Scenario One

Your school district adopts a measure requiring that all public school students salute the flag and recite the Pledge of Allegiance. Students who do not participate could be expelled; their parents could even lose custody of them. A group of Jehovah's Witnesses challenge the law on First Amendment grounds. They argue that the forced flag salute conflicted with their religious beliefs against idol worship and graven images, and therefore violates their free exercise of religion and freedom of speech rights under the First Amendment.

What the Courts Say

West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943) “If there is any fixed star in our constitutional

constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.” (Justice Robert Jackson)

Scenario Two

Several students plan to wear black armbands to school to protest U.S. involvement in Iraq and mourn the dead on all sides. School officials learn of the impending protest and quickly adopt a no-armband rule (even though they allowed students to wear other symbols). The students nonetheless wear the armbands to school. School officials suspend them for violating school policy. The students sued, claiming violation of their First Amendment rights.

What the Courts Say

Tinker v. Des Moines School Dist., 393 U.S. 503 (1969) "It can hardly be

argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate." (Justice Abe Fortas)

Students do not lose their constitutional rights at the schoolhouse door. School officials’ duties to provide a safe learning environment must be balanced against students’ free-expression rights. School officials may not censor student speech because of an "undifferentiated fear or apprehension." They must reasonably forecast that the student speech will cause a substantial disruption or invade the rights of others. In this case, "the record does not demonstrate any facts which reasonably may have led school authorities to forecast substantial disruption of or material interference with school activities, and no disturbances or disorders on the school premises in fact occurred."

Scenario Three

A beloved the public high school student delivers a nominating speech on behalf of another student at a student assembly. The speech contains elaborate and immature sexual innuendo. The school suspends the student for violating the school’s no-disruption rule, which prohibited “obscene, profane language.” The student contends that the suspension violated his First Amendment rights because his speech caused no disruption of school activities within the meaning of Tinker.

What the Courts Say

Bethel School Dist. No. 403 v. Fraser, 478 U.S. 675 (1986) “The undoubted freedom to advocate

unpopular and controversial views in schools and classrooms must be balanced against the society's countervailing interest in teaching students the boundaries of socially appropriate behavior. Even the most heated political discourse in a democratic society requires consideration for the personal sensibilities of the other participants and audiences.” (Chief Justice Warren Burger)

Scenario Four

Members of your school board and PTA determine that certain books, such as the Harry Potter series by JK Rowling and the His Dark Materials series by Phillip Pullman, be removed because they are inappropriate for children in your school. Several students and parents challenge the decision to remove these books from the library.

What the Courts Say

Board of Education, Island Trees Union Free School District No. 26 v. Pico, 457 U.S. 853 (1982) "[T]he special characteristics of the school library

make that environment especially appropriate for the recognition of the First Amendment rights of students." (Justice William Brennan)

"Local school boards may not remove books from school library shelves simply because they dislike the ideas contained in those books and seek by their removal to 'prescribe what shall be orthodox in politics, nationalism, religion, or other matters of public opinion'"

Scenario Five

Angry over the fact that your school is devoting more resources to an elementary athletics program than to a needed reading course, you write a letter to the editor of a community newspaper, criticizing the board of education’s allocation of funds between academics and athletics. The school board decides that your services are no longer desired, saying that the letter contained false statements that impugned the integrity of the school system. You sue, claiming that the board violated your First Amendment rights by terminating you for exercising his right to freedom of speech.

What the Courts Say

Pickering v. Board of Education , 391 U.S. 563 (1968)

"While criminal sanctions and damage awards have a somewhat different impact on the exercise of the right to freedom of speech from dismissal from employment, it is apparent that the threat of dismissal from public employment is nonetheless a potent means of inhibiting speech." (Justice Thurgood Marshall)

Scenario Six

Your state’s "Balanced Treatment for Creation-Science and Evolution-Science in Public School Instruction" Act (Creationism Act) requires any public elementary or secondary school that teaches evolution also to teach "creation science." While the Act did not require evolution or creation science to be taught, it did stipulate that if either theory was presented, the other must also be taught. A group of parents, teachers, and religious leaders challenge the statute as an impermissible advancement of religion in violation of the Establishment Clause. The state officials counter that the legitimate secular purpose of the Act was to protect academic freedom.

What the Courts Say

Edwards v. Aguillard (1987) "We do not imply that a legislature could never

require that scientific critiques of prevailing scientific theories be taught. . . [T]eaching a variety of scientific theories about the origins of humankind to schoolchildren might be validly done with the clear secular intent of enhancing the effectiveness of science instruction. But because the primary purpose of the Creationism Act is to endorse a particular religious doctrine, the Act furthers religion in violation of the Establishment Clause." (Justice William Brennan)

Scenario Seven

Your school district, within a very religious and conservative community, bans the teaching of any theory that gives children the idea that man in any way ascended or descended from a lower order of animals. You decide that this violates your First Amendment right to free speech, as well as the Establishment Clause, and sue.

What the Courts Say

Epperson v. Arkansas, 393 U.S. 97 (1968) “The overriding fact is that Arkansas’ law

selects from the body of knowledge a particular segment which it proscribes for the sole reason that it is deemed to conflict with a particular religious doctrine; that is, with a particular interpretation of the Book of Genesis by a particular religious group." (Justice Abe Fortas)

Scenario Eight

As the principal of a charter elementary school, you bear final editorial authority over the fifth grade class newspaper.. This most recent edition of the paper has two articles you object to: one addresses the increasing number of students in the connected middle school who have drank alcohol, and the other is about the impact of divorce on children. While well written, you remove them from the paper. The children sue, claiming a First Amendment violation.

What the Courts Say

Hazelwood Sch. Dist.. v. Kuhlmeier, 484 U.S. 260 (1988)

"A school must also retain the authority to refuse to sponsor student speech that might reasonably be perceived to advocate drug or alcohol use, irresponsible sex, or 'conduct otherwise inconsistent with the shared values of a civilized social order,' or to associate the school with any position other than neutrality on matters of political controversy." (Justice Byron White)

Scenario Nine

The school lets students leave early to attend a parade for the Olympic torch relay that is going to pass by the school; the students gather across the street, off school grounds, and one student unrolls a giant banner with the inscription ‘Bong Hits for Jesus.’ The principal immediately seizes the banner suspends the student for five days, increasing it to ten when he quotes Thomas Jefferson. He sues, claiming his free speech rights were violated.

What the Courts Say

Morse v Frederick (2007) “First, the phrase could be interpreted as an imperative:

“[Take] bong hits …”—a message equivalent, as Morse explained in her declaration, to “smoke marijuana” or “use an illegal drug.” Alternatively, the phrase could be viewed as celebrating drug use—“bong hits [are a good thing],” or “[we take] bong hits”. ” And even if that second interpretation does not support the principle's conclusions that the banner advocated the use of illegal drugs,

“ we discern no meaningful distinction between celebrating illegal drug use in the midst of fellow students and outright advocacy or promotion.” (Chief Justice John Roberts)

Scenario Ten

Your school, at its fifth grade graduation, invites local clergy to give non-sectarian and non-denominational prayers for invocations and benedictions. A parent sues the school, arguing that this violates the Establishment Clause.

What the Courts Say

Lee v. Weisman, 505 U.S. 577 (1992) "The principle that government may

accommodate the free exercise of religion does not supersede the fundamental limitations imposed by the Establishment Clause. It is beyond dispute that, at a minimum, the Constitution guarantees that government may not coerce anyone to support or participate in religion or its exercise, or otherwise act in a way which 'establishes a [state] religion or religious faith, or tends to do so." (Justice Anthony Kennedy)

Scenario Eleven

Your local school board decides that students complete an ‘act of reverence to God’ along with the Pledge, and develop the following non-denominational, non-sectarian prayer: "Almighty God, we acknowledge our dependence on Thee. We beg Thy blessings upon us and our parents and our teachers and our country. Amen." The parents of ten students sue, claiming a First Amendment violation.

What the Courts Say

Engel v. Vitale, 370 U.S. 421 (1962) "[W]e think that the constitutional

prohibition against laws respecting an establishment of religion must at least mean that in this country it is no part of the business of government to compose official prayers for any group of the American people to recite as a part of a religious program carried on by government." (Justice Hugo Black)

Scenario Twelve

Pennsylvania state law required that "at least ten verses from the Holy Bible shall be read, without comment, at the opening of each public school on each school day." Two families sued, claiming this violated the Establishment Clause of the First Amendment.

What the Courts Say

Abington School District v. Schempp, 374 U.S. 203 (1963) "In addition, it might well be said that one’s education is not

complete without a study of comparative religion or the history of religion and its relationship to the advancement of civilization. It certainly may be said that the Bible is worthy of study for its literary and historic qualities. Nothing we have said here indicates that such study of the Bible or of religion, when presented objectively as part of a secular program of education, may not be effected [sic] consistently with the First Amendment. But the exercises here do not fall into those categories. They are religious exercises, required by the States in violation of the command of the First Amendment that the Government maintain strict neutrality, neither aiding nor opposing religion." (Justice Tom Clark)

Scenario Thirteen

Pennsylvania and Rhode Island statutes provided state aid to church-related elementary and secondary schools. A group of individual taxpayers and religious liberty organizations filed suit, challenging the constitutionality of the program. They claimed that, since the program primarily aided parochial schools, it violated the Establishment Clause.

What the Courts Say

Lemon v. Kurtzman, 403 U.S. 602 (1971) "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 'excessive entanglement with religion.'" (Chief Justice Warren Burger)

THE LEMON TEST!!!!

Scenario Fourteen

You teach in a low performing district in Tampa. In order to try and improve student achievement, the Hillsborough School District begins a voucher program allowing students to attend the public or private school of their choice. The majority schools taking part in the program are private religious schools. You are part of a lawsuit arguing that this program provides an unconstitutional aid to religion at the expense of public schools.

What the Courts Say

Zelman v. Simmons-Harris, 536 U.S. 639 (2002) "We believe that the program challenged here

is a program of true private choice, consistent with Mueller, Witters, and Zobrest, and thus constitutional. As was true in those cases, the Ohio program is neutral in all respects toward religion. It is part of a general and multifaceted undertaking by the State of Ohio to provide educational opportunities to the children of a failed school district." (Chief Justice William Rehnquist)

Scenario Fifteen

In 1981, the Alabama legislature modified a 1978 statute that had allowed a moment of silence for the purpose of 'meditation." The 1981 amendment specified that the moment of silence was for the purpose of "meditation or prayer." The sponsor of the legislation went on record as stating that the sole purpose of this change was to bring prayer back into schools. When the Jaffree family brought this case to trial, the defense did nothing to rebut this description of the legislative purpose behind the revised statute.

What the Courts Say

Wallace v. Jaffree, 472 U.S. 38 (1985) "The addition of 'or voluntary prayer' indicates

that the State intended to characterize prayer as a favored practice. Such an endorsement is not consistent with the established principle that the government must pursue a course of complete neutrality toward religion." (Justice John Paul Stevens)

Scenario Sixteen

Your local school board authorizes a program of religious instruction in which outside religious teachers, paid for by private third parties, are allowed to enter schools once a week to provide religious instruction. Those students not wishing to participate in the program are sent to another room to continue with their class work. Attendance records are kept, and those not attending either the classes or the alternate classroom are considered truant.

What the Courts Say

McCollum v. Board of Education, 333 U.S. 203 (1948) "To hold that a state cannot consistently with

the First and Fourteenth Amendments utilize its public school system to aid any or all religious faiths or sects in the dissemination of their doctrines and ideals does not, as counsel urge, manifest a governmental hostility to religion or religious teachings." (Justice Hugo Black)

Scenario Seventeen

In Santa Fe, Texas, students were elected by their classmates to give pre-game prayers at high school football games over the public address system. A number of students sued, arguing that such solemnizing statements or prayers constituted an endorsement of religion, violating the Establishment Clause. The district countered that the pre-game invocations were a long-standing tradition in Texas communities. Moreover, the prayer came from a student, thus making it student speech and not state-sponsored speech.

What the Courts Say

Santa Fe Independent School District v. Doe, 530 U.S. 290 (2000) "The delivery of such a message -- over the

school's public address system, by a speaker representing the student body, under the supervision of school faculty, and pursuant to a school policy that explicitly and implicitly encourages public prayer -- is not properly characterized as 'private' speech." (Justice John Paul Stevens)