Issues, Laws, and Trends in Education
Schools and the State
I. Constitution
a. Religion makes only one direct and obvious appearance in the original
Constitution that seems to point to a desire for some degree of religious freedom.
That appearance is in Article 6, at the end of the third clause:
i. [N]o religious Test shall ever be required as a Qualification to any Office
or public Trust under the United States.
b. There is one other direct bow to religion in the original Constitution, and it is a bit
obtuse. The Presidential Oath of Office is codified in the Constitution in this way:
i. I do solemnly swear (or affirm) that I will faithfully execute the Office of
President of the United States, and will to the best of my Ability, preserve,
protect and defend the Constitution of the United States
ii.
II. 1st Amendment of the Constitution
a. 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.
b. Establishment Clause -For the past 20 years, the federal courts have utilized the three-pronged
framework first set forth in Lemon v. Kurtzman, 403 U.S. 602 (1971), to maintain the separation
of government and religion. Under the so-called "Lemon test," a court must inquire (1) whether
the government's action has a secular or a religious purpose; (2) whether the primary effect of the
government's action is to advance or endorse religion; and (3) whether the government's policy or
practice fosters an excessive entanglement between government and religion.
III. Wall of Separation
a. One of the founding fathers, Thomas Jefferson, is directly responsible for giving
us this phrase. In his 1802 letter to the Danbury Baptist Association, thenPresident Jefferson used the phrase - it was probably not the first time, but it is the
most memorable one. He said:
i. Believing with you that religion is a matter which lies solely between man
and his god, [the people, in the 1st Amendment,] 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.
b. Jefferson did not have a hand in the authoring of the Constitution, nor of the 1st
Amendment, but he was an outspoken proponent of the separation of church and
state, going back to his time as a legislator in Virginia. In 1785, Jefferson drafted
a bill that was designed to squash an attempt by some to provide taxes for the
purpose of furthering religious education. He wrote that such support for religion
was counter to a natural right of man:
i. ...
no man shall be compelled to frequent or support any religious
worship, place, or ministry whatsoever, nor shall be enforced, restrained,
molested, or burthened in his body or goods, nor shall otherwise suffer, on
account of his religious opinions or belief; but that all men shall be free to
profess, and by argument to maintain, their opinions in matters of religion,
and that the same shall in no wise diminish, enlarge, or affect their civil
capacities.
IV. Equal Access Act
V. Sec. 4071. Denial of equal access prohibited
(a) Restriction of limited open forum on basis of religious, political,
philosophical, or other speech content prohibited
It shall be unlawful for any public secondary school which receives
Federal financial assistance and which has a limited open forum to deny
equal access or a fair opportunity to, or discriminate against, any
students who wish to conduct a meeting within that limited open forum on
the basis of the religious, political, philosophical, or other content
of the speech at such meetings.
(b) ``Limited open forum'' defined
A public secondary school has a limited open forum whenever such
school grants an offering to or opportunity for one or more
noncurriculum related student groups to meet on school premises during
noninstructional time.
(c) Fair opportunity criteria
Schools shall be deemed to offer a fair opportunity to students who
wish to conduct a meeting within its limited open forum if such school
uniformly provides that-(1) the meeting is voluntary and student-initiated;
(2) there is no sponsorship of the meeting by the school, the
government, or its agents or employees;
(3) employees or agents of the school or government are present
at religious meetings only in a nonparticipatory capacity;
(4) the meeting does not materially and substantially interfere
with the orderly conduct of educational activities within the
school; and
(5) nonschool persons may not direct, conduct, control, or
regularly attend activities of student groups.
(d) Construction of subchapter with respect to certain rights
Nothing in this subchapter shall be construed to authorize the
United States or any State or political subdivision thereof-(1) to influence the form or content of any prayer or other
religious activity;
(2) to require any person to participate in prayer or other
religious activity;
(3) to expend public funds beyond the incidental cost of
providing the space for student-initiated meetings;
(4) to compel any school agent or employee to attend a school
meeting if the content of the speech at the meeting is contrary to
the beliefs of the agent or employee;
(5) to sanction meetings that are otherwise unlawful;
(6) to limit the rights of groups of students which are not of a
specified numerical size; or
(7) to abridge the constitutional rights of any person.
(e) Federal financial assistance to schools unaffected
Notwithstanding the availability of any other remedy under the
Constitution or the laws of the United States, nothing in this
subchapter shall be construed to authorize the United States to deny or
withhold Federal financial assistance to any school.
(f) Authority of schools with respect to order, discipline, well-being,
and attendance concerns
Nothing in this subchapter shall be construed to limit the authority
of the school, its agents or employees, to maintain order and discipline
on school premises, to protect the well-being of students and faculty,
and to assure that attendance of students at meetings is voluntary.
(Pub. L. 98-377, title VIII, Sec. 802, Aug. 11, 1984, 98 Stat. 1302.)
VI. Review Constitutional or Unconstitutional worksheet
VII. Everson v. Board of Ed
a. Everson v Board (330 US 1 [1947]), the Court put the final touch on the
incorporation of religious liberty as applies to the states, though in a roundabout
way. Arch Everson brought a suit against the Ewing, New Jersey schools for
authorizing payments to parents of students attending parochial schools for use of
the public bus system to transport the student to school. Everson contended that
such payments to parents of parochial school students unconstitutionally funded
religion with public funds. The law in question did prohibit the disbursement of
funds to any parent who sent their child to a private school that was run for-profit.
VIII.
i. The Court disagreed, in a close 5-4 vote, with Everson. In doing so,
however, it wrote some powerful statements concerning the 1st
Amendment:
ii. The 'establishment of religion' clause of the First Amendment means at
least this: Neither a state nor the Federal Government can set up a church.
Neither can pass laws which aid one religion, aid all religions, or prefer
one religion over another. Neither can force nor influence a person to go to
or to remain away from church against his will or force him to profess a
belief or disbelief in any religion. No person can be punished for
entertaining or professing religious beliefs or disbeliefs, for church
attendance or non-attendance. No tax in any amount, large or small, can be
levied to support any religious activities or institutions, whatever they may
be called, or whatever from they may adopt to teach or practice religion.
Neither a state nor the Federal Government can, openly or secretly,
participate in the affairs of any religious organizations or groups and vice
versa. In the words of Jefferson, the clause against establishment of
religion by law was intended to erect 'a wall of separation between Church
and State.'
1. Despite all of this, the Court found that the public school district's
payment for the use of public busses to transport parochial school
children was not in violation of the 1st Amendment. It wrote that
the public support of bus fares in this way was exactly the same as
the public support of the police or fire services that protected the
persons, buildings, and grounds of parochial schools. The issue on
which the decision seems to have hinged is the fact that the bus
fare aid was given to all students regardless of the school the
student attended, and without regard for the religion of the student
or the school. The aid was, the Court decided, completely neutral
on the question of religion.
Lemon v Kurtzman
a. Lemon v Kurtzman (403 US 602 [1971]), established what is known today as
"The Lemon Test." The Lemon Test is used to examine a law to see if it has the
effect of establishing a religion. The Court wrote:
b. In the absence of precisely stated constitutional prohibitions, we must draw lines
with reference to the three main evils against which the Establishment Clause was
intended to afford protection: "sponsorship, financial support, and active
involvement of the sovereign in religious activity."
c. Every analysis in this area must begin with consideration of the cumulative
criteria developed by the Court over many years. Three such tests may be gleaned
from our cases. First, the statute must have a secular legislative purpose;
second, its principal or primary effect must be one that neither advances nor
inhibits religion; finally, the statute must not foster "an excessive
government entanglement with religion."
i. The test was used in the Lemon Test to answer the central question in that
case: can the state pay some of the salary of teachers who teach in
parochial schools? The case concerned a Rhode Island law that provided
that teachers in parochial schools could receive a supplement from the
state if the school spent less per pupil on non-religious education than the
average spent in public schools. If so, teachers who taught only secular
courses were eligible for the supplemental pay. Rhode Island's argument
was that the funds were only paid to teachers of non-religious subjects,
and only based on the per-pupil expenditures on non-religious subjects.
The Court ruled that the requirements of the state to ensure that the
teachers never mentioned religious subjects, and the record keeping and
examination to determine the amount spent on secular subjects would be
too much of an entanglement. The Lemon case found similar
entanglements in similar Pennsylvania laws. The laws may have passed
the first two prongs of the test, but failed the third.
ii. This three-pronged test has been used in many cases since it was first
promulgated. Though the Lemon Test is not infallible, it has largely stood
the test of time and is still in use today.
IX. Have students present their cases.
X. Intelligent Design Debate from Dover Case
1st Amendment and Schools
Directions: For the following scenarios, place a “C” for constitutional or “U” for
unconstitutional.
_____ 1. Graduation Prayer
_____ 2. Student let public prayer
_____ 3. Distribution of Bibles in front of school, but not on property
_____ 4. Allowing a Church group to use school facility after school hours.
_____ 5. Display of religious symbols in school
_____ 6. Voluntary release time for students to receive religious instruction
_____ 7. Students can observe a moment of silence for thoughts and prayers
_____ 8. Schools can teach creation science as long as they teach evolution
_____ 9. School can post the Ten Commandments.