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An Update on Religion and Public Schools

Ohio Council of School board Attorneys School Law Workshop

Columbus, Ohio November 10, 2015

2.00-3.15 PM Charles J. Russo, J.D., Ed.D. Panzer Chair in Education Adjunct Professor of Law University of Dayton (937) 229-3722 (ph) crusso1@udayton.edu

Outline

I. Generally

II. State Aid to Religiously Affiliated Non-Public

Schools

III. Prayer and Religious Activity in Public Schools

IV. Emerging issues

V. Conclusion

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I. Religion-Generally

First Amendment, 1791

“Congress shall make no law respecting an

establishment of religion, or prohibiting the free

exercise thereof.”

I. Religion-Generally

Appeals to history over the original intent of the

Establishment Clause fail to provide clear answers,

stemming largely from the close ties between religion

and government that began during the colonial period.

I. Religion-Generally

In fact, up until the Revolutionary War, there “. . . were

established churches in at least eight of the thirteen

former colonies and established religions in at least four

of the other five.” Engel v. Vitale, 370 U.S. 421, 428 n.

5 (1962).

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I. Religion-Generally

Accommodationists v. Separationists

Child Benefit Test

I. Religion Generally

Pierce v. Society of Sisters, 268 U.S. 510 (1925)

A “Magna Carta” for non-public schools, the Supreme

Court recognized the power of the state “reasonably to

regulate all schools, to inspect, supervise, and examine

them, their teachers and pupils ... (p. 534),” but focused

on the schools’ Fourteenth Amendment property rights.

I. Religion Generally

The Court grounded its judgment on the realization that

the schools sought protection from unreasonable

interference with their students and the destruction of

their business and property.

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I. Religion Generally

The Court added that while states may oversee such key

features as health, safety, and teacher qualifications

relating to the operation of non-public schools, they

could not do so to an extent greater than they did for

public schools.

I. Religion Generally

“The child is not the mere creature of the state; those

who nurture him and direct his destiny have the right,

coupled with the high duty, to recognize and prepare

him for additional obligations.” Id. at 535.

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II. State Aid

1. Student Transportation

Everson v. Board of Educ. (1947)

cf. Child Benefit Test

Wolman v. Walter (1977)

II. State Aid

2. Text Books and Instructional Materials

Cochran v. Louisiana State Board of Education (1930)

cf. Abington v. Schempp, Murray v. Curlett (1963)

Board of Education v. Allen (1968)

Meek v. Pittenger (1975)

Wolman v. Walter (1977)

Mitchell v. Helms (2000)

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II. State Aid

3. Tax Status, Tuition, and the Use of Public Funds

Walz v. Tax Commission of City of N.Y. (1970)

cf. Abington v. Schempp, Murray v. Curlett (1963)

Lemon v. Kurtzman (1971)

Mueller v. Allen (1983)

Zelman v. Simmons-Harris (2002)

III. State Aid

THE Lemon Test

“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. . . .

III. State Aid

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 (pp. 612-13).’”

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II. State Aid

In addressing entanglement and state aid to religiously

affiliated institutions, the Court noted that three

additional factors:

II. State Aid

“we must examine the character and purposes of the

institutions that are benefitted,

the nature of the aid that the State provides,

and the resulting relationship between the government

and religious authority (p. 615).”

II. State Aid

4. Student Services/ Secular Instruction

Meek v. Pittenger (1975)

Wolman v. Walter (1977)

Aguillar v. Felton (1985) cf. Grand Rapids v. Ball (1985)

Zobrest v. Catalina Foothills School District (1993)

Grument v. Kyrias Joel (1994)

Agostini v. Felton (1997)

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III. Religious Activity

When dealing with prayer and religious activity, courts

sometimes move beyond the lemon test to the

Endorsement Test (Lynch v. Donnelly, 1984)

Psychological Coercion Test (Lee v. Weisman, 1992)

III. Religious Activity

1. Religious Instruction in Public Schools

Illinois ex rel. McCollum v. Board of Educ. (1948)

Zorach v. Clauson (1952)

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III. Religious Activity

2. Prayer in Public Schools

Engel v. Vitale (1962)

Abington v. Schempp, Murray v. Curlett (1963)

Lee v. Weisman (1992)

cf. Jones v. Clear Creek (cert. denied) (5th Cir. 1993)

Doe v. Sante Fe Independent School District (2000)

III. Religious Activity

3. Moments of Silence

Wallace v. Jaffree (1985)

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III. Religious Activity

4. Student Sponsored Religious Activity in Schools

Westside Community Schools v. Mergens (1990)

Cf. Christian Legal Society v. Martinez (2010)

III. Religious Activity

5. Religion and the Public School Curriculum

Epperson v. Arkansas (1968)

Edwards v. Aguillard (1987)

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III. Religious Activity 6. Religious Symbols in Schools/ on Public Property

Stone v. Graham (1980)

cf. Lynch v. Donnelly (1985), Allegheny County v.

ACLU, Greater Pittsburgh (1989)

Elk Grove School District v. Newdow (2004)

cf. McCreary County, Ky. v. ACLU, Van Orden v.

Perry (2005)

III. Religious Activity

7. Use of School Facilities by Religious Groups

Lamb’s Chapel v. Center Moriches (1993)

Good News Club v. Milford (2001)

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IV. Emerging Issues

Ministerial Exception See Hosanna–Tabor Evangelical Lutheran Church

and School v. Equal Employment Opportunities Commission (2011)

Same-Sex Unions See Obergefell v. Hodges (2015)

V. Conclusion One cannot step into the same river twice.

Heraclitis

Thank you for listening and participating