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RELIGION IN THE PUBLIC SCHOOLS: A Joint Statement Of Current Law

RELIGION IN THE PUBLIC SCHOOLS: A Joint Statement Of Current Law

RELIGION IN THE PUBLIC SCHOOLS: A Joint Statement Of Current Law

RELIGION IN THE PUBLIC SCHOOLS: A Joint Statement Of Current Law

April 1995

Table of Contents

Endorsing Organizations
Initial Statement
Student Prayers
Graduation Prayer and Baccalaureates
Official Participation or encouragement of Religious Activity
Teaching about Religion
Student Assignments and Religion
Distribution of Religious Literature
See You At The Pole"
Religious Persuasion Versus Religious Harassment
Equal Access Act
Religious Holidays
Excusal from Religiously Objectionable Lessons
Teaching Values
Student Grab
Released Time
Appendix: Organizational Contacts

Endorsing Organizations

Religion In The Public Schools: A Joint Statement Of Current Law

The 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 organizations whose names appear below span the ideological, religious and political spectrum. They nevertheless share a commitment both to the freedom of religious practice and to the separation of church and state such freedom requires. In that spirit, we offer this statement of consensus on current law as an aid to parents, educators and students.

Many of the organizations listed below are actively involved in litigation about religion in the school. On some of the issues discussed in this summary, some of the organizations have urged the courts to reach positions different than they did. Though there are signatories on both sides who have and will press for different constitutional treatments of some of the topics discussed bellow, they all agree that the following is an accurate statement of what the law currently is. Back to Table of Contents

Student Prayers

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 meal, 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, student 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. Back to Table of Contents

Graduation Prayer and Baccalaureates

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.
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. Back to Table of Contents

Official Participation or encouragement of Religious Activity

Teachers and school administrators, when active 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.Back to Table of Contents

Teaching about Religion

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.

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.Back to Table of Contents

Student Assignments and Religion

Students may express their religious beliefs in the form of reports, homework, artwork, and such expressions that 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.

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.

Distribution of Religious Literature

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.

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.Back to Table of Contents

"See You At The Pole"

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. Back to Table of Contents

Religious Persuasion Versus Religious Harassment

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. Back to Table of Contents

Equal Access Act

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 meetings. 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 Answer on the Equal Access Act*, a pamphlet published by a broad spectrum of religious and civil liberties groups. Back to Table of Contents

Religious Holidays

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. Back to Table of Contents

Excusal from Religiously Objectionable Lessons

Schools enjoy substantial discretion to excuse individual students from lessons that 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 proven 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. Back to Table of Contents

Teaching Values

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 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.Back to Table of Contents

Student Garb

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.

Released Time

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. Schools may not allow religious instruction by outsiders on premises during the school day.Back to Table of Contents

Appendix

Organizational Contacts for Religion in the Public Schools: A Joint Statement of Current Law

* Copies may be obtained from any of the undersigned organizations. 

American Civil Liberties Union
Beth Orsoff, William J. Brennan Fellow
202/544-1681 (x306) 

American Ethical Union
Herbert Blinder, Director,
301/229-3759

American Humanist Association
Frederick Edwords, Editor of The Humanist Magazine
800/743-6646

American Jewish Committee
Richard Foltin,
Legislative Director/Counsel
202/785-4200

American Jewish Congress
Marc D. Stern, CoDirector
Commission on Law and Social Action
212/360-1545

American Muslim Council
Abduragman M. Alamoudi,
Executive Director
202/789-2262

Americans for Religious Liberty
Edd Doerr, Executive Director
301/598-2447

Americans United for Separation of
Church and State
Steve Green, Legal Director
202/446-3234

AntiDefamation League
Michael Lieberman, Associate
Director/Counsel, Washington Office
202/452-8320

Baptist Joint Committee
J. Brent Walker, General Counsel
202/544-4226

B'nai B'rith
Reva Price, Director,
Political Action Network
202/857-6645

Christian Legal Society
Steven T. McFarland, Director,
Center for Law and Religious Freedom
703/642-1070

Christian Science Church
Philip G. Davis, Federal Representative
202/857-0427

Church of the Brethren
Timonthy A. McElwee, Director
Washington Office
202/546-3202

Church of Scientology International
Susan L. Taylor, Public Affairs Director,
202/667-6404

Evangelical Lutheran Church in America, Lutheran Office for Governmental Affairs
Kay S. Dowhower, Director
202/783-7507

Federation of Reconstructionist
Congregations and Havurot
Rabbi Mordechai Liebling,
Executive Director
215/887-1988

Friends Committee on
National Legislation
Futh Flower, Legislative
Secretary/Legislative
Education Secretary
202/547-6000

General Conference of Seventh-day Adventists
Gray M. Ross, Congressional Liaison
301/680-6688

Guru Gobind Singh Foundation
Rajwant Singh, Secretary
301/294-7886

Hadassah,The Women's Zionist Organization of  America
Amy Rutkin, Director
American Affairs
212/303-8136

Interfaith Alliance
Jimm Hanauer, Executive Director
202/639-3670

Interfaith Impact for Justice and Peace
James M. Bell, Executive Director
202/543-2800

National Association of Evangelicals
Forest Montgomery, Counsel,
Office of Public Affairs
202/789-1011

National Council of Churches
Oliver S. Thamas, Special Counsel for Religious and Civil Liberties
615/977-9046

National Council of Jewish Women
Deena Margolis, Legislative Assistant
202/296-2588

National Jewish Community Relations Advisory Council (NJCRAC)
Jerome Chanes, Director,
Domestic Concerns
212/684-6950

National Ministries, American Baptist Churches, USA
Rene'e Ladue, Program Assistant,
Office of Government Relations
202/544-3400

National Sikh Center
Chatter Saini, President
703/759-7339

North American Council for Muslim Women
Sharifa Alkhateeh, Vice-President
703/759-7339

People for the American Way
Elliot Mincberg, Legal Director
202/467-4999

Presbyterian Church (USA)
Eleonora Biddings Ivory, Director,
Washington Office
202/543-1126

Reorganized Church of Jesus Christ of Latter Day Saints
W. Grant McMurray, First Presidency
816/521-3002

Union of American Hebrew Congregations
Rabbi David Saperstein, Director,
Religious Action Center
202/387-2800

Unitarian Universalist Association on Congregations
Robert Alpern, Director,
Washington Office
202/547-0254

United Church of Christ, Office for Church in Society
Patrick Conover, Action Head of Office,
Washington Office
202/543-1517