RELIGION IN THE SCHOOLSRELIGION IN THE SCHOOLS

William Allan Kritsonis, William Allan Kritsonis, PhDPhD

LEGAL FRAMEWORKLEGAL FRAMEWORK

The Fourteenth Amendment of the The Fourteenth Amendment of the Constitution contains:Constitution contains:

The Establishment Clause- “Congress shall make The Establishment Clause- “Congress shall make no laws respecting an establishment of religion”no laws respecting an establishment of religion”

The Free Exercise Clause- “or prohibiting the free The Free Exercise Clause- “or prohibiting the free exercise thereof”exercise thereof”

The word “an” appears and the US Supreme The word “an” appears and the US Supreme Court has construed this to mean that the Court has construed this to mean that the government can not set up a state church or aid government can not set up a state church or aid any particular religionany particular religion

Thus, the separation of church and stateThus, the separation of church and state

THE DEVELOPMENT OF DECISION THE DEVELOPMENT OF DECISION GUIDELINES IN THE 1970sGUIDELINES IN THE 1970s

Referred to as the Lemon Guidelines Referred to as the Lemon Guidelines (Lemon v. Kurtzman, 1971)(Lemon v. Kurtzman, 1971) Must pass all three to be constitutionalMust pass all three to be constitutional

The purpose of a challenged law or practice must be The purpose of a challenged law or practice must be secular, not sectariansecular, not sectarian

The primary effect of the law or practice must be one The primary effect of the law or practice must be one that neither advances nor inhibits religion and also that neither advances nor inhibits religion and also does not impair the practice of one’s religious beliefsdoes not impair the practice of one’s religious beliefs

The law or practice must not involve excessive The law or practice must not involve excessive entanglement between state and church (this entanglement between state and church (this guideline is most often related to state efforts to aid guideline is most often related to state efforts to aid religiously affiliated private schools)religiously affiliated private schools)

TEXAS CONSTITUTIONTEXAS CONSTITUTION Provisions of the Texas Constitution reflect the Provisions of the Texas Constitution reflect the

desire to separate church and statedesire to separate church and state

Authors of the 1845 state constitution included the Authors of the 1845 state constitution included the compelled purpose provision in Article I-6- “No man shall compelled purpose provision in Article I-6- “No man shall be compelled to attend, erect, or support any place of be compelled to attend, erect, or support any place of worship, or maintain any ministry against his consent.”worship, or maintain any ministry against his consent.”

Section 6 also states, “No preference shall ever be given Section 6 also states, “No preference shall ever be given by law to any religious society or mode of worship.”by law to any religious society or mode of worship.”

Article I-7 states “No money shall be appropriated, or Article I-7 states “No money shall be appropriated, or drawn from the Treasury for the benefit of any sect, or drawn from the Treasury for the benefit of any sect, or religious society, theological or religious seminary; nor religious society, theological or religious seminary; nor shall property belonging to the State be appropriated for shall property belonging to the State be appropriated for any such purposes.”any such purposes.”

FREE EXERCISE OF RELIGIONFREE EXERCISE OF RELIGION

The second component assures that people The second component assures that people are free to exercise their religious beliefs are free to exercise their religious beliefs without government restraint or persecutionwithout government restraint or persecution

Article I-6 of the Texas constitution states, Article I-6 of the Texas constitution states, “All men have a natural and indefeasible “All men have a natural and indefeasible right to worship Almighty God according to right to worship Almighty God according to the dictates of their own consciences…the dictates of their own consciences…

There are limits on what courts will allow. If There are limits on what courts will allow. If a religious belief causes someone to take an a religious belief causes someone to take an action that is against the law, they can be action that is against the law, they can be prosecutedprosecuted

CASE LAWCASE LAW

Reynolds v. United States, 1878- Reynolds v. United States, 1878- Mormons have the right to believe in Mormons have the right to believe in polygamy, but Congress has the right polygamy, but Congress has the right to prohibit its practiceto prohibit its practice

Congress has no legislative power Congress has no legislative power over opinion, but has free reach over over opinion, but has free reach over actions that are in violation of social actions that are in violation of social duties or good order (ex: a religion duties or good order (ex: a religion that believes in human sacrifices)that believes in human sacrifices)

CONSTITUTIONAL DEFINITION CONSTITUTIONAL DEFINITION OF RELIGIONOF RELIGION

Courts generally Courts generally define religion as define religion as deity-based, and deity-based, and having general having general recognition as a bona recognition as a bona fide religionfide religion

For purposes of the For purposes of the Free Exercise Clause it Free Exercise Clause it can extend to a belief can extend to a belief system that is system that is philosophically rather philosophically rather than theologically than theologically basedbased

Belief systems such as Belief systems such as Wicca are granted the Wicca are granted the same protection under same protection under the Free Exercise the Free Exercise Clause as more main Clause as more main stream religionsstream religions

A person can believe A person can believe whatever they wish, whatever they wish, but cannot practice but cannot practice beliefs in such a way beliefs in such a way that they disrupt the that they disrupt the learning environment learning environment or interfere with the or interfere with the rights of othersrights of others

The Public School’s DilemmaThe Public School’s Dilemma Concern 1Concern 1: If they allow students and teachers to : If they allow students and teachers to

express their religious views on campus, the express their religious views on campus, the school would be promoting religion and violating school would be promoting religion and violating the separation of church and statethe separation of church and state

Concern 2Concern 2: If they deny them this opportunity, : If they deny them this opportunity, students and teachers will argue that their free students and teachers will argue that their free exercise rights are being violatedexercise rights are being violated

Concern 3Concern 3: If school officials ask about the : If school officials ask about the credibility of a person’s religion before they grant credibility of a person’s religion before they grant an exemption based on the free exercise clause an exemption based on the free exercise clause or state law will arguably violate the or state law will arguably violate the establishment clause because government is establishment clause because government is deciding which religion is worthy of beliefdeciding which religion is worthy of belief

SPECIAL NOTESPECIAL NOTE: Federal Law takes precedence : Federal Law takes precedence over state lawover state law

CONTEMPORARY CONTEMPORARY ISSUESISSUES

The pledge of The pledge of allegianceallegiance

School PrayerSchool Prayer The teaching of The teaching of

creation sciencecreation science Promotion of secular Promotion of secular

humanism and pagan humanism and pagan religionreligion

Religion in classrooms, Religion in classrooms, choir programs, and choir programs, and holiday observancesholiday observances

Clergy in schoolsClergy in schools Distribution of religious Distribution of religious

literature in schoolsliterature in schools Wearing religious Wearing religious

symbolssymbols Student religious groups Student religious groups

and the Equal Access Actand the Equal Access Act Giving religious Giving religious

exemptions to parents exemptions to parents and studentsand students

State assistance to State assistance to private religious schoolsprivate religious schools

The Pledge of AllegianceThe Pledge of Allegiance Texas Education Code 25.082(b) requires Texas Education Code 25.082(b) requires

students to recite the pledge to the US and Texas students to recite the pledge to the US and Texas flags in all public schools each dayflags in all public schools each day

Subsection (c) allows a student to be excused by Subsection (c) allows a student to be excused by written request from a parent or guardianwritten request from a parent or guardian

Subsection (d) requires a daily observance of one Subsection (d) requires a daily observance of one minute of silence following the pledge during minute of silence following the pledge during which students may reflect, pray, meditate, or which students may reflect, pray, meditate, or engage in any other silent activity that does not engage in any other silent activity that does not distract other studentsdistract other students

Teachers and school personnel are charged with Teachers and school personnel are charged with the responsibility of making sure students are the responsibility of making sure students are silent and not distracting otherssilent and not distracting others

The Pledge of Allegiance-The Pledge of Allegiance-ContinuedContinued

In 1954 Congress added “under God” after In 1954 Congress added “under God” after the words “one nation” to the pledgethe words “one nation” to the pledge

TEC I.004 states that the motto “In God TEC I.004 states that the motto “In God We Trust” can be posted in each We Trust” can be posted in each classroom, auditorium, and cafeteria classroom, auditorium, and cafeteria (enacted by the legislature in 2003)(enacted by the legislature in 2003)

Elk Grove Unified School District v. Elk Grove Unified School District v. Newdow, 2004- Atheist father argued that Newdow, 2004- Atheist father argued that the teacher reciting the “under God” the teacher reciting the “under God” portion of the pledge was a promotion of portion of the pledge was a promotion of religion.religion.

School PrayerSchool Prayer

School sponsored or employee led School sponsored or employee led prayerprayer Supreme Court decisions reflect that Supreme Court decisions reflect that

officially prescribed school prayers with or officially prescribed school prayers with or without student exemptions are illegal in without student exemptions are illegal in public schools (ex: denominationally neutral public schools (ex: denominationally neutral prayer read on announcements)prayer read on announcements)

School employees may not lead, School employees may not lead, encourage, promote, or participate in encourage, promote, or participate in prayers with or among students at school, prayers with or among students at school, during extracurricular activities, or athletic during extracurricular activities, or athletic eventsevents

School Prayer- ContinuedSchool Prayer- Continued

Silent MeditationSilent Meditation- Silent meditation is - Silent meditation is allowed in public schoolsallowed in public schools

Invocations, Benedictions, and Religious Invocations, Benedictions, and Religious Speeches at GraduationSpeeches at Graduation- These can occur - These can occur if it is the voted upon decision of the if it is the voted upon decision of the student body majority and they are student body majority and they are student led, nonsectarian and non student led, nonsectarian and non proselytizing. School leaders can have no proselytizing. School leaders can have no part in selecting the prayer or prayer part in selecting the prayer or prayer leaders.leaders.

School Prayer- ContinuedSchool Prayer- Continued

Baccalaureate CeremoniesBaccalaureate Ceremonies- Under the Lee - Under the Lee v. Weisman decision, baccalaureate v. Weisman decision, baccalaureate ceremonies that are pervasively religious, ceremonies that are pervasively religious, school sponsored, and held on campus school sponsored, and held on campus violate the establishment clause and are violate the establishment clause and are unconstitutionalunconstitutional To avoid this issue religious baccalaureate To avoid this issue religious baccalaureate

ceremonies should be held off campus and ceremonies should be held off campus and without school sponsorshipwithout school sponsorship

Service can be held on campus if the school is Service can be held on campus if the school is not the sponsor and the venue is rented to the not the sponsor and the venue is rented to the sponsoring groupsponsoring group

School Prayer- ContinuedSchool Prayer- Continued

Student –Initiated Prayer at School, Student –Initiated Prayer at School, Extracurricular Activities, and Athletic Extracurricular Activities, and Athletic EventsEvents- The Supreme Court has ruled that it - The Supreme Court has ruled that it is unconstitutional to have a student led is unconstitutional to have a student led prayer over the auditory system because prayer over the auditory system because improperly coerces those present to improperly coerces those present to participate in an act of religious worshipparticipate in an act of religious worship

Students may choose to pray together Students may choose to pray together privately before events, but school privately before events, but school personnel must not have any involvement in personnel must not have any involvement in the prayerthe prayer

Teaching Creation ScienceTeaching Creation Science Epperson v. Arkansas (1968)- Supreme Court Epperson v. Arkansas (1968)- Supreme Court

ruled the state law prohibiting the teaching of ruled the state law prohibiting the teaching of evolution unconstitutional because it was seen a evolution unconstitutional because it was seen a an attempt to blot out a theory that conflicted an attempt to blot out a theory that conflicted with the biblical accountwith the biblical account

Edwards v. Aguillard (1987)- Supreme Court Edwards v. Aguillard (1987)- Supreme Court ruled that a statute passed by the Louisiana ruled that a statute passed by the Louisiana Legislature that required evolution and creation-Legislature that required evolution and creation-science to be taught equally was science to be taught equally was unconstitutional because it was limited to only unconstitutional because it was limited to only two views and was seen as an attempt to two views and was seen as an attempt to structure science curriculum to conform to a structure science curriculum to conform to a particular religious viewpointparticular religious viewpoint

Secular Humanism and Secular Humanism and Pagan ReligionPagan Religion

Some accuse the public schools of Some accuse the public schools of fostering and anti-God or the religion of fostering and anti-God or the religion of secular humanismsecular humanism

The concept of secular humanism as a The concept of secular humanism as a religion under the establishment clause religion under the establishment clause has not been judicially acceptedhas not been judicially accepted

Many noteworthy court cases dealing with Many noteworthy court cases dealing with curriculum, school books, and materials curriculum, school books, and materials (Wright v. Houston ISD, Smith v. Board of (Wright v. Houston ISD, Smith v. Board of School Commissioners of Mobile County)School Commissioners of Mobile County)

Religion in ClassroomsReligion in Classrooms

Teaching of religion requires a Teaching of religion requires a curriculum that does not favor any curriculum that does not favor any particular religion.particular religion.

In the No Child Left Behind Act, that In the No Child Left Behind Act, that pertain to religion in public schools: pertain to religion in public schools: “Students may express their beliefs “Students may express their beliefs about religion in the form of homework, about religion in the form of homework, artwork, and other written and oral artwork, and other written and oral assignments free of discrimination assignments free of discrimination based on the religious content of their based on the religious content of their submissions.submissions.

Choir ProgramsChoir Programs Religious music in a school’s performing arts Religious music in a school’s performing arts

curriculum first arose in 1995 when a Jewish choir curriculum first arose in 1995 when a Jewish choir student objected to the singing of “May the Lord student objected to the singing of “May the Lord Bless You and Keep You” and “Friends” at high Bless You and Keep You” and “Friends” at high school graduation (Bauch-man v. West High School).school graduation (Bauch-man v. West High School).

The student lost the case because, she would have The student lost the case because, she would have to show that these decisions were intended to to show that these decisions were intended to advance religion contrary to the establishment advance religion contrary to the establishment clause. This she did not do.clause. This she did not do.

Doe vs. Aldine I.S.D the court found the school song Doe vs. Aldine I.S.D the court found the school song to be essentially a Christian prayer, noted its to be essentially a Christian prayer, noted its pervasive presence at school events and activities, pervasive presence at school events and activities, and observed that school officials frequently led its and observed that school officials frequently led its recitation or singing. Texas federal court prohibited recitation or singing. Texas federal court prohibited the song.the song.

Holiday ObservancesHoliday Observances

(Lynch v. Donnelly, 1984), the high court (Lynch v. Donnelly, 1984), the high court allowed a city’s inclusion of a Nativity scene allowed a city’s inclusion of a Nativity scene as part of an annual city Christmas display.as part of an annual city Christmas display.

Florey v. Sioux Falls School District (1980) Florey v. Sioux Falls School District (1980) involved a school policy allowing teachers to involved a school policy allowing teachers to observe holidays that have both a religious observe holidays that have both a religious and secular basis. Among them were and secular basis. Among them were Christmas, Easter, Passover, Hanukkah, St. Christmas, Easter, Passover, Hanukkah, St. Valentine’s Day, St. Patrick’s Day, and Valentine’s Day, St. Patrick’s Day, and Halloween.Halloween.

Clergy in the SchoolsClergy in the Schools Depending on school’s visitors policy, clergy Depending on school’s visitors policy, clergy

can meet with students on school grounds.can meet with students on school grounds. Schools have the responsibility to prevent Schools have the responsibility to prevent

invited clergy from trying to convert invited clergy from trying to convert students on school grounds, unless the students on school grounds, unless the school give the appearance of endorsing school give the appearance of endorsing religion.religion.

In 1996 there was a program called “Clergy In 1996 there was a program called “Clergy in the Schools.”in the Schools.”

Based on extensive review, the judge ruled Based on extensive review, the judge ruled that the Clergy in the Schools program as that the Clergy in the Schools program as unconstitutional advancement of religion unconstitutional advancement of religion ((Oxford v.Beaumont I.S.D. Oxford v.Beaumont I.S.D. 2002).2002).

Distribution of Religious LiteratureDistribution of Religious Literature

School personnel or outside School personnel or outside organizations cannot hand out Bibles organizations cannot hand out Bibles or other religious material to public or other religious material to public school students on school grounds.school students on school grounds.

It is permissible to provide a place in It is permissible to provide a place in a public school where adherents of a public school where adherents of any faith may deposit religious any faith may deposit religious literature for voluntary student literature for voluntary student pickup.pickup.

Wearing Religious SymbolsWearing Religious Symbols Schools want to avoid having its staff give the Schools want to avoid having its staff give the

appearance of advancing religion and, in the case appearance of advancing religion and, in the case of students, to avoid allowing religious symbolism of students, to avoid allowing religious symbolism to be a style of dress for gang activity.to be a style of dress for gang activity.

Title VII of the 1964 Civil Right Act prevents Title VII of the 1964 Civil Right Act prevents discrimination in employment on the basis of discrimination in employment on the basis of race, color, religion, sex, or national origin. race, color, religion, sex, or national origin. School districts must accommodate reasonably a School districts must accommodate reasonably a teacher’s wearing of religious symbols and attire.teacher’s wearing of religious symbols and attire.

For students, dress codes cannot be so restrictive For students, dress codes cannot be so restrictive that they deny students their First Amendment that they deny students their First Amendment rights to engage in religiously motivated speech rights to engage in religiously motivated speech or free exercise of religion.or free exercise of religion.

Student Religious Groups and the Student Religious Groups and the Equal Access ActEqual Access Act

In 1981 in In 1981 in Widmar v. Vincent,Widmar v. Vincent, the U.S. the U.S. Supreme Court upheld the right of student Supreme Court upheld the right of student groups to hold religious services in buildings groups to hold religious services in buildings on a public university campus.on a public university campus.

Congress followed up on the Congress followed up on the WidmarWidmar decision in 1984 by enacting the Equal decision in 1984 by enacting the Equal Access Act, which gives non-curriculum-Access Act, which gives non-curriculum-related student groups access to public related student groups access to public secondary schools during non instructional secondary schools during non instructional time to engage in religious, political, time to engage in religious, political, philosophical, or other types of expression. philosophical, or other types of expression.

These groups must be student-initiated, These groups must be student-initiated, voluntary, and student-led.voluntary, and student-led.

Student Religious Groups and Student Religious Groups and the Equal Access Act- continuedthe Equal Access Act- continued

The case “The case “Westside Community Schools v. Westside Community Schools v. Mergens” Mergens” Involved a Christian club that Involved a Christian club that wanted to use the high school campus before wanted to use the high school campus before and after school for religious discussion and and after school for religious discussion and worship.worship.

The Equal Access Act does not limit the First The Equal Access Act does not limit the First Amendment rights of individual students to Amendment rights of individual students to come together voluntarily during the school come together voluntarily during the school day for religious expression of school day for religious expression of school grounds, including prayer and the distribution grounds, including prayer and the distribution of religious literature, so long as it is done in of religious literature, so long as it is done in a nondisruptive manner.a nondisruptive manner.

Religious ExemptionsReligious Exemptions West Virginia State Board of Education v. West Virginia State Board of Education v.

Barnette, Barnette, a 1943 U.S. Supreme Court ruling, ruled a 1943 U.S. Supreme Court ruling, ruled that the school board could not compel Jehovah’s that the school board could not compel Jehovah’s Witnesses to solute the flag. The students and Witnesses to solute the flag. The students and their parents objected that in their religion their parents objected that in their religion saluting the flag was a violation of a tenet saluting the flag was a violation of a tenet against worshiping a graven image (Exodus 20:4-against worshiping a graven image (Exodus 20:4-5).5).

Wisconsin v. Yoder Wisconsin v. Yoder (1972) involved the religious (1972) involved the religious objections of the Old Order Amish to compulsory objections of the Old Order Amish to compulsory schooling beyond the 8schooling beyond the 8thth grade. To date, no other grade. To date, no other religion has been given as broad an exemption as religion has been given as broad an exemption as the Old Order Amish.the Old Order Amish.

Religious Exemptions - Religious Exemptions - ContinuedContinued

In 1995 the First Circuit rejected parents’ In 1995 the First Circuit rejected parents’ assertion that requiring their children to assertion that requiring their children to attend an AIDS awareness program intruded attend an AIDS awareness program intruded on the free exercise of religion and the right on the free exercise of religion and the right of parents to control their children's of parents to control their children's upbringing (Brown v. Hot, Sexy and Safer upbringing (Brown v. Hot, Sexy and Safer Productions).Productions).

TEC 21.406 provides that a school district TEC 21.406 provides that a school district may not deny a teacher a salary bonus may not deny a teacher a salary bonus because a teacher is absent from school for because a teacher is absent from school for observance of a religious holy day. The observance of a religious holy day. The teacher still can be required to supply a teacher still can be required to supply a substitute or give up regular wages for substitute or give up regular wages for observing a religious holy dayobserving a religious holy day

Assistance to Sectarian Assistance to Sectarian Private SchoolsPrivate Schools

About 11% of the total U.S. school enrollment About 11% of the total U.S. school enrollment attends private schools.attends private schools.

Most private schools are religiously affiliated Most private schools are religiously affiliated (over 30% of the total are now Roman Catholic).(over 30% of the total are now Roman Catholic).

Efforts to aid the private sector run into the Efforts to aid the private sector run into the establishment clause.establishment clause.

U.S. supreme Court ruled in 1947 stated that U.S. supreme Court ruled in 1947 stated that the government cannot deny public the government cannot deny public transportation for pupils attending religious transportation for pupils attending religious schools.schools.

Board of Education v. Allen Board of Education v. Allen in 1968 states that a in 1968 states that a state could loan secular textbooks to religious state could loan secular textbooks to religious schools.schools.

Assistance to Sectarian Assistance to Sectarian Private Schools - continuedPrivate Schools - continued

In 1971, the Court struck down reimbursement to In 1971, the Court struck down reimbursement to nonpublic schools for teachers’ salaries, texts, and nonpublic schools for teachers’ salaries, texts, and instructional materials (Lemon v. Kurtzman).instructional materials (Lemon v. Kurtzman).

In 1973, the Court ruled against reimbursement for In 1973, the Court ruled against reimbursement for maintenance and repair grants to nonpublic schools maintenance and repair grants to nonpublic schools (Committee for Public Education v. Nyquist).(Committee for Public Education v. Nyquist).

In 1993 the Supreme Court ruled that it is not a In 1993 the Supreme Court ruled that it is not a violation of the establishment clause for a public violation of the establishment clause for a public school district to pay the cost of a sigh language school district to pay the cost of a sigh language interpreter for a deaf student who attends a private interpreter for a deaf student who attends a private religious school.religious school.

Article I, 7 of the Texas Constitution states that “No Article I, 7 of the Texas Constitution states that “No money shall be appropriated, or drawn from the money shall be appropriated, or drawn from the Treasury for the benefit of any sect, or religious Treasury for the benefit of any sect, or religious society.society.