November 5th, 2009 | 
Author: Handing out religious materials in a public school forum is perfectly legal and passes Constitutional muster. But that doesn’t make it, either a good idea, or something some parents might be outraged over.
Religion in the Public Schools: Joint Statement of Current Law
“[T]he Constitution permits much private religious activity in and
about the public schools. Unfortunately, this aspect of constitutional
law is not as well known as it should be. Some say that the Supreme
Court has declared the public schools “religion-free zones” or that the
law is so murky that school officials cannot know what is legally
permissible. The former claim is simply wrong. And as to the latter,
while there are some difficult issues, much has been settled. It is also
unfortunately true that public school officials, due to their busy
schedules, may not be as fully aware of this body of law as they could
be. As a result, in some school districts some of these rights are not
being observed. The following is an accurate statement of what the law currently is:
1. Students have the right to pray individually or in groups or to
discuss their religious views with their peers so long as they are
not disruptive. Because the Establishment Clause does not
apply to purely private speech, students enjoy the right to read
their Bibles or other scriptures, say grace before meals, pray
before tests, and discuss religion with other willing student
listeners. In the classroom students have the right to pray
quietly except when required to be actively engaged in school
activities (e.g., students may not decide to pray just as a teacher
calls on them). In informal settings, such as the cafeteria or in
the halls, students may pray either audibly or silently, subject to
the same rules of order as apply to other speech in these
locations. However, the right to engage in voluntary prayer does
not include, for example, the right to have a captive audience
listen or to compel other students to participate.
2. School officials may not mandate or organize prayer at
graduation, nor may they organize a religious baccalaureate
ceremony. If the school generally rents out its facilities to private
groups, it must rent them out on the same terms, and on a first-
come first-served basis, to organizers of privately sponsored
religious baccalaureate services, provided that the school does
not extend preferential treatment to the baccalaureate ceremony
and the school disclaims official endorsement of the program.
3. The courts have reached conflicting conclusions under the
federal Constitution on student-initiated prayer at graduation.
Until the issue is authoritatively resolved, schools should ask
their lawyers what rules apply in their area.
4. Teachers and school administrators, when acting in those
capacities, are representatives of the state, and, in those
capacities, are themselves prohibited from encouraging or
soliciting student religious or anti-religious activity. Similarly,
when acting in their official capacities, teachers may not engage
in religious activities with their students. However, teachers may
engage in private religious activity in faculty lounges.
5. Students may be taught about religion, but public schools may
not teach religion. As the U.S. Supreme Court has repeatedly
said, “[i]t might well be said that one’s education is not complete
without a study of comparative religion, or the history of religion
and its relationship to the advancement of civilization.” It would
be difficult to teach art, music, literature and most social studies
without considering religious influences.
The history of religion, comparative religion, the Bible (or other
scripture)-as-literature (either as a separate course or within
some other existing course), are all permissible public school
subjects. It is both permissible and desirable to teach objectively
about the role of religion in the history of the United States and
other countries. One can teach that the Pilgrims came to this
country with a particular religious vision, that Catholics and
others have been subject to persecution or that many of those
participating in the abolitionist, women’s suffrage and civil rights
movements had religious motivations.
6. These same rules apply to the recurring controversy surrounding
theories of evolution. Schools may teach about explanations of
life on earth, including religious ones (such as “creationism”), in
comparative religion or social studies classes. In science class,
however, they may present only genuinely scientific critiques of,
or evidence for, any explanation of life on earth, but not religious
critiques (beliefs unverifiable by scientific methodology). Schools
may not refuse to teach evolutionary theory in order to avoid
giving offense to religion nor may they circumvent these rules by
labeling as science an article of religious faith. Public schools
must not teach as scientific fact or theory any religious doctrine,
including “creationism,” although any genuinely scientific
evidence for or against any explanation of life may be taught.
Just as they may neither advance nor inhibit any religious
doctrine, teachers should not ridicule, for example, a student’s
religious explanation for life on earth.
7. Students may express their religious beliefs in the form of
reports, homework and artwork, and such expressions are
constitutionally protected. Teachers may not reject or correct
such submissions simply because they include a religious
symbol or address religious themes. Likewise, teachers may not
require students to modify, include or excise religious views in
their assignments, if germane. These assignments should be
judged by ordinary academic standards of substance, relevance,
appearance and grammar.
8. Somewhat more problematic from a legal point of view are other
public expressions of religious views in the classroom.
Unfortunately for school officials, there are traps on either side of
this issue, and it is possible that litigation will result no matter
what course is taken. It is easier to describe the settled cases
than to state clear rules of law. Schools must carefully steer
between the claims of student speakers who assert a right to
express themselves on religious subjects and the asserted rights
of student listeners to be free of unwelcome religious persuasion
in a public school classroom.
a. Religious or anti-religious remarks made in the ordinary
course of classroom discussion or student presentations
are permissible and constitute a protected right. If in a
sex education class a student remarks that abortion
should be illegal because God has prohibited it, a teacher
should not silence the remark, ridicule it, rule it out of
bounds or endorse it, any more than a teacher may
silence a student’s religiously-based comment in favor of
choice.
b. If a class assignment calls for an oral presentation on a
subject of the student’s choosing, and, for example, the
student responds by conducting a religious service, the
school has the right — as well as the duty — to prevent
itself from being used as a church. Other students are not
voluntarily in attendance and cannot be forced to become
an unwilling congregation.
c. Teachers may rule out-of-order religious remarks that are
irrelevant to the subject at hand. In a discussion of
Hamlet’s sanity, for example, a student may not interject
views on creationism.
9. Students have the right to distribute religious literature to their
schoolmates, subject to those reasonable time, place, and
manner or other constitutionally- acceptable restrictions imposed
on the distribution of all non-school literature. Thus, a school
may confine distribution of all literature to a particular table at
particular times. It may not single out religious literature for
burdensome regulation.
10. Outsiders may not be given access to the classroom to distribute
religious or anti-religious literature. No court has yet considered
whether, if all other community groups are permitted to distribute
literature in common areas of public schools, religious groups
must be allowed to do so on equal terms subject to reasonable
time, place and manner restrictions.
11. Student participation in before- or after-school events, such as
“see you at the pole,” is permissible. School officials, acting in
an official capacity, may neither discourage nor encourage
participation in such an event.
12. Students have the right to speak to, and attempt to persuade,
their peers about religious topics just as they do with regard to
political topics. But school officials should intercede to stop
student religious speech if it turns into religious harassment
aimed at a student or a small group of students. While it is
constitutionally permissible for a student to approach another
and issue an invitation to attend church, repeated invitations in the
face of a request to stop constitute harassment. Where this line
is to be drawn in particular cases will depend on the age of the
students and other circumstances.
13. Student religious clubs in secondary schools must be permitted
to meet and to have equal access to campus media to announce
their meetings, if a school receives federal funds and permits any
student non-curricular club to meet during non-instructional time.
This is the command of the Equal Access Act. A non-curricular
club is any club not related directly to a subject taught or
soon-to-be taught in the school. Although schools have the right
to ban all non-curriculum clubs, they may not dodge the law’s
requirement by the expedient of declaring all clubs
curriculum-related. On the other hand, teachers may not actively
participate in club activities and “non-school persons” may not
control or regularly attend club meeting.
The Act’s constitutionality has been upheld by the Supreme
Court, rejecting claims that the Act violates the Establishment
Clause. The Act’s requirements are described in more detail in
The Equal Access Act and the Public Schools: Questions and
Answers on the Equal Access Act*, a pamphlet published by a
broad spectrum of religious and civil liberties groups.
14. Generally, public schools may teach about religious holidays,
and may celebrate the secular aspects of the holiday and
objectively teach about their religious aspects. They may not
observe the holidays as religious events. Schools should
generally excuse students who do not wish to participate in
holiday events. Those interested in further details should see
Religious Holidays in the Public Schools: Questions and
Answers*, a pamphlet published by a broad spectrum of religious
and civil liberties groups.
15. Schools enjoy substantial discretion to excuse individual students
from lessons which are objectionable to that student or to his or
her parent on the basis of religion. Schools can exercise that
authority in ways which would defuse many conflicts over
curriculum content. If it is proved that particular lessons
substantially burden a student’s free exercise of religion and if
the school cannot prove a compelling interest in requiring
attendance the school would be legally required to excuse the
student.
16. Schools may teach civic virtues, including honesty, good
citizenship, sportsmanship, courage, respect for the rights and
freedoms of others, respect for persons and their property,
civility, the dual virtues of moral conviction and tolerance and
hard work. Subject to whatever rights of excusal exist (see #15
above) under the federal Constitution and state law, schools may
teach sexual abstinence and contraception; whether and how
schools teach these sensitive subjects is a matter of educational
policy. However, these may not be taught as religious tenets.
The mere fact that most, if not all, religions also teach these
values does not make it unlawful to teach them.
17. Religious messages on T-shirts and the like may not be singled
out for suppression. Students may wear religious attire, such as
yarmulkes and head scarves, and they may not be forced to
wear gym clothes that they regard, on religious grounds, as
immodest.
18. Schools have the discretion to dismiss students to off-premises
religious instruction, provided that schools do not encourage or
discourage participation or penalize those who do not attend.=20
Schools may not allow religious instruction by outsiders on
premises during the school day”.
© 2009, Lady HotchKiss. All rights reserved.
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