Separation of Church and State
Chapter 5 in
American Public School Law 7th Edition
by: Alexander and Alexander
Jill Hermansen
EDAD 735
2/4/2010
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Question
• What does separation of church and state
mean to you?
– What implications does this have for schools?
• Discuss with your neighbor
Background
• English philosopher John Locke believed
the role of government was to provide for
our civil interests
• These are life, liberty, health and property
• Therefore Locke felt government should
not interfere with religious beliefs.
http://plato.stanford.edu/entries/locke/#SocConThe
Early America
• The framers of the Declaration of
Independence and the Constitution held
similar beliefs to Locke
• Based on religious tensions experienced
in Europe
• Many items in these documents point to a
separation of church and state.
• However, these words never appear in
either document!
Early American Quotes
• Thomas Jefferson believed in a “wall of
separation.”
• John Adams said “Congress will never
meddle with religion further than to say
their own prayers, and to fast and to give
thanks once a year.”
• Charles Pinckney said “the legislature of
the United States shall pass no law on the
subject of religion.”
The 1st 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.
Breakdown the 1st Amendment
• Two parts to the first amendment
• Establishment Clause –
– Prohibits the government from endorsing
religion
• Free Exercise Clause
– People are free to believe what they choose
• These often work against each other
– God shows up all over Washington DC
1st Amendment and Public Education
• Since public education is financed through
tax dollars it is subject to the 1st Amendment
– Public education must be secular in nature
• Neither endorsing nor financing a
specific religion
– Public Education should benefit society
– Hard to tell where public education ends
and spiritual education begins
The 14th Amendment
• Several sections to the Amendment.
• Section 1. All persons born or naturalized in
the United States and subject to the
jurisdiction thereof, are citizens of the United
States and of the State wherein they reside.
No State shall make or enforce any law which
shall abridge the privileges or immunities of
citizens of the United States; nor shall any
State deprive any person of life, liberty, or
property, without due process of law; nor
deny to any person within its jurisdiction the
equal protection of the laws.
The 14th Amendment
• Many cases that make it to the Supreme
Court are challenges of state laws.
• Therefore it is said that a law violates the
1st and 14th Amendment
EVERSON v. BOARD OF EDUCATION
SUPREME COURT OF THE UNITED STATES
330 U.S. 1
1947
• Summary p. 184
– A New Jersey statute authorizes its local
school districts to make rules and
contracts for the transportation of
children to and from schools.
– A local school allowed reimbursement of
bus transportation to parents that sent
they children to parochial school
• A taxpayer filed suit saying this was a
violation of the 1st Amendment
• What do you think? Is providing money to
bus children to a religious school a
violation of the establishment clause of the
1st Amendment?
• On your clicker
A for Yes
B for No
Finding
• This is not a violation of the 1st
Amendment because it does not support
religion it simply transports children safely
to an accredited school.
• Police protect all children whether they are
going to public or private school.
BOARD OF EDUCATION v. ALLEN
SUPREME COURT OF THE UNITED STATES
392 U.S. 236
1968
• Summary p. 187
– New York's Education Law requires local
public school authorities to lend
textbooks free of charge to all students in
grades seven to 12, including those in
private schools.
– This was challenged to be in violation of
the 1st Amendment because it uses
public funds to pay for the education of
students in a religious setting
What do you think? Is purchasing and
lending textbooks to a religious school a
violation of the establishment clause of the
1st Amendment?
• On your clicker
A for Yes
B for No
Finding
• This is not a violation of the 1st
Amendment because religious schools
also teach secular content. To this end, all
children are being afforded the same
opportunity.
• No proof the books were used to teach
religion
• Financial benefit is to parents and not
schools
LEMON v. KURTZMAN
SUPREME COURT OF THE UNITED STATES
403 U.S. 602
1971
• Summary p. 190
– Rhode Island and Pennsylvania both had laws
which provided funding directly to nonpublic
schools for the purpose of educating students
in secular curriculum
– The two states did have different programs and
stipulations to provide the funds
• Rhode Island provided a 15% salary
supplement to teachers of secular content.
However, the teachers are only able to
teach classes taught in the public schools
using public school materials.
• Pennsylvania law provided for teacher
salaries, textbooks, and other materials to
teach secular subjects such as foreign
languages, math, and science. No money
was to be used to ANY religious courses
What do you think? Is direct monetary
payment to nonpublic schools for the
teaching of secular content a violation of
the establishment clause of the 1st
Amendment?
• On your clicker
A for Yes
B for No
Finding
• This is a violation of the 1st Amendment
because payment to nonpublic schools
provides for the advancement of the
mission of the school
• The oversight necessary to provide
payment “entangled” government in
religious affairs
• Basis for “Lemon Test”
Lemon Test
• Used to determine if a law violates the
Establishment Clause
• 1. The statute must have a secular
legislative purpose.
2. Its principal or primary effect must be
one that neither advances nor inhibits
religion.
3. The statute must not foster an
excessive government entanglement with
religion.
From Lemmon v. Kurtzman
Vouchers
• A coupon that is worth a certain amount of
money to send a student to a school of the
parents choosing.
• Schools then redeem the value of the
voucher from states or school districts
• Vouchers for school have been around for
a long time. France in 1793.
• They have been controversial
ZELMAN v. SIMMONS-HARRIS
SUPREME COURT OF THE UNITED STATES
536 U.S. 639
2002
• Summary p. 221
– The state of Ohio implemented a pilot program
in Cleveland that provided two forms of
assistance.
– 1st) Tuition was provided to parents that
choose to send their children to a public or
private school of their choosing. (Religious
schools included.)
– 2nd) Provided tutoring aid to students that
choose to stay in the public school
What do you think? Is providing tuition
assistance to parents that choose to send
their children to a nonpublic (possibly
religious) school a violation of the
establishment clause of the 1st
Amendment?
• On your clicker
A for Yes
B for No
Finding
• This is not a violation of the 1st
Amendment because it is a matter of “pure
public choice.” The government has no
“preference” on where the parents choose
to send their children.
• The program was made to help families in
need of financial assistance get their
children into good schools.
Quick Cases
• Can taxpayers deduct tuition to schools
from their state income taxes?
• Yes – Mueller v. Allen
Quick Cases
• Can districts provide special education
services to students in parochial schools?
• Yes – Zobrest v. Catalina School District
Quick Cases
• Can students be released for religious
instruction on public school grounds?
• No – McCollum v. Board of Education
Quick Cases
• Can students be released from public
schools for off campus religious
instruction?
• Yes – Zorach v. Clauson
Quick Cases
• Can states enforce Bible reading and
prayer in public schools?
• No – Abington Township v. Schempp
Quick Cases
• Can states require posting of the Ten
Commandments in public school
classrooms?
• No – Stone v. Graham
Quick Cases
• Can schools include prayer at graduation?
• No – Lee v. Weisman
Quick Cases
• Can student’s initiate pray at a public
school functions?
• No – Santa Fe School District v. Doe
Quick Cases
• Can schools require all students to
participate in flag salute?
• No – West Virginia Board of Ed. v. Barnette
South Dakota Constitution
• Article VI, § 3. Freedom of religion--Support of
religion prohibited. The right to worship God
according to the dictates of conscience shall
never be infringed. No person shall be
denied any civil or political right, privilege or
position on account of his religious
opinions; but the liberty of conscience hereby
secured shall not be so construed as to excuse
licentiousness, the invasion of the rights of
others, or justify practices inconsistent with the
peace or safety of the state.
South Dakota Constitution
• Article VI, § 3. (Continued) No person shall
be compelled to attend or support any
ministry or place of worship against his
consent nor shall any preference be given
by law to any religious establishment or
mode of worship. No money or property
of the state shall be given or
appropriated for the benefit of any
sectarian or religious society or
institution.
South Dakota Constitution
• Article VIII, § 20. Loan of nonsectarian
textbooks to all school children.
Notwithstanding the provisions of section
3, Article VI and section 16, Article VIII, the
Legislature may authorize the loaning of
nonsectarian textbooks to all children of
school age.
South Dakota Codified Laws
• 13-27-1.1. Religious exemption after
eighth grade. A child of compulsory school
age who has successfully completed the first
eight grades is excused from compulsory
school attendance under § 13-27-1 if:
South Dakota Codified Laws
• 13-27-1.1. Continued
• (1) The child or the parents of the child are
members of a recognized church or religious
denomination that objects to the regular public
high school education; and
• (2) The recognized church or religious
denomination either individually or in
cooperation with another recognized church or
religious denomination provides a regularly
supervised program of instruction in which each
child participates in learning activities
appropriate to the adult occupation that the child
is likely to assume in later years.
South Dakota Codified Laws
• 13-29-1.2. Transportation for nonpublic
school students--Conditions. School districts
may provide transportation to nonpublic school
students if no additional public funds are
expended to provide the transportation. No
school district, however, is required under this
section to provide transportation to nonpublic
school students. This section does not affect the
transportation of any eligible student pursuant to
an individualized education plan.
South Dakota Codified Laws
• 13-33-9. Sectarian doctrine prohibited
in public schools. No sectarian doctrine
may be taught or inculcated in any of the
public schools of the state.
South Dakota Codified Laws
• 13-33-10. Released time for religious instruction. A
child may, on application of his parent or guardian, be
excused from school for one hour per week for the
purpose of taking and receiving religious instruction
conducted by some church or association of churches.
The school board shall decide at what hour pupils may
be excused. No such instruction may be given in whole
or in part at public expense. The school board may allow
the student to accumulate up to four hours of excused
leave time to be taken consecutively on any one day or
two hours to be taken on any two days.
South Dakota Codified Laws
• 13-34-16.3. Public school boards to loan books to
public or nonpublic school students, or persons not
in school--Board approval of books. To implement § 1334-16.2, each public school board shall loan without
charge to all persons ages five through nineteen who are
either enrolled in a public school, or in a school
supervised in accord with chapter 13-4, or who are
engaged in a course of instruction pursuant to § 13-27-3,
within the school district under such board's jurisdiction,
or who are residing in such district but are not enrolled in
any such school or engaged in any such course of
instruction, such nonsectarian textbooks and text-related
workbooks designed for individual use as are normally
furnished by such school board to individual students
enrolled in the public schools of the district under such
board's jurisdiction. All such textbooks and text-related
workbooks shall be approved by the respective school
boards.
God Bless us Everyone!