Religion and Public Schools by Julie H. Blackmar   A PowerPoint Presented to Dr. Steven K. Million In Partial Fulfillment of the Requirements for EDD 8434, Advanced School Law CRN 32906 Nova Southeastern University April 4, 2010

In the Beginning… THE BILL of RIGHTS. The Constitution as a whole made virtually no reference to religious liberties of United States citizens when it was ratified by the states. James Madison introduced a series of proposals that included amendments aimed at preventing encroachment by government into the rights and liberties of all citizens. These proposals eventually became… THE BILL of RIGHTS.

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

Cantwell v. Connecticut The initial intent of the First Amendment prohibited Congress from making laws supporting religion or prohibiting the rights of individuals to exercise their religious rights. The U.S. Supreme Court held in Cantwell that this prohibition applied to the states as well. The Fourteenth Amendment made the First Amendment applicable to state action, thus providing the same constitutional guarantees to citizens against state infringement of their religious rights. Cantwell v. Connecticut, 310 U.S. 296 (1940)

Key Clauses of the First Amendment Establishment Clause Free Exercise Clause Prohibits the state from passing laws that aid a religion or show preference of one religion over another Prohibits the state from interfering with individual religious freedoms Public Schools are compelled as state agencies to maintain a neutral position regarding religious matters in their daily operations. They can neither aid nor inhibit religion.

Lemon v. Kurtzman The establishment clause was intended to afford protection against “sponsorship, financial support, and active involvement of the sovereign in religious activity.” Over many years the Court has developed criteria for analyzing a statute’s constitutionality in regards to the establishment clause. Total separation between church and state is not possible, but the Court must determine whether the government entanglement with religion is excessive. To do this the Court has established a three-part test called the Lemon Test. Lemon v. Kurtzman, 403 U.S. 602, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971)

The Lemon Test A statute must meet the following criteria to be deemed constitutional: must have a secular, legislative purpose its principal or primary effect must be one that neither advances nor inhibits religion must not foster “an excessive government entanglement with religion.”

Student Religious Expression

True or False?

The Supreme Court decisions of the 1960s concerning prayer and devotional Bible-reading prohibited students from expressing their faith in a public school. FALSE

The Supreme Court did not eliminate prayer or the Bible from public schools; it barred state-sponsored religious practices, including devotional use of the Bible by public-school officials.

Summary of the Rights of Students to Express Their Faith in a Public School May pray individually or in groups or discuss their religious views with their peers as long as they are not disruptive May read their Bibles or other scriptures, say grace before meals, pray before tests, and discuss religion with other willing student listeners In the classroom, may pray quietly except when required to be actively engaged in school activities In informal settings, may pray either audibly or silently, subject to the same rules of order as apply to other speech in these locations

Students Do Not Have the Right to… have a captive audience listen to or compel other students to participate in their expression of their faith.

Prayer and the Public School

West Virginia Bd. Of Ed. V. Barnette "The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts.  One's right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections."  West Virginia Board of Education v. Barnette, 319 U.S. 624 (1943)

School-Sponsored Prayer The U.S. Supreme Court first addressed Prayer in schools in the landmark case Engel v. Vitale. At issue was a short, voluntary prayer the Board of Regents for the State of New York authorized for recitation at the start of each school day. Engel v. Vitale, 370 U.S. 421 (1962)

Engel v. Vitale What do you think? YES or The invocation under scrutiny read as follows: "Almighty God, we acknowledge our dependence upon Thee, and beg Thy blessings upon us, our teachers, and our country.” The question put before the Court was, “Does the reading of a nondenominational prayer at the start of the school day violate the ‘establishment of religion’ clause of the First Amendment?” What do you think? YES NO or

Supreme Court Held… Neither the prayer's nondenominational character nor its voluntary character saved it from unconstitutionality. By providing the prayer, New York was seen to officially approve religion. This was the first in a series of cases in which the Court used the establishment clause to eliminate religious activities of all sorts, which had traditionally been a part of public ceremonies.

Moments of Silence In Wallace v. Jaffree, a case regarding a period of silence set aside specifically for meditation or voluntary prayer, the Supreme Court found the practice to be in violation of the First Amendment. There were three statutes examined in Wallace. One of these authorized a 1-minute period of silence for meditation. The Court did not find this statute to be unconstitutional. The U.S. Dept. of Ed., in its guidance to elementary and secondary schools, states, “If a school has a ‘minute of silence’ or other quiet periods during the school day, students are free to pray silently, or not to pray, during these periods of time. Teachers and other school employees may neither encourage nor discourage students from praying during such time periods.” Wallace v. Jaffree, 472 U.S. 38 (1985)

Student Assemblies & Extracurricular Events The U.S. Supreme Court ruled in Santa Fe Independent School District v. Doe that the District's policy permitting student-led, student-initiated prayer at football games violates the Establishment Clause. The Court concluded that the football game prayers were public speech authorized by a government policy and taking place on government property at government- sponsored school-related events and that the District's policy involved both perceived and actual government endorsement of the delivery of prayer at important school events. Santa Fe Independent School District v. Doe, 530 U.S. 290 (2000)

Interpretation of Santa Fe The Eleventh Circuit held that the Supreme Court’s decision in Santa Fe did not prevent students from discussing religion in public schools or praying publicly, as long as such activities are voluntary. The Supreme Court asked the Circuit Court to reassess its decision, but the Circuit Court ruled that its decision was not in conflict with the high court’s ruling in Santa Fe. The Circuit Court held that there was a distinction between voluntary prayer and school-sanctioned, student-led prayer.

Guidance Offered Schools by the U.S. Department of Education “Student speakers at student assemblies and extracurricular activities such as sporting events may not be selected on a basis that either favors or disfavors religious speech. Where student speakers are selected on the basis of genuinely neutral, evenhanded criteria and retain primary control over the content of their expression, that expression is not attributable to the school and therefore may not be restricted because of its religious (or anti- religious) content.”

Guidance Offered Schools by the U.S. Department of Education “By contrast, where school officials determine or substantially control the content of what is expressed, such speech is attributable to the school and may not include prayer or other specifically religious (or anti-religious) content.” “To avoid any mistaken perception that a school endorses student speech that is not in fact attributable to the school, school officials may make appropriate, neutral disclaimers to clarify that such speech (whether religious or nonreligious) is the speaker's and not the school's.”

Commencement Exercises Prayer at graduation ceremonies has continued to be controversial. As with extracurricular activities, to pass scrutiny the commencement prayer must be found to be student initiated and student led. The courts have struck down religious invocations and benedictions. They have found these to convey a powerful message that the school district approves the prayers and, thus, favors one religion over another.

Religion and the Public School Curriculum

Supreme Court Holdings Public schools may teach students about the Bible as long as such teaching is “presented objectively as part of a secular program of education.”1 Religious groups may not teach religious courses on school premises during the school day.2 Any study of religion in a public school must be educational, not devotional. 1Abington Township School District v. Schempp, 374 U.S. 203 (1963) 2McCollum v. Board of Education, 333 U.S. 203 (1948)

Administrative Guide The school’s approach to religion is academic, not devotional. The school may strive for student awareness of religions, but should not press for student acceptance of any religion. The school may sponsor study about religion, but may not sponsor the practice of religion. The school may expose students to a diversity of religious views, but may not impose, discourage, or encourage any particular view.

References Abington Township School District v. Schempp, 374 U.S. 203 (1963). Retrieved April 1, 2010, from http://www.law.cornell.edu/supct/html/historics/USSC_ CR_0374_0203_ZS.html Cantwell v. Connecticut, 310 U.S. 296 (1940). Retrieved April 1, 2010, from http://www.law.cornell.edu/supct/html/historics/USSC_ CR_0310_0296_ZS.html Essex, N. (2008). School law and the public schools: A practical guide for educational leaders (4th ed.). Boston: Allyn & Bacon.

References Cont. Haynes, C. & Thomas, O. (2001). Finding common ground: A First Amendment guide to religion and public education. Nashville: First Amendment Center. Lemon v. Kurtzman, 403 U.S. 602, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971). Retrieved April 5, 2010, from http://www.lawcornell.edu/supct/html/histories/USSC_ CR_ 0403_060_ZS.ht McCollum v. Board of Education, 333 U.S. 203 (1948). Retrieved March 31, 2010, from http://caselaw.lp.findlaw.com/cgi- bin/getcase.pl?navby=case&court=us&vol=333&invol=203

References Cont. National School Boards Association (2001). The Bible & public schools: A First Amendment guide. Retrieved April 1, 2010, from http://www.nsba.org/MainMenu/SchoolLaw/Issues/Cu rriculum/Resources/TheBibleandPublicSchools AFirstAmendmentGuide.aspx Santa Fe Independent School District v. Doe, 530 U.S. 290 (2000). Retrieved April 1, 2010, from http://www.law.cornell.edu/supct/html/99-62.ZS.html United States Department of Education (2003). Guidance on constitutionally protected prayer in public elementary and secondary schools. Retrieved April 2, 2010, from http://www2.ed.gov/policy/gen/guid/religionandschoo ls/prayer_guidance.html

References Cont. Wallace v. Jaffree, 472 U.S. 38 (1985). Retrieved April 4, 2010, from http://www.law.cornell.edu/supct/html/historics /USSC_CR_0472_0038_ZS.html West Virginia Board of Education v. Barnette, 319 U.S. 624 (1943). Retrieved April 3, 2010, from http://www.law.cornell.edu/supct/html/historics /USSC_CR_0319_0624_ZO.html