Religious Freedom and Public Schools

By Chuck Missler

"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech…" - First Amendment to the U.S. Constitution

Public schools across America are warming up again, and the smells of pencil shavings, new backpacks and cafeteria lunches will soon fill the halls. With the sorrow of leaving summer behind and the excitement of new things ahead there comes a perennial question of how the US Supreme Court will allow God to fit into it all. After the landmark 1962 Supreme Court decision Engle vs Vitale, which ended school-sponsored prayer in American public schools, there has been confusion over whether students or teachers are allowed to pray, read their Bibles or engage in other religious activity on school grounds.

In August of 1995, the Secretary of Education issued guidelines on Religious Expression in Public Schools to clarify which activities were and were not constitutional and to prevent religious discrimination against public school students.

On February 7, 2003, then-Education Secretary Rod Paige issued a similar set of guidelines, updated under the No Child Left Behind Act of 2001 to make adherence to the guidelines a requirement for receiving federal funding. Under the guidelines, schools must annually submit in writing to their state education agency that they are following the guidelines in good faith. Those who fail to attest to their compliance in writing, and those who have been faulted for failing to obey the guidelines, risk losing their federal funding. The guidelines clarify the religious rights of public school students during school hours. They note:

"As the Court has explained in several cases [ie Santa Fe Indep. Sch. Dist. v. Doe (2000) and Board of Educ. v. Mergens (1990)], 'there is a crucial difference between government speech endorsing religion, which the Establishment Clause forbids, and private speech endorsing religion, which the Free Speech and Free Exercise Clauses protect.'"

Schools must neither encourage or discourage religious expression, and they may not discriminate against activity simply because it is religious in nature. As long as students initiate the religious activity themselves, and as long as the religious expression falls within the schools' rules of order, it cannot be discriminated against.

According to the Supreme Court in Everson v. Board of Education (1947), the First Amendment...

"...requires the state to be a neutral in its relations with groups of religious believers and non-believers; it does not require the state to be their adversary. State power is no more to be used so as to handicap religions than it is to favor them."

So, how does that fit into everyday life at school?

Free Time

If students have free time during which they may engage in non-religious activities - recess, lunch-time, and so forth - then they may also use that time for religious activities such as prayer or Bible reading.

Class Assignments

Students may express their religious beliefs in class assignments – written, oral, or art work - without discrimination because the work is religiously oriented. Teachers are to grade assignments based on their academic quality without penalty or reward for religious themes or content.

Clubs

Students may form prayer groups or religious clubs "to the same extent that students are permitted to organize other non-curricular student activities groups." According to the Supreme Court in Good News Club v. Milford Central School (2001), that includes access to school facilities. If a school's policy only permits clubs directly related to the curriculum, like history or math groups but not jazz or sailing groups, then it could also prohibit a religious club that is not connected to school curriculum.

Advertising

If schools allow non-religious school groups to promote their activities through posters or school newspapers, then religious groups, like Bible or prayer clubs, must also be allowed to promote their activities.

Teachers

According to the Supreme Court in Engel v. Vitale (1962) and School Dist. of Abington Twp. v. Schempp,(1963), public school teachers represent the state and may not lead classes in prayer or Bible reading. Teachers also may not compel children to engage in religious activities. Yet, teachers do retain their First Amendment rights in the public schools. While teachers must remain neutral and neither encourage or discourage their students' religious expression, teachers may pray or study the Bible by themselves or with other teachers.

Student Speeches

There has been a lot of controversy over how to handle student speeches that contain religious themes. The guidelines offer a position that might surprise a few people. They say:

"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."

In Lee v. Weisman (1992), the Supreme Court prohibited schools from specifically choosing somebody to pray at assemblies, and schools cannot pick students to speak because of religious or anti-religious motivation. However, as the Supreme Court explained in Board of Educ. v. Mergens (1990), "The proposition that schools do not endorse everything they fail to censor is not complicated." That applies even to public settings with public audiences. If it dares, a school can offer a neutral disclaimer saying that the content of student speeches is solely their own and not the school's, freeing students to speak about religious or non-religious or anti-religious themes as they choose.

Kevin Hasson, president of the Washington-based Becket Fund for Religious Liberty, commented,

"What the guideline says is that if [prayer] is truly student-initiated - if it's not rigged by the school district somehow - then the First Amendment protects it."

And if a school chooses strict pre-approval of all graduation speeches? Families and students may pray and talk about God freely at baccalaureate services.

Schools and teachers, parents and students should discuss these guidelines and become familiar with the religious freedoms students have in the public schools. Americans need to know they do not "shed their constitutional rights to freedom of speech or expression at the schoolhouse gate."

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