Comunicación y Gerencia
Religion in the
Schools
Public School Law
William Allan Kritsonis, PhD
Prairie View A & M University
•Religion in the public school system
becomes more and more
controversial due to diversity in
today’s family backgrounds and
beliefs.
•Contemporary issues make it even
more difficult to draw the line
between what is legal and what is
not.
Legal Framework
• Since our US Constitution and Bill of Rights
were written by our forefathers of this country, it
was apparent that they took the relationship
between government and religion seriously.
• The First Amendment to the US Constitution
began with “Congress shall make no law
respecting an establishment of religion, or
prohibiting the free exercise thereof…”
Provisions through the Fourteenth
Amendment: two components
• Establishment clause: states that
“Congress shall make no law respecting
an establishment of religion”
• Free exercise clause: states that “or
prohibits the free exercise thereof”.
• These provisions are also know as the
“Jeffersonian Principle of separation of
church and state”.
Landmark cases:
• Everson v. Board of Education (1947)- first
major case involving the establishment
clause and education.
• McCollum v. Board of Education (1948)
• Zorach v. Clauson (1952)
Judges in these cases did not agree and
sometimes switched sides. Much criticism
is targeted towards Supreme Court
decisions and continues today.
1787 Northwest Ordinance, 1st
federal act to aid in education
• States that “religion, morality, and
knowledge being essential to good
government and the happiness of
mankind, schools and the means of
education shall forever be encouraged”.
• This federal act aided Justices to develop
and set up guidelines to resolve
complicated church-state issues.
These guidelines were known as
the “Lemon guidelines”
1st guideline: the purpose of a challenged law or
practice must be secular (not sectarian)
2nd guideline: the primary effect of the law or
practice must be one that neither advances nor
inhibits religion
3rd guideline: the law or practice must not involve
excessive entanglement between state and
church (aids private schools)
**For a law to be constitutional, it had to pass
all three guidelines; a law must be neutral
regarding religion; neither promoting or
retarding it.
Landmark cases involving Lemon
guidelines:
• Agular v. Felton (1985)
• Lee v. Weisman, (1992)
• Board of Education of Kryas Joel Village
School District v. Grument (1994)
• Rosenberger v. University of Virginia
(1995)
• Agostini v. Felton (1997)
Free Exercise of Religion
• Under the free exercise clause, it assures
that people shall be free to exercise their
religious beliefs without government
restraint or persecution.
• This applies to states and their political
subdivisions, including public school
districts, under the Fourteenth Amendment.
• Yet, there are limits to what courts will allow
under the free exercise clause.
Examples of where religion has its
limitations by:
• Beliefs accompanied by actionsex. In Reynolds v. United States (1878)
Based on their belief, Mormons believe to
have a right to polygamy, Congress has a
right to prohibit its practice.
• Sacrifices
• Heresy (United States v. Ballard, 1944)
Provisions that protect religion:
• Title VII of the 1964 Civil Rights Act
• Chapter 21 of the Texas Labor Code
• § 106.001 of Title 5 of the Civil Practices and
Remedies Code
• Texas Education Code § 25.901
• Texas Religion Freedom Act, Texas Legislature 1999
• The 1993 U.S. Supreme ruling- Lamb’s Chapel v.
Center Moriches Union Free School District (prohibits
school officials from denying religious groups the
same access to school facilities afforded to other
community organizations.
Other cases involving the free
exercise clause:
• Milford Central School of Milford, New
York v. U.S. Supreme Court (2001)
• Campbell v. St. Tammany Parish School
Board (2003)
• Roe v. Klein ISD (1982)
• Torcaso v. Watkins (1961)
Contemporary
Issues
The Pledge of Allegiance
• The Texas Education Code, TEC § 25.082,
requires students to recite the pledge of allegiance
to both the U.S. and Texas flag in all public school
systems.
• In 1954, Congress added “under God” following
“one nation”.
• This addition has created public debate.(ex. Goetz
v. Ansell, 1973; Elk Grove Unified Scool District v,
Newdow, 2004).
• TEC § 1.004, permits public schools and
institutions of higher education to post the national
motto “In God We Trust”.
*Today, this motto has not been declared unconstitutional.
School Prayer
• School-sponsored or Employee led prayer-arguments have
been advanced that prohibiting state-mandated prayer
programs in public schools inhibits the religious freedom of
those who wish to say such prayers.
Landmark cases:
• Engel v. Vitale (1962), School District of Abington v. Schempp
(1963), Meltzer v. Board of Public Instruction and Karen B. v.
Treen (1981), Doe v. Duncanville ISD, (1995)
• Yet, the law is clear that neither the public school nor its
employees may sponsor prayer at school or at extracurricular
activities and athletic events.
School Prayer (con’t)
• Trying to bring prayer back into school,
“silent meditation” was ruled in 1997 by
the US Court of Appeals for the Eleventh
Circuit in the Bown v. Gwinett County
School case.
• Silent meditation authorizes public schools
to set aside time for meditation or prayer,
protecting every student’s right to engage
in voluntary prayer.
School Prayer (con’t)
• Invocations, benedictions, religious speeches
at graduation and baccalaureate ceremonies
– The US Department of Education has issued
religious practices guidelines that provide that
“where students or other private graduation
speakers are selected on the basis of genuinely
neutral, evenhanded criteria and retain 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 content”.
Landmark cases:
•
•
•
•
•
Marsh v. Chambers (1983)
Jones v. Clear Lake ISD (1994)
Harris v. Joint School District (1994)
Ingebretsen v. Jackson Public School District
(1996)
Doe v Santa FE ISD (1999)
Summary: Both the federal courts and the TEC
recognize that students can engage in personal
prayer at school and at school-sponsored
extracurricular and athletic events separate and
apart from school involvement.
Teaching Creation-Science
• The US Supreme Court found absence of
a secular purpose and a neutral effect in
teaching evolution in the public school
system in the Epperson v. Arkansas case
(1968).
• Would it be the same if a teacher taught
the biblical perspective of creation in a
public school?
Cases that points out to this
theoretical question:
• In Edwards v. Aguillard (1987),the courts
settled and entitled that there were to be a
balance in the teaching of both creation and
evolution through the Creation-Science and
Evolution-Science Act; prohibiting anyone
from discriminating the Evolution-Science
under the basis of religion.
• It is important to note that a school district is
not confined to teaching only evolution.
• Yet, in the case Peloza v. Capistrano
Unified School District, the lower courts
ruled in favor of the districts to confine a
teacher’s teaching to evolution and cease
attempting to influence students toward
personal religious beliefs.
• In Webster v. New Lenox, a social studies
teacher tried to also teach creation as a
means to balance views, but was ruled by
the Seventh Circuit that the teacher did not
have a First Amendment right to teach
creation-science.
Secular Humanism and
Pagan Religion
• “To require the teaching of every theory of
human origin, as alternative suggested by
plaintiffs, would be an unwarranted intrusion into
the authority of public school systems to control
the academic curriculum”, decision note on
Wright v. Houston ISD (1972).
• Other similar cases: Smith v. Board of School
Commissioners of Mobile County (1987), Brown
v. Woodland Joint Unified ISD
Religion in Classrooms, Choir Programs,
and Holiday Observances
• Legally, teaching about religion requires a
curriculum that does not favor or denigrate any
particular religion or religion in general and
teachers who remain neutral.(Hall v. Board of
School Commissioners, 1981)
• Teaching religion is acceptable ultimately if it is
used for the purposes of comparing theories, for
its historic content, and for “ the relationship to
the advancement of civilization” and if it
promotes religious tolerance.
• Other cases: Zorach v. Clauson (1952), Herdahl
v. Pontotoc County School District (1996)
Six guidelines for teaching about
religion in the public school system:
1.
2.
3.
4.
5.
6.
The school’s approach to religion must be academic, not
devotional.
The school may strive for student awareness of religion but
should not press for student acceptance of any one religion.
The school may sponsor study about religion but may not
sponsor the practice of religion.
The school may expose students to a diversity of religious
views but may not impose any particular view.
The school may educate about all religions but may not
promote or denigrate any religion.
The school may inform the student about various beliefs but
should not seek to confine him or her to any particular belief.
(*developed by seventeen religious and educational organizations)
Clergy in the School
• TEC § 37.102 allows the district to
establish rules to protect the welfare of
students.
• TEC § 37.105 allows the district to require
identification of all persons and to refuse
entry to persons without legitimate
business.
• Schools cannot give the appearance of
endorsing religion (Oxford v. Beaumont
ISD, 2002)
Distribution of Religious Literature
• It is impermissible that school personnel or
outside organizations to distribute Bibles and
other religious material to public school students
on school grounds.
• Yet, it is permissible to provide a place in a public
school where adherents of any faith may deposit
religious literature for voluntary student pickup.
• In 1992,in the case Clark v. Dallas ISD, a federal
judge ruled that a student may distribute religious
material being that this is within the ambit of the
First Amendment free speech clause.
Wearing Religious Symbols
• Under Title VII of the 1964 Civil Rights Act,
the school district must accommodate
reasonable a teacher’s wearing of
religious symbols and attire unless it would
be undue hardship to do so. (U.S. v. Board
of Education for the School District of
Philadelphia)
• Students also have limited personal
grooming rights under federal and state
law. (Alabama and Coushatta Tribes of
Texas v. Big Sandy ISD)
Student Religious Groups and the
Equal Access Act
• In the case Widmar v. Vicent (1981), the
US Supreme Court upheld the right to
student groups to hold religious services in
buildings on a public university campus.
• In 1984, Congress passed the Equal
Access Act which gives non-curriculumrelated student groups access to public
secondary schools during non-instructional
time to engage in religious, political,
philosophical, or other types of expression.
Religious Exemptions
• West Virginia State Board of Education v.
Barnette (1943)- most celebrated case
Court ruled that the school board count not
compel Jehovah’s Witnesses to salute the flag.
This case asserted that the government may
never compel a person to profess a belief.
TEC §26.010 gives parents the right to request
exemptions from school activities to which they
object on religious or moral grounds.
other cases: Wisconsin v. Yoder (1972), Davis
v.Page (1974), Mozert v. Hawkins County Board
of Education (1987).
Religious Exemptions (con’t)
Congress enacted legislation in 1993 with the
Religious Freedom Restoration Act to protect
religious rights. This act:
– Provided that government shall not substantially
burden a person’s exercise of religion.
– This act did not last long; this act was declared
unconstitutional (City of Boerne V. Flores (1997)
– Later in 1999, the Texas legislature entitle a similar
measure called the Texas Religion Freedom Act
(TRFA)- it gives both employees and students new
support for religiously motivated behavior.
. Other provisions that grant exemptions for religious
reasons from school related requirements are:
– TEC §26.010 which gives parents the right to request an
exemption from classroom moral beliefs, provided the parent
presents a written request and the purpose is not to avoid a
test or prevent a child from taking a subject for an entire
semester. (in 1999, legislature eliminated the written
request)
– TEC §25.087 requires school districts to excuse a student
from school for religious observances.
– TEC §38.001 grants an exemption from immunizations
requirements for students entering elementary or secondary
schools upon presenting an affidavit stating that the student
“declines immunization for reasons of conscience, including
religious beliefs”.
Assistance to Sectarian Schools
• Efforts have been made to have all students attend
public school (Pierce v. Society of Sisters,1995)
• Despite the rise of public schools, efforts have also
been made to find ways to aid private schools directly,
or by providing tuition vouchers or tax credit for
students who enroll in these private schools.
• Only 11 percent of the total US school enrollment
attends private schools.
• 30 percent of the private schools are religiously
affiliated to the Roman Catholic religion.
Conclusion
• We cannot ignore the fact that there is a “thin line” in the
relationship between education and religion.
• It is also clear that the US Constitution does mandate that
the public school system remain neutral regarding
religion, yet at the same time, both the US and Texas
constitutions provide strong support for individual
freedom of religious belief and exercise.
• Endorsing or accommodating religion make it difficult for
all levels where decision making is involved.
Personal thought:
“It is not religion, but a relationship that determines that
connection in our spiritual life that above all will prevail.”