The First
Amendment in
Schools
with
Charles Haynes
and
Oliver Thomas
The First Amendment
“Congress shall make no law
respecting an establishment of
religion, or prohibiting the free
exercise thereof; or abridging
the freedom of speech, or of
the press; or the right of the
people peaceably to assemble,
and to petition the government
for a redress of grievances.”
First Amendment
U.S. Constitution
“Jefferson is one of the
finest philosophers alive.
I don’t understand why he
says what he says about
black folk. Here is the
argument. I need to outJefferson Jefferson on the
racial question.”
David Walker
 RIGHTS
– Inalienable
 RESPONSIBILITIES – Mutual
 RESPECT – How we debate, not
only what we debate, is critical
The Lemon Test



Does the law, or other
government action, have
a bona fide secular or
civic purpose?
Does the Primary effect
neither advance nor
inhibit religion? In other
words, is it neutral?
Does the law avoid
excessive governmental
entanglement with
religion?
The Endorsement Test
Justice O’Connor has suggested
that a government action is
invalid if it creates a perception
that the government is endorsing
or disapproving a religion. The
fundamental concern is whether
the challenged governmental
activity conveys, in Justice
O’Connor’s words, “a message to
non adherents that they are
outsiders, not full members of the
political community, and an
accompanying message to
adherents that they are insiders,
favored members of the political
community.”
The Coercion Test
In the 1989 case County of
Allegheny v. ACLU, Justice
Kennedy proposed a test with
two limiting principles:
“government may not coerce
anyone to support or
participate in any religion or
its exercise; and it may not,
in the guise of avoiding
hostility or callous
indifference, give direct
benefits to religion in such a
degree that it in fact
‘establishes a [state] religious
faith, or tends to do so.’
Lynch v. Donnelly.”
Neutrality
Fairness
The Sherbert Test
 Sincere
religious belief
 Substantial burden
 Compelling state
interest
 Least restrictive
alternative
The Tinker Standard
Tinker v. Des Moines Independent School Dist. (1969)
Student speech
cannot be censored
as long as it does
not “materially
disrupt classwork
or involve
substantial
disorder or
invasion of the
rights of others.”
The Fraser Standard
Bethel School District No. 403 v. Fraser (1986)
Because school officials
have an “interest in
teaching students the
boundaries of socially
appropriate behavior,”
they can censor student
speech that is vulgar or
indecent, even if it does
not cause a “material or
substantial disruption.”
Hazelwood Standard
Hazelwood School Dist. V. Kuhlmeier (1988)
Censorship of schoolsponsored student
expression is
permissible when
school officials can
show that it is
“reasonably related to
legitimate pedagogical
concerns.”
CASE STUDY ONE
May a school theatre department stage a
production of Jesus Christ Superstar?
CASE STUDY TWO
May a school punish a student for wearing
Confederate flag attire to class?
CASE STUDY THREE
May a teacher simulate a seder feast as a
teaching tool?
CASE STUDY FOUR
Can a school place limits on a student’s private
website?
Which one is a problem site?
Sites that are offensive, obnoxious, and
insulting
 Sites that are offensive, obnoxious,
insulting, and also contain some sort of
veiled threat of violence or of destruction
of property
 Sites that contain a blatant threat
