School Law and the Public Schools: A Practical Guide for Educational Leaders, 5e © 2012 Pearson Education, Inc. All rights reserved. Chapter 2 Religion and the Public Schools

School Law and the Public Schools: A Practical Guide for Educational Leaders, 5e Essex © 2012 Pearson Education, Inc. All rights reserved. 2-2 The First Amendment serves as the basis for delineating certain individual religious rights and freedoms, as well as governmental prohibitions regarding religion. The First Amendment to the United States Constitution states:

School Law and the Public Schools: A Practical Guide for Educational Leaders, 5e Essex © 2012 Pearson Education, Inc. All rights reserved. 2-3 “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 the people peaceably to assemble and to petition the government for a redress of grievances.”

School Law and the Public Schools: A Practical Guide for Educational Leaders, 5e Essex © 2012 Pearson Education, Inc. All rights reserved. 2-4 While 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 United States Supreme Court, in a compelling decision, Cantwell v. Connecticut, held that this prohibition aimed at Congress also applied to the States as well.

School Law and the Public Schools: A Practical Guide for Educational Leaders, 5e Essex © 2012 Pearson Education, Inc. All rights reserved. 2-5 The First Amendment contains two essential clauses regarding religion--the establishment clause and the free exercise clause. The establishment clause prohibits the state from passing laws that aid a religion or show preference of one religion over another.

School Law and the Public Schools: A Practical Guide for Educational Leaders, 5e Essex © 2012 Pearson Education, Inc. All rights reserved. 2-6 The free exercise clause prohibits the state from interfering with individual religious freedoms. The combined effect of these two clauses compels public schools as state agencies to maintain a neutral position regarding religious matters in their daily operations.

School Law and the Public Schools: A Practical Guide for Educational Leaders, 5e Essex © 2012 Pearson Education, Inc. All rights reserved. 2-7 The U.S. Supreme Court held in the Schempp and Murray cases that school speech and Bible reading is unconstitutional.

School Law and the Public Schools: A Practical Guide for Educational Leaders, 5e Essex © 2012 Pearson Education, Inc. All rights reserved. 2-8 Silent Prayer and Meditation The United States Supreme Court, in 1985, responded to silent meditation and prayer by ruling in the Wallace v. Jaffree case that a period of silence set aside for meditation or voluntary prayer in the public school is in violation of the First Amendment.

School Law and the Public Schools: A Practical Guide for Educational Leaders, 5e Essex © 2012 Pearson Education, Inc. All rights reserved. 2-9 Aid to Parochial Schools In cases where evidence reveals that the aid directly benefited the child rather than the parochial school, courts have been permissive in allowing certain types of aid under the “child benefit theory.”

School Law and the Public Schools: A Practical Guide for Educational Leaders, 5e Essex © 2012 Pearson Education, Inc. All rights reserved This theory is valid if parochial children are the primary beneficiaries of a public supported service provided for all children. Conversely, if the aid serves to primarily benefit parochial schools, it will be deemed impermissible and a violation of the First Amendment.

School Law and the Public Schools: A Practical Guide for Educational Leaders, 5e Essex © 2012 Pearson Education, Inc. All rights reserved The Lemon v. Kurtzman and Early v. Dicenso cases are perhaps the most significant early cases involving state aid to parochial schools. These cases arose when Rhode Island and Pennsylvania laws providing assistance to parochial schools, their students and teachers were challenged by various citizens and taxpayers.

School Law and the Public Schools: A Practical Guide for Educational Leaders, 5e Essex © 2012 Pearson Education, Inc. All rights reserved The U.S. Supreme Court subsequently held that a law providing a state subsidy for nonpublic school teachers’ salaries is unconstitutional, even when the funds are paid only to teachers of secular subjects.

School Law and the Public Schools: A Practical Guide for Educational Leaders, 5e Essex © 2012 Pearson Education, Inc. All rights reserved Religious Symbols Public schools may not display religious exhibits or other visual materials. It may be appropriate, however, for public school teachers to acknowledge and explain the various holidays of all cultural and religious groups as a unit in cultural heritage or some other related subject, as long as a secular purpose is served.

School Law and the Public Schools: A Practical Guide for Educational Leaders, 5e Essex © 2012 Pearson Education, Inc. All rights reserved School Sponsored Activities Commencement exercises and any type of school sponsored prayer at athletic contests is deemed to be a violation of the First Amendment. The principle of neutrality mandates that public schools remain neutral in all matters relating to religion.

School Law and the Public Schools: A Practical Guide for Educational Leaders, 5e Essex © 2012 Pearson Education, Inc. All rights reserved Prayer at Athletic Contests Prohibition of prayer at school events was given a major thrust when the U.S. Supreme Court in a 6 to 3 ruling in Santa Fe Independent School District v. Jane Doe banned student led prayer at athletic contests, graduations and other school sponsored events.

School Law and the Public Schools: A Practical Guide for Educational Leaders, 5e Essex © 2012 Pearson Education, Inc. All rights reserved Use of School Facilities by Religious Student Groups Congress attempted to address facility use when it passed the Equal Access Act in 1984 for the expressed purpose of providing student religious clubs equal opportunities to access high school facilities as other non-curricula clubs enjoyed.

School Law and the Public Schools: A Practical Guide for Educational Leaders, 5e Essex © 2012 Pearson Education, Inc. All rights reserved Under federal statute, it is unlawful for any public secondary school that has created a “limited open forum” to deny access to student- initiated groups on the basis of religion, political or philosophical content of their speech. A limited open forum exists when an administrator allows one or more non-curricula related student groups to meet on school premises during non-instructional time.

School Law and the Public Schools: A Practical Guide for Educational Leaders, 5e Essex © 2012 Pearson Education, Inc. All rights reserved Religious Activities and Holiday Programs The observance of holy days by public school is clearly an unconstitutional activity, if conducted in a devotional atmosphere. The First Amendment prohibits states from either aiding religion or showing preference of one religion over another.

School Law and the Public Schools: A Practical Guide for Educational Leaders, 5e Essex © 2012 Pearson Education, Inc. All rights reserved Public schools may not celebrate religious holidays. There should be no worship or devotional services, religious pageants or plays of any nature held in the school. However, certain programs may be conducted, if a secular purpose is clearly served.

School Law and the Public Schools: A Practical Guide for Educational Leaders, 5e Essex © 2012 Pearson Education, Inc. All rights reserved Distribution of Religious Materials Public school personnel are not permitted to distribute religious materials on school premises. Such practice would be a clear violation of the Establishment Clause.

School Law and the Public Schools: A Practical Guide for Educational Leaders, 5e Essex © 2012 Pearson Education, Inc. All rights reserved Public school officials also may not allow religious groups to distribute religious materials on school grounds. Support of such practices would suggest that the school embraces religion and could suggest preference of one religion over another.

School Law and the Public Schools: A Practical Guide for Educational Leaders, 5e Essex © 2012 Pearson Education, Inc. All rights reserved Teaching the Bible in Public Schools The Bible may be taught in public schools if it is not offered for religious purposes. It may be taught to facilitate an understanding of the best literary works, historical works, as well as contemporary speech and writing.

School Law and the Public Schools: A Practical Guide for Educational Leaders, 5e Essex © 2012 Pearson Education, Inc. All rights reserved Bible teaching may not be associated with any form of worship and must be taught objectively as a component of a secular program.

School Law and the Public Schools: A Practical Guide for Educational Leaders, 5e Essex © 2012 Pearson Education, Inc. All rights reserved Intelligent Design Intelligent design is a controversial concept which suggests that certain features of the universe, including living things, exhibit characteristics of a product derived from an intelligent cause rather than natural selection.

School Law and the Public Schools: A Practical Guide for Educational Leaders, 5e Essex © 2012 Pearson Education, Inc. All rights reserved Supporters of this theory believe that the ultimate designer of living things is God. A district court held that it is unconstitutional to teach intelligent design in public schools.

School Law and the Public Schools: A Practical Guide for Educational Leaders, 5e Essex © 2012 Pearson Education, Inc. All rights reserved Theory of Evolution Evolution theory suggests that all life is related and has descended from a common ancestor. Historically, this theory had been banned from public school curriculum based on the view that it conflicted with the biblical version of creation.

School Law and the Public Schools: A Practical Guide for Educational Leaders, 5e Essex © 2012 Pearson Education, Inc. All rights reserved In recent times, the U.S. Supreme Court prevented lawmakers from banning it in holding that evolution is a science rather than a secular religion.

School Law and the Public Schools: A Practical Guide for Educational Leaders, 5e Essex © 2012 Pearson Education, Inc. All rights reserved Use of Religious Garb by School Personnel The wearing of religious garb by public school teachers raises the issue as to whether such dress creates a sectarian influence in the classroom. Many state statutes prohibit public teachers from wearing religious garb in the classroom.

School Law and the Public Schools: A Practical Guide for Educational Leaders, 5e Essex © 2012 Pearson Education, Inc. All rights reserved Pledge of Allegiance In the West Virginia v. Burnette case, the U.S. Supreme Court held that public school officials may not require students to salute and pledge allegiance to the flag. It must be strictly voluntary.