach it with an open mind could not be resolved on appeal because some evidence presented to the district court had been omitted from the record on appeal.

2. Religious Instruction

Religious instruction may not take place on public school property during school hours. McCollum v. Board of Educ., 333 U.S. 203 (1948). However, the Supreme Court has indicated that teaching about religion is not only permissible but an important part of a well-rounded education. Abington Sch. Dist. of Abington Twp. v. Schempp, 374 U.S. 203, 300 (1963); see also Eklund v. Byron Union Sch. Dist., 154 Fed. Appx. 648 (9th Cir. 2005) (a school’s program teaching students about Islam did not violate the Establishment Clause).

A school district in Mississippi offered a course entitled “Biblical History of the Middle East” on an opt-out basis as part of its curriculum. A federal district court agreed with a parent that the course violated the Establishment Clause. The court found that the course: (1) lacked a secular purpose; (2) had the primary effect of advancing religion; (3) led to excessive government entanglement with religion; (4) unconstitutionally endorsed fundamentalist Christianity; and (5) subjected students to subtle coercive pressure to attend the Bible classes. Herdahl v. Pontotoc Cnty. Sch. Dist., 933 F. Supp. 582 (N.D. Miss. 1996); see also Gibson v. Lee Cnty. Sch. Bd., 1 F. Supp. 2d 1426 (M.D. Fla. 1998) (an Old Testament course had a secular purpose, but a New Testament course violated the Establishment Clause).

B. Objections to Curricular Materials

1. Claims that Textbooks, Curricular Programs, or Instructional Activities Establish Religion

Claims that schools are using books or other instructional materials or activities to establish a particular “religion” have generally failed. See,

 2015 National School Boards Association. All rights reserved. 14 e.g., Smith v. Board of Sch. Comm’rs, 827 F.2d 684 (11th Cir. 1987) (challenged textbooks adopted by the school with entirely secular and appropriate educational goals did not establish religion of secular humanism even though some textbooks contained ideas consistent with some secular humanism principles); Daugherty v. Vanguard Charter Sch. Acad., 116 F. Supp. 2d 897 (W.D. Mich. 2000) (values education program did not have the primary effect of advancing religion although it used words and concepts that harmonize with the tenets of some religions); Altman v. Bedford Cent. Sch. Dist., 245 F.3d 49 (2d Cir. 2001) (reasonable observer would not view school’s Earth Day celebrations as promoting religion). And a California trial court heard a challenge that yoga instruction in an elementary school promoted Hinduism; the school district prevailed. Sedlock v. Baird, 2013 WL 6063439 (Cal. Super. Ct. 2013).

2. Claims that Textbooks, Curricular Programs, or Instructional Activities Infringe on Free Exercise of Religion

Students cannot be forced to participate in activities that create a direct conflict with their religious directives. For example, if it is a violation of his or her religion, a student cannot be disciplined for failure to say the Pledge of Allegiance. West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624 (1943).

However, schools are not compelled to excuse student participation just because the family disagrees with, or dislikes, the ideas presented. In addition, schools do not have to excuse students because the ideas merely conflict with their religious beliefs. The activity must directly violate a student’s religion for excusal to be mandatory. The following cases illustrate this point:

 Ware v. Valley Stream, 550 N.E.2d 420 (N.Y. 1989). Ware involved parents’ objections to an AIDS curriculum. The New York Court of Appeals held that parents must show that their child’s participation would place a real burden on the practice of their religion and that such burden would outweigh the state’s compelling interest in educating youth against the spread of AIDS.

 Mozert v. Hawkins, 827 F.2d 1058 (6th Cir. 1987). Mozert involved a challenge to the Holt, Rinehart and Winston basic reading series selected by the district. Parents believed that some stories in the series conflicted with their religious beliefs. The Sixth Circuit held that requiring students to use this basic reading series was not an unconstitutional violation of their religious beliefs since the parents provided no evidence that the conduct required (reading a particular book) was forbidden by their religion.

 2015 National School Boards Association. All rights reserved. 15  Fleischfresser v. Directors of Sch. Dist. 20, 15 F.3d 680 (7th Cir. 1994). The court found that the district’s supplemental reading program did not violate the Establishment Clause or the Free Exercise Clause. Parents claimed that the materials indoctrinated their children with values directly opposed to their Christian beliefs by teaching tricks, despair, deceit, and parental disrespect. The court found that the program had a secular purpose that did not endorse any religion and that the program did not foster an excessive entanglement of government with religion. It also served the compelling state purpose of teaching children reading without a substantial burden on the parents’ freedom of religion.

 Bauchman v. West High Sch., 132 F.3d 542 (10th Cir. 1997), cert. denied, 524 U.S. 953 (1998). Use of almost exclusively Christian choral music by school’s a capella choir did not violate the free exercise rights of a Jewish student who participated in the choir. There was no evidence that she was coerced into singing songs contrary to her religious beliefs. The court also found no Establishment Clause violation.

 Moeller v. Schrenko, 554 S.E.2d 198 (Ga. App. 2001). A science textbook’s discussion of the theories of origin did not denigrate a student’s belief in creationism or hinder her free exercise of religion. The textbook discussed the most prevalent theories of origin including creationism and evolution and did not “pass judgment on the efficacy of creation theory.” Rather, it merely stated that creationism could not be proven or disproved using scientific methods; nevertheless, it may be the proper explanation for the origins of life. The court also concluded that the use of the textbook in no way forced the student to refrain from practicing her religion.

 Stanley v. Carrier Mills-Stonefort Sch. Dist. No. 2, 459 F. Supp. 2d 766 (S.D. Ill. 2006). The court rejected a school district’s motion to dismiss a mother’s free exercise claim related to a school district holding “Opposite Sex Day.” According to the court: “The Court is inclined to agree with the District that the cross-dressing is little more of a religious activity or burden on religious activity than the reading of fantasy novels at issue in Fleischfresser. Nevertheless, the Bible contains a clear proscription on cross-dressing. The Court is cognizant that the Old Testament contains a number of directives that may not be compatible with modern life. It is not the Court’s place, however, to judge the comparative worth or value of a particular religious dictate or how one chooses to implement that dictate in life.”

 Parker v. Hurley, 514 F.3d 87 (1st Cir. 2008). The parents claimed that their children’s exposure to curriculum materials made available

 2015 National School Boards Association. All rights reserved. 16 to elementary school students that were designed to encourage respect for gay persons violated their children’s and their own rights to free exercise of religion. The First Circuit held that the plaintiffs’ failed to demonstrate a constitutionally significant burden on their own or their children’s free exercise rights.

3. Board Policy on Religious Exemption from Classes

State statutes and regulations govern whether, based on religious beliefs, a student may be exempted from attending certain classes, selected portions of the curriculum of a certain class, or from public school entirely.

For example, a school board policy may permit a parent to request that his/her student be exempted from participating in classes for certain lessons in health education, physical education, or sex education.

School board policies and processes for such exemption requests based on those statutory provisions will vary from district to district.

4. Objections to Books in School Library

Schools may not remove books from a school library simply because they dislike the ideas contained in those books. Books may be removed if they are “pervasively vulgar” or not educationally suitable for the students in question. Board of Educ. of Island Trees v. Pico, 457 U.S. 853 (1982).

When a challenge is raised to a school library book because it contains ideas offensive to a particular religion, a school should ensure that its response is based on an assessment of the book’s educational suitability. Community opposition to a book or the presence of “dangerous” ideas in a book is not sufficient justification for removal. See, e.g., Delcarpio v. St. Tammany Parish Sch. Bd., 865 F. Supp. 350 (E.D. La. 1994), rev’d, 64 F.3d 184 (5th Cir. 1995); Counts v. Cedarville Sch. Dist., 295 F. Supp. 2d 996 (2003) (school board could not restrict access to Harry Potter books where there was no “actual disobedience or disrespect that flowed from a reading of the Harry Potter books” and where the Board sought to restrict access to the books because they promote the “witchcraft religion”).

C. Student Use of Religious Material in Assignments and Other Classroom Activities

Courts have generally recognized that students have a right to express religious beliefs in assignments. But see Curry v. Hensiner, 513 F.3d 570 (6th Cir. 2008) (elementary school principal did not violate a student’s free speech rights by not allowing him to sell candy canes containing religious messages as part of a school project). Teachers cannot require students to modify, include, or excise religious

 2015 National School Boards Association. All rights reserved. 17 views in their assignments. Student work that includes religious expression should be assessed under ordinary academic standards, including the criteria established for the assignment. See, e.g., Settle v. Dickson Cnty. Sch. Bd., 53 F.3d 152 (6th Cir. 1995) (teacher did not violate rights of student by giving her a zero for a paper about the life of Jesus Christ because the student failed to meet topical and research criteria).

Students, however, have no right to proselytize during oral presentations. Courts have been particularly careful about student religious speech during class time in the elementary school context. See, e.g., C.H. v. Oliva, 990 F. Supp. 341 (D.N.J. 1997), aff’d in part, dismissed in part, 226 F.3d 198 (3d Cir. 2000) (teacher did not violate first grader’s rights by refusing to let him read a Bible story to classmates); Busch v. Marple Newtown Sch. Dist., 567 F.3d 89 (3d Cir. 2009) (school district did not violate a student’s or his parents’ free speech or Establishment Clause rights by not allowing his mother to read the Bible to his kindergarten class).

D. Religious Displays

Permanent displays in schools may not promote or endorse religion. But if a religious symbol is used with a secular purpose, without the primary effect of promoting or endorsing religion, there is no Establishment Clause violation. Lynch v. Donnelly, 465 U.S. 668 (1984); Allegheny Cnty. v. Greater Pittsburgh ACLU, 488 U.S. 815 (1989).

1. Display of Ten Commandments

The U.S. Supreme Court held that a statute requiring the display of the Ten Commandments in every public school classroom was unconstitutional. The Court focused on the intent of promoting a religious belief which had the probable effect of endorsing religion. Stone v. Graham, 449 U.S. 1104 (1981).

In McCreary County, Ky. v. ACLU-KY, 545 U.S. 844 (2005), the Supreme Court held that a Ten Commandments display at two courthouses violated the secular purpose prong of the Lemon test. The fact that other historical documents were added to the Ten Commandments displays after the counties were sued did not mitigate the lack of secular purpose where a reasonable observer looking at the final display would “probably suspect that the Counties were simply reaching for any way to keep a religious document on the walls of the courthouse constitutionally required to embody religious neutrality.”

In Van Orden v. Perry, 545 U.S. 677 (2005), the Supreme Court held that a monument on the grounds of the Texas State Capitol containing the text of the Ten Commandments did not violate the Establishment Clause. The

 2015 National School Boards Association. All rights reserved. 18 plurality decision written by Chief Justice Rehnquist did not apply the Lemon test. Rather, the Court concluded that the monument passed constitutional muster because it is passive and the Ten Commandments in this context serve to recognize the role of God in our Nation’s heritage.

At a minimum, McCreary County casts doubt upon the practice of adding seemingly secular documents to Ten Commandments displays which were not adopted initially with a secular purpose in the hopes of making such displays constitutional. Perhaps a more difficult question will be the constitutionality of a Ten Commandments display adopted at the outset with other historical documents in a public school.

2. Religious Artwork

Art with a religious theme, whether created by students or by others, may be displayed temporarily with other art, but it may not be displayed exclusively and permanently where it conveys a message of governmental endorsement of religion. See, e.g., Joki v. Board of Educ. of the Schuylerville Cent. Sch. Dist., 745 F. Supp. 823 (N.D.N.Y. 1990); Washegesic v. Bloomingdale Pub. Schs., 33 F.3d 679 (6th Cir. 1994), cert. denied, 514 U.S. 1095 (1995); Weinbaum v. Las Cruces Pub. Schs., 465 F. Supp. 2d 1182 (D.N.M. 2006).

3. Brick, Tile, and Mural Displays

There is no consensus among courts whether student-created permanent brick, tile, and mural displays may contain religious references.

A number of courts have upheld districts’ decisions to disallow religious speech and symbols on brick, tile, and mural displays to avoid disruption caused by religious debate. Bannon v. School Dist. of Palm Beach Cnty., 387 F.3d 1208 (11th Cir. 2004); Fleming v. Jefferson Cnty. Sch. Dist. R-1, 298 F.3d 918 (10th Cir. 2002); Gernetzke v. Kenosha Unified Sch. Dist. No. 1, 274 F.3d 464 (7th Cir. 2001) (district disallowed religious symbols on Bible Club’s mural so it would not have to allow speech that would cause a disruption like white supremacists who wanted to display the swastika).

Other courts have required school districts to allow brick, tile, and mural displays that contain religious symbols or words to protect students’ free speech rights and avoid viewpoint discrimination. Demmon v. Loudoun Cnty. Pub. Schs., 342 F. Supp. 2d 474 (E.D. Va. 2004); Seidman v. Paradise Valley Unified Sch. Dist. No. 69, 327 F. Supp. 2d 1098 (D. Ariz. 2004); Kiesinger v. Mexico Acad. and Cent. Sch., 427 F. Supp. 2d 182 (N.D.N.Y. 2006) (excluding bricks referring to Jesus constituted

A school district may have more success controlling the speech in brick, tile, and mural displays before the displays are created, when the district adopts a policy explaining that the displays are school-sponsored and subject to regulation, listing the restrictions on speech in the displays and providing the rationale for those restrictions.

4. Holiday Displays

Holiday displays may include religious symbols. The displays should be temporary, require no active participation in any religious activity, and should include diverse religious, cultural, and ethnic symbols. The displays should support valid educational goals. See, e.g., Florey v. Sioux Falls Sch. Dist. 49-5, 619 F.2d 1311 (8th Cir. 1980), cert. denied, 449 U.S. 987 (1980); Clever v. Cherry Hill Twp. Bd. of Educ., 838 F. Supp. 929 (D.N.J. 1993); Sechler v. State Coll. Area Sch. Dist., 121 F. Supp. 2d 439 (M.D. Pa. 2000); Skoros v. City of New York, 437 F.3d 1 (2d Cir. 2006).

E. Religious Celebrations

1. Observing Religious Holidays

Public schools may not sponsor religious practices. While there is no definite ruling on religious holidays in the public schools, the U.S. Supreme Court denied certiorari in a case where the lower court upheld Indiana’s practice of providing Good Friday to state employees as a paid holiday. Bridenbaugh v. O’Bannon, 185 F.3d 796 (7th Cir. 1999), cert. denied, 529 U.S. 1003 (2000). The recognition of the holiday may not be “overly religious,” and must provide secular instruction about religious traditions rather than promote or inculcate a religious belief. Florey v. Sioux Falls Sch. Dist. 49-5, 619 F.2d 1311 (8th Cir. 1980), cert. denied, 449 U.S. 987 (1980).

Florey does not mean that all mention of religious holidays must be banned. Indeed, some courts have suggested that completely ignoring a religious holiday that is pervasive outside of school might unintentionally send a message of hostility toward religion. See Clever v. Cherry Hill Twp. Bd. of Educ., 838 F. Supp. 929 (D.N.J. 1993). Attempting to avoid Establishment Clause violations, some schools have found themselves sued for being too restrictive of religious expression.

The resolution lies in creating holiday programs that serve an educational purpose for all students. Programs should not make a child feel excluded

 2015 National School Boards Association. All rights reserved. 20 because of his or her religion. Holiday programs in December may include religious music and themes, but these should not dominate. For example, any skit should emphasize cultural, rather than religious aspects, of the holiday. The bottom line is to teach about the holiday without inculcating or engaging in religious observance.

2. Accommodating Observance of Religious Holidays by Students and Staff

School districts must be careful not to set policies that penalize students for being absent to observe religious holidays. In Church of God v. Amarillo Indep. Sch. Dist., 511 F. Supp. 613 (N.D. Tex. 1981), a federal district court held that a school district that limited excused absences to two days a year for celebrating religious holidays violated students’ free exercise rights. The court concluded that the school district’s policy imposed a real and substantial burden on the students’ right to free exercise of their religion, while accommodating their religious beliefs would not foster an Establishment Clause violation.

Under Title VII of the Civil Rights Act of 1964, school districts must provide employees with reasonable accommodations for their need to be absent for religious purposes. See Ansonia Bd. of Educ. v. Philbrook, 479 U.S. 60 (1986). Districts are not required to provide accommodations that would impose an undue hardship on school operations.

Schools may schedule breaks that coincide with religious holidays as long as the scheduling is justified by a secular purpose. See, e.g., Koenick v. Felton, 190 F.3d 259 (4th Cir. 1999), cert. denied, 528 U.S. 1118 (2000); Bridenbaugh v. O’Bannon, 185 F.3d 796 (7th Cir. 1999), cert. denied, 529 U.S. 1003 (2000). For example, a school district serving an overwhelmingly Christian population can schedule a break to coincide with Christmas, but not for every other religion’s holidays, for the secular reason that so many students would be absent were classes held then.

3. Religious Objections to Holidays

Students from many religious traditions may ask to be excused from classroom discussions or activities related to particular holidays. Some holidays considered by many people to be secular (e.g., Valentine’s Day, Halloween) are viewed by others as having religious connotations. Requests to be excused from participating in holiday programs are routinely granted and provisions for such requests are often part of school district policy. See Clever v. Cherry Hill Twp. Bd. of Educ., 838 F. Supp. 929 (D.N.J. 1993).

 2015 National School Boards Association. All rights reserved. 21 In addition, some parents and students may request to be excused from discussions of certain holidays even when approached from an academic perspective. If focused on a limited, specific discussion, such requests may be granted in order to strike a balance between the student’s religious interests and the school’s interest in providing a well-rounded education.

Administrators and teachers should understand that a policy or practice of excusing objecting students from a specific activity or discussion does not mean the school may then sponsor religious celebrations or worship for the remaining students.

F. Release Time

School boards have authority to adopt policies that allow students, with written consent of their parents, to be excused from school to participate in religious exercises or instruction that takes place away from school. Zorach v. Clauson, 343 U.S. 306 (1952).

Schools cannot encourage or discourage participation, expend funds in soliciting students to attend religious classes, or penalize those who do not attend. See, e.g., Doe v. Shenandoah Cnty. Sch. Bd., 737 F. Supp. 913 (W.D. Va. 1990); Lanner v. Wimmer, 662 F.2d 1349 (10th Cir. 1981).

IV. ACCESS TO SCHOOL FACILITIES BY RELIGIOUS GROUPS

In general, schools should treat requests by religious groups to use school facilities in the same manner as it treats requests by other outside groups.

A. Viewpoint Discrimination

In Lamb’s Chapel v. Center Moriches Union Free Sch. Dist., 508 U.S. 384 (1993), the U.S. Supreme Court concluded that a school district violated the free speech rights of a church by denying it use of school facilities to show a film series on family values from a Christian perspective. The Court reasoned that because the district had opened its facilities to other groups that discussed family values, the district could not exclude a group based solely on its religious viewpoint. The Court noted that it was not deciding whether a school must allow outside groups to use its premises for religious worship.

The Court also held that the school district would not violate the Establishment Clause by allowing the group to show the film. The Court pointed out that the film would be shown outside of school hours and would be open to the general public, not just church members.

In Good News Club v. Milford Cent. Sch., 533 U.S. 98 (2001), the Court extended its holding in Lamb’s Chapel to permit an outside Christian youth organization

 2015 National School Boards Association. All rights reserved. 22 led by adults to meet with elementary school children on school grounds immediately after school. The group’s leaders engaged the children in prayer and Bible study, and played games and sang songs with religious themes. The Court said given that teaching character development and morals was a permissible purpose under the school district’s policy, the district would violate the club’s free speech rights if it excluded the group because it taught these subjects from a religious perspective.

The Court rejected the school district’s Establishment Clause concerns, saying there was no realistic danger that the public would perceive the school’s act of allowing the club as an endorsement of religion.

B. Equal Access Act

The Equal Access Act, 20 U.S.C. §§ 4071-4074, was enacted to ensure that students could organize and meet together for religious purposes under the same terms as other noncurricular student groups. Certain conditions must exist before the Act is triggered. The Equal Access Act applies only to secondary schools that receive federal funds and allow noncurricular student groups to meet during non- instructional time, although case law, and in at least one case a state statute, extend the Act’s principles to lower grades.

The Act makes it “unlawful for any public secondary school which receives federal financial assistance and has a limited open forum to deny equal access … or discriminate against, any students who wish to conduct a meeting within that limited open forum on the basis of the religious, political, or philosophical content of the speech at such meetings.”

The U.S. Supreme Court upheld the constitutionality of the Equal Access Act against an Establishment Clause challenge in Board of Educ. Cmty. Westside Schs. v. Mergens, 496 U.S. 226 (1990).

Courts have generally held that a school that operates a limited open forum (i.e., allows noncurricular student groups to meet during non-instructional time) must allow Gay Straight Alliance (GSA) and similar clubs to meet on campus, despite the fact that such clubs may offend the religious sensibilities of some in the community. See, e.g., Boyd Cnty. High Sch. Gay Straight Alliance v. Board of Educ. of Boyd Cnty., 258 F. Supp. 2d 667 (E.D. Ky. 2003); Straights & Gays for Equality v. Osseo Area Schs. - District No. 279, 540 F.3d 911 (8th Cir. 2008); but see Caudillo v. Lubbock Indep. Sch. Dist., 311 F. Supp. 2d 550 (N.D. Tex. 2004) (district could deny equal access to a GSA based on a “substantial interference with the orderly conduct of educational activities within the school” because the GSA would discuss safe sex in a school with an abstinence-only sex education program, the GSA’s website linked to other websites with sexually explicit content, and the GSA was proposed at a school serving students as young as 12 years of age).

Relying on Christian Legal Society v. Martinez, 561 U.S. 661 (2010), it seems likely that a school district can deny equal access under the First Amendment to student-led clubs that do not take all-comers in violation of the district’s nondiscrimination policy. In this case the Court held that the Hastings College of Law could refuse to officially recognize the Christian Legal Society because it denied membership to anyone who held different religious convictions than those contained in its “Statement of Faith” or engaged in “unrepentant homosexual conduct.” The Court concluded that Hastings’ policy did not violate the First Amendment because it was reasonable and viewpoint neutral.

The Second and Ninth Circuits have ruled differently on whether under the Equal Access Act school districts can deny access to Bible Clubs that require voting members or officers to have certain religious beliefs despite the district’s nondiscrimination policy. Compare Hsu v. Roslyn Union Free Sch. Dist. No. 3, 85 F.3d 839 (2d Cir. 1996) (“the club’s Christian officer requirements . . . [are] essential to the expressive content of the meetings and to the group’s preservation of its purpose and identity, and is therefore protected by the Equal Access Act”), with Truth v. Kent Sch. Dist., 542 F.3d 634 (9th Cir. 2008) (school district did not deny status to a Bible Club because of the “content of its speech” under the Equal Access Act; access was denied because its membership criteria violated the district’s nondiscrimination policies).

C. Other Facilities Use Questions

1. Baccalaureate Services

School districts may allow churches to use school facilities to hold baccalaureate services for graduating students, but they must take steps to publicly disclaim any official connection with or sponsorship of the event. See, e.g., Verbena United Methodist Church v. Chilton Cnty. Bd. of Educ., 765 F. Supp. 704 (M.D. Ala. 1991); Randall v. Pegan, 765 F. Supp. 793 (W.D.N.Y. 1991).

2. Regular Worship Services

Generally lower courts have required school districts to give the same access to religious groups using the district’s facilities for regular worship services as other outside groups using the facilities for other purposes. But see Bronx Household of Faith v. Board of Educ. of the City of New York, 750 F.3d 184 (2d Cir. 2014) (upholding a school district’s policy prohibiting use of facilities for religious worship services because it is a content restriction that excludes only a type of activity . . . for a reason that is either constitutionally mandated or at least constitutionally reasonable, and does not otherwise curtail free expression of religious viewpoints). The terms of such use should not be any more advantageous for other

 2015 National School Boards Association. All rights reserved. 24 groups than religious groups. See Wallace v. Washoe Cnty. Sch. Dist., 818 F. Supp. 1346 (D. Nev. 1991) (church not seeking to use the school as a permanent place of worship must be given the same access as other groups permitted to use school facilities); Fairfax Covenant Church v. Fairfax Cnty. Sch. Bd., 17 F.3d 703 (4th Cir. 1994), cert. denied, 511 U.S. 1143 (1994) (school board violated church’s free speech rights by charging escalating rent after five years of continuous use).

V. PUBLIC AID TO PRIVATE SCHOOLS

Public aid to religious schools raises Establishment Clause concerns. Depending on the type of aid at issue, the U.S. Supreme Court has used different analytical approaches to determine the constitutionality of the aid. The results have often been confusing. See the summary of cases in Table 1.

Support that has been found to be unconstitutional includes: paying the salary for teachers in religious schools; tax benefits provided only to parents of children in religious schools; and maintenance and repair grants to religious schools.

Support which has been found to be constitutional includes: transportation as provided to all school age children; providing textbooks and secular instructional equipment; and tax benefits provided to all taxpayers for educational expenses.

A. Transportation

Public funding of transportation for private school students to and from school is neither required nor barred by the Constitution. Everson v. Board of Educ. of Ewing, 330 U.S. 1 (1947). The Court reasoned that the public funding of transportation of all students promoted the general public welfare and only indirectly benefited religion.

Public funding of transportation for field trips taken by parochial school students violates the Establishment Clause where the religious schools had control of the timing, frequency, and destination of the trips. Wolman v. Walter, 433 U.S. 229 (1977). Because the private schools maintained this control, the Court viewed the aid as a direct benefit to religion.

B. Textbook Loan Programs

Programs that lend textbooks to all school children, including parochial school students, free of charge do not violate the Constitution. Board of Educ. v. Allen, 392 U.S. 236 (1968); Meek v. Pittenger, 421 U.S. 349 (1975); Wolman v. Walter, 433 U.S. 229 (1977). In Allen, the Court reasoned that the program was of general benefit, and there was no evidence that all the textbooks were used by parochial schools to teach religion.

On several occasions, the U.S. Supreme Court has struck down public aid in the form of reimbursement of costs for or loan of instructional material other than textbooks and instructional equipment. Lemon v. Kurtzman, 403 U.S. 602 (1971); Meek v. Pittenger, 421 U.S. 349 (1975); Wolman v. Walter, 433 U.S. 229 (1977). The Court in Meek said that providing “religion-pervasive” schools with direct aid, even though limited to wholly neutral, secular instructional materials and equipment, was a direct and substantial advancement of religion.

However, in Mitchell v. Helms, 530 U.S. 793 (2000), the U.S. Supreme Court overruled Meek and Wolman. The Court upheld the constitutionality of loaning library books and instructional materials such as projectors, televisions, video equipment, and computers to religious schools. According to the plurality opinion, the sole test for determining the constitutionality of governmental aid to religious schools is one of neutrality—whether the aid results in religious indoctrination reasonably attributable to governmental action. (Two justices in a concurring opinion upheld the aid based on an Agostini analysis. See Section E below.)

D. Testing

The state may not reimburse religious schools for the preparation, administration, grading, and reporting of certain tests. The Court struck down such a program in Levitt v. Committee for Pub. Educ. and Religious Liberty (“PEARL”), 413 U.S. 472 (1973), because there were no measures to assure that the tests were free of religious instruction. In PEARL v. Regan, 444 U.S. 646 (1980), the Court approved reimbursement to religious schools for the cost of administering and grading state-written tests. See also Wolman, 433 U.S. 229.

E. Supplemental and Related Services

In Meek v. Pittenger, 421 U.S. 349 (1975), the Court held that the provision of auxiliary services such as counseling, testing, psychological services, speech, and hearing therapy and related services for children enrolled in religious schools violated the Establishment Clause. The Court reasoned that to ensure auxiliary teachers did not inculcate religion, the state would have to engage in surveillance resulting in excessive entanglement between church and state. However, the plurality in Mitchell clearly disavowed any support for this line of reasoning.

In Wolman v. Walter, 433 U.S. 229 (1977), the Court also approved the provision of speech and hearing diagnostic services at a neutral site to children enrolled in religious schools. The Court viewed the diagnostic services as the kind of general welfare services that the state may provide regardless of the incidental benefit to parochial school children.

 2015 National School Boards Association. All rights reserved. 26 In Agostini v. Felton, 521 U.S. 203 (1997), the Court discarded the premise from Meek that “substantial aid to the educational function of sectarian schools necessarily results in aid to the sectarian school enterprise as a whole.” The Court ruled that sending public employees into parochial schools to provide services under Title I, including remedial instruction and counseling, does not violate the Establishment Clause. The Court used three criteria to determine the constitutionality of the aid program:

 Does it result in governmental indoctrination?  Does it define its recipients by reference to religion?  Does it create an excessive entanglement between government and religion?

In Agostini, the Court determined that the provision of such services is permissible, but not required. See also Zobrest v. Catalina Foothills Sch. Dist., 509 U.S. 1 (1993) (providing publicly funded interpreter for deaf parochial school student for use at a religious school does not violate the Establishment Clause); Lemon v. Kurtzman, 403 U.S. 602 (1971) (providing salary supplements to teachers in religious schools who teach secular subjects is unconstitutional); Board of Educ. of Kiryas Joel Village Sch. Dist. v. Grumet, 512 U.S. 687 (1994) (state statute creating a separate public school district to provide a village comprised of a single religious group with special education and related services in an exclusive religious environment violated the Establishment Clause).

F. Tuition Assistance

1. Reimbursement or Direct Grants

In Sloan v. Lemon, 413 U.S. 825 (1973), and PEARL v. Nyquist, 413 U.S. 756 (1973), the Court struck down programs that provided reimbursements to parents for a portion of the tuition paid for their children to attend parochial schools. The Court disapproved of the programs, finding that the state had singled out a class of citizens for a special economic benefit intended to preserve and support religion- oriented institutions.

However, in Witters v. Washington Dep’t of Servs. for the Blind, 474 U.S. 481 (1986), the Court did uphold state assistance to a blind person studying at a Christian college to become a pastor, missionary, or church youth director. The aid was provided under a vocational rehabilitation program that the Court said was “unmistakably secular.” The Court found that the program provided no incentive to attend a religious school and that any aid that ultimately flowed to a religious institution did so only as a result of the independent and private choices of individual recipients.

 2015 National School Boards Association. All rights reserved. 27 In Locke v. Davey, 540 U.S. 712 (2004), the Court held that the state of Washington did not violate a student’s First Amendment free exercise of religion rights when it refused to allow him to use a state scholarship to pursue a major in pastoral ministries. Washington’s state constitution explicitly provides that public money may not be appropriated or applied to religious instruction. The Court concluded that a state constitution could draw a more stringent line than the federal constitution in order to maintain a separation of church and state by prohibiting even the indirect funding of religion.

2. Tax Measures

In Nyquist, the Court also invalidated a tax deduction not related to the amount of tuition paid by parents whose children attended parochial schools. But in Mueller v. Allen, 463 U.S. 388 (1983), the Court approved the constitutionality of a Minnesota statute that allows state income tax deductions for parents of elementary and secondary school children for certain educational expenses incurred, including those for religious education. The Court found that the statute had a secular purpose of providing a tax benefit on a neutral basis since all parents with educational expenses could take advantage of the benefit.

In Hibbs v. Winn, 542 U.S. 88 (2004), the Court held that taxpayers were not barred by the Tax Injunction Act from bringing a lawsuit in federal court challenging tax credits given for contributing to a “school tuition organization,” which provided scholarships to students attending public and religious schools.

In Arizona Christian Sch. Tuition Org. v. Winn, 131 S. Ct. 1436 (2011), the Court held Arizona taxpayers do not have standing to bring an Establishment Clause challenge to tax credits for contributions to “school tuition organizations,” which give scholarships to students attending private school. According to the Court, the exception to taxpayer standing for Establishment Clause challenges applies only to government expenditures, which do not include tax credits, deductions, or exemptions. According to dissenting Justice Kagan, under this rationale, the taxpayers in Nyquist, Mueller, and Hibb also lacked standing to bring their challenges; nevertheless, the Court decided their cases.

3. Vouchers

In Zelman v. Simmons-Harris, 539 U.S. 639 (2002), the Supreme Court held that the Cleveland City School District voucher program did not violate the Establishment Clause. The Court concluded that the voucher program in this case did not have the effect of advancing religion because parents were able to direct government aid to religious schools “wholly as

 2015 National School Boards Association. All rights reserved. 28 a result of their genuine and independent private choice.” Specifically, the program allowed parents to receive tuition aid to send their children to a private school, a community school, a magnet school, or a participating adjacent public school. The fact that most of the participating private schools were religious and that most students chose to use the voucher to attend religious schools did not undermine the constitutionality of the program where genuine choice between public and private, secular and religious schools was available.

PUBLIC AID TO RELIGIOUS SCHOOLS U.S. SUPREME COURT CASES Public Public Direct to Direct to Table of Cases Type of Benefit Provided Employee Employee Student or Private Numbers in parentheses on Private on Public Parent School or correspond to the School School Employee following cases: Property Property Curriculum and Course Offerings 1. Everson v. Bd. of Ed., Loan of reusable secular 330 U.S. 1 (1947) textbooks (4, 10, 11) 2. McCollum v. Bd. of Loan of instructional Ed., 333 U.S. 203 (1948) equipment (10, 11) 3. Zorach v. Clauson, 343 Loan of instructional U.S. 306 (1952) material other than 4. Bd. of Ed. v. Allen, textbooks (10, 11) 392 U.S. 236 (1968) English programs for 5. Walz v. Tax Comm., limited English proficient 397 U.S. 664 (1970) students (14, 18) 6. Lemon v. Kurtzman, Mobile learning centers on 403 U.S. 602 (1971) “neutral property”(14, 18) 7. Levitt v. PEARL, 413 Preschool training U.S. 472 (1973) programs (14, 18) 8. PEARL v. Nyquist, Instructional assistance to 413 U.S. 756 (1973) religious school students 9. Sloan v. Lemon, 413 comparable to that U.S. 825 (1973) provided public school 10. Meek v. Pittenger, students (15, 16, 18) 421 U.S. 349 (1975) Computer hardware and 11. Wolman v. Walter, software for instructional 433 U.S. 229 (1977) use (19) 12. PEARL v. Regan, Grants 444 U.S. 646 (1980) 13. Mueller v. Allen, 463 Direct grants to religious U.S. 388 (1983) school teachers (6) 14. Aguilar v. Felton, 473 Salary supplements/ U.S. 402 (1985) Reimbursements to 15. Grand Rapids v. Ball, religious school teachers 473 U.S. 373 (1985) (6,7) 16. Bowen v. Kendrick, Tuition reimbursements to 487 U.S. 589 (1988) parents of religious school 17. Zobrest v. Catalina students (8, 9) Foothills School Dist., Grant program for secular 509 U.S. 1 (1993) and religious organizations 18. Agostini v Felton, for adolescent education in 521 U.S. 203 (1997), family life and premarital (overturned Aguilar and sex (16) part of Grand Rapids) State funded private school 19. Mitchell v. Helms, vouchers including 530 U.S. 793 (2000) religious schools (20)

 2015 National School Boards Association. All rights reserved. 30 State constitutional 20. Zelman v. Simmons- provision prohibiting Harris, 536 U.S. 639 issuing state college (2002) scholarship funds for 21. Locke v. Davey, 540 pastoral studies (21) U.S. 712 (2004)

Key Supplemental and Related Services Therapeutic assistance and remedial services (11, 18) Guidance counseling (10,18) Speech/hearing diagnostic assistance (11) Constitutional Sign language interpreter Unconstitutional (17) Not Applicable Public Public Direct to Direct to Type of Benefit Provided Employee Employee Student or Private on Private on Public Parent School or School School Employee Property Property Tax Measures Tax exempt status of property owned by religious organization (5) “Tax forgiveness”, i.e. deduction not related to amount of tuition paid (8) Deduction for tuition and other educational for parents of both public and private school students (13) Released Time for Students For religious instruction on public school premises (2) For religious instruction on private school premises (3) Tests Reimbursement for tests prepared by religious schools (7) Reimbursement religious schools for expenses in administering and grading standardized tests (12) Non-Instructional Aid Maintenance and repair expenses (8) Transportation for extracurricular activities of religious schools (11) Transportation to classes for both public and private schools (1)

CASE SUMMARIES

Engel v. Vitale, 370 U.S. 421 (1962)

Issue: Whether New York state law requiring school districts to include official prayer as part of its schools’ daily practice and the school district policy implementing that law violate the Establishment Clause, even when students are not compelled to recite the prayer?

Facts: Pursuant to state law, a local school board implemented a policy requiring all public school students in the school district to recite in the classroom a denominationally neutral prayer composed by the board. A group of parents objected to the prayer and filed suit to enjoin the school district from requiring the students to pray. They alleged that ordering students to pray violated the Establishment Clause. The state appellate court affirmed the trial court’s ruling upholding the state law and board policy regarding classroom prayer so long as no student was compelled to pray over the student’s or the student’s parents’ objection.

Holding/Rationale: The Supreme Court reversed, holding that the state law requiring public schools to establish a practice of reciting a prayer in classrooms on a daily basis constituted establishment of religion in violation of the First Amendment. It found that neither the fact that prayer was nondenominational nor the state appellate court’s modification of the law to prevent students from being compelled to pray cured the constitutional defect. Regarding the nondenominational nature of the prayer, the Court pointed out that under the Establishment Clause analysis, there need not be an endorsement of a particular religion, but merely the endorsement of religion over nonreligion. As to the lack of compulsion, it concluded that the indirect coercive effect on religious minorities of establishing an official prayer was sufficient to invalidate the prayer practice.

Issue: Whether an Iowa state law requiring the reading of Bible verses on a daily basis in all public schools violates the Establishment Clause, even when students can be excused if their parents object?

Facts: A state law required the following to be read: “[a]t least ten verses from the Holy Bible …, without comment, at the opening of each public school on each school day.” The law also provided that any student could be excused upon written request of his or her parent. The parents of two students filed suit to enjoin the recitation of Bible verses on the ground it violated the Establishment Clause. After a federal district court ruled that the law was unconstitutional, the school district appealed directly to the U.S. Supreme Court.

Holding/Rationale: The U.S. Supreme Court affirmed the district court, holding that the state law requiring the reading of Bible verses was a violation of the Establishment Clause. The Court stated that the test for determining whether a state enactment satisfies the Establishment Clause is to consider the purpose and primary effect of the enactment. In other words, if the enactment either advances or inhibits religion, then it violates the prohibitions enumerated in the Establishment Clause. Applying the test to the state’s Bible verse law, the Court found that the admittedly religious character of the Bible reading was such that even if its purpose was not strictly religious it had the primary effect of advancing religion. As in Engel, it found that the fact that students could opt out did not eliminate the coercive nature of the law, thereby not curing the constitutional defect.

Issue: Whether a state law that provides salary subsidies from state funds to private sectarian schools, provided the teachers teach only secular courses, violates the Establishment Clause?

Facts: Rhode Island and Pennsylvania enacted laws that provided for teacher salary subsidies to private sectarian schools, provided the teachers taught only secular courses. The laws were challenged on the ground that they violated the Establishment Clause prohibition against government providing support for religion. A district court found the Rhode Island law unconstitutional, while another district court ruled that the Pennsylvania law did not infringe on First Amendment religious protections.

Holding/Rationale: The U.S. Supreme Court affirmed in regard to the Rhode Island law and reversed as to the Pennsylvania law. It held that both laws resulted in excessive entanglement between government and religion because of the amount of restrictions and surveillance necessary to insure that state funds were used only for the cost of secular education rather than religious education. The Court analyzed the statutes by applying a three-prong test: (1) the statute must have a secular legislative purpose; (2) its primary effect must be one that neither advances nor inhibits religion; and (3) the statute must not foster excessive government entanglement with religion. It concluded that while both statutes satisfied the first and second prongs, they failed to satisfy the third prong. The court found in both cases that the pervasive religious nature of the private schools required the state to impose so many restrictions that the level of government surveillance required to insure that the state aided only secular education would lead to excessive government entanglement with religion.

Issue: Whether a state law providing for the loan of textbooks along with other instructional materials and equipment and auxiliary services, including counseling, testing, and other remedial services, directly to private sectarian schools violates the Establishment Clause?

Facts: State law provided for the loan of textbooks, instructional materials and equipment, and auxiliary services to nonpublic schools. The instructional materials included periodicals, photographs, maps, charts, recordings, and films. The equipment included projectors, recorders, and laboratory paraphernalia. Auxiliary services included counseling, testing, psychological services, auditory therapy, and related remedial services. The law was challenged on the ground it violated the Establishment Clause by providing religious schools with direct aid from the state. A district court upheld the constitutionality of the law except as to the loan equipment. It stated that the equipment by “its nature can be diverted to religious purposes.”

Holding/Rationale: The U.S. Supreme Court affirmed in part, and reversed in part. It held that all but the provisions regarding the loan of textbooks violated the Establishment Clause. Applying the Lemon test, the Court concluded that while the law had a secular legislative purpose with regard to the instructional materials, equipment, and auxiliary services, they could easily be diverted to religious purposes. As a result, the law would have the primary effect of promoting religion. It further found great potential for excessive entanglement with state efforts to insure that the instructional materials, equipment, and auxiliary services remain “strictly neutral and non-ideological when functioning in church-related schools.”

Issue: Whether a Kentucky state law requiring public schools to post a copy of the Ten Commandments in classrooms violates the Establishment Clause?

Facts: State law required all public schools to post a copy of the Ten Commandments in classrooms. The law avowed a secular purpose, and stated that copies of the Ten Commandments should only be financed by private voluntary contributions. A state trial court concluded that the law satisfied the Lemon test and, therefore, the law was constitutional.

Holding/Rationale: The U.S. Supreme Court reversed, holding that neither the avowed secular purpose written into the law nor the provision for private financing of copies of the Ten Commandments was sufficient to prevent the law from running afoul of the Establishment Clause. The Court found that the posting of the Ten Commandments was clearly religious in nature and that the language in the law avowing a secular purpose was a self-serving attempt to avoid the first prong of Lemon. It also found that the private financing aspect of the law did not save it either because of the fact that the Ten Commandments were posted “under the auspices of the legislature” conveyed official support for religion in violation of the Establishment Clause. The Court stated that the Ten Commandments could be “integrated into the school curriculum, where the Bible may constitutionally be used in an approved study of history, civilization, ethics, comparative religion, or the like.”

Issue: Whether a state university’s regulation excluding student religious groups from using university facilities for meetings violated the students’ First Amendment free speech rights because the university failed to show that its content-based exclusionary policy served a compelling state interest and was narrowly drawn to achieve that end?

Facts: A registered student religious group that previously had received permission to conduct meetings in university facilities was informed that the university had adopted a new regulation prohibiting the use of university facilities for religious worship or teaching. The students filed suit, alleging that the regulation violated their free exercise of religion and free speech rights. The district court held that the regulation was not only justified, but required by the Establishment Clause. The Eighth Circuit held that: (1) the regulation was content-based discrimination against religious speech for which the university had no compelling justification; and (2) the Establishment Clause does not bar a policy of equal access to university facilities to all groups and individuals.

Holding/Rationale: The U.S. Supreme Court affirmed, holding that the university’s exclusionary regulation violates the fundamental principle that state regulation of speech should be content neutral. Concluding that the university’s regulation was content-based discrimination as applied to religious groups, the Court stated that such discrimination can be justified only if the regulation is necessary to serve a compelling interest and if it is narrowly drawn to achieve that end. Noting that the state could characterize complying with its constitutional duties under the Establishment Clause as a compelling interest, the Court nonetheless found that providing equal access is not incompatible with the Establishment Clause. As a result, it concluded that the university’s interest in achieving greater separation between church and state was not sufficiently compelling to justify content-based discrimination against religious speech of student religious groups.

Issue: Whether a state law that provides parents of students attending private religious schools with tax deductions for tuition, textbooks, and transportation constitutes direct state aid to religion in violation of the Establishment Clause?

Facts: Minnesota enacted a law that allowed parents of students, including those attending religious schools, to deduct the cost of school-related expenses, i.e., tuition, textbooks, and transportation from their state income tax. A group of taxpayers challenged the law on the ground that it violated the Establishment Clause by providing state financial aid to religious institutions. The district court ruled the law was neutral and did not have the primary effect of advancing or inhibiting religion. The Eighth Circuit affirmed.

Holding/Rationale: The U.S. Supreme Court affirmed, holding that the law satisfied all three prongs of the Lemon test. It concluded that the law: (1) had the secular purpose of insuring a well-educated citizenry and the financial health of private schools; (2) did not have the primary effect of advancing the sectarian aims of private schools because the deduction is available to all parents regardless of what school they attend; and (3) there is no excessive entanglement merely because tax officials may have to determine whether to disallow a deduction for use of textbooks in religious teachings.

Issue: Whether inclusion of nativity scene in city’s Christmas display containing both religious and secular symbols violates the Establishment Clause?

Facts: City erected a Christmas display that included a crèche along with several secular symbols, such as a tree and a wreath. Residents challenged the display of the crèche on the ground that inclusion of a religious symbol in a government-sponsored display violated the Establishment Clause. The district court enjoined the city from including the crèche in the display. The First Circuit affirmed.

Holding/Rationale: The U.S. Supreme Court held that even though the crèche is a religious symbol, the city had not violated the Establishment Clause by including it in the Christmas display. The Court observed that the concept of a “wall” of separation between church and state does not mean that the Constitution requires complete separation. As a result, it focused its analysis on the crèche within the context of the Christmas season. Applying the Lemon test in this context, the Court concluded: (1) the display had a legitimate secular purpose in that the city depicted the origins and traditions of a national holiday; (2) the primary effect of the display did not encourage or advance religion because any benefit to religion by inclusion of a religious symbol along with secular symbols was indirect, remote, and incidental; and (3) there is no entanglement with religion regarding the content or design of the display.

Issue: Whether a Louisiana state law forbidding teaching of the theory of evolution in public schools, unless accompanied by instruction in the theory of “creation science,” violates the Establishment Clause?

Facts: State enacted a “Creationism Act” that forbids public schools from teaching the theory of evolution unless students are also instructed regarding the theory of “creation science.” A group of teachers, parents, and religious leaders filed suit, challenging the law’s constitutionality. A district court held that the law violated the Establishment Clause. The Fifth Circuit affirmed.

Holding/Rationale: The U.S. Supreme Court affirmed, holding that the law was facially invalid because it lacked a clear secular purpose. The Court found that the law did not further its stated purpose of “protecting academic freedom,” but rather impermissibly endorsed religion by advancing the religious belief that God created mankind by providing an advantage to a particular religious doctrine that rejects the factual basis of evolution. As a result, the Court concluded that the law was designed either to promote the theory of creation science that embodies a particular religious tenet, or to prohibit the teaching of a scientific theory (evolution) disfavored by certain religious sects.

Issues: (1) Whether a crèche donated by a religious group and displayed outside a government building without any seasonal secular symbols violates the Establishment Clause? (2) Whether a Chanukah menorah donated by a religious group and displayed outside a government building with other secular seasonal symbols violates the Establishment Clause?

Facts: A crèche donated by a Roman Catholic organization was placed on display outside the county courthouse. The crèche occupied its space without any other displays, either religious or secular. The Chanukah menorah was donated by a Jewish group and displayed outside the county government building along with a Christmas tree and a sign containing a salute to liberty. The local ACLU chapter challenged the placing of both religious displays on government property. The district court, relying on Lynch, held that neither the crèche nor the menorah violated the Establishment Clause. The Third Circuit reversed, distinguishing Lynch and holding that the displays constituted impermissible endorsement under Lemon.

Holding/Rationale: The U.S. Supreme Court affirmed in part and reversed in part. It held that the crèche standing outside the courthouse constituted government encouragement of celebrating Christmas as a religious holy day in violation of the Establishment Clause because unlike the crèche in Lynch, the crèche here was standing alone without any secular seasonal symbols to balance out the religious message being sent by the crèche. However, the Court found that the Chanukah menorah did not offend the Establishment Clause. It held that the menorah like the crèche in Lynch, was one of several religious and secular symbols celebrating the origins and traditions of the Christmas season.

Issues: (1) Whether a school’s refusal to allow a Christian student club to use school facilities after hours for meetings, even though other students were allowed to meet, violated students’ rights under the Equal Access Act? (2) Whether the Equal Access Act, which prohibits public secondary schools that maintain a limited open forum from denying equal access to student groups based on the religious, political, philosophical, or other content of the groups’ speech, violates the Establishment Clause?

Facts: A public high school denied a student’s request that his Christian student club be allowed to meet in the school after hours, even though several other groups had been given permission to meet. The school based its refusal on school board policy requiring student groups to have a faculty advisor. The student filed suit, claiming the school violated his rights under the Equal Access Act. The district court found for the school, holding that the Act did not apply because the school had not created a limited open forum. The Eighth Circuit reversed, holding that the Equal Access Act did apply because there was a limited open forum. It also rejected the school’s contention that the Act violated the Establishment Clause.

Holding/ Rationale: The U.S. Supreme Court affirmed. It held: (1) that the school had created a limited open forum as set forth in Widmar v. Vincent, 454 U.S. 263 (1981); (2) that denial of the student’s request based on the religious content of his group’s speech violated the Equal Access Act; and (3) that based on application of the Lemon test to the Equal Access Act, it did not violate the Establishment Clause.

Issue: Whether a school district’s policy of allowing school principals to invite members of local clergy to offer nonsectarian prayer at school graduations violates the Establishment Clause?

Facts: The school board had a policy of allowing middle and high school principals to invite a member of the clergy to give a nonsectarian invocation or benediction at graduation ceremonies. When a middle school principal invited a local rabbi to offer a prayer at the school’s graduation ceremony, a parent filed suit to enjoin school officials inviting clergy to pray at graduations on the ground it violated the Establishment Clause. A district court granted the parent’s motion for a permanent injunction, holding that such prayers violate the Establishment Clause. The First Circuit affirmed.

Holding Rationale: The U.S. Supreme Court affirmed, holding that including clergy who offer prayers as participants in an official school graduation ceremony is prohibited by the Establishment Clause. Reaffirming the continuing validity of Lemon, the Court stated that while the government may accommodate the free exercise of religion, such accommodation cannot supersede the “fundamental limitations imposed by the Establishment Clause,” which prevent the government from using coercion to support or encourage participation in religious exercises or worship. It rejected the school district’s argument that there was no coercion because student participation in graduation ceremonies was voluntary. Instead, it found that graduation is “one of life’s most significant occasions” from which a student “is not free to absent herself from the exercise in any real sense of the term ‘voluntary.’”

Issue: Whether a school board’s refusal to allow a religious group to use school facilities after hours to show a religiously oriented film series on family values and child-rearing was required by the Establishment Clause or constituted a violation of the group’s free speech rights?

Facts: State law authorized local school boards to adopt reasonable policies for after- hours use of school facilities. The law specifically prohibited use of school property for religious purposes. Pursuant to the law, a school board refused a religious group’s request to use school facilities to show a religiously oriented film series on child-rearing and family values. The group filed suit, alleging that the board’s refusal violated its free speech rights. The district court granted the board’s motion for summary judgment. The Second Circuit affirmed, holding that under the limited open forum created by the board, exclusion of the group’s film series was reasonable and viewpoint neutral.

Holding/Rationale: The U.S. Supreme Court reversed, holding that the board’s refusal to allow the religious group to use the school’s facilities violated its free speech rights. Disagreeing with the Second Circuit’s conclusion that the board’s exclusion was reasonable and viewpoint neutral, the Court instead found that the board was excluding the films merely because they approached family and child-rearing issues from a religious standpoint. The Court also rejected the board’s argument that under the Lemon test, it was required to exclude the group from showing the religiously oriented film series in order to avoid violating the Establishment Clause. It concluded that there was no endorsement issue because the films would be shown after hours without school sponsorship and would be open to the public.

Issue: Whether providing a deaf student attending a private sectarian school with a sign- language interpreter as required by IDEA violates the Establishment Clause?

Facts: A school district refused the request of parents of a deaf student attending a private sectarian school that the school district provide the student with a sign-language interpreter as required under IDEA. Parents filed suit, alleging violation of the student’s rights under IDEA and the Free Exercise Clause. The district court found that providing the interpreter “would act as a conduit for the child’s religious inculcation, thereby promoting his religious development at government expense in violation of the Establishment Clause.” The Ninth Circuit affirmed.

Holding/Rationale: The U.S. Supreme Court reversed, ruling that the Establishment Clause did not act as a bar to the school district providing a sign-language interpreter to a student enrolled in a sectarian school pursuant to its obligations under IDEA. Relying on Mueller and Witters, the Court concluded that “[g]overnment programs that neutrally provide benefits to a broad class of citizens defined without reference to religion are not readily subject to an Establishment Clause challenge just because sectarian institutions may also receive an attenuated financial benefit.” It found that special education services are available to any student qualifying as disabled under IDEA without regard to whether the student is enrolled in a public or private sectarian school.

Issue: Whether a state law that allowed a religious group to form its own special school district to exclude anyone not a member of their group violates the Establishment Clause?

Facts: The state enacted a law that allowed a religious sect to incorporate their village with boundaries that exclude non-members of the sect. The village then formed a school district to provide public education services for disabled children who were members of the sect. Before the school district could begin operating, suit was brought challenging the state law on the ground it violated the Establishment Clause. A state trial court ruled that the law was unconstitutional. The intermediate and highest state appellate courts affirmed, holding that the law violated the Establishment Clause because it had the primary effect of advancing religion.

Holding/Rationale: The U.S. Supreme Court affirmed, holding the law violated the Establishment Clause because it had a religious purpose and its primary effect was to advance religion. The Court found that the case-specific nature of the law left it without any context in which to determine if the law was merely an opportunity to benefit one of many communities eligible for equal treatment under the law, because there was no assurance the next religious community seeking its own school district will receive one. It concluded that the state legislature had delegated civic authority on the basis of religious belief rather than on neutral principles.

Issue: Whether sending public school teachers to private sectarian schools to provide remedial education services under Title I of the Elementary and Secondary Education Act violates the Establishment Clause?

Facts: A school board sought to dissolve a permanent injunction barring it from sending public school teachers into parochial schools to provide remedial education to disadvantaged children pursuant to Title I of the Elementary and Secondary Education Act. Relying on Aguilar v. Felton, 473 U.S. 402, and School District of Grand Rapids v. Ball, 473 U.S. 373 (1985), the district court held that the Establishment Clause barred such aid. The Second Circuit affirmed.

Holding/Rationale: The U.S. Supreme Court reversed, overturning Aguilar and Ball. The Court held that more recent Supreme Court Establishment Clause cases rejected the assumptions upon which Aguilar and Ball relied. Specifically, the Court abandoned the presumption “that public employees placed on parochial school grounds will inevitably inculcate religion or that their presence constitutes a symbolic union between government and religion.” It also observed that recent decisions had rejected Ball’s rule that all government aid that directly aids the educational function of religious schools is unconstitutional. Instead, the Court found that because the services were provided on a neutral basis to all eligible children regardless of their religious affiliation or where they are enrolled, the program satisfied the Establishment Clause standards set forth in Lemon.

Issue: Whether a school district’s policy permitting student-led, student-initiated prayer at football games violates the Establishment Clause?

Facts: In response to a legal challenge of a high school’s practice of having the student council chaplain deliver a prayer at each home football game, the school district adopted a new policy that authorized students to hold elections to determine whether invocations should be delivered at games, and, if yes, to elect a spokesperson to deliver them. The district court upheld the constitutionality of the policy after modifying it to permit only nonsectarian, non-proselytizing prayer. The Fifth Circuit reversed, ruling that the policy, even as modified, violated the Establishment Clause.

Holding/ Rationale: The U.S. Supreme Court affirmed. The Court, relying on its analysis in Lee v. Weisman, found that the policy adopted by the school district impermissibly coerced students to participate in a religious exercise. It rejected the school district’s attempt to distinguish the prayer resulting from its policy from the prayer in Lee on the ground that the prayer generated from its policy was private student speech as opposed to the officially sanctioned public speech in Lee. The Court observed that the student speech here was public, i.e., on school property, at a school sponsored event, over a school public address system, by a speaker representing the student body, under the supervision of school officials, and pursuant to a school policy encouraging public prayer. It also rejected the school district’s attempt to characterize the policy as creating an open forum. To the contrary, the Court concluded that the policy involved “both perceived and actual endorsement of religion.” Finally, it rejected the district’s contention that there was no coercion because attendance at games is voluntary. The Court pointed out that for some students, such as cheerleaders, band members, and players, attendance is mandated and sometimes involves class credit.

Issue: Whether a school district’s lending of educational materials and equipment, such as computer software and hardware, to private sectarian schools violates the Establishment Clause?

Facts: Under an agreement between the local school district and the New Orleans Catholic archdiocese, the school district loaned secular, nonreligious materials, such as books, computer hardware, and software packages to Catholic schools operated by the archdiocese. Taxpayers challenged the school district’s use of the federal funds on grounds that providing the educational materials to non-secular private schools violated the Establishment Clause. The district court upheld the constitutionality of the program. The Fifth Circuit, relying on Meek v. Pittenger, 421 U.S. 349 (1975), and Wolman v. Walter, 433 U.S. 229 (1977), reversed and ruled that the loan to the Catholic schools of educational materials purchased with federal funds violated the Establishment Clause, except for the loan of textbooks which was permitted under the holding in Board of Education v. Allen, 392 U.S. 236 (1968).

Holding/Rationale: The U.S. Supreme Court reversed the Fifth Circuit, holding that the school district’s loan of federally funded educational materials to Catholic schools did not violate the Establishment Clause. It framed the issue as follows: whether governmental aid to religious schools that results in religious indoctrination can be reasonably attributed to governmental action. The Court concluded that Agostini “expressly rejected the absolute line that respondents would have us draw.” In regard to the direct/indirect distinction drawn by the respondents, it found their reliance on Meek and Wolman misplaced. The Court concluded that labeling the program direct or indirect was an arbitrary choice that did not further the constitutional analysis. It pointed out that the Court was required to reject the respondents’ divertibility argument because in Zobrest the Court did not consider divertibility or even actual diversion. Instead, it found that the issue was whether the content of the aid is impermissible, i.e., if the aid is suitable for use in a public school, it is also suitable for use in any private school. In other words, if the content is secular in nature but used for religious indoctrination, such use is not attributable to the government. As a result, the Court ruled that the school district’s program satisfied both prongs of the Agostini test, and, therefore, did not violate the Establishment Clause. It then declared that to the extent that Meek and Wolman were in conflict with the holding in the present case regarding the use of instructional materials and equipment by religious schools, Meek and Wolman were overruled.

Issues: (1) Did the school violate a religious club’s free speech rights by excluding the club from meeting after hours on school grounds under a policy banning the use of school facilities for religious purposes? (2) Was the exclusion justified by the school district’s concern that allowing the club to meet would violate the Establishment Clause?

Facts: The Good News Club, a Christian organization open to children between 6 and 12, sought access to school facilities to hold meetings which would include prayer, Bible study, and games and songs with religious themes. The school board denied the request based on its belief that the club would be engaging in religious instruction. Under the school district’s policy, school facilities were open to variety of community organizations but could not be used for religious purposes.

Holding/Rationale: The Supreme Court held that excluding the Good News Club is a violation of the group’s free speech rights because it is a form of viewpoint discrimination. Pointing out that teaching character development and morals was a permissible purpose under the district’s policy, the Court said the district could not exclude the club because it proposed to teach these subjects from a religious perspective. The Court said there is no difference between the invocation of Christianity by the club and the invocation of teamwork, loyalty, or patriotism by other groups as a foundation for their lessons. The Court also held that there was no realistic danger that the public would perceive the school’s act of allowing the club to meet as an endorsement of religion.

Issue: Whether the Cleveland voucher program violates the First Amendment’s Establishment Clause?

Facts: The Cleveland voucher program gave tuition money to families with children in Kindergarten through 8th grade, with preference given to students from families with incomes less than 200 percent of the poverty level. Participating students could receive tuition assistance to attend a participating adjacent public school, a private school, a community school, or a magnet school. Scholarship checks, although made payable to the parent, were mailed directly to the child’s school. The parent was then required to endorse the check over to the private or public school in which the child was enrolled. In the 1999-2000 school year, 3,761 students enrolled in the program, and 60 percent of the enrollees were from families at or below the poverty level. Of these students, 3,632 (96 percent) were enrolled in sectarian schools. The district court held that the voucher program violated the Establishment Clause. The Sixth Circuit affirmed.

Holding/Rationale: In a 5-4 split, the Supreme Court ruled that Cleveland’s school voucher program does not violate the First Amendment’s Establishment Clause. Chief Justice Rehnquist, writing for the Court, found that the program was enacted for the valid secular purpose of providing Cleveland’s poorest children with educational alternatives to the city’s admittedly failing public school system. He concluded that the program was neutral toward religion in all respects because parents could receive vouchers to send their children to a variety of public schools and sectarian and non-sectarian private schools. The majority rejected the Sixth Circuit’s reasoning that the prevalence of Catholic schools in the program created a perception of government endorsement of religion. Instead, the Court concluded that a reasonable observer would infer that the predominance of Catholic schools was a product of demographics rather than a design by the state to advance religion. The majority asserted “that no reasonable observer would think a neutral program of private choice, where state aid reaches religious schools solely as a result of numerous independent decisions of private individuals, carries the imprimatur of government endorsement.”

Issue: Whether Washington state’s constitutional prohibition against state scholarship funding for pastoral studies violates the First Amendment’s Free Exercise Clause?

Facts: A student was selected for a scholarship that could be used to attend any public or private college or university in Washington, including sectarian institutions. When he declared his intent to obtain a degree in pastoral ministries, the state rescinded the scholarship, citing the state constitutional provision that “[n]o public money or property shall be appropriated for or applied to any religious worship, exercise or instruction, or the support of any religious establishment…,” as well as a state statute and regulation prohibiting taxpayer financing of theological study. The student sued, claiming his First Amendment right to free exercise of religion was violated. After the U.S. Court of Appeals for Ninth Circuit upheld his claim, the state appealed to the U.S. Supreme Court.

Holding/Rationale: The Supreme Court held that the state constitutional provision prohibiting use of state scholarship funding for pastoral studies does not violate the First Amendment’s Free Exercise Clause. According to the Court, this claim is one that falls into the area between the Establishment and Free Exercise Clauses where there is “play in the joints.” A state could, consistent with both federal clauses, offer state scholarship funds to divinity students. However, a state constitution may also draw a more stringent line than the federal constitution in order to maintain separation of church and state by prohibiting even indirect funding of religion. Washington state’s constitution does not demonstrate animus against religion, but rather reflects the long-standing American tradition of maintaining clear lines between government and religion.

Issue: Whether a taxpayer suit challenging the constitutionality of a state tuition tax credit law in federal court is barred by the Tax Injunction Act?

Facts: A group of Arizona taxpayers filed suit in federal court challenging the state law that permits tax credits for contributions to support sectarian schools. They claimed that the law violates the Establishment Clause because it impermissibly subsidizes religious schools. Specifically, the taxpayers argued that the statute allows money to be diverted from state coffers and given to “state tuition organizations,” (STO) which in turn give most of the scholarships to students attending religious schools, i.e., 94% of the funds donated the first year the law was in effect went to STOs who only give grants to students attending religious schools. The state of Arizona sought to dismiss the suit on the grounds that it is barred by the Tax Injunction Act (TIA) and the principles of comity. The TIA is a federal law that precludes U.S. district courts from interfering with a state’s “assessment, levy, or collection” of state taxes where there is a remedy available in state court. The principles of comity preclude suits involving potential federal court interference in the administration of state tax systems. A federal district court granted the state’s motion and dismissed the suit. The Ninth Circuit Court of Appeals reversed, holding that the taxpayers’ suit was not precluded on the basis of either the Tax Injunction Act or comity.

Holding/Rationale: The Supreme Court held that a federal suit by taxpayers challenging the constitutionality of a state tuition tax credit law is not barred by the Tax Injunction Act. The Court held that because the suit was seeking prospective relief, i.e., injunctive relief prohibiting the state from issuing tax credits to taxpayers making payments to STOs that make religion-based tuition grants, it was not a suit seeking to “enjoin, suspend or restrain the assessment, levy or collection of any tax under State law” within the meaning of the TIA. While acknowledging that the TIA prevents taxpayer suits in federal court to contest their liability for state taxes, it concluded that the TIA does not prevent third parties from pursuing constitutional challenges to state tax benefits, such as tuition tax credits for payments to scholarship organizations, in a federal forum.

Issue: Whether the display of the Ten Commandments, along with other historical documents containing religious references, on government property violates the Establishment Clause?

Facts: Two Kentucky counties posted large displays of the Ten Commandments in their courthouses, and the American Civil Liberties Union of Kentucky (ACLU) sued. In response, the counties adopted identical resolutions calling for a more extensive exhibit designed to demonstrate that the Ten Commandments are the state’s “precedent legal code.” The displays were expanded to include other historical documents, all containing religious references, and later were further expanded to include other historical documents. The district court granted the ACLU’s motion for summary judgment, concluding that the displays ran afoul of the secular purpose prong of the Establishment Clause test set forth in Lemon v. Kurtzman, 403 U.S. 602 (1971). The Sixth Circuit Court of Appeals affirmed the district court’s decision.

Holding/Rationale: The Supreme Court held that the displays in the courthouses of the Ten Commandments violated the Establishment Clause. The Court rejected the counties’ argument that the secular purpose prong of Lemon should be abandoned because the “true ‘purpose’ is unknowable” and its use as a criterion is “merely an excuse for courts to act selectively and unpredictably in picking out evidence of subjective intent.” The Court also rejected the counties’ argument that inquiries into purpose should be limited to viewing each government action in isolation. Reasonable observers of government action are assumed to view that action in light of the context and history surrounding the action. At no stage of the litigation or prior to it, the Court concluded, had the counties taken a course of action that would survive the secular purpose prong. Rather, each successive change in the display reinforced the dominant religious nature of the displays.

Issue: Whether a long-standing display of the Ten Commandments on the grounds of the Texas State Capitol violates the Establishment Clause?

Facts: Among the 21 historical markers and 17 monuments surrounding the Texas State Capitol is a 6-foot-high monolith inscribed with the Ten Commandments. The monument was donated by the Fraternal Order of Eagles, a national social, civic, and patriotic organization, and the state selected a site for it based on the recommendation of the state organization that maintains the capitol grounds. A federal district court found that the State had a valid secular purpose in recognizing and commending the Eagles for their efforts to reduce juvenile delinquency, and that a reasonable observer, mindful of history, purpose, and context, would not conclude that this passive monument conveyed the message that the state endorsed religion. The Fifth Circuit affirmed.

Holding/Rationale: A plurality of the Supreme Court held that the Ten Commandments display on the grounds of the Texas state capitol does not violate the Establishment Clause. The plurality concluded that the test established in Lemon v. Kurtzman, 403 U.S. 602 (1971), is not useful for evaluating the kind of passive display at issue in the case. The Texas display, amid numerous other nearby monuments and considering similar representations throughout the country, reflects the Ten Commandment’s historical and cultural significance and has a secular purpose. The plurality distinguished the Court’s holding in Stone v. Graham, 449 U.S. 39 (1980), which disallowed a classroom Ten Commandments display, as the “consequence of the ‘particular concerns that arise in the context of public elementary and secondary schools.’” Nothing in Stone, the plurality concluded, would extend its holding “beyond the context of public schools.”

Issue: Whether a state law school may condition official recognition of a student group – and the attendant use of school funds and facilities – on the organization’s agreement to open eligibility for membership and leadership to all students?

Facts: The Hastings College of the Law, a public law school within the University of California system, extends official recognition to student organizations through the “Registered Student Organization” program. Benefits of having official recognition include the use of school funds, use of school facilities, and the ability to use Hastings’ name and school logo. In order to gain official recognition, student organizations must comply with the school’s nondiscrimination policy. This policy mirrors state law and bars discrimination based on religion and sexual orientation, among other things. The school interpreted its nondiscrimination policy as an “all-comers policy,” requiring student organizations to allow any student to participate, become a member, and seek leadership positions within the group. One student organization, the Christian Legal Society (CLS), adopted bylaws that required members to sign a “statement of faith.” It excluded from affiliation students who engaged in “unrepentant homosexual conduct” or held religious beliefs different from those in the bylaws. Hastings rejected CLS’ application for official recognition on the grounds that the group did not abide by the all- comers policy. CLS filed suit against the school, alleging that the refusal to grant official recognition violated its First and Fourteenth Amendment rights to free speech, expressive association, and free exercise of religion. The district court ruled for Hastings holding that the all-comers policy was both reasonable and viewpoint neutral. The Ninth Circuit Court of Appeals affirmed.

Holding/Rationale: The Supreme Court affirmed the ruling of the Ninth Circuit holding that the law school’s policy was reasonable and viewpoint neutral. The Court upheld Hastings’ decision to deny CLS official recognition because the organization’s bylaws did not comply with the school’s nondiscrimination policy.

Issue: Whether Arizona taxpayers, who are challenging the state’s tuition tax credit program on Establishment Clause grounds, have standing to bring the suit under Article III of the U.S. Constitution?

Facts: Arizona allows taxpayers to claim up to a $1,000 tax credit for contributions to “school tuition organizations” (STOs). STOs use these contributions to provide scholarships to students attending private schools, many of which are religious. Arizona taxpayers filed suit alleging the STO scholarship tax credit program violated the Establishment Clause. The Ninth Circuit ruled the taxpayers had standing and that the tax credit scheme violated the Establishment Clause.

Holding/Rationale: In a 5-4 decision, the Supreme Court reversed the Ninth Circuit, concluding that the taxpayers in this case have no standing because the exception to taxpayer standing for Establishment Clause challenges applies only to government expenditures, which do not include tax credits. While taxpayers in general have no standing to sue the government alleging it has spent their taxes in a manner that violates the Constitution, in Flast v. Cohen, the Court adopted a “narrow exception” to the rule against taxpayer standing in Establishment Clause cases. According to the Court, this exception only includes government expenditures where a taxpayer’s property is “transferred through the Government’s Treasury to a sectarian entity.” A tax credit is not a tax expenditure “implicat[ing] individual taxpayers in sectarian activities.” According to the Court, when a tax is collected, a dissenter’s tax dollars are spent on something he or she does not agree with. But “[w]hen the government declines to impose a tax . . . there is no such connection between dissenting taxpayer and the alleged establishment.”