Chapter 1: Questions Students and Parents May Have

Chapter 1: Questions Students and Parents May Have

I. Voluntary Student Prayer at School

Is it constitutional for students to engage in voluntary prayer in public school?

Short answer: Yes, provided that they are not and do not appear to be doing so with official school endorsement or coercing other students to listen or participate.

Example: A group of students may say a benediction before or grace after a meal in the school cafeteria, so long as it is done in a nondisruptive manner.

Explanation: Students have a right-subject to reasonable and nondiscriminatory time, place, and manner regulations-to pray while on school grounds. For instance, students may quietly say a prayer in the classroom before taking a test or say grace over a meal in the school cafeteria.1 However, if teachers or other school officials were to promote or give the appearance of promoting such religious expression by students (by participating in them, for instance), that would amount to unconstitutional state endorsement of religion, a violation of the Establishment Clause of the First Amendment.

II. Student-Initiated Vocal Prayer in the Classroom

May students initiate vocal prayer as a classroom activity?

Short answer: Federal courts have reached different conclusions on this issue. Most courts have concluded that such conduct is not permissible. However, one circuit court has held that it may be permissible.2 Therefore, the answer depends on the jurisdiction in which the incident occurred. (See Appendix.)

Example: A student in New York may not call on other students in the classroom to join in reciting the Lord's Prayer. A student in Alabama may be able to do so.

Explanation: While the Supreme Court has held that school-sponsored prayer is unconstitutional, it has yet to decide whether this prohibition extends to student-initiated religious activity in the classroom. Several federal courts have addressed this issue, which brings into focus the conflict between religious expression and the right not to be subject to religious harassment in school. In resolving this tension between the Establishment and Free Exercise Clauses, however, although most courts have found that the right not to be harassed outweighs the right to freedom of religious expression in these circumstances, the courts have not been uniform in reaching such a conclusion.

Like a majority of federal courts, the Second Circuit has ruled that a public school may prohibit student-initiated prayer in the classroom.3 The court indicated that this type of activity violates the Establishment Clause because the voluntariness of student participation is an "illusion" and because "any effective routine requires the active participation of the teachers."4 The court further held that the school could prevent students from praying aloud in the classroom without impeding their right to free exercise.

Conversely, the Eleventh Circuit recently decided that a public school may permit student-initiated religious speech so long as it is subject to the same time, place, and manner restrictions as all other student speech in school, because to prohibit such speech would violate the students' free exercise rights.5 The Eleventh Circuit concluded that allowing such speech in the classroom does not violate the First Amendment's prohibition against government endorsement of religion so long as the school policy governing speech in the classroom is neutral as to the content of permissible speech.6

Thus, while most federal appellate courts that have considered the issue have barred school prayer, there is not unanimity. Until the Supreme Court offers guidance on the permissibility of voluntary student-initiated prayer in the classroom, it is safe to say that problems are more likely to be avoided if such prayer does not compel a captive audience of other students to listen or participate.

III. Proselytization by Students

May students discuss their faith with other students in school?

Short answer: Yes, so long as it is done in a nonharassing manner and they respect the rights of other students.

Example: A public school student may not continue to confront fellow students in an attempt to convert them, once she is aware of their disinterest.

Explanation: While the First Amendment grants public school students the right to express their religious beliefs, it does not confer the right to proselytize their fellow students in an harassing manner. To the contrary, parents who enroll their children in public schools have a right to expect that their children will not be bombarded with religious doctrine.7 Students may invite other students to attend a religious service and may express their own religious beliefs to fellow students; however, they may not harass others with whom they disagree. In other words, the right to engage in voluntary prayer or religious discussion free from discrimination does not include the right to have a captive audience, or compel other students to participate.8 Thus students may not be subjected to harassment or coercion by others whose religious convictions are so powerful that they feel impelled to thrust these views on those to whom this treatment is unwelcome.9

IV. Homework Assignments, Curriculum Content, and Religion

May students give oral reports in which they express their religious beliefs in the classroom as a fulfillment of their homework assignments?

Short answer: Yes, generally, but teachers have the discretion to disallow such reports for legitimate pedagogical reasons.

Example: A student may give an oral book report on illicit drug use in America, and state that she believes drug use is wrong because, according to the religion to which she subscribes, drugs are forbidden.

Explanation: The Department of Education guidelines, referenced above in the introduction, state that "students may express their beliefs about religion in the form of homework, art-work, and other writing and oral assignments free of discrimination based on the religious content of their submissions." Thus, according to the guidelines, teachers do not have carte blanche to prohibit students from including religious content in their assignments.

Nevertheless, there may be circumstances where it would be inappropriate for students to present such assignments to the class, and teachers may prohibit them from doing so if they have reasonably determined that this is the case.10 The Supreme Court has determined that the First Amendment rights of students in the public schools are not coextensive with the rights of adults in other settings, and must be applied in light of the special characteristics of the school environment.11 In other words, a school need not permit student speech that is inconsistent with its basic educational mission, even though the government could not censor similar speech outside the school.12 As such, with regard to student expression of religious views in school assignments, school officials may restrict such activity if the restrictions are reasonably related to "legitimate pedagogical concerns."13 It should be noted that in limiting students' religious speech, as in limiting their constitutionally guaranteed rights of any kind, the limitations imposed by the school must be the least restrictive possible that will serve the school's legitimate purpose.14

Do students have the right to be exempted from homework assignments to which they object on religious grounds?

Short answer: No, unless students are compelled to engage in conduct that contravenes a fundamental tenet of their religion.

Example: A student may not be excused on religious grounds from an English class assignment to read Nathaniel Hawthorne's The Scarlet Letter because the plot features adultery. However, a student may be excused from directly participating in a seminar about contraceptives for a sexual education course in which students are actively engaged in viewing and examining model contraceptive devices.

Explanation: While it is true that public schools may be required to exempt students from compulsory attendance beyond the eighth grade if a request for exemption is based on religious reasons,15 there is no requirement that public school teachers exempt students from specific assignments that they find religiously objectionable. The Supreme Court has yet to rule on whether parents have a right to have their children excused from attending specific courses or using specific course materials that the parents find contrary to their religious beliefs. The lower federal courts have, however, provided some guidance on the issue.

Some federal courts have explicitly stated that the Free Exercise Clause does not require a school to excuse students from assignments pertaining to material that they object to on religious grounds.16 Courts have distinguished between mere exposure to religiously offensive viewpoints, which do not compel students to act according to those viewpoints, and assignments that compel action, concluding that only compulsion to act contrary to religious beliefs is unconstitutional.17 One court noted that while students may not be compelled "to affirm or deny a religious belief or to engage or refrain from engaging in a practice forbidden or required in the exercise of [their] religion," they may nevertheless be required to at least read and discuss material that they find objectionable.18

May parents compel a school to remove books from the curriculum that they or their children find religiously offensive?

Short answer: No. Schools need not remove such books unless they determine that a reasonable person in the position of the student would perceive a message that the school is promoting or discouraging his or her religion.

Example: Parents may not demand that the novel by Chaim Potok, The Chosen, be removed from the curriculum simply because they believe it casts aspersions on the Orthodox Jewish way of life.

Explanation: A school board may use its discretion in selecting books for its curriculum, and need not comply with the demands of parents who claim that their religious beliefs or those of their children are offended. As Justice Jackson noted, "if we are to eliminate everything that is objectionable to any of [the religious bodies existing in the United States] or inconsistent with any of their doctrines, we will leave public education in shreds."19 Furthermore, as one circuit court reasoned, it is the schools' purpose to instill values such as "independent thought [and] tolerance of diverse views...."20 However, in determining how to respond to a parent's objection, a school must consider whether a reasonable person in the position of a student would perceive a message that the school is promoting or discouraging his or her religion.21

It should be noted that courts have upheld school boards' discretion in selecting curricular texts in virtually every legal challenge, generally concluding that the texts in question are intended to foster discussion of religions rather than endorse them.22

V. Religious Holiday Observance

Do students have the right to be exempted from attending school-sponsored activities relating to holiday observances to which they object on religious grounds?

Short answer: Yes.

Example: An atheist student may be excused from attending a school assembly during which Christmas carols and Hanukkah songs will be sung.

Explanation: To avoid a violation of the Establishment and Free Exercise Clauses, student participation in holiday observances must be completely voluntary. Therefore, students from various religious backgrounds may be excused from certain activities related to particular holidays. However, school officials must understand that a policy of excusing students from a specific religious activity or discussion cannot be used as a rationale for school sponsorship of religious celebrations or worship for the remaining students.23 (See also ch. 2, IV and ch. 3, III.)

Do students have the right to be absent in order to observe a religious holiday without being penalized?

Short answer: Yes.

Example: A student may miss school on the Jewish High Holy Day of Yom Kippur in order to attend synagogue services, or on the Muslim holiday of Eid Al-Fitr, and have the opportunity to take any tests scheduled for that day on another day, without penalty.

Explanation: Students should not be adversely affected by their decision to remain away from school on religious holidays of their faith.24

To penalize them for truancy would violate the Free Exercise Clause, since it would be the equivalent of forcing them to violate their religious beliefs in order to avoid scholastic sanction.25 (See also ch. 2, IV and ch. 3, III.)

VI. Student Garb

Do students have the right to wear religious garb or display religious symbols on their persons?

Short answer: Yes, unless the school has instituted a dress code for nondiscriminatory purposes that has the incidental effect of prohibiting religious symbols or messages on clothing, and unless there is a compelling state interest (such as health and safety concerns) justifying such a prohibition.

Example: A student may not be prohibited from wearing a necklace with a cross on it. However, a student belonging to a violent right-wing group that has adopted a large black cross as its emblem may be prohibited from wearing a T-shirt displaying this emblem to school, if there is a demonstrable link between the wearing of the symbol and disruption in the school, and the school has therefore adopted a dress code prohibiting it.

Explanation: In general, a school may enforce dress code prohibitions. The Department of Education guidelines state that schools may prohibit certain types of student garb as long as the rules are religiously neutral and generally applicable. Realizing the difficulties of maintaining security and order, especially in light of gang-related violence, courts have tried not to micromanage such school policies. However, courts that have examined school dress codes that explicitly prohibit religious symbols and messages have held that schools may only impose such a burden on students' right to free speech and free exercise of religion if they can demonstrate that the restriction is absolutely necessary.26

VII. Distribution of Religious Literature by Students

Do students have the right to distribute religious literature in schools?

Short answer: Yes, but schools have the right to impose reasonable, content-neutral restrictions on such distribution.

Example: A student may distribute pamphlets published by a religious youth group of which he is a member alongside students distributing materials about extracurricular activities outside of the school cafeteria. This may hold true only if the school principal has been consulted and has made the reasonable determination that students will not think the school is endorsing the message in the pamphlets or feel obliged to read them.

Explanation: School officials may not enforce a complete prohibition on student distribution of religious materials, but they may impose reasonable, content-neutral restrictions as to the time, place, and manner of such distribution. While the Supreme Court has not squarely addressed the issue of what restrictions are reasonable in the context of religious material distribution by students, one circuit court has held that a public school may require approval of religious materials prior to its distribution in order to meet "legitimate pedagogical concerns" and may insist on the inclusion of a disclaimer indicating that the school does not endorse the content of the material.27

VIII. Student Religious Clubs

Do student religious clubs have the right to meet on school grounds?

Short answer: Yes, but only in high schools, and if any other extracurricular club has that right.

Example: If a high school allows a student group that performs community service for the homeless to meet during a weekly lunch period in a vacant classroom, it must also allow a Bible study group to meet at such a time and place.

Explanation: Under the Equal Access Act,28 a law Congress enacted in 1984, a public high school that permits at least one noncurriculum-related student group (i.e., not directly relating to a course offered by the school) to meet on school grounds during noninstructional time must permit all student organizations to meet on equal terms regardless of their religious or political views.

May students invite outside adults to participate in their religious club meetings at school?

Short answer: Yes, but only on an occasional basis, and in the absence of a school policy prohibiting any student group from inviting outside adults to participate.

Example: A high school Muslim students' club may invite a local imam to speak to the group on a certain occasion, but such a religious leader may neither initiate the meeting nor sermonize on a weekly basis.

Explanation: Under the Equal Access Act, "non-school persons may not direct, conduct, control or regularly attend activities of student groups." Moreover, a public school has the right to prohibit all outside individuals from participating in student club activities as long as the policy is nondiscriminatory.

IX. Prayer at Graduation Ceremonies

May high school students present a self-initiated invocation or benediction at graduation?

Short answer: Federal courts that have considered this issue have reached different conclusions. It therefore depends on what court's jurisdiction the school falls under.

Example: A student at a high school in Pennsylvania chosen to deliver a speech at graduation may not call on those attending to join her in prayer. A student in Texas may.

Explanation: The U.S. Supreme Court has yet to determine whether student-initiated and student-delivered invocations at graduation ceremonies violate the First Amendment's Establishment Clause. The Court has concluded that a clergyman's benediction at a public school graduation is unconstitutional.29 However, in the wake of this ruling, several school districts enacted policies that delegated to students the decision-making authority over the content of graduation addresses. It is not clear whether these policies effectively circumvent the Supreme Court's ruling regarding prayer at graduation ceremonies, since the prayer in question is not clergy-led.

In a number of lawsuits challenging the constitutionality of student-initiated and student-led graduation prayer, schools have argued that under these circumstances there is no government endorsement of religion but rather mere student as-sertion of their right to free exercise of religion and free speech. Such arguments have not yet reached the Supreme Court directly (although cases addressing similar issues, such as the permissibility of student-initiated prayer at school-sponsored athletic events, have reached the High Court; see discussion in ch. 1, XI, below), but a number of federal appellate courts have ruled on the issue of student-led graduation prayer. These courts have disagreed as to whether such activity violates the Establishment Clause. The Fifth Circuit Court of Appeals has explicitly permitted such a policy,30 while the Third Circuit has held such a policy to be unconstitutional.31 The Eleventh Circuit recently came to the same conclusion as the Fifth Circuit.32

Absent a Supreme Court decision, the interpretation of each appellate court controls in the states of its jurisdiction.

X. Prayer at Baccalaureate Programs

May students present invocations at baccalaureate ceremonies?

Short answer: Yes, so long as there is no endorsement, approval, or facilitation by school officials in such ceremonies.

Example: A student may invite other students to a ceremony at a local church the day after high school graduation during which a clergyman will bless the attendees but no school official will participate.

Explanation: In reaction to the debate about the constitutionality of student-led prayer at official graduation ceremonies, students in some public schools have chosen to mark the completion of their studies with a religiously oriented ceremony, known as a baccalaureate service, that is separate from and supplemental to the official, school-sponsored graduation ceremony. Such services typically include prayers and religious sermons and are organized primarily by students rather than by school officials.

There is case law giving support to the constitutionality of such services.33 However, while there have been clear pronouncements that school officials may not organize a baccalaureate service, the federal judiciary has issued no equally clear pronouncement as to exactly what factors must be present or absent for a student-organized service to pass constitutional muster. Analysis of the case law, however, indicates that the presence of any of the following factors would be likely to render such a service unconstitutional: (1) endorsement by school officials through official announcements, participation, or attendance; (2) use of school facilities as premises for the ceremony, particularly if such facilities are made available free of charge; and (3) performance by school groups, such as bands or choirs, whose participation is mandatory.

XI. Prayer at School Assemblies and Athletic Events

May students initiate prayers during school-sponsored assemblies or sporting events with the involvement of the school?

Short answer: No.

Example: A student may not make an announcement over the school's public address system at the outset of a school football game that all in attendance are invited to pray for the team's victory.

Explanation: Courts have generally held for some time that public school students may not conduct prayers at school assemblies, even if attendance at such events is voluntary.34 A school policy permitting students to initiate such activities, courts have held, is in violation of the Establishment Clause, even if the prayer is nonsectarian and nonproselytizing.35

With regard to school-sponsored athletic events, school officials may not invite or encourage students to engage in vocal prayer. Furthermore, as the Supreme Court recently decided in the landmark Santa Fe Independent School District v. Doe,36 group prayer at an athletic activity that is student-initiated and student-led is also not constitutional. The Court in that case stated that even if nonparticipating students are not harassed or coerced and there is no official school participation or supervision, the delivery of a religious message under such circumstances-i.e., on athletic fields that are part of school property, at school-sponsored events, perhaps even over the school's public address system, under the supervision of school faculty, and pursuant to a school policy that either explicitly or implicitly invites prayer by use of the word invocation to describe the type of permissible message (explicitly and implicitly encouraging public prayer)-cannot be properly characterized as private speech and is therefore not constitutionally protected. The Court in Santa Fe also noted that the fact that a school's policy permits prayer at graduation ceremonies only if the majority of students vote in favor of its inclusion does not transform an unconstitutional policy into a constitutional one because, the Court explained, a "student election does nothing to protect minority views but rather places the students who hold such views at the mercy of the majority."37

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