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Brendan Bernicker
Professor Raman
Rhetoric and Civic Life I – Section 2
26 October 2015
The Separation of Church, State, and School: An Analysis of the Paradigm Shift in the Role of Religion in Public Education in the United States
In a letter to his former law professor and fellow delegate to the Continental Congress, George
Wythe, Thomas Jefferson wrote, “I think by far the most important bill in our whole code is that for the diffusion of knowledge among the people. No other sure foundation can be devised for the preservation of freedom, and happiness” (“Letter to George Wythe”). While this accurately reflects his deeply held conviction that education was existentially integral to the American democratic system, it is not as wellknown as his 1802 letter to the Danbury Baptist Association. It was in this letter that he proclaimed that
“believing with you that religion is a matter which lies solely between man & his god… the whole
American people… declared that their legislature should make no law respecting an establishment of religion, or prohibiting the free exercise thereof, thus building a wall of separation between church and state” (“Letter to Danbury Baptist Association”).
While this wall has theoretically existed since the ratification of the First Amendment in 1791, it has taken on very different meanings to different generations of Americans. This is perhaps most true with respect to religion in education. Over the last two centuries, there has been a paradigm shift in the role that religion plays in American education. This shift can primarily be attributed to changing attitudes about the role of government in public life, the increasing religious diversity of the American public, the increase in the number of students attending public schools and larger shifts in Constitutional interpretation.
In order to allow for a thorough and consistent treatment of the subject matter, I will be limiting my analysis to public schools (and publicly-funded parochial school programs) and discussing the shift at

Bernicker 2 the Federal level. This is due to the fact that the secularization of education has taken very different paths, and occurred at very different speeds, in each of the States/localities responsible for the development of their respective school curricula. Because the Supreme Court has the final say in what constitutes excessive entanglement between Church and State in the context of education, opinions of the Court set a sort of de facto baseline for separation in the various local systems and are therefore invaluable in understanding the underlying shift.
In order to understand the role of religion in public schools, it is important to understand the First
Amendment. The first part of the First Amendment says, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof” (US Const. amend. I). The two grammatical clauses of this section are usually referred two as the “establishment clause” and the “free exercise clause”. In their law encyclopedia, WEX, the Legal Information Institute at Cornell University explains that the establishment clause “not only forbids the government from establishing an official religion, but also prohibits government actions that unduly favor one religion over another. It also prohibits the government from unduly preferring religion over non-religion, or non-religion over religion”
(“Establishment Clause”). The same encyclopedia explains that the free exercise clause “reserves the right of American citizens to accept any religious belief and engage in religious rituals” and that “the clause protects not just religious beliefs but actions made on behalf of those beliefs” (“Free Exercise Clause”).
Prior to 1868, when the Fourteenth Amendment was ratified, these clauses were considered to only apply to laws passed by Congress; but after the Fourteenth Amendment was ratified the Supreme Court began a process called “selective incorporation” by which the Bill of Rights was made to apply to the actions of
State and local governments as well as Congress.
Balancing the two competing clauses has proven difficult, as decisions to prevent establishment are interpreted as infringing upon free exercise and vice versa. This leaves courts to walk a fine line where every attempt to enforce one clause draws strict rebukes from proponents of the other. As the Court itself acknowledged in a 1971 opinion, “the line of separation (of church and state), far from being a

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"wall," is a blurred, indistinct, and variable barrier depending on all the circumstances of a particular relationship” (
Lemon v. Kurtzman ). This difficulty, however, has not absolved the judicial branch of its responsibility to uphold the Constitution. The Court has reviewed innumerable complaints and accepted dozens of causes related to the religion clauses, and its decisions in these cases have been a driving force in the shift in the role of religion in schools.
The Supreme Court first considered the role of religion in public schools in the year 1844. The case, Vidal v. Girard’s Executors , was a civil suit brought by the heirs of Stephen Girard seeking to have the Court find, among other things, that a clause in Girard’s will that barred “ecclesiastics, missionaries, and ministers of any sect from holding or exercising any station or duty in (a school endowed with his estate)” ( Vidal v. Girard’s Executors ) was against the common law and the law of Pennsylvania. While religion played a small part in the overall case, the Court explicitly calls the United States a “Christian country” and rejects the plaintiff’s argument, not on the grounds that the school can in fact refuse to teach
Christian principles, but because it believed that the Bible, “taught as a divine revelation”, would be sufficient to acquaint pupils with Christian teachings ( Vidal v. Girard’s Executors ).
Looking back, the plaintiff’s idea that the Court should find a program invalid on the grounds that it was too secular seems absolutely preposterous; but at the time it was hardly unreasonable. It likely seems even more preposterous that the Supreme Court of the United States would say things like “Where can the purest principles of morality be learned so clearly or so perfectly as from the New Testament?” or
“Why may not the Bible, and especially the New Testament… be read and taught as a divine revelation in the college -- its general precepts expounded, its evidences explained, and its glorious principles of morality inculcated?” (
Vidal v. Girard’s Executors
). It is in this America, in which the highest Court in the land advocates the use of the Bible in city-administered instruction and calls its own a “Christian country,” that our paradigm shift will begin.
It is important to note that this case was decided before the ratification of the Fourteenth
Amendment made the Bill of Rights binding on the states. At the time of this case, the Federal

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Constitution did not bar Philadelphia or Pennsylvania from passing laws establishing or prohibiting religion; which meant that public schools were free to teach or disparage religion as they saw fit.
Pennsylvania’s Constitution, however, did have a clause providing for the separation of church and state and guaranteeing many of the same protections as the Federal Constitution, so this was never practically an issue.
The Court would not make another ruling about religion in schools for over 10 years. (Summary of shift in religious attitudes, still being developed)
Over the century following Vidal , the Court issued a number of less-significant rulings on religion in education. Most of these were only tangentially related to religion and instead focused primarily on the compulsory education laws that had begun to become the standard across the country. By
1947, when the Court took on its next major case regarding to religion in schools, every state had some form of compulsory education. Now that more kids were going to school, and since the Court had found that States could not require that students attend public school specifically ( Pierce v. Society of Sisters ),
States and districts were struggling to find ways to provide for parents who wanted to send their children to private and parochial schools.
New Jersey addressed this problem by creating a system in which the State reimbursed parents for the expenses incurred in sending their children to non-public schools. Arch Everson, a New Jersey taxpayer, sued the state alleging that the use of tax dollars to pay for parochial education violated the First
Amendment. In Everson v. The Board of Education of the Township of Ewing , the Supreme Court found that the “legislation, as applied, does no more than provide a general program to help parents get their children, regardless of their religion, safely and expeditiously to and from accredited schools” and as a result was permissible. As part of the opinion, the Court stated that the First Amendment “requires the state to be a neutral in its relations with groups of religious believers and nonbelievers; 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” (
Everson v. The Board of Education ). Highlighting the extraordinary shift from the Court that

Bernicker 5 decided Vidal , this Court also explained that “the First Amendment has erected a wall between church and state. That wall must be kept high and impregnable. We could not approve the slightest breach”
( Everson v. The Board of Education ).
Later in that same term, the Court heard the case of McCollum v. Board of Education . The case was a challenge to a program in Champaign County, Illinois that allowed religious instruction at the school, during the school day, to students whose parents elected to have them participate. The Court invalidated the program, finding that:
The First Amendment rests upon the premise that both religion and government can best work to achieve their lofty aims if each is left free from the other within its respective sphere… Here not only are the State’s tax-supported public school buildings used for the dissemination of religious doctrines. The State also affords sectarian groups an invaluable aid in that it helps to provide pupils for their religious classes through use of the State’s compulsory public school machinery.
This is not separation of Church and State. ( McCollum v. Board of Education )
While this seems uncontroversial today, the Court’s decision met significant public backlash.
Programs like the one overturned, usually called “released-time” programs, were very popular throughout the United States. According to an article published soon after the decision, “2,000,000 of America’s 17-
18,000,000 public school children receive religious education under cooperative arrangements between schools and churches. Generally the method used is released ‘time’” ("The Nation: Church and State").
The Secretary of Education for the Archdiocese of New York, John S. Middleton called the McCollum decision “dangerous and disconcerting” and claimed that it “has thoughtful Americans wondering about the stability of our nation’s future” ("Parents Are Urged to Defend 'Rights'"). One letter to the editor even went as far as to claim that Thomas Jefferson’s support of religious instruction at the University of
Virginia “puts Jefferson wholly in opposition to the recent decision of the Supreme Court” and that the decision “denied to the people of Illinois the precise freedom which the First Amendment was designed to

Bernicker 6 preserve” (O'Neill). Despite this backlash, the Court continued to affirm its ruling in
McCollum and lower courts struck down “released time programs” throughout the country.
With the question of “released time” programs settled, the Court moved on to one of the most thoroughly litigated issues in all of First Amendment jurisprudence: prayer in school. The Court has heard a number of prayer-related cases, but the first and most impactful was Engel v. Vitale . In Engel , the
School Board of New Hyde Park, New York, “directed the School District’s principal to cause the following prayer to be said aloud by each class in the presence of a teacher at the beginning of each school day” ( Engel v. Vitale ). Even though the prayer was denominationally neutral, and pupils who so chose could remain silent or leave the room during the prayer, the Court invalidated the prayer as a violation of the First Amendment. The logic for this was that the:
First Amendment… was written to quiet well justified fears which (the founders) felt arising out of an awareness that governments of the past had shackled men's tongues to make them speak only the religious thoughts that government wanted them to speak and to pray only to the God that government wanted them to pray to… each separate government in this country should stay out of the business of writing or sanctioning official prayers and leave that purely religious function to the people themselves and to those the people choose to look to for religious guidance. ( Engel v. Vitale )
This decision too was met with public backlash. At the time of the opinion, the New York Times estimated that “between 40 and 50 percent of all schools hold Bible reading sessions, and about one-fifth of the nation’s 35,000 school districts require teaching about religion” (“Church and State: The Court
Rules”). The times also noted that “reaction to the Supreme Court decision was strong, particularly in the southern States” where George Andrews, a member of the United States House of Representatives representing Alabama, summed up his frustration with the Court by saying that “they put the Negroes in the schools and now they’ve driven God out” (“Church and State: The Court Rules”).

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It is at this point in the paradigm shift that the Supreme Court issued what is by far the most important decision relating to the separation of church and state: Lemon v. Kurtzman . Decided in 1971, the case itself was not decidedly difficult; but in the opinion the Court established a three-pronged test that lower courts and lawmakers could use to determine if a law violated the separation of church and state. The test, commonly known as the “ Lemon test”, dictates that a law must have a legitimate secular purpose, not have the primary effect of either advancing or inhibiting religion, and not result in an excessive entanglement of government and religion ( Lemon v. Kurtzman ). This test formalized much of the logic that the court had been employing for decades and created a standard that is still in use today.
While the Lemon test allowed many cases to be settled without ever reaching the Supreme Court, there were a few cases that were not able to be settled in lower courts. The most significant of these cases challenged laws requiring the posting of a copy of the Ten Commandments, purchased with private contributions, on the wall of each public school classroom in Kentucky ( Stone v. Graham ); authorizing a
1-minute period of silence in all public schools in Alabama “for meditation or voluntary prayer” ( Wallace v. Jaffree ); and forbidding the teaching of the theory of evolution in public elementary and secondary schools in Louisiana unless accompanied by instruction in the theory of “creation science” ( Edwards v.
Aguillard ). All three laws were overturned on the grounds that they had no secular legislative purpose and therefore failed the Lemon test.
The next major development in the role of religion in schools came in 1981, when the Court heard Widmar v. Vincent . The controversy began when the University of Missouri at Kansas City enacted a policy refusing to allow religious groups to use its facilities “for purposes of religious worship or religious teaching” (
Widmar v. Vincent ). A religious group at the school filed suit and the court held that if non-religious groups were allowed to use the facilities, barring religious groups from using them was impermissible censorship of religious speech ( Widmar v. Vincent ). The Court then tied the case to its developing understanding of the “free speech clause” of the First Amendment by stating that, for the
University to enact content restrictions for expression in a public forum (in this case the school facilities

Bernicker 8 that are generally available to groups), “it must show that its regulation is necessary to serve a compelling state interest, and that it is narrowly drawn to achieve that end” (
Widmar v. Vincent ).
The final major case in the shift in the role of religion in schools was Zelman v. Simmons-Harris
(2002). Plaintiffs in this case challenged an Ohio program that gave tuition aid for certain students in the
Cleveland City School District to attend participating public or private schools of their parents’ choosing.
It is important to note that both religious and nonreligious schools in the district could participate, as could public schools in adjacent school districts ( Zelman v. Simmons-Harris ). The Court held that the program did not offend the establishment clause because it “was enacted for the valid secular purpose of providing educational assistance to poor children in a demonstrably failing public school system” and
“government aid reaches religious institutions only by way of the deliberate choices of numerous individual recipients. The incidental advancement of a religious mission, or the perceived endorsement of a religious message, is reasonably attributable to the individual aid recipients, not the government, whose role ends with the disbursement of benefits” ( Zelman v. Simmons-Harris ). The important distinction here is that the funds are disbursed without respect to religion and that any resulting benefit to religion is due to private citizens engaging in the Constitutionally-protected “free exercise” of their religions.
While there is clearly a stark difference between the role of religion in schools when the Court heard Vidal and its role today, it is not simple to establish any one cause for this paradigm shift. Shifts on interrelated issues; such as protection of minorities, compulsory education, civil rights, State’s rights,
Constitutional interpretation and respect for diversity/plurality; certainly played a role. Demographics also contributed: multiple influxes of immigrants have brought new religious beliefs to the United States and
Americans are generally less Christian (“Religion”) and less confident in organized religion than they were in the past (“Religion”). It is also not unreasonable to believe that the opinions of the Supreme
Court, though as much a result of the larger shift as a cause, helped to accelerate it by enshrining separation doctrine in the law. Although it has occurred at different speeds in different States/districts, there has certainly been a paradigm shift in the role of religion in public education in the United States.

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This shift is still occurring, and it is unclear if/when it will be complete, but it is clear that our court system will continue to occupy a central place in advancing and shaping the shift in the foreseeable future.
( Would it be confusing if I break from the form here and talk about a few states that are doing things that defy the shift? i.e. Texas prohibiting teaching evolution )

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Works Cited
"Church and State: The Court Rules." The New York Times [New York] 1 July 1962, Review of the
Week: 105. TimesMachine . Web. 25 Oct. 2015.
<http://timesmachine.nytimes.com/timesmachine/1962/07/01/89872460.html?pageNumber=105>
Edwards v. Aguillard. 482 US 578. Supreme Court of the US. 1987. Print.
Engel v. Vitale. 370 US 421. Supreme Court of the US. 1962. Print.
"Establishment Clause." WEX . Legal Information Institute at Cornell University, n.d. Web. 24 Oct. 2015.
<https://www.law.cornell.edu/wex/establishment_clause>.
Everson v. Board of Education of the Township of Ewing. 330 US 1. Supreme Court of the US. 1947.
Print.
"Free Exercise Clause." WEX . Legal Information Institute at Cornell University, n.d. Web. 24 Oct. 2015.
<https://www.law.cornell.edu/wex/free_exercise_clause>.
Jefferson, Thomas. Letter to Danbury Baptist Association. 1 Jan. 1802. MS. Quotes by and about Thomas
Jefferson. Lib. of Cong., Washington D.C.
- - -. Letter to George Wythe. 13 Aug. 1786. MS. Quotes by and about Thomas Jefferson. Lib. of Cong.,
Washington D.C.
McCollum v. Board of Education. 333 US 203. Supreme Court of the US. 1948. Print.
"The Nation: Church and State." The New York Times [New York] 14 Mar. 1948: n. pag. TimesMachine .
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<http://timesmachine.nytimes.com/timesmachine/1948/03/14/85233330.html?pageNumber=114>
O'Neill, J. M. Letter. The New York Times [New York] 13 Apr. 1948, Education: 26. TimesMachine .
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<http://timesmachine.nytimes.com/timesmachine/1948/04/13/96423161.html?pageNumber=26>.

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"Parents Are Urged to Defend 'Rights.'" The New York Times [New York] 13 Sept. 1948: n. pag.
TimesMachine . Web. 24 Oct. 2015.
<http://timesmachine.nytimes.com/timesmachine/1948/09/13/85318755.html?pageNumber=15>.
Pierce v. Society of Sisters. 268 US 510. Supreme Court of the US. 1925. Print.
Religion . Gallup, n.d. Gallup . Web. 25 Oct. 2015. <http://www.gallup.com/poll/1690/religion.aspx>.
Stone v. Graham. 449 US 39. Supreme Court of the US. 1980. Print.
US Const. amend. I (amended 1791). Print.
Vidal v. Girard's Executors. 43 US 127. Supreme Court of the US. 1844. Print.
Wallace v. Jaffree. 472 US 38. Supreme Court of the US. 1985. Print.
Widmar v. Vincent. 454 US 263. Supreme Court of the US. 1981. Print.
Zelman v. Simmons-Harris. 536 US 639. Supreme Court of the US. 2002. Print.