Williamson, Dean, Williamson & Sojka, L.L.P. RELIGION IN NORTH CAROLINA PUBLIC SCHOOLS SANDHILLS REGIONAL EDUCATION CONSORTIUM March 28, 2017 Nickolas J. Sojka, Jr. Williamson, Dean, Williamson & Sojka, L.L.P. (910) 276-8082 nsojka@williamsondean.com The information contained in this presentation is intended for general guidance only, and is not intended to provide specific legal advice or to express specific legal opinions

Why this topic? Increasing diversity. Increasing political and cultural polarization. Media/bloggers/activists/social media looking for the next outrage. Instructional days are precious – we shouldn’t waste time on avoidable controversy.

Outline NCSBA Policy 3515 – Religion in the Schools (The basic constitutional “rules of the road”) (2012). N.C. Session Law 2014-13 Real word situations through the lens of NCSBA Regulation 3515 (2016)

NC SBA Policy Code 3515: Religion in the Schools (© 2012, NCSBA) The United States Constitution and North Carolina Constitution protect the right of an individual to choose his or her own religious or non-religious beliefs and prohibit any governmental action that may advance or inhibit such beliefs. This policy is intended to protect the religious rights of students and school personnel, to preserve the separation of church and state, and to provide guidance to students and personnel about religion in the public schools. Notwithstanding any information that may inadvertently still appear in policy, the board of education, administration and staff recognize the First Amendment rights of students and staff. It is the policy of the board of education not to prevent, or otherwise deny participation in, constitutionally protected prayer in the system’s schools, consistent with guidance issued by the U.S. Department of Education and applicable judicial decisions interpreting the religion clauses of the First Amendment of the U.S. Constitution. This policy supersedes any other board policy that is inconsistent with it.

Policy Code 3515, continued CONSTITUTIONAL STANDARD FOR RELIGIOUS ACTIVITIES In order to ensure that the school system upholds constitutional standards within the religiously neutral role assigned to public schools, school personnel should review the following issues for each school-sponsored observance, program, instructional activity, or other activity involving religious content, ceremony or celebration: The purpose of the activity and whether the purpose is secular in nature; The primary effect of the activity and whether the activity either advances or inhibits religion; Whether the activity involves an excessive entanglement with a religion or religious group or between the schools and a religious organization;

Policy Code 3515, continued Whether the school system’s constitutes endorsement of religion or a religious activity; and Whether the activity coerces students to participate in a religious activity. If the activity is considered inconsistent with constitutional requirements based upon the standards above and any other applicable legal standards, the activity will not be permitted in the school system. Questions concerning the constitutionality of activities should be forwarded to the superintendent and board attorney for clarification.

N.C. Session Law 2014-13 “An Act to Clarify Student Rights to Engage in Prayer and Religious Activity in School, to create an Administrative Process for Remedying Complaints Regarding Exercise of those Student Rights, and to Clarify Religious Activity for School Personnel” (115C-407.30, et seq.)

§ 115C-407.30. Student rights to engage in prayer and religious activity. (a) A student shall be permitted to voluntarily do any of the following: 1. Pray, either silently or audibly and alone or with other students, to the same extent and under the same circumstances as a student is permitted to vocally or silently reflect, meditate, or speak on nonreligious matters alone or with other students in public schools.

2. Express religious viewpoints in a public school to the same extent and under the same circumstances as a student is permitted to express viewpoints on nonreligious topics or subjects in the school.

3. Speak to and attempt to share religious viewpoints with other students in a public school to the same extent and under the same circumstances as a student is permitted to speak to and attempt to share nonreligious viewpoints with other students.

4. Possess or distribute religious literature in a public school, subject to reasonable time, place, and manner restrictions, to the same extent and under the same circumstances as a student is permitted to possess or distribute literature on nonreligious topics or subjects in the school.

5. Organize prayer groups, religious clubs, “see you at the pole” gatherings, or other religious gatherings before, during, and after school to the same extent that students are permitted to organize other noncurricular student activities and groups. Religious groups shall be given the same access to school facilities for assembling as is given to other noncurricular groups without discrimination based on the religious content of the students’ expression. If student groups that meet for non religious activities are permitted to advertise or announce meetings of the groups, the school district shall not discriminate against groups that meet for prayer or other religious speech.

6. Express beliefs about religion in homework, artwork, and other written or oral assignments free from discrimination based on the religious content of the submission. Homework and classroom assignments shall be judged by ordinary academic standards of substance and relevance and against other legitimate pedagogical concerns identified by the local board of education. A student shall not be penalized or rewarded based on the religious content of the student’s work .

(b) A student may be prohibited from engaging in the actions provided in subsection (a) of this section if the actions of the student would do any of the following: 1. Infringe on the rights of the school to (i) maintain order and discipline, (ii) prevent disruption of the educational process, and (iii) determine educational curriculum and assignments.

2. Harass other persons or coerce other students to participate in the activity. 3. Otherwise infringe on the rights of other persons.

§ 115C-407.31. Administrative remedies and cause of action for complaints regarding exercise of religious activity The local board of education may establish or make available an existing formal grievance process to allow students or the parents or guardians of students to present allegations that a right established under this Article has been violated by a public school. The formal grievance process shall include the right of appeal to the local board of education.

§ 115C-407.31. Administrative remedies and cause of action for complaints regarding exercise of religious activity If a right of a student established under this Article is violated by a public school and the student exhausted the administrative remedies provided in this section, the student may assert the violation as a cause of action or defense in a judicial proceeding and obtain appropriate relief against the local board of education. The action shall be brought in the superior court of the county in which the local school administrative unit is located.

§ 115C-407.31. Administrative remedies and cause of action for complaints regarding exercise of religious activity A student prevailing in a claim brought against a local school administrative unit for a violation under this Article or any other action brought by a public school against a student for conduct covered by this Article shall be entitled to reasonable attorneys’ fees and court costs.

§ 115C-407.32. Religious activity for school personnel (a) Nothing in this Article shall be construed to support, encourage, or permit a teacher, administrator, or other employee of the local board of education to lead, direct, or encourage any religious or antireligious activity in violation of that portion of the First Amendment of the Constitution of the United States prohibiting laws respecting an establishment of religion.

(b) Local boards of education may not prohibit school personnel from participating in religious activities on school grounds that are initiated by students at reasonable times before or after the instructional day so long as such activities are voluntary for all parties and do not conflict with the responsibilities or assignments of such personnel. (CAVEAT!)

(c) School employees supervising extracurricular activities, including coaches, may be present while a student or group of students exercises their voluntary right to pray as provided in G.S. 115C-407.30 and, if present, shall not be disrespectful of the student exercise of such rights and may adopt a respectful posture.

§ 115C-407.33 Limitation of Article This Article shall not be construed to direct any local board of education to take any action in violation of the Constitution of North Carolina or the United States. The specification of rights in this Article shall not be construed to exclude or limit religious liberty or free speech rights otherwise protected by federal, State or local law.

WHAT DOES ALL THIS MEAN IN THE REAL WORLD? NCSBA Proposed Regulation 3515-R (©2014, NCSBA) provides some answers.

Holidays and Celebrations at School (3515-R)

Holidays and Celebrations… School curriculum, programs, and activities may acknowledge religious holidays but may not promote or endorse religious beliefs or require or coerce students to participate in holiday related activities or performances. When planning school activities that acknowledge religious holiday, school employees must seek to foster attitudes of appreciation and respect for the diversity of religious beliefs in the school community, in the state and in the nation.

Holidays and Celebrations… Holiday symbols, including religious symbols, may be used in teaching aids or resources as part of neutral instruction about the religious holiday, such as Christmas and Hanukkah. Symbols that are used as examples of the cultural and religious heritage of a holiday are to be displayed only on a temporary basis. The display of holiday symbols should represent diverse beliefs and should not focus exclusively on the beliefs and traditions of one religion.

Holidays and Celebrations… Use of music, art, or literature acknowledging religious holidays is permitted during school-sponsored activities if presented in a neutral and objective manner that focuses on the cultural and historical basis for a particular holiday. Such activities may not promote or endorse belief in a particular religion or focus exclusively on the beliefs and traditions of one religion.

Holidays and Celebrations… Classroom teachers should retain control of all presentations and activities in their classrooms. Students retain the right to free exercise of religion as specified in G.S. 115C-407.30. Teachers and other adults in the classroom must be careful to be neutral in the classroom programs and activities that they plan. Classroom teachers who have questions about the suitability of materials or activities related to a holiday entered activity, including materials and activities proposed by parents or other volunteers, should consult with the principal for guidance.

Holidays and Celebrations… School personnel will give careful consideration to written requests from parents and students to be excused from assignments or activities that the parents deems objectionable on religious grounds. If such a request is approved, an alternative activity will be provided for the student.

Holidays and Celebrations… School administrators should be sensitive to the possible effects of religious holidays on school attendance when planning school activity calendars. To the extent practicable, examinations and other major events will not be scheduled on such holidays.

Students’ Right to the Free Exercise of Religion (3515-R)

Students’ Free Exercise… Students may read religious material and pray, either silently or audibly and alone or with other students, to the same extent and under the same circumstances as students are permitted to silently or audibly read, reflect, meditate, or speak on nonreligious matters alone or with other students in school.

Students’ Free Exercise… Student may express, speak to, or attempt to share religious viewpoints in school to the same extent and under the same circumstances as students are permitted to express, speak to, or attempt to share viewpoints on nonreligious topics.

Students’ Free Exercise… Students may express beliefs about religion in homework, artwork, and other written or oral assignments free from discrimination based on the religious content of the submission. Homework and classroom assignments will be judged by ordinary academic standards of substance and relevance and against other legitimate pedagogical concerns identified by the board or teacher. A student will not be penalized or rewarded based on the religious views expressed in the student’s work.

Students’ Free Exercise… Students may possess or distribute religious literature in school to the same extent and under the same circumstances, including any reasonable time, place, and manner restrictions, as students are permitted to possess or distribute literature on nonreligious topics.

Students’ Free Exercise… Students may organize prayer groups, religious clubs, or religious gatherings before, during, or after school to the same extent that students are permitted to organize other noncurricular student groups and activities. Student religious groups will be provided in the same access to school facilities for assembling as other noncurricular groups and will be permitted to advertise or announce meetings to the same extent as other noncurricular groups. Principals shall arrange for adequate supervision, if needed, of activities occurring on school grounds. The school or school system may disclaim school sponsorship of noncurricular groups and events in a manner that neither favors nor disfavors groups that meet to engage in prayer or religious speech.

School Employees and Religious Activity (3515-R)

School Employees… School personnel may read religious materials, including the Bible, and pray during their free time, engage in voluntary discussions with other staff members about religious issues, and carry or wear religious symbols when on duty on school, as long as it does not interfere with their work.

School Employees… School employees supervising extracurricular activities, including coaches, may be present while a student or group of students exercises their voluntary right to pray as provided in G.S. 115C-407.30 and, if present, shall not be disrespectful of the student exercise of such rights and may adopt a respectful posture.

Religion in the Curriculum (3515-R)

Curriculum… The First Amendment permits the study of the role of religion as it relates to literature, history, culture, and the arts. Teachers may discuss religion in a neutral and objective manner as part of the secular program of education. Teachers may not promote or disparage a particular religion, religious in general, or the lack of religious beliefs.

Curriculum… Teachers may provide instruction on historic, political, or literary documents that include religious references if such documents are otherwise applicable to and appropriate for the course being taught.

Curriculum/Outside Speakers… When scheduling outside speakers for classes and school assembly programs, school employees will select speakers who will address topics that align with the curriculum and who are appropriate for the age and maturity of the students in the audience. Outside speakers may not lead students in prayer or other religious observances or promote or disparage religious beliefs or lack of religious beliefs during school classes and assemblies.

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