Religion in the Schools, Public School Law, Dr. W.A. Kritsonis

8/14/2019 Religion in the Schools, Public School Law, Dr. W.A. Kritsonis

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RELIGION IN THE SCHOOLS RELIGION IN THE SCHOOLS

William Allan Kritsonis,William Allan Kritsonis,PhDPhD



LEGAL FRAMEWORKLEGAL FRAMEWORK

The Fourteenth Amendment of the The Fourteenth Amendment of the

Constitution contains:Constitution contains: The Establishment Clause- “Congress shall make The Establishment Clause- “Congress shall make

no laws respecting an establishment of religion”no laws respecting an establishment of religion” The Free Exercise Clause- “or prohibiting the free The Free Exercise Clause- “or prohibiting the free

exercise thereof”exercise thereof”

The word “an” appears and the US Supreme The word “an” appears and the US Supreme

Court has construed this to mean that theCourt has construed this to mean that the

government can not set up a state church or aidgovernment can not set up a state church or aidany particular religionany particular religion

Thus, the separation of church and state Thus, the separation of church and state



THE DEVELOPMENT OF DECISIONTHE DEVELOPMENT OF DECISION

GUIDELINES IN THE 1970sGUIDELINES IN THE 1970s

Referred to as the Lemon GuidelinesReferred to as the Lemon Guidelines

(Lemon v. Kurtzman, 1971)(Lemon v. Kurtzman, 1971) Must pass all three to be constitutionalMust pass all three to be constitutional

The purpose of a challenged law or practice must be The purpose of a challenged law or practice must besecular, not sectariansecular, not sectarian

The primary effect of the law or practice must be one The primary effect of the law or practice must be one

that neither advances nor inhibits religion and alsothat neither advances nor inhibits religion and also

does not impair the practice of one’s religious beliefsdoes not impair the practice of one’s religious beliefs

The law or practice must not involve excessive The law or practice must not involve excessiveentanglement between state and church (thisentanglement between state and church (this

guideline is most often related to state efforts to aidguideline is most often related to state efforts to aid

religiously affiliated private schools)religiously affiliated private schools)



TEXAS CONSTITUTIONTEXAS CONSTITUTION

Provisions of the Texas Constitution reflect theProvisions of the Texas Constitution reflect thedesire to separate church and statedesire to separate church and state

Authors of the 1845 state constitution included theAuthors of the 1845 state constitution included the

compelled purpose provision in Article I-6- “No man shallcompelled purpose provision in Article I-6- “No man shallbe compelled to attend, erect, or support any place of be compelled to attend, erect, or support any place of worship, or maintain any ministry against his consent.”worship, or maintain any ministry against his consent.”

Section 6 also states, “No preference shall ever be givenSection 6 also states, “No preference shall ever be givenby law to any religious society or mode of worship.”by law to any religious society or mode of worship.”

Article I-7 states “No money shall be appropriated, orArticle I-7 states “No money shall be appropriated, ordrawn from the Treasury for the benefit of any sect, ordrawn from the Treasury for the benefit of any sect, orreligious society, theological or religious seminary; norreligious society, theological or religious seminary; norshall property belonging to the State be appropriated forshall property belonging to the State be appropriated forany such purposes.”any such purposes.”



FREE EXERCISE OF RELIGIONFREE EXERCISE OF RELIGION

The second component assures that people The second component assures that peopleare free to exercise their religious beliefsare free to exercise their religious beliefswithout government restraint or persecutionwithout government restraint or persecution

Article I-6 of the Texas constitution states, “AllArticle I-6 of the Texas constitution states, “Allmen have a natural and indefeasible right tomen have a natural and indefeasible right toworship Almighty God according to theworship Almighty God according to thedictates of their own consciences…dictates of their own consciences…

There are limits on what courts will allow. If a There are limits on what courts will allow. If a

religious belief causes someone to take anreligious belief causes someone to take anaction that is against the law, they can beaction that is against the law, they can beprosecutedprosecuted



CASE LAWCASE LAW

Reynolds v. United States, 1878-Reynolds v. United States, 1878-Mormons have the right to believe inMormons have the right to believe inpolygamy, but Congress has the rightpolygamy, but Congress has the right

to prohibit its practiceto prohibit its practice Congress has no legislative powerCongress has no legislative power

over opinion, but has free reach overover opinion, but has free reach over

actions that are in violation of socialactions that are in violation of socialduties or good order (ex: a religionduties or good order (ex: a religionthat believes in human sacrifices)that believes in human sacrifices)



CONSTITUTIONAL DEFINITIONCONSTITUTIONAL DEFINITION

OF RELIGIONOF RELIGION Courts generallyCourts generally

define religion asdefine religion asdeity-based, anddeity-based, andhaving generalhaving general

recognition as a bonarecognition as a bonafide religionfide religion For purposes of theFor purposes of the

Free Exercise Clause itFree Exercise Clause itcan extend to a belief can extend to a belief

system that issystem that isphilosophically ratherphilosophically ratherthan theologicallythan theologicallybasedbased

Belief systems such asBelief systems such asWicca are granted theWicca are granted thesame protection undersame protection underthe Free Exercisethe Free ExerciseClause as more mainClause as more mainstream religionsstream religions

A person can believeA person can believewhatever they wish, butwhatever they wish, butcannot practice beliefscannot practice beliefs

in such a way that theyin such a way that theydisrupt the learningdisrupt the learningenvironment orenvironment orinterfere with the rightsinterfere with the rightsof othersof others



The Public School’s DilemmaThe Public School’s Dilemma

Concern 1Concern 1: If they allow students and teachers to: If they allow students and teachers toexpress their religious views on campus, the schoolexpress their religious views on campus, the schoolwould be promoting religion and violating thewould be promoting religion and violating theseparation of church and stateseparation of church and state

Concern 2Concern 2: If they deny them this opportunity,: If they deny them this opportunity,

students and teachers will argue that their freestudents and teachers will argue that their freeexercise rights are being violatedexercise rights are being violated

Concern 3Concern 3: If school officials ask about the: If school officials ask about thecredibility of a person’s religion before they grantcredibility of a person’s religion before they grantan exemption based on the free exercise clause oran exemption based on the free exercise clause or

state law will arguably violate the establishmentstate law will arguably violate the establishmentclause because government is deciding whichclause because government is deciding whichreligion is worthy of belief religion is worthy of belief

SPECIAL NOTESPECIAL NOTE: Federal Law takes precedence over: Federal Law takes precedence overstate lawstate law



CONTEMPORARYCONTEMPORARY

ISSUESISSUES The pledge of The pledge of

allegianceallegiance

School PrayerSchool Prayer

The teaching of The teaching of creation sciencecreation science

Promotion of secularPromotion of secular

humanism and paganhumanism and pagan

religionreligion

Religion in classrooms,Religion in classrooms,

choir programs, andchoir programs, and

holiday observancesholiday observances

Clergy in schoolsClergy in schools

Distribution of religiousDistribution of religious

literature in schoolsliterature in schools

Wearing religious symbolsWearing religious symbols

Student religious groups andStudent religious groups and

the Equal Access Actthe Equal Access Act

Giving religious exemptions toGiving religious exemptions to

parents and studentsparents and students

State assistance to privateState assistance to private

religious schoolsreligious schools



The Pledge of AllegianceThe Pledge of Allegiance

Texas Education Code 25.082(b) requires students Texas Education Code 25.082(b) requires studentsto recite the pledge to the US and Texas flags in allto recite the pledge to the US and Texas flags in allpublic schools each daypublic schools each day

Subsection (c) allows a student to be excused bySubsection (c) allows a student to be excused by

written request from a parent or guardianwritten request from a parent or guardian Subsection (d) requires a daily observance of oneSubsection (d) requires a daily observance of one

minute of silence following the pledge duringminute of silence following the pledge duringwhich students may reflect, pray, meditate, orwhich students may reflect, pray, meditate, orengage in any other silent activity that does notengage in any other silent activity that does not

distract other studentsdistract other students Teachers and school personnel are charged with Teachers and school personnel are charged with

the responsibility of making sure students arethe responsibility of making sure students aresilent and not distracting otherssilent and not distracting others



The Pledge of Allegiance-The Pledge of Allegiance-

ContinuedContinued In 1954 Congress added “under God” afterIn 1954 Congress added “under God” after

the words “one nation” to the pledgethe words “one nation” to the pledge TEC I.004 states that the motto “In God TEC I.004 states that the motto “In God

We Trust” can be posted in eachWe Trust” can be posted in eachclassroom, auditorium, and cafeteriaclassroom, auditorium, and cafeteria(enacted by the legislature in 2003)(enacted by the legislature in 2003)

Elk Grove Unified School District v.Elk Grove Unified School District v.

Newdow, 2004- Atheist father argued thatNewdow, 2004- Atheist father argued thatthe teacher reciting the “under God”the teacher reciting the “under God”portion of the pledge was a promotion of portion of the pledge was a promotion of religion.religion.



School Prayer School Prayer

School sponsored or employee led prayer School sponsored or employee led prayer Supreme Court decisions reflect that officiallySupreme Court decisions reflect that officially

prescribed school prayers with or withoutprescribed school prayers with or withoutstudent exemptions are illegal in public schoolsstudent exemptions are illegal in public schools

(ex: denominationally neutral prayer read on(ex: denominationally neutral prayer read onannouncements)announcements)

School employees may not lead, encourage,School employees may not lead, encourage,promote, or participate in prayers with or amongpromote, or participate in prayers with or amongstudents at school, during extracurricularstudents at school, during extracurricular

activities, or athletic eventsactivities, or athletic events



School Prayer- ContinuedSchool Prayer- Continued

Silent MeditationSilent Meditation- Silent meditation is- Silent meditation is

allowed in public schoolsallowed in public schools

Invocations, Benedictions, and ReligiousInvocations, Benedictions, and Religious

Speeches at GraduationSpeeches at Graduation- These can occur if - These can occur if it is the voted upon decision of the studentit is the voted upon decision of the student

body majority and they are student led,body majority and they are student led,

nonsectarian and non proselytizing. Schoolnonsectarian and non proselytizing. School

leaders can have no part in selecting theleaders can have no part in selecting theprayer or prayer leaders.prayer or prayer leaders.




Baccalaureate CeremoniesBaccalaureate Ceremonies- Under the Lee- Under the Leev. Weisman decision, baccalaureatev. Weisman decision, baccalaureateceremonies that are pervasively religious,ceremonies that are pervasively religious,school sponsored, and held on campusschool sponsored, and held on campusviolate the establishment clause and areviolate the establishment clause and areunconstitutionalunconstitutional To avoid this issue religious baccalaureate To avoid this issue religious baccalaureate

ceremonies should be held off campus andceremonies should be held off campus and

without school sponsorshipwithout school sponsorship Service can be held on campus if the school isService can be held on campus if the school is

not the sponsor and the venue is rented to thenot the sponsor and the venue is rented to thesponsoring groupsponsoring group




Student –Initiated Prayer at School,Student –Initiated Prayer at School,

Extracurricular Activities, and Athletic EventsExtracurricular Activities, and Athletic Events--

The Supreme Court has ruled that it is The Supreme Court has ruled that it is

unconstitutional to have a student led prayerunconstitutional to have a student led prayer

over the auditory system because improperlyover the auditory system because improperly

coerces those present to participate in an actcoerces those present to participate in an act

of religious worshipof religious worship

Students may choose to pray togetherStudents may choose to pray togetherprivately before events, but school personnelprivately before events, but school personnel

must not have any involvement in the prayermust not have any involvement in the prayer



Teaching Creation ScienceTeaching Creation Science

Epperson v. Arkansas (1968)- Supreme CourtEpperson v. Arkansas (1968)- Supreme Courtruled the state law prohibiting the teaching of ruled the state law prohibiting the teaching of evolution unconstitutional because it was seen aevolution unconstitutional because it was seen aan attempt to blot out a theory that conflictedan attempt to blot out a theory that conflicted

with the biblical accountwith the biblical account Edwards v. Aguillard (1987)- Supreme Court ruledEdwards v. Aguillard (1987)- Supreme Court ruled

that a statute passed by the Louisiana Legislaturethat a statute passed by the Louisiana Legislaturethat required evolution and creation-science tothat required evolution and creation-science tobe taught equally was unconstitutional because itbe taught equally was unconstitutional because it

was limited to only two views and was seen as anwas limited to only two views and was seen as anattempt to structure science curriculum toattempt to structure science curriculum toconform to a particular religious viewpointconform to a particular religious viewpoint



Secular Humanism andSecular Humanism and

Pagan ReligionPagan Religion Some accuse the public schools of Some accuse the public schools of

fostering and anti-God or the religion of fostering and anti-God or the religion of

secular humanismsecular humanism

The concept of secular humanism as a The concept of secular humanism as areligion under the establishment clausereligion under the establishment clause

has not been judicially acceptedhas not been judicially accepted

Many noteworthy court cases dealing withMany noteworthy court cases dealing with

curriculum, school books, and materialscurriculum, school books, and materials

(Wright v. Houston ISD, Smith v. Board of (Wright v. Houston ISD, Smith v. Board of

School Commissioners of Mobile County)School Commissioners of Mobile County)



Religion in ClassroomsReligion in Classrooms

Teaching of religion requires a curriculum Teaching of religion requires a curriculumthat does not favor any particularthat does not favor any particularreligion.religion.

In the No Child Left Behind Act, thatIn the No Child Left Behind Act, thatpertain to religion in public schools:pertain to religion in public schools:“Students may express their beliefs about“Students may express their beliefs aboutreligion in the form of homework,religion in the form of homework,artwork, and other written and oralartwork, and other written and oralassignments free of discrimination basedassignments free of discrimination basedon the religious content of theiron the religious content of theirsubmissions.submissions.



Choir ProgramsChoir Programs

Religious music in a school’s performing artsReligious music in a school’s performing artscurriculum first arose in 1995 when a Jewish choircurriculum first arose in 1995 when a Jewish choirstudent objected to the singing of “May the Lord Blessstudent objected to the singing of “May the Lord Bless

You and Keep You” and “Friends” at high school You and Keep You” and “Friends” at high schoolgraduation (Bauch-man v. West High School).graduation (Bauch-man v. West High School).

The student lost the case because, she would have to The student lost the case because, she would have toshow that these decisions were intended to advanceshow that these decisions were intended to advancereligion contrary to the establishment clause. This shereligion contrary to the establishment clause. This shedid not do.did not do.

Doe vs. Aldine I.S.D the court found the school song toDoe vs. Aldine I.S.D the court found the school song tobe essentially a Christian prayer, noted its pervasivebe essentially a Christian prayer, noted its pervasive

presence at school events and activities, and observedpresence at school events and activities, and observedthat school officials frequently led its recitation orthat school officials frequently led its recitation orsinging. Texas federal court prohibited the song.singing. Texas federal court prohibited the song.



Holiday ObservancesHoliday Observances

(Lynch v. Donnelly, 1984), the high court(Lynch v. Donnelly, 1984), the high court

allowed a city’s inclusion of a Nativity scene asallowed a city’s inclusion of a Nativity scene as

part of an annual city Christmas display.part of an annual city Christmas display.

Florey v. Sioux Falls School District (1980)Florey v. Sioux Falls School District (1980)involved a school policy allowing teachers toinvolved a school policy allowing teachers to

observe holidays that have both a religiousobserve holidays that have both a religious

and secular basis. Among them wereand secular basis. Among them were

Christmas, Easter, Passover, Hanukkah, St.Christmas, Easter, Passover, Hanukkah, St.Valentine’s Day, St. Patrick’s Day, andValentine’s Day, St. Patrick’s Day, and

Halloween.Halloween.



Clergy in the SchoolsClergy in the Schools

Depending on school’s visitors policy, clergyDepending on school’s visitors policy, clergycan meet with students on school grounds.can meet with students on school grounds.

Schools have the responsibility to preventSchools have the responsibility to preventinvited clergy from trying to convert studentsinvited clergy from trying to convert students

on school grounds, unless the school give theon school grounds, unless the school give theappearance of endorsing religion.appearance of endorsing religion. In 1996 there was a program called “Clergy inIn 1996 there was a program called “Clergy in

the Schools.”the Schools.” Based on extensive review, the judge ruledBased on extensive review, the judge ruled

that the Clergy in the Schools program asthat the Clergy in the Schools program asunconstitutional advancement of religionunconstitutional advancement of religion((Oxford v.Beaumont I.S.D.Oxford v.Beaumont I.S.D. 2002).2002).



Distribution of Religious LiteratureDistribution of Religious Literature

School personnel or outsideSchool personnel or outside

organizations cannot hand out Biblesorganizations cannot hand out Bibles

or other religious material to publicor other religious material to public

school students on school grounds.school students on school grounds. It is permissible to provide a place in aIt is permissible to provide a place in a

public school where adherents of anypublic school where adherents of any

faith may deposit religious literaturefaith may deposit religious literaturefor voluntary student pickup.for voluntary student pickup.



Wearing Religious SymbolsWearing Religious Symbols

Schools want to avoid having its staff give theSchools want to avoid having its staff give theappearance of advancing religion and, in the caseappearance of advancing religion and, in the caseof students, to avoid allowing religious symbolismof students, to avoid allowing religious symbolismto be a style of dress for gang activity.to be a style of dress for gang activity.

Title VII of the 1964 Civil Right Act prevents Title VII of the 1964 Civil Right Act preventsdiscrimination in employment on the basis of discrimination in employment on the basis of race, color, religion, sex, or national origin.race, color, religion, sex, or national origin.School districts must accommodate reasonably aSchool districts must accommodate reasonably ateacher’s wearing of religious symbols and attire.teacher’s wearing of religious symbols and attire.

For students, dress codes cannot be so restrictiveFor students, dress codes cannot be so restrictivethat they deny students their First Amendmentthat they deny students their First Amendmentrights to engage in religiously motivated speechrights to engage in religiously motivated speechor free exercise of religion.or free exercise of religion.



Student Religious Groups and theStudent Religious Groups and the

Equal Access ActEqual Access Act In 1981 inIn 1981 in Widmar v. Vincent,Widmar v. Vincent, the U.S. Supremethe U.S. Supreme

Court upheld the right of student groups to holdCourt upheld the right of student groups to hold

religious services in buildings on a public universityreligious services in buildings on a public university

campus.campus.

Congress followed up on theCongress followed up on the Widmar Widmar decision indecision in

1984 by enacting the Equal Access Act, which1984 by enacting the Equal Access Act, whichgives non-curriculum-related student groupsgives non-curriculum-related student groups

access to public secondary schools during nonaccess to public secondary schools during non

instructional time to engage in religious, political,instructional time to engage in religious, political,

philosophical, or other types of expression.philosophical, or other types of expression. These groups must be student-initiated, voluntary, These groups must be student-initiated, voluntary,

and student-led.and student-led.



Student Religious Groups andStudent Religious Groups and

the Equal Access Act- continuedthe Equal Access Act- continued The case “ The case “Westside Community Schools v. Mergens” Westside Community Schools v. Mergens”

Involved a Christian club that wanted to use the highInvolved a Christian club that wanted to use the highschool campus before and after school for religiousschool campus before and after school for religiousdiscussion and worship.discussion and worship.

The Equal Access Act does not limit the First Amendment The Equal Access Act does not limit the First Amendment

rights of individual students to come together voluntarilyrights of individual students to come together voluntarilyduring the school day for religious expression of schoolduring the school day for religious expression of schoolgrounds, including prayer and the distribution of religiousgrounds, including prayer and the distribution of religiousliterature, so long as it is done in a nondisruptive manner.literature, so long as it is done in a nondisruptive manner.



Religious ExemptionsReligious Exemptions

West Virginia State Board of Education v.West Virginia State Board of Education v.Barnette,Barnette, a 1943 U.S. Supreme Court ruling, ruleda 1943 U.S. Supreme Court ruling, ruledthat the school board could not compel Jehovah’sthat the school board could not compel Jehovah’sWitnesses to solute the flag. The students andWitnesses to solute the flag. The students and

their parents objected that in their religiontheir parents objected that in their religionsaluting the flag was a violation of a tenetsaluting the flag was a violation of a tenetagainst worshiping a graven image (Exodus 20:4-against worshiping a graven image (Exodus 20:4-5).5).

Wisconsin v. Yoder Wisconsin v. Yoder (1972) involved the religious(1972) involved the religious

objections of the Old Order Amish to compulsoryobjections of the Old Order Amish to compulsoryschooling beyond the 8schooling beyond the 8thth grade. To date, no othergrade. To date, no otherreligion has been given as broad an exemption asreligion has been given as broad an exemption asthe Old Order Amish.the Old Order Amish.



Religious Exemptions -Religious Exemptions -

ContinuedContinued In 1995 the First Circuit rejected parents’In 1995 the First Circuit rejected parents’

assertion that requiring their children to attendassertion that requiring their children to attendan AIDS awareness program intruded on thean AIDS awareness program intruded on thefree exercise of religion and the right of free exercise of religion and the right of parents to control their children's upbringingparents to control their children's upbringing(Brown v. Hot, Sexy and Safer Productions).(Brown v. Hot, Sexy and Safer Productions).

TEC 21.406 provides that a school district may TEC 21.406 provides that a school district maynot deny a teacher a salary bonus because anot deny a teacher a salary bonus because ateacher is absent from school for observance of teacher is absent from school for observance of a religious holy day. The teacher still can bea religious holy day. The teacher still can berequired to supply a substitute or give uprequired to supply a substitute or give upregular wages for observing a religious holyregular wages for observing a religious holydayday



Assistance to SectarianAssistance to Sectarian

Private SchoolsPrivate Schools About 11% of the total U.S. school enrollmentAbout 11% of the total U.S. school enrollment

attends private schools.attends private schools. Most private schools are religiously affiliatedMost private schools are religiously affiliated

(over 30% of the total are now Roman Catholic).(over 30% of the total are now Roman Catholic).

Efforts to aid the private sector run into theEfforts to aid the private sector run into theestablishment clause.establishment clause. U.S. supreme Court ruled in 1947 stated that theU.S. supreme Court ruled in 1947 stated that the

government cannot deny public transportation forgovernment cannot deny public transportation forpupils attending religious schools.pupils attending religious schools.

Board of Education v. AllenBoard of Education v. Allen in 1968 states that ain 1968 states that astate could loan secular textbooks to religiousstate could loan secular textbooks to religiousschools.schools.



Assistance to SectarianAssistance to Sectarian

Private Schools - continuedPrivate Schools - continued In 1971, the Court struck down reimbursement to nonpublicIn 1971, the Court struck down reimbursement to nonpublic

schools for teachers’ salaries, texts, and instructionalschools for teachers’ salaries, texts, and instructionalmaterials (Lemon v. Kurtzman).materials (Lemon v. Kurtzman).

In 1973, the Court ruled against reimbursement forIn 1973, the Court ruled against reimbursement formaintenance and repair grants to nonpublic schoolsmaintenance and repair grants to nonpublic schools(Committee for Public Education v. Nyquist).(Committee for Public Education v. Nyquist).

In 1993 the Supreme Court ruled that it is not a violation of In 1993 the Supreme Court ruled that it is not a violation of the establishment clause for a public school district to paythe establishment clause for a public school district to paythe cost of a sigh language interpreter for a deaf student whothe cost of a sigh language interpreter for a deaf student whoattends a private religious school.attends a private religious school.

Article I, 7 of the Texas Constitution states that “No moneyArticle I, 7 of the Texas Constitution states that “No moneyshall be appropriated, or drawn from the Treasury for theshall be appropriated, or drawn from the Treasury for the

benefit of any sect, or religious society.benefit of any sect, or religious society.

Documents

Religion in the Schools, Public School Law, Dr. W.A. Kritsonis