Religion in the Public Schools 2014 - TASB

Religion in the Public Schools

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Religion in the Public Schools

TASB Legal Services

Legal Background

Several federal and state laws form the foundation that guides public school districts in navigating

the complex area of religion in schools.

First Amendment

The First Amendment to the U.S. Constitution states, “Congress shall make no law respecting an

establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of

speech . . . .” U.S. Const. amend. I. The First Amendment applies to school districts as political

subdivisions of the state through the Fourteenth Amendment. Engel v. Vitale, 370 U.S. 421

(1962). Together, these laws protect private religious expression but prohibit government action

to advance, coerce, or endorse religion in the public schools.

Plaintiffs may sue the government for violations of the First Amendment through 42 U.S.C. §

1983 (Section 1983).

Establishment Clause

The First Amendment Establishment Clause, “Congress shall make no law respecting an

establishment of religion . . . ,” prohibits school districts and their employees from establishing

religion. U.S. Const. amend. I. Schools must not advance, coerce, or endorse a particular

religion or religion over non-religion. County of Allegheny v. ACLU Greater Pittsburgh

Chapter, 492 U.S. 573 (1989). The U.S. Supreme Court has exercised special vigilance over

compliance with the Establishment Clause in elementary and secondary schools because

“families entrust public schools with the education of their children, but condition their trust on

the understanding that the classroom will not purposely be used to advance religious views that

may conflict with the private beliefs of the student and his or her family.” Edwards v. Aguillard,

482 U.S. 578, 584 (1987).

Courts use different tests to determine whether a governmental entity has violated the

Establishment Clause. The first test developed by the U.S. Supreme Court is referred to as the

Lemon test from Lemon v. Kurtzman. The Lemon test applies three factors. To avoid a violation

of the Establishment Clause, governmental action (1) must have a secular purpose, (2) must have

a primary effect that neither advances nor inhibits religion, and (3) must not foster an excessive

government entanglement with religion. Lemon v. Kurtzman, 403 U.S. 602 (1971).

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The Lemon test has not been overruled outright; however, the U.S. Supreme Court has developed

other tests. One such test is referred to as the endorsement test. The endorsement test basically asks

whether the governmental entity conveyed to a reasonable observer that the religion was either

favored or disapproved. Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290 (2000); Lynch v. Donnelly,

465 U.S. 668 (1984). The endorsement test is often used in cases involving government expression.

Regardless of the test used, government action may not attempt to coerce a student to participate

in a religious exercise. Lee v. Weisman, 505 U.S. 577 (1992).

Free Exercise Clause

The First Amendment Free Exercise Clause, “Congress shall make no law . . . prohibiting the

free exercise [of religion],” prohibits districts and their employees from unduly burdening

citizens’ free exercise of religion. U.S. Const. amend. I. The Free Exercise Clause prohibits the

government from passing laws or establishing practices that specifically target adherents of

particular faiths. Employment Div., Dep’t of Human Res. of Or. v. Smith, 494 U.S. 872 (1990).

In Employment Division, Department of Human Resources of Oregon v. Smith, a case involving the

application of a controlled substances law to Native Americans who engaged in the ritualistic use of

peyote, the U.S. Supreme Court held that a neutral, generally applicable government law or practice

will withstand a federal Free Exercise Clause challenge if that law or practice is reasonably related to

a legitimate state interest. In coming to its conclusion that the Native Americans were not entitled to

an exemption based on their religious beliefs, the Court distinguished prior cases in which the Court

had granted exemptions from state regulations by stating that those cases involved other

constitutional claims, such as free speech claims, in addition to free exercise claims. The Court

referred to the claims as hybrid claims and implied that hybrid claims are subject to a higher

standard of review. Employment Div., Dep’t of Human Res. of Or. v. Smith, 494 U.S. 872 (1990).

Finding the Smith standard to be unclear, federal circuit courts of appeal have applied the Smith

holding differently. The Fifth Circuit Court of Appeals, the court with jurisdiction over Texas,

addressed Smith in Littlefield v. Forney Independent School District. Littlefield involved several

allegations of violations of students’ constitutional rights related to a student dress code,

including free exercise and free speech claims. The court did not address the concept of the

hybrid rights claim and instead only applied the main holding in Smith to find the dress code opt

out procedures were neutral and rational, and therefore the students’ free exercise rights were not

violated. However, the court did approve of the lower court’s reasoning, which left an opening

for instances of a higher level of scrutiny. Littlefield v. Forney Indep. Sch. Dist., 268 F.3d 275

(5th Cir. 2001).

Free Speech Clause

The First Amendment also prohibits interference with an individual’s freedom of speech under

the Free Speech Clause: “Congress shall make no law . . . abridging the freedom of speech.”

U.S. Const. amend. I. The U.S. Supreme Court has held that private religious speech is

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protected under the Free Speech Clause. Capitol Square Review & Advisory Bd. v. Pinette, 515

U.S. 753 (1995). The free speech protections apply to both verbal speech and expressive

conduct. Spence v. Washington, 418 U.S. 405 (1974).

Forum Analysis

The First Amendment free speech protections do not apply in all governmental settings simply

because they are owned or controlled by the government. Cornelius v. NAACP Legal Def. &

Educ. Fund, Inc., 473 U.S. 788 (1985); Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460

U.S. 37 (1983). The degree to which the Free Speech Clause applies to citizen’s speech depends

on the forum created by the government.

Courts have defined four different types of forums: traditional, designated, limited, and non-

public. Chiu v. Plano Indep. Sch. Dist., 260 F.3d 330 (5th Cir. 2001) (per curiam). A traditional

public forum includes locations, such as sidewalks and parks, where members of the public have

historically been permitted to gather and speak on any topic. Cornelius v. NAACP Legal Def. &

Educ. Fund, Inc., 473 U.S. 788 (1985); see, e.g., Brister v. Faulkner, 214 F.3d 675 (2000)

(concluding that the sidewalk area between a university event center and city street was a

traditional public forum because it was indistinguishable from city property).

Even in the rare situation where school district property is deemed a traditional public forum, the

district may exclude particular content if the district can assert a compelling governmental interest

that is narrowly tailored to address that interest, a standard referred to as the strict scrutiny standard.

The school district can also enforce viewpoint-neutral time, place, and manner restrictions to meet a

compelling governmental interest if a sufficient number of alternative communication channels are

available. Perry Educ. Ass’n v. Perry Loc. Educator’ Ass’n, 460 U.S. 37 (1983).

A designated public forum is a forum that a school district intentionally opens to the general

public to discuss matters of public concern. Cornelius v. NAACP Legal Def. & Educ. Fund, Inc.,

473 U.S. 788 (1985). Like in the case of a traditional public forum, once designated, a school

district may enforce reasonable time, place, and manner restrictions. Cornelius v. NAACP Legal

Def. & Educ. Fund, Inc., 473 U.S. 788 (1985). Any content limitations are subject to the strict

scrutiny standard. Chiu v. Plano Indep. Sch. Dist., 260 F.3d 330 (5th Cir. 2001) (per curiam).

A limited public forum is a forum that a school district opens to a particular group of speakers or

for discussion regarding a particular topic. Chiu v. Plano Indep. Sch. Dist., 260 F.3d 330 (5th Cir.

2001) (per curiam). Within a limited public forum, limits on expression must be viewpoint-neutral

and reasonable in light of the purpose of the forum. The government may impose reasonable time,

place, and manner restrictions, as long as these restrictions do not relate to the content of the

expression. Cornelius v. NAACP Legal Def. & Educ. Fund, Inc., 473 U.S. 788 (1985).

To distinguish between a designated public forum and a limited public forum, courts consider two

factors: (1) the intent of the school district regarding the forum, and (2) the forum’s nature and

compatibility with particular speech. The distinction is important because it determines whether the

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strict scrutiny or reasonableness standard is applied to a limitation on speech imposed by the

school district. Chiu v. Plano Indep. Sch. Dist., 260 F.3d 330 (5th Cir.2001) (per curiam). Note

that a school district may establish a designated public forum with respect to some speakers and

types of speech and a limited public forum for others. Justice for All v. Faulkner, 410 F.3d 760

(5th Cir. 2005).

If a school district has not opened a public forum, it remains a nonpublic forum. Although limits

on expression must be reasonable and viewpoint neutral even within a nonpublic forum, a school

district will have greater discretion to control the content of speech within such a forum.

Cornelius v. NAACP Legal Def. & Educ. Fund, Inc., 473 U.S. 788 (1985); Perry Educ. Ass’n v.

Perry Local Educators’ Ass’n, 460 U.S. 37 (1983).

Student Speech

Students do not “shed their constitutional rights to freedom of speech or expression at the

schoolhouse gate.” Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 506 (1969). Yet,

“the First Amendment rights of students in the public schools are not automatically coextensive

with the rights of adults in other settings, and must be applied in light of the special characteristics

of the school environment.” Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 266 (1988).

The Fifth Circuit Court of Appeals, based on the interpretation of U.S. Supreme Court precedent,

has affirmed that there are five categories of student speech. Regulation of the expression is

subject to different standards of scrutiny depending on the substance of the speech, the

regulation’s purpose, and the way in which the message is conveyed. Morgan v. Plano Indep.

Sch. Dist., 589 F.3d 740 (5th Cir. 2009). Three are most relevant to the analysis in this context.

Districts may restrict speech that bears the imprimatur of the school if those restrictions are

reasonably related to legitimate pedagogical concerns, as described by the U.S. Supreme Court in

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

Regulations that target the content or viewpoint of a student’s private speech are subject to the

substantial disruption standard set by the U.S. Supreme Court in Tinker v. Des Moines Independent

Community School District. Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503 (1969).

The time, place, and manner standard described by the Court in United States v. O’Brien applies to

content and viewpoint neutral restrictions on private student speech. United States v. O’Brien, 391

U.S. 367 (1968); Morgan v. Plano Indep. Sch. Dist., 589 F.3d 740 (5th Cir. 2009). All three are

described in more detail below in the section entitled Student Religious Expression.

Employee Speech

Employee speech is even more restricted than student speech. When employees of governmental

entities are acting in their professional capacities, they do not have the same breadth of free

speech rights that they do as everyday citizens. Garcetti v. Ceballos, 547 U.S. 410 (2006);

Pickering v. Bd. of Educ. of Twp. High Sch. Dist. 205, 391 U.S. 563 (1968). Therefore, as

described in more detail below at the section entitled Employee Religious Expression, school

districts can control the speech of their employees to a certain extent.

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Fourteenth Amendment

The Fourteenth Amendment of the U.S. Constitution prohibits governmental entities from

depriving individuals of their rights to life, liberty, or property without due process of law. U.S.

Const. amend XIV. Plaintiffs may sue the government for violations of the Fourteenth

Amendment through Section 1983, 42 U.S.C. § 1983.

The Fourteenth Amendment Due Process Clause prohibits school districts from depriving

parents of their fundamental liberty right to dictate their children’s care, custody, and control. A

parent’s rights are not absolute, however, and can be subject to reasonable regulation by school

districts. Any regulation imposed by the district, such as a dress code regulation, must be

rationally related to the district’s fundamental educational mission. Littlefield v. Forney Indep.

Sch. Dist., 268 F.3d 275 (5th Cir. 2001).

The Fourteenth Amendment also guarantees individuals equal protection of the law. U.S. Const.

amend XIV. School districts are prohibited from purposefully treating particular individuals

differently than other similarly situated individuals based on their religious beliefs. Doe v. Cape

Henlopen Sch. Dist., 759 F. Supp.2d 522 (D. Del. 2011).

Federal Statutes

Title IV of the Civil Rights Act of 1964: Title IV of the Civil Rights Act of 1964, 42 U.S.C. §§

2000c-2000c-9, grants the U.S. Attorney General the power to address discrimination on the

basis of race, religion, and national origin in public schools.

Title VI of the Civil Rights Act of 1964: Title VI of the Civil Rights Act of 1964, 42 U.S.C. §§

2000d-2000d-7, prohibits discrimination on the basis of race, color, or national origin in any

educational program or activity that receives federal funds. Though Title VI does not expressly

prohibit discrimination based solely on religion, the U.S. Department of Education Office for

Civil Rights interprets the statute to apply to situations where a religious group is the target of

discrimination based on the group’s actual or perceived ancestry or ethnic characteristics or

actual or perceived citizenship or residency in a country with a distinct religious identity. U.S.

Dep’t of Educ., Dear Colleague Letter (Oct. 26, 2010), available at

www2.ed.gov/about/offices/list/ocr/letters/colleague-201010.pdf; U.S. Dep’t of Educ., Dear

Colleague Letter (Dec. 31, 2015), available at

www2.ed.gov/policy/gen/guid/secletter/151231.html.

Title VII of the Civil Rights Act of 1964: Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§

2000e-2000e-17, prohibits discrimination in employment: “It shall be an unlawful employment

practice for an employer . . . to fail or refuse to hire or to discharge any individual, or otherwise to

discriminate against any individual with respect to his compensation, terms, conditions, or privileges

of employment, because of such individual’s . . . religion . . . .” 42 U.S.C. § 2000 e-2.

http://www2.ed.gov/about/offices/list/ocr/letters/colleague-201010.pdf

http://www2.ed.gov/policy/gen/guid/secletter/151231.html

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Title VII prohibits an employer from doing any of the following to an employee or prospective

employee based on the individual’s religion: failing to hire; firing; discriminating with respect to

compensation, terms, conditions, or privileges of employment; or classifying employees or

applicants in a way that could adversely affect employment opportunities. 42 U.S.C. § 2000e-2(a).

For purposes of Title VII, the term religion includes all aspects of religious observance and

practice, as well as belief, unless an employer demonstrates that it is unable to reasonably

accommodate an employee’s or prospective employee’s religious observance or practice without

undue hardship on the conduct of the employer’s business. 42 U.S.C. § 2000e(j).

Under Title VII, an employee or prospective employee can establish a prima facie case of religious

accommodation discrimination by showing that (1) he or she has a bona fide religious belief that

conflicts with an employment requirement; (2) he or she informed the employer of the belief; and (3)

he or she suffered an adverse consequence for failure to comply with the employment requirement.

If an employer offers the individual a reasonable accommodation, the employer has complied with

Title VII; the employer need not show that each of the individual’s suggested accommodations

would result in undue hardship. Ansonia Bd. of Educ. v. Philbrook, 479 U.S. 60 (1986).

Equal Access Act: The Equal Access Act, 20 U.S.C. § 4071, requires that districts permit

student clubs of a religious nature to meet on school property, subject to the same rules and

privileges as other non-curricular student groups. In secondary schools, student-organized,

student-led groups meet pursuant to school district policies established under the Act. 20 U.S.C.

§ 4071. Employees may be present at student religious meetings only in a non-participatory

capacity. 20 U.S.C. § 4071(c)(3). In both elementary and secondary schools, community

groups, including adult-led groups attended by students, such as the Good News Club or the Boy

Scouts, meet on campus pursuant to school district policy.

Federal Guidance

U.S. Department of Education Guidance: The Department of Education Guidance on

Constitutionally Protected Prayer in Public Elementary and Secondary Schools provides

guidance on the current state of the law regarding religious expression in schools, available at

www.ed.gov/policy/gen/guid/religionandschools/prayer_guidance.html.

To receive funds under the federal Elementary and Secondary Education Act, as amended by the

Ever Student Succeeds Act, local school districts must certify that their local policies do not

prevent or deny participation in constitutionally protected prayer as set forth in related DOE

guidance. Tex. Educ. Agency, School Prayer, available at

http://tea.texas.gov/About_TEA/Laws_and_Rules/NCLB_and_ESEA/Other_NCLB_laws_and__

rules/School_Prayer/.

EEOC Compliance Manual: The U.S. Equal Employment Opportunity Commission

Compliance Manual on Religious Discrimination provides guidance on handling employee

complaints of religious discrimination, available at www.eeoc.gov/policy/docs/religion.html.

http://www.ed.gov/policy/gen/guid/religionandschools/prayer_guidance.html

http://tea.texas.gov/About_TEA/Laws_and_Rules/NCLB_and_ESEA/Other_NCLB_laws_and__rules/School_Prayer/

http://tea.texas.gov/About_TEA/Laws_and_Rules/NCLB_and_ESEA/Other_NCLB_laws_and__rules/School_Prayer/

http://www.eeoc.gov/policy/docs/religion.html

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Texas Law

Freedom of Worship Clause: The Texas Constitution Freedom of Worship Clause, Texas

Constitution article I, section 6, offers protections similar to those offered by the First Amendment

religious liberty clauses. The Freedom of Worship Clause forbids the preference of one religion

over another and offers protections for individual religious expression. Tex. Const. art. I, § 6.

Texas Equal Rights Amendment: The Texas Equal Rights Amendment, Texas Constitution

article I, section 3a, prohibits discrimination on the basis of religion. Tex. Const. art. I, § 3a.

Religious Freedom Restoration Act: The Texas Religious Freedom Restoration Act, Texas

Civil Practice & Remedies Code chapter 110, prohibits a government agency from substantially

burdening a person’s free exercise of religion unless the burden is in furtherance of a compelling

governmental interest and is the least restrictive means of furthering that interest. Tex. Civ. Prac.

& Rem. Code §§ 110.003, .009.

Texas Commission on Human Rights Act: The Texas Commission on Human Rights Act, Texas

Labor Code chapter 21, subchapter B, prohibits discrimination in employment based on religion.

The protections of this law are comparable to those of Title VII. Tex. Lab. Code § 21.051; Grant v.

Joe Myers Toyota, Inc., 11 S.W.3d 419 (Tex. App.—Houston [14th Dist.] 2000, no pet).

Texas Civil Practice and Remedies Code chapter 106: Texas Civil Practice and Remedies

Code chapter 106 prohibits discrimination on the basis of religion. Tex. Civ. Prac. & Rem. Code

§ 106.001(a).

Texas Education Code provisions: In addition to the general prohibitions on religious

discrimination, Texas law also includes several statutes that address specific issues relating to

religious expression, such as excused absences to observe religious holy days, prayer led by

student speakers, Bible courses, and exceptions to state immunization requirements. Tex. Educ.

Code §§ 11.162 (school uniform exemption), 21.406 (educator absence), 25.082 (Pledge of

Allegiance and moment of silence exemptions), .087 (religious holy days), .151-.153 (Religious

Viewpoint Antidiscrimination Act), .901 (voluntary prayer), 26.010 (temporary removal), 28.011

(Bible course), 38.001 (immunization exemption); Tex. Health & Safety Code §§ 36.005,

37.002, 95.003 (exemptions from certain medical assessments).

Student Religious Expression

1. May students pray during the school day?

Yes. Prayer is allowed when it is student-initiated and not disruptive to the school program.

Prayer may not be sponsored by the school district, however.

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Example 1: Before the Algebra II end of course examination begins, as test papers are being

distributed, Eric prays silently for mercy.

Individual prayer is permitted: A public school student has an absolute right to individually,

voluntarily, and silently pray or meditate in school in a manner that does not disrupt the

instructional or other activities of the school. Nothing in the U.S. Constitution prohibits any

public school student from voluntarily praying at any time before, during, or after the school day.

Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290 (2000). Texas law expressly prohibits a person

from requiring, encouraging, or coercing a student to engage in or refrain from such prayer or

meditation during any school activity. Tex. Educ. Code § 25.901.

Example 2: During the lunch period, Erica and friends begin gathering in a section of the

cafeteria to pray and discuss matters of personal faith. The cafeteria has open seating, and the

students are not disruptive of others. Other students notice, however, and occasionally they call

Erica and her friends “Jesus freaks” as they pass by. Another table has started calling itself the

God-free table.

Group prayer is permitted: Students may pray in groups during non-instructional time, as long

as they are not disruptive and do not harass other students. Doe v. Duncanville Indep. Sch. Dist.,

70 F.3d 402 (5th Cir. 1995). For example, group prayer during lunch time, in common areas, or

at the flag pole are all permissible practices.

School officials may have an obligation to defend students’ rights: If a school district has

actual knowledge that a student is the target of bullying and harassment based on the student’s

religious beliefs and that harassment may be deemed so severe, persistent, and objectively

offensive as to deprive the student of the student’s educational rights, the district has a legal

obligation to respond. The district may not act with deliberate indifference by ignoring or being

dismissive of the student’s concerns. Doe v. Cape Henlopen Sch. Dist., 759 F. Supp.2d 522 (D.

Del. 2011). See TASB Policies FFH(LEGAL) and (LOCAL). In some instances, school officials

may also have a legal obligation to protect students’ rights to pray or gather in a lawful manner.

U.S. Const. amend I. School officials should make it clear that efforts to protect students’ rights

on campus are motivated by the school’s legal obligation to maintain an environment where

students are free from harassment, not by the school’s endorsement of one viewpoint over another.

Example 3: Every morning during announcements in Joe’s homeroom class, the principal

directs the students over the loudspeaker to observe a one-minute moment of silence. Joe,

followed by several of his fellow students, begins to utter the Lord’s Prayer in hushed tones

during the daily moment of silence.

School-sponsored prayer is not permitted: Under the Establishment Clause, a public school

may not advance religion through the use of prayer in schools. Croft v. Governor of Tex., 562

F.3d 735 (5th Cir. 2009).

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Moments of silence are permitted only for secular reasons: The Texas Education Code

mandates that school districts provide for a one-minute period of silence following the recitation

of the pledges of allegiance to allow each student to reflect, meditate, pray, or engage in other

silent activity that does not disrupt or distract another student. Teachers and other school

employees must ensure that no student is distracted or interfered with by other students during

this one-minute period. Tex. Educ. Code § 25.082(d). The state statute has been upheld as

constitutional because, despite the views expressed by some of the legislators considering

passage of the legislation, the law had an overriding secular purpose. Croft v. Governor of Tex.,

562 F.3d 735 (5th Cir. 2009); see also Brown ex rel. Brown v. Gilmore, 258 F.3d 265 (4th Cir.

2001) (upholding a state statute that required a minute of silence each day for students to

meditate, pray, or engage in any other silent activity); Bown v. Gwinnett County Sch. Dist., 112

F.3d 1464 (11th Cir. 1997) (upholding state statute requiring moment of silence each school

day). Nevertheless, a moment of silence would violate the First Amendment if it were used as a

way to coerce prayer in the classroom. See Doe ex rel. Doe v. Sch. Bd. of Ouachita Parish, 274

F.3d 289 (5th Cir. 2001) (invalidating state statute specifically amended to delete “silent” from

phrase “silent prayer” in moment of silence law).

Even if Texas’s moment of silence law was adopted with a secular purpose, a classroom teacher

could still violate the Constitution if the teacher coerced, endorsed, or conversely, was hostile

toward prayer in the way the teacher administered the moment of silence.

2. May students express their personal religious views in class discussions and assignments?

Yes, within the bounds of the assignment. Public school students have a First Amendment right to

freedom of expression, and they do not shed that right while attending public school. Students

sometimes choose to exercise their right to self expression by talking about their religious beliefs,

and sometimes that expression happens during instructional time. In general, school officials must

assess schoolwork that contains religious expression on the same terms as other schoolwork.

Example: Levi is a junior in high school and a Mormon. Levi’s government teacher asked the

students in the class to write a paper on factors influencing the 2012 presidential election.

Among other factors, Levi discussed the influence of candidate Mitt Romney’s Mormonism on

the race, sharing his personal perspective and experience as a Mormon.

School district’s educational mission: When student expression takes place as part of classroom

instruction, educators may exercise editorial control over the style and content of the student speech,

as long as their actions are reasonably related to legitimate pedagogical concerns. Hazelwood Sch.

Dist. v. Kuhlmeier, 484 U.S. 260 (1988). At the same time, however, educators must be viewpoint

neutral in exercising their editorial control. For example, in response to an assignment to prepare a

poster showing ways in which children could help the environment, a kindergartener prepared a

poster showing a figure of Jesus praying. Educators censored the poster. The Second Circuit Court

of Appeals determined that the assignment could be rejected on instructional grounds, like the fact

that the assignment was to show what was learned during the class unit and the unit did not include

religious content. However, if the educators’ actions in censoring the poster were based solely on

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the poster’s religious viewpoint, their actions would have constituted religious discrimination. Peck

ex rel. Peck v. Baldwinsville Central Sch. Dist., 426 F.3d 617 (2d Cir. 2005). Note, the Texas

Religious Viewpoint Antidiscrimination Act (RVAA) specifically provides that students may

express religious beliefs in homework, artwork, and other written or oral assignments and be free

from discrimination based on the religious content of their submissions. Tex. Educ. Code § 25.153.

Rights of the other students: Students have a right to be free from school-sponsored actions

that endorse religion. Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290 (2000). In a federal

district court case, the court upheld a classroom teacher’s decision to permit a student to read a

book with religious content to the teacher, but not the whole class, although other students were

permitted to read their non-religious stories to the class. C.H. ex rel. Z.H. v. Oliva, 990 F. Supp.

341 (D.N.J. 1997), aff’d in relevant part, 226 F.3d 198 (3rd Cir. 2000) (en banc); see also

DeNooyer v. Merinelli, 12 F.3d 211 (6th Cir. 1993) (per curiam) (not designated for publication)

(upholding teacher’s decision to stop student from showing religious video during show-and-tell

because second-grade classroom was nonpublic forum subject to reasonable restrictions and

legitimate pedagogical concerns).

Set clear parameters for student expression: In some circumstances, controversy may be

avoided by carefully designing and describing classroom activities. The key legal question in

this area is whether religious content was private student speech or school sponsored government

speech. Teachers can help students, parents, administrators, lawyers, and judges have a better

understanding of when a door has been opened for personal expression by articulating

assignments clearly and documenting lesson plans. For example, in one federal court case, a

school district’s decision not to permit a student to distribute candy canes with religious

messages during a class party was upheld in part because the classroom teacher had articulated

curricular goals related to the party, namely, promoting sharing and social interaction. Walz ex

rel. Walz v. Egg Harbor Twp. Bd. of Educ., 342 F.3d 271 (3d Cir. 2003).

In 2011, the Fifth Circuit Court of Appeals held, however, that when students’ communications

take place during noninstructional time and do not interfere with the work of the school or the

rights of others, students have a right to share written religious materials with classmates to the

same extent they are permitted to share written materials on other topics. In this case, the

principal of an elementary school had prevented a student from distributing his candy-cane

shaped pens, attached to which was a note ascribing religious significance to the shape and

colors of a candy cane, during a school winter celebration. The Fifth Circuit granted the

principal who prevented the student from distributing his candy cane-shaped pens qualified

immunity, but the court warned that it considered the right of students to distribute religious

materials during noninstructional time when it does not interfere with the work of the school or

the rights of others to be clearly established, and therefore school employees who violate this

right going forward may not be eligible for qualified immunity. Morgan v. Swanson, 659 F.3d

359 (5th Cir. 2011) (en banc).

Age and understanding of the audience: Pedagogical concerns are heightened in the

elementary school environment where students are impressionable and less likely to understand

the difference between private action and government action. Therefore, the boundaries of what

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speech is appropriate may be very different in the elementary context than in the middle or high

school context. Morgan v. Swanson, 659 F.3d 359 (5th Cir. 2011) (en banc); Walz ex rel. Walz

v. Egg Harbor Twp. Bd. of Educ., 342 F.3d 271 (3d Cir. 2003).

3. May students distribute religious materials or proselytize while at school?

Yes, within the limits of viewpoint-neutral school rules. During instructional time, school

officials may regulate student speech to the extent necessary to achieve the school’s instructional

goals. During noninstructional time, school officials may impose viewpoint-neutral time, place,

and manner restrictions on the distribution of nonschool materials; school officials may not

prevent personal religious expression or proselytizing speech that does not violate school rules.

Example: Rebecca is a senior in high school and an evangelical Christian. Rebecca wants to

distribute flyers at lunchtime encouraging people to attend her church’s religious service on

Wednesday night. The district has in place a literature distribution policy requiring all

nonschool literature to be placed on a table outside of the cafeteria.

Content and viewpoint neutral regulations: The validity of content and viewpoint neutral

restrictions on the distribution of personal, not school-sponsored, literature by students on school

premises is subject to a time, place, and manner test. Under the time, place, and manner test, school

administrators may regulate expressive conduct that is normally protected by the First Amendment

Free Speech Clause only if (1) the regulation, like a dress code, furthers an important or substantial

governmental interest; (2) the interest is unrelated to the suppression of student expression; and (3)

the incidental restrictions on First Amendment activities are no more than is necessary to facilitate

that interest. Morgan v. Plano Indep. Sch. Dist., 589 F.3d 740 (5th Cir. 2009).

Regulations targeting a particular viewpoint: If a district prohibits a student from distributing

literature based upon its viewpoint, then the substantial disruption standard described in Tinker v.

Des Moines Independent Community School District applies. Morgan v. Swanson, 659 F.3d 359

(5th Cir. 2011) (en banc). In Tinker, the U.S. Supreme Court held that a school can control a

student’s speech if the speech (1) impinges on the rights of other students; or (2) substantially

disrupts or materially interferes with school activities. Tinker v. Des Moines Indep. Cmty. Sch.

Dist., 393 U.S. 503 (1969). The second prong, referred to as the substantial disruption standard,

is most often cited by courts in student speech cases. It is discussed in more detail below.

Know your district’s policies: In most Texas school districts, TASB Policy FNAA(LOCAL)

governs the distribution of nonschool materials by students, while TASB Policy GKDA(LOCAL)

governs the distribution of nonschool materials by community members, including parents. These

policies create a limited public forum for distribution of nonschool materials. Typically, materials

to be distributed or posted on campus must be submitted for prior review; the purpose of the

review is to ensure that the materials do not contain any of the specified categories of prohibited

content, such as speech that is defamatory, that advertises or encourages the use of illegal drugs, or

that is reasonably calculated to cause a material disruption of school operations. See Pounds v.

Katy Indep. Sch. Dist., 517 F. Supp. 2d 901 (S.D. Tex. 2007) (upholding facial constitutionality of

district’s policy FNAA(LOCAL) with the provisions described above).

12


Written campus guidelines for literature distribution recommended: In most districts,

board-adopted literature distribution policies provide that campus principals will make

appropriate time, place, and manner restrictions for their campuses. By law, these rules must be

reasonable and viewpoint neutral. The rules should also be written, circulated, and posted in

appropriate ways and consistently applied. Even if campus rules are quite restrictive with

respect to mass distribution or posting of materials by community members, campus rules should

leave ample opportunities for students to share written materials with each other in the ordinary

course of social interaction. See Pounds v. Katy Indep. Sch. Dist., 517 F. Supp. 2d 901 (S.D.

Tex. 2007) (upholding FNAA(LOCAL) provisions delegating time, place, and manner decisions

to campus administrators and permitting up to ten copies of students’ nonschool materials to be

distributed without prior review).

4. May schools prevent students from expressing their religious beliefs through their dress

and grooming?

Yes, but only if (1) the school district has adopted a legitimate, viewpoint-neutral rule, like a

standardized dress code, that does not impose an undue burden on the individual’s free exercise

of religion and freedom of speech; or (2) the student’s symbolic speech would cause a material

and substantial disruption of school operations.

Example 1: Aaron is a freshman in high school and an observant Jew. His faith requires him to

wear a head covering or yarmulke while he is at school. The campus has a “no hats” rule.

Symbolic speech: The First Amendment Free Speech Clause protects not only verbal and

written expression but also symbols and conduct that constitute symbolic speech. Littlefield v.

Forney Indep. Sch. Dist., 268 F.3d 275 (5th Cir. 2001). Symbolic speech is protected by the

First Amendment if the person who displays the symbol or message intends to convey a

particularized message and there is a great likelihood that the message will be understood by

those observing it. Spence v. Washington, 418 U.S. 405 (1974); Canady v. Bossier Parish Sch.

Bd., 240 F.3d 437 (5th Cir. 2001).

Dress and grooming codes must have a legitimate purpose: In the school context, school

administrators may regulate expressive conduct that is normally protected by the First

Amendment Free Speech Clause using a content and viewpoint neutral regulation that satisfies

the time, place, and manner test. As described above, such a regulation meets the standard only

if (1) the regulation, like a dress code, furthers an important or substantial governmental interest;

(2) the interest is unrelated to the suppression of student expression; and (3) the incidental

restrictions on First Amendment activities are no more than is necessary to facilitate that interest.

Canady v. Bossier Parish Sch. Bd., 240 F.3d 437 (5th Cir. 2001); e.g., Palmer ex rel. Palmer v.

Waxahachie Indep. Sch. Dist., 579 F.3d 502 (5th Cir. 2009) (upholding a school dress code that

banned any messages on student clothing).

13


Uniform policies: For districts with formal school uniform policies, state law provides that parents

may exempt their children from a school uniform requirement if they can provide a bona fide

religious or philosophical objection to wearing the uniform. Tex. Educ. Code § 11.162(c). The Fifth

Circuit Court of Appeals upheld a district dress code adopted within the parameters of state law

under the Free Speech Clause because it met the substantial interest of improving the educational

performance of the district, the uniform policy was not enacted to suppress student expression, and

the restrictions were narrowly tailored because they only affected student attire during school hours.

Further, the court concluded that the “opt-out” procedure did not violate the Free Exercise Clause

because the district utilized a neutral and rational means to determine the sincerity of the proffered

religious belief. Littlefield v. Forney Indep. Sch. Dist., 268 F.3d 275 (5th Cir. 2001).

Texas Religious Freedom Restoration Act: When analyzing whether a school rule may impose

upon a student’s religious practice, the Fifth Circuit Court of Appeals has also applied the Texas

Religious Freedom Restoration Act (RFRA). The RFRA prevents a government agency in Texas

from substantially burdening a person’s free exercise of religion unless it demonstrates that the

application of the burden to the person is in furtherance of a compelling governmental interest and

is the least restrictive means of furthering that interest. Tex. Civ. Prac. & Rem. Code §§ 110.003,

.009. The Fifth Circuit held that a Texas school district violated the RFRA when the district

required a Native American student to wear his long hair either in a bun or tuck it into his shirt

while at school. After concluding that the student and his family met their burden to demonstrate a

sincerely held religious belief in wearing visibly long hair, the court held that the grooming

restrictions were a substantial burden on his free exercise of religion, and the school district’s

interests in teaching hygiene, preventing disruptions, avoiding safety hazards, instilling discipline,

asserting authority, and uniformity were not compelling interests that justified such a burden. A.A.

ex rel. Betenbaugh v. Needville Indep. Sch. Dist., 611 F.3d 248 (5th Cir. 2010).

Example 2: Maria wears a shirt to school that states, “Abortion is not Healthcare.” Several

students express agreement with Maria’s shirt, but others disagree. Students who disagree with

the slogan stop Maria and argue with her in the hallway between classes, and at lunch a student

throws food at her as she walks by.

Substantial disruption standard: Absent a more specific dress code regulation, like a uniform

requirement, the standard set by the U.S. Supreme Court in Tinker v. Des Moines Independent

Community School District applies. Messages on clothing should not be censored unless they (1)

impinge upon the rights of other students; or (2) substantially disrupt or materially interfere with

school activities. Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503 (1969). Typically

courts apply the second prong.

A district must find an actual connection between attire and potential disruption. Sypniewski v.

Warren Hills Reg’l Bd. of Educ., 307 F.3d 243 (3d Cir. 2002). Material and substantial disruption

may be substantiated by evidence of disturbance. Tinker v. Des Moines Indep. Cmty. Sch. Dist.,

393 U.S. 503 (1969). Complaints filed by other students regarding a student’s attire can serve as

evidence of a disruption. Chambers v. Babbitt, 145 F. Supp. 2d 1068 (D. Minn. 2001) (mem.).

14


Determining whether speech is disruptive in its own right or whether the speech is protected but

viewers are responding in a way that causes disruption requires a case-by-case determination.

Speech may be deeply offensive, but still entitled to First Amendment protection. See, e.g.,

United States v. O’Brien, 391 U.S. 367 (1968) (extending free speech protection to the symbolic

act of burning a draft card).

5. May student religious groups meet on campus?

Religious groups can meet on campus on the same terms as other nonschool-sponsored groups.

Example: A middle school chapter of the Fellowship of Christian Athletes was permitted to meet

on campus immediately after school in accordance with local school district policy. A community

watchdog group heard about the meetings and wrote a letter to the editor complaining that the

school district is sponsoring religious meetings in violation of the First Amendment.

District policies must be viewpoint neutral: Forum analysis under the Free Speech Clause

applies to meetings of student groups using district facilities. In both elementary and secondary

schools, noncurriculum-related student groups, including adult-led groups attended by students,

such as the Good News Club or the Boy Scouts, often meet on campus pursuant to local school

district policy. Under the First Amendment, these policies must be viewpoint neutral; schools

must permit community groups that espouse religious viewpoints to have the same access to

school facilities as that extended to community groups espousing secular viewpoints. Good

News Club v. Milford Cent. Sch., 533 U.S. 98 (2001); Lamb’s Chapel v. Center Moriches Union

Free Sch. Dist., 508 U.S. 384 (1993).

Under the federal Equal Access Act, if noncurriculum-related student groups are permitted to

meet on campus, student clubs of a religious nature must be permitted to meet on school

property, subject to the same rules and privileges. In secondary schools, student-organized,

student-led groups also must be permitted to meet pursuant to school district policies established

under the Equal Access Act. 20 U.S.C. § 4071.

No Establishment Clause violation: The U.S. Supreme Court considered the application of the

Establishment Clause to a school district’s facility access policies in Good News Club v. Milford

Central Schools. In Good News Club, a school district’s policy opened school facilities for

social, civic, and recreational meetings but prohibited religious uses. The school district applied

this policy to prohibit use by the Good News Club, a community-based Christian youth group

open to children between the ages of six and twelve. The Court concluded that, contrary to the

district’s claim, permitting the religious organization’s meetings on campus would not violate the

Establishment Clause, even though the students involved were very young. In the Court’s

opinion, there was no danger that students would believe the district was endorsing religion

because the meetings were not school sponsored and the students’ parents—not the children

themselves—decided whether the students would attend. Good News Club v. Milford Central

Schools, 533 U.S. 98 (2001).

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In Culbertson v. Oakridge School District No. 76, the Ninth Circuit Court of Appeals applied

Milford to a similar case involving the Good News Club that included even younger students

and met immediately after school. Culbertson v. Oakridge Sch. Dist. No. 76, 258 F.3d 1061

(9th Cir. 2001).

Texas RVAA: In addition to federal laws, the Texas Religious Viewpoints Antidiscrimination

Act (RVAA), described in more detail below, provides that students may organize religious

clubs and other religious gatherings before, during, and after school to the same extent that

students are permitted to organize other non-curricular groups or gatherings. Additionally, if

student groups that meet for nonreligious activities are permitted to advertise or announce

meetings, groups that meet for religious purposes must be given the same opportunities to

advertise or make announcements. School districts may disclaim sponsorship of these groups in

a manner that neither favors nor disfavors groups that meet for religious purposes. Tex. Educ.

Code § 25.154.

Recommended facilities use policies: In most Texas school districts, TASB Policies

FNAB(LEGAL) and (LOCAL) govern meetings of student-led, student-initiated noncurriculum-

related groups at school facilities during noninstructional time. Often, these policies provide a

limited open forum for meetings of secondary school students, but not elementary students. In

those districts, TASB Policy GKD(LOCAL) governs the use of school facilities for community

group meetings, including meetings organized by adults but attended by students. Typically,

these policies create a limited public forum for community group meetings under certain

conditions, such as seeking access on a “first come, first served basis,” paying a usage fee, or

providing proof of insurance.

6. Is student prayer or other religious speech permitted over the public address system as

part of school-sponsored events?

School-sponsored speech may not have a devotional purpose, even when it is offered by a student

volunteer. Local policies may attempt to clarify that student speech is not school-sponsored.

Example 1: High Point ISD has adopted a policy, FNA(LOCAL), which creates limited public

forums for student speech at school events. Morning announcements are one of the events

designated as having introductory student speakers. Mark, a high school senior, has been

selected as the student speaker. Mark reads a number of announcements scripted by the main

office, as well as a Bible verse.

Even student-given expression can be considered school-sponsored: A public school may

not permit school-sponsored prayer or religious expression to be given over the public address

system at school or school events, even if the prayer is led by a student. Sch. Dist. of Abington

Twp. v. Schempp, 374 U.S. 203 (1963); Karen B. v. Treen, 653 F.2d 897 (5th Cir. 1981), aff’d

mem., 455 U.S. 913 (1982).

16


In Santa Fe Independent School District v. Doe, the U.S. Supreme Court held that a school

district’s policy permitting a student volunteer to provide an invocation before games violated

the Establishment Clause due to several factors. First, the invocations in Santa Fe ISD were

authorized by official policy and took place on government property, at government-sponsored

events, and under the supervision of school employees. As a result, the Court refused to

conclude that the pregame invocations could be considered private speech. In addition, even

though attendance at football games was not mandatory, the Court felt that students should not

be forced to choose between attending and facing what might be a personally offensive religious

ritual or not attending. Finally, the Court took issue with the school district’s election system for

choosing a student speaker. Electing a student speaker would tend to result in the majority

viewpoint being selected, to the exclusion of minority viewpoints. The Court held that the

school district’s policy was invalid on its face because it established an improper majority

election on religion. The policy had the purpose and created the perception of encouraging

prayer at important school events. Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290 (2000).

Can student-initiated prayer in public ever be considered private? Under Santa Fe, when speech

is school-sponsored, schools must limit religious speech in order to avoid an unconstitutional

establishment of religion. When student speech is private, however, a school district may not restrict

the content of the student’s speech absent a compelling interest. Santa Fe Indep. Sch. Dist. v. Doe,

530 U.S. 290 (2000). Do schools have a compelling interest in avoiding an establishment of religion

by limiting student religious speech? Although federal courts have disagreed on this issue, at least

one federal circuit court has concluded that individual rights prevail. An Alabama state statute

allowed nonsectarian, non-proselytizing student prayer, invocations, and benedictions during

compulsory or non-compulsory school-related assemblies, sporting events, graduation ceremonies,

and other school-related events. The Eleventh Circuit Court of Appeals held that genuinely student-

initiated religious speech must be permitted without oversight or supervision by the school district,

subject to the same reasonable time, place, and manner restrictions applied to all other student

speech. In the wake of Santa Fe, the U.S. Supreme Court vacated and remanded the Eleventh

Circuit’s decision. On remand, however, the Eleventh Circuit reinstated its original decision, stating

that the decisions were complimentary rather than inconsistent. One prohibits government

sponsorship of religious speech, while the other prohibits government censorship of religious speech.

Chandler v. Sielgelman, 230 F.3d 1313 (11th Cir. 2000).

Texas statute characterizes public student speech as private: In 2007, the Texas Legislature

passed the Religious Viewpoint Anti-Discrimination Act (RVAA), which has four primary

components: (1) a school district must treat a student’s voluntary expression of a religious

viewpoint on an otherwise permissible topic the same way it would treat voluntary student

expression of a secular viewpoint; (2) students who express religious beliefs in homework, artwork,

and other written or oral assignments must be free from discrimination based on the religious content

of their submissions; (3) students may organize prayer groups, religious clubs, “see you at the pole”

gatherings, and other religious gatherings before, during, and after school to the same extent that

students are permitted to organize other non-curricular groups or gatherings; and (4) school districts

are required to adopt a policy that establishes a limited public forum for student speakers at all

school events at which a student is to publicly speak. Tex. Educ. Code §§ 25.151-.154.

17


Under its student speaker policy, a school district must (1) not discriminate against student

speakers who express religious viewpoints on otherwise permissible topics; (2) provide neutral

criteria for the selection of student speakers at school events and graduation; (3) ensure that

student speech is not offensively lewd, obscene, vulgar, or indecent; and (4) include a disclaimer,

in writing, orally, or both, to clarify that students’ speech does not reflect the endorsement,

sponsorship, position, or expression by the school district. Tex. Educ. Code § 25.152.

RVAA offers a state model policy: A unique aspect of the RVAA is that it includes a model, but

not mandatory, local school district policy (state model policy). Tex. Educ. Code § 25.156.

School districts may (1) adopt the state model policy, (2) adopt a policy “substantially identical” to

the state model policy, or (3) adopt a policy that differs from the model but still creates a limited

public forum. See Tex. Educ. Code §§ 25.152, .155-.156. School districts that adopt the state

model policy or a substantially identical policy will be deemed in compliance with the RVAA.

Tex. Educ. Code §§ 25.155-.156. Due to a variety of practical and legal considerations, however,

many school districts have adopted a policy that differs in some ways from the state model policy.

The variations are limitless, but common changes include changing the designated school events

with introductory student speakers, changing the speaker selection process, and adding definitions

into the policy in an attempt to guide uniform enforcement of the policy. Other districts made a

conscious decision not to adopt a new policy in response to the RVAA.

Possible challenges to the RVAA: The limited public forums created pursuant to the RVAA

offer an opportunity for student expression without school officials controlling or disciplining

students based on the viewpoints they express. This opportunity for student speech may be

welcomed by many school districts. Nevertheless, establishing limited public forums for student

speech may subject school districts to practical and legal challenges—even if the school districts

are complying with the RVAA. New opportunities for student free speech raise the possibility

that some speech will be controversial. For example, religious speech that expresses the

viewpoint of a minority religion may cause controversy in some communities. Parents who

initially supported the idea of student speeches may withdraw their support upon learning that

their children have been exposed to viewpoints that differ from their own. Alternatively,

implementation of RVAA policies raises the risk of an “as applied” challenge to the policies. A

family professing a minority religious view in a school district that creates limited public forums

that, over time, are used solely or primarily by students professing majority religious views may

be able to establish that a school district’s policy adopted under the RVAA nevertheless violates

the First Amendment as interpreted by the U.S. Supreme Court in Santa Fe Independent School

District v. Doe, 530 U.S. 290 (2000).

Example 2: Mark is also selected to give introductory remarks at the graduation ceremony.

Although he was not directed to do so by school officials, he chooses to offer a sectarian

Christian prayer as an invocation. The graduation program contains a written disclaimer that

the views of the student speakers are not those of the school district.

18


No school-sponsored prayer at graduation: A public school district may not sponsor prayer at

graduation. For example, school officials may not invite a member of the clergy to deliver an

invocation during a graduation ceremony. Lee v. Weisman, 505 U.S. 577 (1992). Likewise,

public schools may not sponsor baccalaureate services but may allow private groups to sponsor

the services in accordance with local policies governing the use of school facilities by outside

groups. Shumway v. Albany County. Sch. Dist. No. 1 Bd. of Educ., 826 F. Supp. 1320 (D. Wyo.

1993); Randall v. Pegan, 765 F. Supp. 793 (W.D.N.Y. 1991); Verbena United Methodist Church

v. Chilton County Bd. of Educ., 765 F. Supp. 704 (M.D. Ala. 1991).

Student-led graduation prayer: Before Santa Fe, the Fifth Circuit Court of Appeals in Jones v.

Clear Creek Independent School District upheld student-initiated, student led, non-sectarian, non-

proselytizing prayer at graduation. Jones v. Clear Creek Indep. Sch. Dist., 977 F.2d 963 (5th Cir.

1992). The Fifth Circuit affirmed this holding in a number of subsequent cases, including its opinion

in the Santa Fe appeal. Doe v. Santa Fe Indep. Sch. Dist., 168 F.3d 806 (5th Cir. 1999). The U.S.

Supreme Court was asked but declined the opportunity to reverse the Fifth Circuit’s decision

regarding graduation prayer in the Santa Fe appeal. Santa Fe Indep. Sch. Dist. v. Doe, 528 U.S.

1002 (1999) (mem.). Nevertheless, many believe that the Court’s reasoning in Santa Fe prohibits

student-led prayer at graduation in some circumstances. For example, a federal district court in

Austin ruled that a school district’s policy permitting graduating seniors to vote on whether to have

student-led prayer at graduation violated the U.S. Supreme Court’s decision in Santa Fe. According

to the court, a prayer that was approved by a vote of the students like in Clear Creek was

indistinguishable from a majoritarian election on religion, which Santa Fe rejected; accordingly,

Santa Fe overruled Clear Creek to the extent Clear Creek approved a majoritarian election on

religion. Does 1-7 v. Round Rock Indep. Sch. Dist, 540 F. Supp. 2d 735 (W.D. Tex. 2007). See also

Workman v. Greenwood Cmty. Sch. Corp., No. 1:10-cv-0293-SEB-TAB, 2010 WL 1780043 (S.D.

Ind. Apr. 30, 2010) (not designated for publication) (ruling that a district’s system of electing a class

speaker to lead a prayer at a senior class graduation was unconstitutional).

Is student-led graduation prayer ever private speech? After Santa Fe, however, the Eleventh

Circuit Court of Appeals affirmed en banc an earlier opinion upholding a school district policy

permitting seniors to elect to have unrestricted student-led messages at the beginning and end of

graduation ceremonies. In the court’s opinion, the student messages made possible by this policy

need not be constrained because the messages would constitute purely private speech. Adler v.

Duval County Sch. Bd., 250 F.3d 1330 (11th Cir. 2001) (en banc).

In Texas, this perspective is supported by the RVAA and its declaration that student speech in a

limited public forum is private and not school-sponsored. Tex. Educ. Code § 25.152.

A federal district court in San Antonio offered a similar opinion in an advisory opinion issued

before the settlement of a lawsuit challenging a school district’s graduation speech practices.

The judge opined that because of the school district’s disclaimer, a student speaker would have a

free speech right to pray at graduation and ask the audience to join. Government officials on

stage at the ceremony could not participate, however. The officials would not be attending the

ceremony as private citizens but instead would be representing the diverse religious and non-

religious community as a whole. Schultz v. Medina Valley Indep. Sch. Dist., No. SA-11-CA-

422-FB, 2012 WL 517518 (W.D. Tex. Feb. 9, 2012) (not designated for publication).

19


Example 3: At graduation, valedictorian McKayla Frank delivered a speech that included

sectarian and proselytizing remarks. McKayla had given a version of her speech that did not

include the controversial remarks to the school principal before the ceremony for his review

and approval.

Graduation speeches: Graduation speeches cannot contain sectarian or proselytizing language if

the speeches are properly characterized as school sponsored. For example, the Ninth Circuit Court

of Appeals permitted a school district to edit the content of commencement addresses because the

content of the speech was sectarian. The court noted that the district retained significant control of

the event and that the students would have used the district’s public address system. Considering

these and other factors, the Ninth Circuit concluded that the district did have significant control over

the ceremony and the presentations; therefore, the presentations reasonably bore the imprimatur of

the district. Consequently, to permit students to deliver sectarian speeches would have violated the

Establishment Clause. Cole v. Oroville Union High Sch. Dist., 228 F.3d 1092 (9th Cir. 2000). See

also Lassonde v. Pleasanton Unified Sch. Dist., 320 F.3d 979 (9th Cir. 2003) (concluding that a

disclaimer was not sufficient to overcome perception of school-sponsored speech).

No surprises: In Corder v. Lewis Palmer School District No. 38, the Tenth Circuit Court of

Appeals upheld a district’s action in forcing a student to apologize after she gave a proselytizing

speech at graduation, when she had given the school principal a different speech to review before

graduation. The court concluded that, since the student’s speech at the graduation ceremony

bore the imprimatur of the school, so did her apology. The district retained control over both.

Corder v. Lewis Palmer Sch. Dist. No. 38, 566 F.3d 1219 (10th Cir. 2009).

Disclaimers: A primary purpose of the RVAA was to indicate in state law and local school

district policies that school districts do not sponsor student speech at events such as graduation.

See Tex. Educ. Code §§ 25.152, .156 (requiring disclaimers in local policy). In this respect, the

RVAA echoes the U.S. Department of Education’s (DOE) Guidance on Constitutionally Protected

Prayer in Public Elementary and Secondary Schools, available at

www.ed.gov/policy/gen/guid/religionandschools/prayer_guidance.html. The guidance provides

that when student speakers are selected based on genuinely neutral and even-handed criteria, and

when student speakers selected under such criteria retain primary control over the content of their

expression, such student speech is not attributable to the school and may not be restricted for either

its religious or anti-religious content. Both the RVAA and the DOE guidance rely on disclaimers

and local school district policies to declare that student speech is not school sponsored. Whether

the disclaimers will suffice will depend on the circumstances of any potential challenge.

Religion in Instruction

1. May a teacher discuss religious topics as part of religious instruction?

Religious topics may be presented objectively as part of a secular education program.

http://www.ed.gov/policy/gen/guid/religionandschools/prayer_guidance.html

20


Example: Students in Ms. Teaks’s AP World History class will be studying the Crusades as part

of the unit on the Middle Ages. Malik’s parents are strictly observant Muslims. They have

reviewed the section in the textbook regarding the Crusades, and they object to certain aspects of

the text. Ms. Teaks believes the text presents an objective account of these historic events, and

she knows the AP test is likely to include questions on this subject matter.

Exposure to ideas is not an unconstitutional burden: Merely exposing students to ideas they

or their parents find objectionable does not place an unconstitutional burden on students’ free

exercise of religion when students are not being compelled to affirm or deny a religious belief,

nor to perform or not perform a religious exercise. See Leebaert v. Harrington, 332 F.3d 134 (2d

Cir. 2003) (upholding mandatory attendance of health education course despite parent’s religious

objections, concluding that parent did not have a fundamental parental right to direct his child’s

education while at public school and no hybrid claim of parental rights and free exercise required

strict scrutiny); Brown v. Hot, Sexy & Safer Prods., Inc., 68 F.3d 525 (1st Cir. 1995) (upholding

mandatory attendance at AIDS awareness program); Mozert v. Hawkins County Bd. of Educ.,

827 F.2d 1058 (6th Cir. 1987) (upholding required reading assignments, even if textbooks

contained material students found objectionable, so long as students were not required to change

their beliefs based on the reading).

Instruction about religion cannot coerce: Teachers may include religious elements in

instruction, as long as these elements would not be viewed by a reasonable person as coercing

the practice of a particular religion. See Altman v. Bedford Central Sch. Dist., 245 F.3d 49 (2d

Cir. 2001) (rejecting lower court’s findings that celebration of Earth Day taught earth worship).

No preference for one religion or for religion versus non-religion: The Establishment Clause

prohibits public schools from tailoring teaching and learning to the principles or prohibitions of any

particular religion. E.g., Edwards v. Aguillard, 482 U.S. 578 (1987) (holding unconstitutional a state

statute requiring that creationism be taught alongside evolution); Epperson v. Arkansas, 393 U.S. 97

(1968) (holding unconstitutional a state statute prohibiting teaching evolution).

The Bible may be taught for secular purposes: The U.S. Supreme Court has observed that

studying religion and its relationship to civilization is an essential part of a complete education.

“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 consistently with the

First Amendment.” Sch. Dist. of Abington Twp. v. Schempp, 374 U.S. 203, 225 (1963). The

Bible may not be taught for devotional purposes, however. E.g., Hall v. Bd. of Sch. Comm’rs of

Conecuh County, 656 F.2d 999 (5th Cir. 1981), modified on other grounds, 707 F.2d 464 (11th

Cir. 1983) (per curiam) (holding that a public school’s Bible literature course was

unconstitutional because its primary purpose was to advance Christianity when the course

consisted entirely of a Christian religious perspective; suggested a strong religious motivation, as

opposed to literary study; was taught by an ordained minister; and had the primary effect of

advancing religion).

21


Elective course on scriptures not required: Texas Education Code section 28.011 provides that

school districts may offer an elective course on the content, history, literary style, and influence of

the Old and New Testaments. If fewer than 15 students at a campus enroll, a campus is not

required to offer the class. Teachers who teach the course must complete required staff

development, including instruction on how to teach the class in accordance with federal law. Tex.

Educ. Code § 28.011; 19 Tex. Admin. Code § 74.36. The Texas Attorney General affirmed that

districts may decide whether or not to offer the course and clarified that the course is not required,

even if 15 or more students request that it be offered. Op. Tex. Att’y Gen. No. GA-657 (2008).

Instruction on religious literature is required: Texas Education Code section 28.002 requires that

the study of religious literature and its impact on history and literature be included as part of the

required curriculum. Tex. Educ. Code § 28.002(a)(2)(G); Op. Tex. Att’y Gen. No. GA-657 (2008).

Religious music and art may be referenced in certain situations: A school district may

include religious literature, music, drama, and arts in its curriculum and in school activities when

the material is intrinsic to the learning experience and is presented objectively. E.g., Bauchman

v. West High Sch., 132 F.3d 542 (10th Cir. 1997) (finding no Establishment Clause violation

when a school choir performed a mix of religious and secular music and performed occasionally,

but not exclusively, in churches); Doe v. Duncanville Indep. Sch. Dist., 70 F.3d 402 (5th Cir.

1995) (singing religious music in choir class did not establish or endorse religion when it was not

performed as religious exercise); Florey v. Sioux Falls Sch. Dist. 49-5, 619 F.2d 1311 (8th Cir.

1980) (upholding a Christmas program that included both religious and secular elements).

Individual detractors should not dictate constitutional, educational curricula: A number of

lawsuits have been filed by parents who were concerned that instructional elements of particular

courses were teaching students to adhere to certain religious beliefs. For example, a Georgia

student objected to passages in her biology textbook that acknowledged disputes about the origin

of life. Moeller v. Schrenko, 554 S.E.2d 198 (Ga. Ct. App. 2001). Illinois parents complained

about the use of a reading series that included fantasy elements such as references to witchcraft

and monsters. Fleischfresser v. Dirs. of Sch. Dist. 200, 15 F.3d 680 (7th Cir. 1994). Florida

students and a parent claimed that Halloween festivities, including a display depicting witches,

endorsed the Wicca religion. Guyer v. Sch. Bd. of Alachua County, 634 So. 2d 806 (Fla. Dist.

Ct. App. 1994). In California, parents complained about a reading series that suggested learning

activities in which students would pretend to be characters including witches and sorcerers.

Brown v. Woodland Joint Unified Sch. Dist., 27 F.3d 1373 (9th Cir. 1994). In general, schools

have responded that the activities or materials were intended to teach culture or history, not

religion. Courts have typically concluded that reasonable observers would not interpret the

challenged instructional elements as endorsing or coercing religious beliefs.

Teachers can be required to teach: Regardless of a teacher’s personal religious beliefs, a

teacher can be required to teach the state-mandated curriculum. See, e.g., Palmer v. Bd. of Educ.

of Chicago, 603 F.2d 1271 (7th Cir. 1979) (holding that the state’s compelling interest in

imparting the prescribed curriculum outweighed the interests of a Jehovah’s Witness teacher who

brought a First Amendment claim after being fired for refusing to lead the Pledge of Allegiance,

sing patriotic songs, and celebrate national holidays).

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2. May a school district invite visitors to provide instruction to students?

If the visitor is present as an invited guest speaker, the district may regulate the content of the

visitor’s presentation in accordance with the district’s legitimate pedagogical goals.

Example 1: Reaching Higher is a private, nonprofit organization that offers both secular and

faith-based initiatives to help young people develop character, avoid substance abuse, and fight

bullying. For no fee, Reaching Higher sends dynamic public speakers into schools to share a

positive, multimedia presentation. At the assemblies conducted in public schools, all content is

secular, but students are invited to a weekend event off campus that has a religious message.

Recently some parents viewed the organization’s Web site and saw that Reaching Higher was a

faith-based initiative. They have threatened to file a complaint.

Religious speech by guest speakers: School officials cannot avoid an establishment of religion

by inviting a guest speaker to deliver a religious message that the school district itself could not

give. For example, a public school may not sponsor prayer by inviting a member of the clergy to

deliver an invocation during ceremonial events. Lee v. Weisman, 505 U.S. 577 (1992).

Secular speech by guests with a religious affiliation: A school district may, however, invite

guest speakers who are affiliated with religious organizations to speak on a school campus about

either (1) matters other than religion; or (2) religion from a secular perspective, such as a

discussion of world religions. The Fifth Circuit Court of Appeals has observed that the

advancement by a school district of values that “merely happen to coincide or harmonize with the

tenets of some or all religions” is permissible, and “[i]t has long been established that the State

may send a cleric, indeed even a clerical order, to perform a wholly secular task.” Doe ex rel. Doe

v. Beaumont Indep. Sch. Dist., 173 F.3d 274 (5th Cir. 1999) (considering the constitutionality of a

clergy in schools counseling program). Whether guest speakers can use their secular school

presentations as an opportunity to invite attendees to a religious event or distribute flyers that

promote their Web sites or non-school events is less certain. School officials should focus on

treating all guest speakers the same, regardless of viewpoint. For instance, if visiting authors are

allowed to promote their Web sites and book signing events, school officials should arguably allow

groups with religious affiliations to promote their materials and events, as long as all materials

distributed or highlighted at school-sponsored events are secular.

Example 2: During the winter holiday season, campus principal Eva Betta invites parents into

classrooms to talk about how their families observe various holidays. A Jewish parent shows a

menorah and the dreidel game. An African American parent discusses the seven principles of

Kwanzaa. A Christian parent shows a Christmas tree ornament and a nativity scene.

Guest speakers can be asked to conform to pedagogical standards: Like in the case of

teachers, a district can require guest speakers to conform to pedagogical standards. For example, a

parent sued a school district claiming the district violated the parent’s free speech rights by

prohibiting her from reading the Bible aloud during an elementary class activity in which parents

read from their child’s favorite book. The Third Circuit Court of Appeals concluded that, in

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furtherance of the school’s legitimate pedagogical goals, it was reasonable for school officials to

distinguish between parents sharing cultural references during the holidays and leading what the

school perceived to be a proselytizing Bible lesson. Busch v. Marple Newtown Sch. Dist., 567

F.3d 89 (3d Cir. 2009).

Employee Religious Expression

1. May public school employees express their personal religious beliefs around students?

While on duty, school employees should avoid personal expressions of faith to students. Away

from school and while off duty, school employees enjoy the same religious and free speech

rights as other citizens.

Example 1: Coach Upright has bus duty every Monday and Wednesday, starting at 7:10 a.m.

On other days, the coach is expected to report for duty no later than 7:40 a.m. Last year, the

local See You at the Flagpole event occurred on a Wednesday at 7:30 a.m. Because he was on

bus duty at the time, Coach Upright was present, but did not participate in the prayer by praying

aloud or by joining hands with the group. This year, the event will take place on a Thursday at

7:30 a.m., before the coach is technically on duty. Coach Upright asks his principal whether he

may participate in the prayer circle.

Employee prayer with students: Employees acting in their official capacity may not lead or

participate in any student prayer. Doe v. Duncanville Indep. Sch. Dist., 70 F.3d 402 (5th Cir. 1995).

The Third Circuit Court of Appeals concluded that a coach’s actions in praying with his student-

athletes before games and at other times was not protected by his personal First Amendment rights

because he was not speaking as a private citizen on a matter of public concern. Rather, the coach

violated the Establishment Clause when he bowed his head and took a knee while his team prayed.

Borden v. Sch. Dist. of East Brunswick, 523 F.3d 153 (3d Cir. 2008).

Off-duty employees may act as private citizens: In their free time, away from school and

school events, school employees are free to participate in religious activities that may even

involve some of the students that the employee knows from school. When does a school

employee go “off duty” and begin acting as a private citizen? No court decision in our

jurisdiction guides school officials in this matter. In a South Dakota case, however, an

elementary school teacher successfully sued her school district employer claiming that the

district violated her First Amendment rights by preventing her from serving as a religious youth

group leader at meetings happening on her own campus immediately following the school day.

Wigg v. Sioux Falls Sch. Dist. 49-5, 382 F.3d 807 (8th Cir. 2004). Without a Texas case on

point, school officials are wise to avoid snap decisions and seek legal counsel if faced with a

difficult judgment call.

24


Employee conversations with students: When asked directly about their personal beliefs,

school employees may decline to answer, e.g., “We’re not here to talk about me. We’re talking

about these scientific ideas.” Or the employee may answer only briefly, e.g., “I believe in both.

Many scientists do. But right now we are looking at the research.” Outside of class, while the

employee is still acting in his official capacity, conversations about religion and faith should be

limited, respectful, age-appropriate, and not devotional or proselytizing. If an employee seems

to lack an understanding of where to draw the line in interacting with students, an employee

acting in his official capacity may be directed to refrain from discussing religious beliefs with

students. C.F. ex rel. Farnan v. Capistrano Unified Sch. Dist., 654 F.3d 975 (9th Cir. 2011);

Marchi v. Bd. of Coop. Educ. Serv. of Albany, 173 F.3d 469 (2d Cir. 1999); Peloza v. Capistrano

Unified Sch. Dist., 37 F.3d 517 (9th Cir. 1994) (per curiam).

Example 2: Mr. Mutsuddi teaches high school math. He is also a Buddhist, and in his

classroom on the wall next to his desk, he displays a calendar with images of the Buddha. A

student notices the religious symbols and complains to the school principal.

School district employee speech: Employees do not enjoy the same level of First Amendment

protections for symbolic speech that students do. When a school district employee is acting in

his or her professional capacity, the employee acts as a representative of the school district, and

not as a private citizen. The employee does not have personal First Amendment protection for

speech undertaken in the course and scope of employment, and that speech may be regulated by

the district. Garcetti v. Ceballos, 547 U.S. 410 (2006). School employees may have free speech

protection for their personal speech undertaken as private citizens, however.

The Pickering balancing test for private speech: In Pickering v. Board of Education of

Township High School District 205, the U.S. Supreme Court devised a test to determine whether a

government employer could regulate an employee’s personal speech. If an employee’s speech is

not part of the employee’s job duties, but rather is spoken in a personal capacity related to a matter

of public concern, a public employer must balance the employee’s right to free speech with the

employer’s interest in maintaining the efficiency of its operations. Only if the employer’s interest

outweighs the employee’s personal free speech rights may the employer regulate the employee’s

speech. Pickering v. Bd. of Educ. of Twp. High Sch. Dist. 205, 391 U.S. 563 (1968).

For example, after applying a Pickering-based test, the Ninth Circuit Court of Appeals held that a

California school district did not violate a calculus teacher’s First Amendment rights by requiring the

teacher to take down banners in his classroom that displayed phrases such as “In God We Trust,”

“God Bless America,” and “God Shed His Grace on Thee,” when they served no pedagogical

purpose. The court concluded that though religion is a matter of public concern, the employee’s

displays constituted speech made in the employee’s official capacity. The employee was acting

within district policy permitting employees to decorate their classrooms with appropriate displays,

and the displays constituted expression to students during class time. Because the displays

constituted employee speech, the teacher was not entitled to First Amendment protections, and the

district could restrict the speech. Johnson v. Poway Unified Sch. Dist., 658 F.3d 954 (9th Cir. 2011).

25


Similarly, the Fourth Circuit Court of Appeals applied the Pickering test to find that religious

materials a Spanish teacher displayed on a classroom bulletin board were not private speech by an

individual on a matter of public concern but rather curricular speech over which the district could

exercise control. Lee v. York County Sch. Div., 484 F.3d 687 (4th Cir. 2007).

Example 3: Christmas is fast approaching. Mrs. Johnson arrives to teach middle school

English wearing a shirt that reads “Jesus is the reason for the season.” A fellow teacher

complains to the principal.

Neutral and generally applicable dress code restrictions permitted: Rules that burden religion

must be neutral and generally applicable, so if an exception to a uniform policy has been made for

a secular purpose, a religious exemption is required. E.g., Fraternal Order of Police Newark

Lodge No. 12 v. City of Newark, 170 F.3d 359 (3rd Cir. 1999) (holding unconstitutional a police

department requirement that Sunni Muslims shave their beards in violation of their religious

beliefs in accordance with department policy after the department had made exceptions to the rule

for medical reasons).

Targeted dress code restriction may be permitted if dress causes an undue hardship: A

restriction specifically targeting religious dress may be adopted if a district can show the dress would

cause an undue hardship on the district. For example, a Muslim teacher’s Title VII claim against a

school district failed because it would have imposed an undue hardship on the school board to

accommodate the teacher by allowing her to wear religious garb that covered all but her face and

hands. Pennsylvania had a garb statute that prohibited teachers from wearing anything indicative of

religious affiliation. The school district successfully argued that the statute was narrowly tailored to

the compelling state interest of maintaining the appearance of religious neutrality in schools, and it

would have been an undue hardship for the school board to violate it. United States v. Bd. of Educ.

for the Sch. Dist. of Phil., 911 F.2d 882 (3rd Cir. 1990) (citing Cooper v. Eugene Sch. Dist. No. 4J,

723 P.2d 298 (Or. 1986), appeal dismissed, 480 U.S. 942 (1987)).

Non-obtrusive items, however, like a cross necklace, are unlikely to be deemed to cause the district

an undue hardship; therefore, a policy restricting such symbols will likely be held unconstitutional.

Nichol v. Arin Intermediate Unit 28, 268 F.Supp.2d 536 (W.D. Penn. 2003) (granting instructional

assistant preliminary injunction to continue openly wearing a cross on her necklace).

Dress that promotes religion prohibited: An employee cannot wear clothing that promotes a

particular religion. In one case, a teacher brought a First Amendment claim under 42 U.S.C. §

1983 after she was asked by school officials to change or cover up a t-shirt that said “Jesus 2000.”

The court held that being told to change was not an adverse employment action for purposes of

Section 1983 and that the request did not violate her free exercise or free speech rights, because

allowing her to wear the shirt could have been construed as governmental endorsement of religion.

Downing v. West Haven Bd. of Educ., 162 F. Supp. 2d 19 (D. Conn. 2001).

26


3. May school employees share religious messages with each other or with parents?

Employees may express personal religious views during their free time at work, while they are

with other employees and away from students. Communications with parents undertaken in the

course of employment are subject to the Establishment Clause.

Example 1: After a recent local tragedy in which two students lost their lives in a car accident,

school employees agree to meet before school to pray for the families and the students affected

by this loss.

Private speech by employees at work: While off duty and not serving as representatives of the

school district to students or parents, employees may express personal views, including religious

views, with each other in the workplace. Freedom Forum First Amendment Center, Finding

Common Ground–2008 Revision, available at www.firstamendmentcenter.org/madison/wp-

content/uploads/2011/03/FCGcomplete.pdf. These private communications are subject to the

Pickering balancing test, which means that the speech is given First Amendment protection, but

only so far as it does not interfere with the school district’s management needs. Pickering v. Bd.

of Educ. of Twp. High Sch. Dist. 205, 391 U.S. 563 (1968). For example, speech that is

unwelcome, coercive, or harassing may be curtailed.

Example 2: Ms. Evangeline is a high school counselor. She includes a Bible verse as a tagline

at the end of every email that she sends, including the ones she sends from her district-provided

email account.

School districts may exercise control over emails: A school district may adopt a policy that

governs email correspondence sent by employees and students. Fla. Family Ass’n, Inc. v. Sch.

Bd. of Hillsborough County, 494 F. Supp. 2d 1311 (M.D. Fla. 2007). At least one federal court

of appeals has held that a school district’s email facility was a nonpublic forum and therefore not

available for a private citizen to use in order to communicate with the district or other members

of the community. Page v. Lexington County Sch. Dist. One, 531 F.3d 275 (4th Cir. 2008).

Additionally, the Ninth Circuit Court of Appeals has stated that, when a school district employee

is performing in his or her capacity as a district employee, he or she speaks not as an individual,

but as a public employee, and the school district is free to take legitimate and appropriate steps to

ensure that its message is neither garbled nor distorted. Johnson v. Poway Unified Sch. Dist.,

658 F.3d 954 (9th Cir. 2011). Consequently, the district may censor any religious messages that

employees include in emails sent through their district email accounts and, in fact, may be

required to do so in order to avoid violating the Establishment Clause.

This document is provided for educational purposes only and contains information to facilitate a general understanding of the law. It is neither an

exhaustive treatment of the law on this subject nor is it intended to substitute for the advice of an attorney. It is important for the recipient to consult

with the district's own attorney in order to apply these legal principles to specific fact situations.

© 2014. Texas Association of School Boards, Inc. All rights reserved. Published February 2014

This document is copyrighted by TASB but may be reproduced in order to share the information within your own school district. Further use or

copying is prohibited without the consent of TASB Legal Services. Requests to duplicate or distribute this document should be made in writing to

Director, Legal Services, Texas Association of School Boards, P.O. Box 400, Austin, Texas 78767-0400 or by e-mailing [email protected].

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Religion in the Public Schools 2014 - TASB