Abstract
A flurry of court decisions has only deepened the fog surrounding battles over religion in public schools.
Nearly every religion has a version of the Golden Rule: Do unto others as you would have them do unto you.
Yet, school districts find themselves increasingly confronted by individuals and organizations that use religion aggressively — wielding it like a sword to poke others whose behavior or beliefs fall short of their spiritual standard. In the opposite corner are groups like Americans United for Separation of Church and State and the American Civil Liberties Union that file lawsuits to prevent religion in schools.
The clash has widespread legal implications. Religiously motivated people can cloak themselves in the First Amendment's free exercise clause and then bolster their claim by adding a First Amendment free speech right. School districts, by contrast, often see a Constitutional duty to be neutral — which translates to strenuously avoiding favoritism toward a single group, or religion in general.
Sixteen words from the First Amendment to the U.S. Constitution are the guide: “Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof.” That phrase has been interpreted to represent an intentional design by the nation's founders to ensure that religion is a matter of personal conscience. Therefore, school districts may not use their power to unfairly persuade, and citizens hold the right to freely express beliefs or to reject religion entirely. Some observers describe the idea as the right to be free from religion.
If only it were that simple.
Because the U.S. Constitution is involved, conflicts about schools and religion are decided in federal court. But, instead of creating bright-line rules that give educators clear boundaries about what is and isn't permissible, litigation has produced a barrage of contradictory rulings. The resulting hodgepodge has created massive confusion in its wake and forces educators to parse fine-point distinctions that can tie top flight lawyers in knots.
Establishment v. free exercise
In the last decade, courts have more readily viewed religious speech (e.g., clothing, flyers, and symbols) the same as any other kind of speech and dubbed neutrality efforts as discrimination against religion. When Establishment Clause concerns are pitted against the First Amendment Free Exercise Clause in combination with “free speech” rights, the free exercise/free speech twosome usually wins. The U.S. Constitution's Establishment Clause cautions school systems (as government entities) against embracing religion, while the Free Exercise Clause gives individuals the right to express religious devotion. The First Amendment free speech right forbids government from squelching unpopular, dissenting or, in this case, religious speech.
These rulings by federal judges have emboldened religious advocates to rely on the courts to advance their perspective. Quickest into the fray are a variety of vocal and well-funded religious organizations that actively seek cases where courts can approve of a cozier relationship between schools and religion.
No disrespect intended toward those who make devoutness a part of their daily life. True believers are often sincere and well-meaning individuals who want to see their views reinforced in the classroom or seek an unimpeded opportunity to convince others to believe likewise.
The flip side is that school districts and building officials have the responsibility of maintaining neutrality by creating an environment that allows believers and nonbelievers to coexist without one having to endorse or adhere to the other's beliefs.
Sorting it all out, however, can leave a teacher, superintendent, or board member quite flummoxed. With little consistency in the law, educators are forced to make on-the-spot judgments — and to hope for the best when the lawsuit comes.
Districts on the defense
Trouble can arrive from many different directions. Here are a few examples:
Bradley Johnson argued that the banners were patriotic expressions and no different from the Declaration of Independence. The appeals court disagreed. “Because the speech at issue owes its existence to Johnson's position as a teacher, Poway acted well within constitutional limits in ordering [him] not to speak in a manner it did not desire,” the Court explained.
In Busch v. Marple Newton School District, the court reasoned that Bible reading “unquestionably conveys a strong sense of spiritual and moral authority.” The court noted that “… the audience is involuntary and very young.” The U.S. Supreme Court declined to hear an appeal in the case.
The case earned friend-of-the-court support from the Alliance Defense Fund (ADF) on the mom's side. The Anti-Defamation League, the American Jewish Congress, Americans United for Separation of Church & State, and the Pennsylvania and National School Boards Associations supported the school.
The Fairfax County School District, caught in a nationwide media storm and facing a lawsuit by the above-mentioned ADF, yielded. The 175,000-student system settled the litigation in May 2012 by reinstating the student's credits and agreeing to revise the policy.
The “secular purpose” words echo the landmark 1971 U.S. Supreme Court case Lemon v. Kurtzman. Under Lemon, courts rely on three questions to weigh alleged Establishment Clause violations: Is there a secular purpose? Does the government action advance or inhibit religion? Does it cause excessive government entanglement?
The Lemon test has been disparaged by justices in the 41 years since, but has not been formally overturned. Instead, two other legal yardsticks have swayed decisions about schools and religion: the “coercion” and the “endorsement” tests. The coercion test asks whether students are a captive audience and feel coerced by religious sentiment. The endorsement test focuses on whether school districts are validating religion.
In another student-related issue, the U.S. Supreme Court recently refused a case from Plano, Texas. In Morgan v. Swanson, the 5th U.S. Circuit Court of Appeals shielded principals from financial liability after they prevented students from distributing pencils and candy canes with sayings like, “Jesus loves me, this I know, for the Bible tells me so,” and “Jesus is the Reason for the Season.”
Principals can be held liable for actions violating well-established Constitutional rights. But not this time, said the court. “… The general state of the law in this area is abstruse, complicated, and subject to great debate among jurists.”
OUTSIDE ORGANIZATIONS
The 8th U.S. Circuit Court of Appeals approved Missouri's Lee's Summit R-7 School District's policy to restrict youth community group's access to “backpack flyers” at the beginning of the school year. The Victory Through Jesus Sports Ministry Foundation sued in 2011 claiming religious discrimination and a free speech right to promote “sports evangelism” summer soccer camps.
Victory Through Jesus lost the case. The court ruled that the policy was within the board's discretion and did not provide “unbridled discretion” to discriminate against religion.
With religion advocates and opponents squaring off nationwide and with schools in the middle, these legal battles are likely to continue for a long time.
Perhaps the U.S. Supreme Court, which begins its new term in October 2012, will take a case or two that starts to untangle the intricate legal web they've woven. For school systems — where educators must exercise judgments about religion regularly — the state of confusion serves mostly in practice to deceive.
Questions and actions for school lawyers, administrators, parents, and teachers to consider.
Are the school districts you work with primed for the religious danger zones: December holidays; graduations (prayer); tragic events where religious sentiments arise; musical performances; approving the academic calendar; displays of religious documents?
Is there an answer for parents who wish to opt out of portions of the curriculum for religious reasons?
What do policies say on subjects like a moment of silence, the Pledge of Allegiance, and meet-me-at-the-flagpole gatherings before or after school on district property? If a teacher wants to take a leave of absence for religious reasons, how should a school district respond?
School districts should regularly review policies on subjects like distribution of religious materials, in-class assignments, clergy presentations, and dress codes (such as gym outfits that might offend religiously mandated modesty).
Clear and nondiscriminatory practices should govern when religious groups can use school facilities for events, religious instruction, or worship.