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Religion in Public School Classrooms, Hallways, Schoolyards and Websites: From 1967 to 2017

and Beyond

Panelists:Randall G. Bennett,

Deputy Executive Director & General CounselTennessee School Boards Association

Charles C. Haynes,Vice President

NEWSEUM INSTITUTEReligious Freedom Center

Jay WoronaDeputy Executive Director & General Counsel

New York State School Boards Association

First Amendment Rights --Defining the Essential TermsThe Establishment Clause of the First

Amendment to the United States Constitution provides that Congress shall make no law respecting an establishment of religion. (U.S. Const. Amend. I.)

The Free Exercise Clause of the First Amendment to the United States Constitution provides that Congress shall make no law. . . prohibiting the free exercise thereof. (U.S. Const. Amend. I.) p. 1

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Aid to Parochial Schools

The Supreme Court has determined that it is constitutionally permissible to provide government benefits directly to the students and/or their parents, but that the Establishment Clause prohibits the direct grant of government benefits tothe parochial school institution.

(See footnote 1 p. 2-3)

In Mitchell v. Helms, the Supreme Court, in explicitly reversing decades of prior decisions, ruled constitutional the use of federal block grant monies under Chapter 2 of Title I of the ESEA to purchase and loan to computer hardware and software to sectarian schools. The Court reasoned that only governmental aid to religious schools that results in religious indoctrination can be reasonably attributed to governmental action. (p.3)

Aid to Parochial Schools

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Vouchers

In Zelman v. Simmons-Harris, in a five to four emotionally charged decision, the United States Supreme Court ruled constitutional Cleveland’s school voucher program concluding that Cleveland’s voucher plan was a program of “true private choice” and as such was not a governmentally supported program of support for religion. (p.3-5)

Income Tax CreditsWinn v. Arizona Christian School Tuition Organization, By a 5-4 vote, the United States Supreme Court upheld an Arizona law which granted income tax credits to taxpayers who made contributions to nonprofit organizations called “school tuition organizations” (STOs) that, in turn, awarded private school scholarships to children. The Court ruled that that there was no individual standing to bring a taxpayer action under Article III because there was no injury to the individual taxpayers that allowed a challenge to government taxing scheme since, there was no particular injury “by means of the “taxing and spending power” of the government through its treasury to a “sectarian entity.” A tax credit, in the view of the majority, is akin to the government declining to impose a tax. (p.5-6)

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State Constitutional Church/State Provisions

In a 7-2 decision, the United States Supreme Court in Locke v. Davey, upheld a Washington State law which specifically prohibits the use of state scholarship funds from being provided to individuals who wish to pursue a degree in theology. The Court chose not to answer the question of whether that state’s broader constitutional prohibition of funding any institution under the direct control of a religious denomination was constitutional. (p.5)

The Supremes to Weigh In. On January 15th, the U.S. Supreme Court agreed to hear the case of Trinity Lutheran Church of Columbia, Inc. v. Pauley, in which two lower federal courts upheld the State of Missouri’s exclusion of a church from a state program that provided grants to help non-profits buy rubber playground surfaces. The Church argued that the state’s actions discriminated against religious institutions in violation both the Free Exercise and Equal Protection Clauses. In ruling for the State, the lower courts relied upon the Supreme Court’s previous decision in Locke v. Davey. The church has countered that Locke reflected a unique historical concern-state funding for the religious training of clergy-rather than “the identity of those who were using the money.”

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Prayer In Public Schools

The United States Supreme Court has ruled repeatedly that the principles of the separation of church and state embodied in the Establishment Clause of the First Amendment prohibit school-sponsored prayers and religious exercises, even when the prayer is nondenominational and participation is voluntary.

Prayer During PublicSchool Board MeetingsIn Town of Greece, NY. v. Galloway, although not a school case, the U.S. Supreme Court rejected the argument that a town governmental body which began its meetings with a prayer should have ensured such prayers were nonsectarian and include references only to a “generic God” as well as not be identifiable with any one religion because “government may not seek to define permissible categories of religious speech.” (p.17)

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Devotional Activities in Public Schools

Engle v. Vitale (p.7) The U.S. Supreme Court rules unconstitutional a New York statute calling for non-denominational prayer in public schools prepared by the New York State Board of Regents.

Devotional Activities in Public SchoolsFlorey v. Sioux Falls (p.7), a federal appeals court ruled the Establishment Clause is not violated by a school's observance of holidays which have both a religious and a secular basis through programs containing music, art, literature and drama having religious themes and by the temporary display of religious symbols..

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Moments Of Silence

In Wallace v. Jaffree, the United States Supreme Court held that an Alabama statute which authorized a one-minute period of silence in public schools for meditation or voluntary prayer was unconstitutional. (p.8)

The Supreme Court in Lee v. Weisman held that benedictions and invocations by a member of the clergy at a public school graduation ceremony violated the Establishment Clause of the First Amendment, despite the fact that students were not compelled to attendgraduation ceremonies. (p.7)

Benedictions, Invocations and Student Led Prayer

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Santa Fe Independent School District v. Doe

In Santa Fe Independent School District v. Doe, the U.S. Supreme Court held unconstitutional, a public school prayer policy permitting student-led prayer at football games. The Court explicitly rejected the school district’s argument that the policy did not create governmentally supported religious speech because such speech was really private student speech which was not controlled by the district. (p.11)

Question

After Santa Fe v. Doe, may or must school districts control the content of student speech at graduation ceremonies so as to avoid speech which might be proselytizing in nature?

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Use of School Facilities By Outside Religious Groups

In more recent times, litigation has been commenced by outside religious groups who have claimed that certain school districts unconstitutionally precluded them from accessing districtfacilities for the purposeof holding religiousservices or religiousinstruction.

Religious Use of School Facilities By Outside Groups

In Lamb’s Chapel v. Center

Moriches Union Free School District, the Supreme Court held that a school district could not discriminate on the basis of viewpoint by permitting school property to be used for the presentation of all views concerning family issues and child rearing except those dealing with the subject matter from a religious standpoint. (p.22)

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Religious Use of School Facilities By Outside Groups

In Good News Club v. Milford Central School, theUnited States Supreme Court in a 6-3decision held that a school district violatedthe constitutional rights of a Christian youthorganization when it refused to allow thegroup to conduct religious instruction andprayer in a public elementary schoolhouseafter school hours. (p.22-23)

Religious Use of School Facilities By Outside Groups

Issue Presented after Good News Club:

Must a school district which permits itspremises to be utilized for certain non-school-related purposes, permit its facilitiesto be utilized by an outside religious groupfor purposes of conducting religiousworship services?

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Religious Use of School Facilities By Outside GroupsIn Bronx Household of Faith v. Board of Educ. of the City of New York, the Second Circuit ruled that school districts are not required to permit outside church groups from utilizing school district premises on Sundays to hold religious worship services. The court ruled that the Free Exercise Clause provide protections but that it does not “require government to finance a subject’s exercise of religion” and, that in this case, there was no evidence that the regulation was motivated by hostility toward religion. A school board that “makes a reasonable, good faith judgment that it runs a substantial risk of incurring a violation of the Establishment Clause by hosting and subsidizing the conduct of religious worship services” does not act unconstitutionally in disallowing such use. (p.23-24).

Responding to Requests for Religious Accomdations Since students are not precluded from

privately engaging in religious expression, what are a school district’s obligations and/or entitlements in this area?

Are making accommodations required?

Are making accommodations permitted?

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Responding to Requests for Religious Accommodations Generally, school districts must determine whether making religious accommodations will enable them to still fulfill their responsibilities to provide children making such requests with meaningful educational opportunities consistent with state and federal law and whether making the accommodations comport with separation of church-state principles.

Responding to Requests for Religious Accommodations School districts must also ensure that all students seeking religious accommodations are treated fairly and consistently.

Case law regarding religious accommodations in school, in general, is sparse and contradictory.

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Requests to be Excused from Compulsory Attendance

RARE EXCEPTIONS:In Yoder v. Wisconsin, the U.S. Supreme Court ruled that a state could not enforce it’s compulsory education attendance laws to require Amish children to attend school past the eighth grade since the enforcement in this case would have destroyed their ability to practice their faith.

Requests by Parents to have Textbooks Removed from the Curriculum

Smith v. Board of School Commissioners of Mobile County (p.13), a federal appeals court reversed a decision of a lower court which had ordered Alabama's public schools to remove 44 history, social studies and home economics textbooks for use in Alabama's public schools because the Court found such books to teach the religion of "secular humanism” (p. 20).

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Requests by Parents to have Textbooks Removed from the Curriculum

On appeal, the Court noted that some of the material in the contested books may in fact be offensive to the religion of those bringing the lawsuit, but if school districts are precluded from including material in books that is offensive to any particular religious belief, "there would be very little that could be taught in the public schools."

Requests by Parents to have Textbooks Removed from the Curriculum

In Mozert v. Hawkins County Board of Education, a federal appeals court reversed a lower court’s decision which had ordered a school district to allow children who had religious objections to a certain basal reading series to be excused from, or "opt-out" of reading class whenever any of these books were taught. The Court reasoned that the right to practice one's religion is not burdened simply by mandating one to be exposed to ideas with which one disagrees. (p. 20)

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Curriculum Accommodations

Consider making accommodations to the curriculum when requests do not pertain to core parts of the curriculum—like sex education, and the religious celebrations of others.

Question

What do districts do about parental complaints relating to district curricula which teaches students about the religion of Islam or any other religion, for that matter?

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Responding to Requests for Religious Accommodations Recently, districts have been facing a series of religious accommodation requests from members of the Muslim community in the areas affecting:o Dietary Requirements Music Class

o Clothing Sex Education

o Gender Relations Muslim Holidays

o Curricular Activities Pilgrimage

o Physical Education Fasting

o Art Class Daily Prayer

Responding to Requests for Religious Accommodations According to the U.S. State Department, Islam is one of the fastest-growing religions in the United States. America's Muslim population is the country's second-largest faith following Christianity. As the number of Muslim students grows, the frequency of requests for religious accommodation can be expected to rise. Case law addressing requests by Muslim students appears to be nonexistent.

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Responding to Requests for Religious Accommodations Determining whether an accommodation is permitted or required will often be unclear. The U.S. Supreme Court case law relevant to granting or denying a religious accommodation will differ depending on what type of accommodation is sought.

Generally, however, if a district refuses to provide an accommodation such as permitting students to wear religious garb based upon the district’s dress code policy, courts will determine whether the district could have met its goal by some less onerous means.

Responding to Requests for Religious Accommodations Although district refusals to provide religious accommodations may not be illegal, such refusals may, nevertheless, be public relations nightmares.

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Responding to Requests for Religious Accommodations With respect to requested accommodations pertaining to core curricular activities, schools are not required to permit students to absent themselves from those portions of the curriculum that are contrary to their religious teachings BUT parents might be more likely to win if the class involves doingsomething that violates the student’s religion rather than just being exposed to ideas contrary to the student’s religious beliefs.

Responding to Requests for Religious Accommodations What should districts do about religious holidays?May/should districts permit students (particularly Muslims) to have a space within the school building to pray during certain times of the day?

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Responding to Requests for Religious Accommodations School districts should take proactive steps to make sure minority religious students are safe at school and not bullied or harassed. Such steps might include encouraging students to learn about each other’s religious or philosophical views, ensuring bullying and harassing policies adequately address religion, and actively enforcing such policies.

Religion in Public School Classrooms, Hallways, Schoolyards and Websites: From 1967 to 2017

and Beyond

Panelists:Randall G. Bennett,

Deputy Executive Director & General CounselTennessee School Boards Association

Charles C. Haynes,Vice President

NEWSEUM INSTITUTEReligious Freedom Center

Jay WoronaDeputy Executive Director & General Counsel

New York State School Boards Association