2010-09-10 The Serpentine Wall

The Serpentine Wall

Frederick S. Lane

AZ School Boards Association Law Conference10 September 2010

Religion and Free Speech In and Around the Public Schools

www.FrederickLane.com

Seminar Overview• The 1st Amendment

• The 14th

Amendment

• The Establishment Clause

• The Free Exercise Clause

• No Abridgement of Speech or Press


Introduction• Attorney, Educational

Consultant & Lecturer




• Author of 5 Books





• Chair, Burlington (VT) School Board






• 1st Amendment Expert






• 1st Amendment Expert

• Student Safety & Privacy Advocate


The 1st Amendment

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.


The 14th AmendmentSection 1. All persons born or naturalized in the

United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.


The Establishment Clause

• 1962 – Engel v. Vitale – School-sponsored prayer is unconstitutional

• 1963 – Abington School District v. Schempp – Bible reading in public schools unconstitutional

• 1968 – Epperson v. Arkansas – Legislature cannot bar teaching of evolution

• 1992 – Lee v. Weisman – School-sponsored graduation prayer is unconstitutional

• 1999 – Cole v. Cleveland Bd. Of Education – School Board cannot open meeting with prayer

• 2000 – Santa Fe Independent Sch. Dist. v. Doe – Student-led prayer at sporting event was unconstitutional


The Free Exercise Clause

• Student expression of religious views in public areas of school

• Student expression of religious views in class or in assignments

• Student expression of religious views in hair style or clothing

• Accommodation of religious holidays

• Distribution of religious literature on school property

• Formation of religious clubs and access to meeting space


Don’t Tinker with Free Speech

• 1969 – Tinker v. Des Moines – School could not bar the wearing of anti-Vietnam black armbands

• 1973 – Papish v. Bd. Of Curators of Univ. of Missouri –School improperly expelled journalism student for writing offensive leaflet

• 1986 – Bethel School Dist. No. 403 v. Fraser – School was justified in punishing student who delivered lewd campaign speech

• 1988 – Hazelwood School Dist. v. Kuhlmeier – School had right to edit and censor school newspaper where articles might invade student privacy.


Heading for the High Court


Frederick v. Morse (2007)

• Jason Frederick creates sign to display at passing of Olympic torch in 2002 in Juneau, Alaska

• Sign is on public sidewalk and not on high school property

• Frederick is suspended for 10 days by principal Deborah Morse

• 9th Circuit sides with Frederick, but Morse appeals• Supreme Court overrules lower court …• Morse had right to exert authority over school-

sanctioned event, even off school property• Morse reasonably believed sign promoted drug use, in

violation of school policy.


General Principles

• Students do not shed constitutional rights at the schoolhouse door.

• However, those rights are not co-extensive with adults.

• School districts may impose reasonable restrictions to prevent disruption of education

• Religion(s) may not be singled out for deferential treatment or unfairly targeted

• The free speech you save may be your own ….


Materials• You Can Download a PDF of the Slides at:

http://bit.ly/aVdCyL


The Serpentine Wall

Frederick S. Lane

AZ School Boards Association Law Conference10 September 2010

Religion and Free Speech In and Around the Public Schools
