How The Law Deals With Religion In The Public Schools Marc D. Stern and David Harris The American Jewish Congress Washington, D.C. The following is a very brief summary of a comprehensive report by AJCongress, titled "Religion in the Public Schools." Copies of that report, which includes citations for decisions on this topic, are available from AJCongress. School Prayer. The Supreme Court first held in Engel v. Vitale (1962) that the practice of having a prayer recited daily in the classroom, even if non- denominational, is unconstitutional. This holding has been repeatedly reaffirmed, most recently in Lee v. Weisman (1992). The prayer at issue in Engel was composed by the state. Although the opinion makes it appear as if that fact alone decided the case, subsequent cases have held that all school- sponsored prayers and religious exercises are unconstitutional. That includes, for example, opening exercises consisting of the reading of passages from the Bible, even where participation in such exercises is "voluntary." This rule against officially-sponsored religious exercises is thus not overcome by requiring students to choose between attending the prayer session or going to another classroom. Nor is it permissible to permit student volunteers to select the prayers for public recitation, either in the classroom or at school assemblies. Lower courts have generally extended the ban on school prayers to include all regular school functions, including assemblies and athletic events. In one case, an appellate court held that a school district could not constitutionally delegate the task of offering prayers at high school football games to the local Ministerial Association. Equally unconstitutional was an "equal access" plan under which student volunteers could recite prayers of their own choosing as part of a pre-game ceremony. Similarly, the common practice of high school coaches leading a team in prayer, or calling upon a team member to do so, is unconstitutional. Individual students, however, may engage in private, quiet, religious activities, so long as the conduct is not disruptive and does not interfere with the right of others to be left alone. Contrary to what is sometimes said by advocates of prayer in the public schools, the Supreme Court has not prohibited students from reading the Bible, praying, reciting the rosary, or informally discussing religious subjects with classmates. On the contrary, any official interference with such activities would itself be unconstitutional, unless demonstrably necessary to maintain order in the school or to protect the rights of other students. Thus, a teacher may not insist on teaching creationism, or resist teaching evolution, on the theory that evolution is a religious viewpoint. And public school teachers may not pray with, or in the presence of, their students. A teacher who abuses his or her position in this way may be terminated. The extent to which school authorities may set aside a moment for silent prayer or meditation remains unclear, as courts have continued to send mixed signals in this regard. Moment-of-silence statutes not mentioning prayer will likely be found constitutional. But even if a statute is not unconstitutional as written, it can be implemented in an unconstitutional way, e.g., if students are told to bow their heads or stand for the moment-of-silence, or if a teacher urges that the time be used for prayer. Teaching About Religion. The Constitution permits objective teaching about religion. In fact, one cannot teach the history of civilization without teaching about religion. Neither can art or music be taught without reference to religion. Objective teaching about religion has given rise to numerous difficulties, among the most intractable of which are those arising from the teaching of "Bible as Literature" classes. It has been suggested, by one court, that only regularly certified public school teachers, not uncertified ministers, can teach such courses. And, at the secondary school level, modern critical Bible scholarship should be included in the curriculum. In short, to pass constitutional muster, any course on the Bible must be devoid of denominational bias. Public school libraries may include significant religious literature, provided that no one sect's literature is favored, and the library as a whole does not show any preference for religious works. Similarly, the Ten Commandments may not be displayed on classroom walls. Neither may a student painting depicting the crucifixion be left on permanent display in the school auditorium. Use of Classroom Space For Student-Initiated Religious Activities Constitutional Claims for Student Religious Clubs. Student religious groups have often requested permission to meet in vacant public school classrooms during school club periods held either before or after school, or, less frequently, during free periods during the school day. The Supreme Court has held that a public university which allowed secular extracurricular student groups use of empty classrooms could not deny access to student religious groups. Since the university was a limited public forum (a place deliberately set aside for members of the student body to express and exchange views), the university's rule distinguishing between secular and religious groups constituted an impermissible discrimination against speech based on the content of the speech. The Court concluded that the bare granting of access to religious clubs did not amount to the university aiding or endorsing religion. It therefore invalidated the university's rule against the use of its premises by religious clubs. The lower federal courts have divided on the question of whether this ruling should be applied to elementary and secondary schools. However, this unanswered constitutional question is now of practical import only in those cases in which the Equal Access Act does not apply; that is, in the case of non-elementary and non-secondary schools or during instructional time. Those cases are far less likely to involve limited public forums, and therefore, present a far easier case for excluding religious speech. The Equal Access Act. The Equal Access Act provides a statutory basis for claims for and against extra-curricular religious clubs. As a result, constitutional claims are now of secondary importance. The Act is a complex piece of legislation. In brief, the Act provides that a secondary school that chooses to allow non-curriculum related student-initiated groups to meet before or after, but apparently not during, the school day may not discriminate against any other student-initiated club based on its philosophic, religious or political content. Thus, the Act confers a right upon all student clubs to meet, but only if school officials permit non- curriculum clubs to meet. Curriculum-related clubs (e.g., the Spanish Club) do not trigger the provisions of the Act. Schools are free under the Act to insist that each meeting be attended by a school employee, who may only maintain order, preserve discipline, protect the rights of other students, or prevent illegal acts. Teachers' Rights to Hold Religious Meetings. Unless a school permits teachers to use empty classrooms for meetings on whatever topic they choose, teachers have no right to hold religious meetings in an empty public school classroom, before or after school, even when only other teachers will be in attendance. However, teachers may informally discuss religious topics among themselves, provided those discussions do not interfere with their duties and do not take place in the presence of students. Rental of School Facilities. The question of equal access to student clubs must be distinguished from the question of whether school officials may make school facilities available for after-hours use by religious groups, even if no religious symbols are displayed when the public schools are in session. If broadly available to community groups, school facilities probably must be made available to religious groups on a less-than-permanent basis upon the payment of a fee approximating either the cost of the facilities (heat, light, maintenance) or, perhaps, the fair rental value. At a minimum, religious groups may not be excluded because school officials disapprove of the viewpoint they express. Holiday Observances. In the leading decision on public school celebrations of religious holidays, an appellate court upheld school board rules which permitted the observance of holidays with both a secular and religious basis, provided that the observances were conducted in a "prudent and objective manner." The court was careful to point out that the rules adopted by the school board were, as written, constitutional; however, particular events conducted under the authority of the rules might nevertheless be unconstitutional. The rules in question permitted the display of religious symbols as teaching aids, and provided that religious works of drama and music could be performed as well as studied. Students who objected to participating in Christmas observances were to be excused. In a similar vein, it has been noted by the Supreme Court that the singing of carols at Christmas time is a common occurrence in the public schools. In general, however, the constitutional problems with public school holiday observances are not cured by observing the holidays of all faiths, although they are exacerbated when the schools observe only the holidays of one faith. Baccalaureate Services and Graduation. The Supreme Court recently held that school officials may not invite a clergyman to begin or end a graduation ceremony with a prayer, even though the prayer may be non-denominational and even though attendance at graduation is voluntary. One appellate court has held that the graduating students may choose to have a prayer offered, although other courts - and the weight of authority disagree. Because attendance at baccalaureate services is not compulsory, and frequently takes place away from the public school, some authorities have refused to interfere with the practice. Official sponsorship of baccalaureate services is impossible to reconcile with the Supreme Court decision mentioned above. Of course, the Constitution does not prohibit a purely private baccalaureate service. Two courts have permitted privately sponsored baccalaureate services to take place in rented public school facilities if appropriate disclaimers of public school involvement are posted. Certainly no student may be compelled to attend such a service, or be penalized for a failure to do so. Compulsory Attendance and Religious Holidays. School officials are required, by federal statute, to accommodate students' religious practices unless the officials can demonstrate that they have a compelling interest in not doing so. Two types of conflicts arise from conflicts between the school calendar and religious holidays. The first of these is excusal from compliance with compulsory attendance laws, and is usually covered by a statutory exemption. Where no statutory exemption exists, the student must be excused, at least for a reasonable number of days. However, a policy of excusal must be available equally to members of all faiths. The second problem is whether schools may or must close on religious holidays so as to avoid a conflict with students' religious practices. While public schools need not close on religious holidays, they may do so as a matter of administrative convenience, where, for example, large numbers of teachers or students are absent. When a school chooses not to close on days observed by some students as religious holidays, conflicts between scheduled events and religious holidays will exist. One court has held that school officials may, without unconstitutionally establishing religion, prohibit the scheduling of extra- curricular activities on Friday night, Saturday and Sunday morning to avoid conflicts with students' religious observances. And another court has held that penalties (such as the refusal to provide make-up examinations or the lowering of grades) cannot be imposed on students absent for religious holidays. A school need not, however, reschedule graduation in order to avoid a conflict with the Sabbath observed by some of the graduates. Dress Codes. Students may not be compelled to wear gym clothes which, for religious reasons, they consider immodest. Two key decisions on this matter are in conflict as to the appropriate remedy. One Court held that such students must be offered excusal from mixed gym classes in order to avoid exposure to those wearing what they consider to be immodest clothing. The other Court held that, while students themselves must be allowed to dress modestly, they would not be allowed to absent themselves from the class to avoid viewing others dressed immodestly or to avoid ridicule for their chaste dress. Students with religious objections to mixed gym classes, but only such students, may be offered sex-segregated gym classes without violating federal law. =================================================== How to Win: A Practical Guide for Defeating the Radical Right in Your Community Copyright 1994 by Radical Right Task Force Permission is granted to reproduce this publication in whole or in part. All other rights reserved. For more information contact: Pat Lewis National Jewish Democratic Council 711 Second Street, N.W. Washington, D.C. 20002 (202) 544-7636 =================================================== This document is from the Politics section of the WELL gopher server: gopher://gopher.well.com/11/Politics/ Questions and comments to: gopher@well.com .