Endnotes

Endnotes

Chapter 1: Questions Students and Parents May Have ENDNOTES

1 The landmark case of Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969), set forth this principle most explicitly. In Tinker, the Supreme Court held that a student could wear a black armband to protest the Vietnam war because the First Amendment protects expression, whether it is in the form of prayer or discussion, in the same way as it does for other types of speech. The decision went on to state that a student is free to express himself "if he does so without . . . colliding with the rights of others." Id. at 512.

2 See Chandler v. Siegelman, 230 F.3d 1313 (11th Cir. 2000), cert. denied, 121 S.Ct. 2521 (2001). The court in Chandler held that student-initiated vocal religious speech that takes place on school property is subject to the same time, place, and manner restrictions as all other student speech. In this case, the Eleventh Circuit rejected a challenge to a school policy permitting students to engage in vocal prayer on school property in front of others, reasoning that students are not state actors, and their speech is therefore private speech (even when taking place in a public context) as long as the prayer is genuinely student-initiated and not the product of any school policy that actively or surreptitiously encourages it. The court held that where such speech is private, it does not violate the Establishment Clause.

3 The Second Circuit reasoned that "the authorities were entitled to weigh the likely desire of other parents not to have their children present at such prayers . . . and the wisdom of having public educational institutions stick to education and keep out of religion with all the bickering that intrusion into the latter is likely to produce. The authorities acted well within their powers in concluding that plaintiffs must content themselves with having their children say these prayers before nine or after three . . . ." Stein v. Oshinsky, 348 F.2d 999, 1002 (2nd Cir. 1965), cert. denied, 382 U.S. 957 (1965).

4 Id. at 1001.

5 See Chandler, 230 F.3d 1313. Chandler went so far as to avereven in light of the Supreme Court's holding in Santa Fe Independent School District v. Doe, 530 U.S. 290 (2000) (see ch. 1, XI, below), that student-initiated prayers at football games were unconstitutional partly because they were carried over the school's public address system-that there is nothing impermissible about broadcasting prayers over the school's public address system on the same terms as other speech, as long as such broadcasts are student-initiated. This is doubly perplexing in light of the fact that in several decisions, including Lee v. Weisman, 505 U.S. 577 (1992), the Supreme Court has concluded that children in school settings are captive audiences and to compel them to listen to prayer is a violation of their free exercise right. However, until the Supreme Court squarely addresses the issue, the circuit court decisions dictate the law within their jurisdictions.

6 See Chandler, 230 F.3d 1313.

7 In fact, under certain circumstances, such expression may be restricted. See Gernetzke v. Kenosha Unified School District No. 1, 274 F.3d 464, 466 (7th Cir. 2001), cert. denied, 122 S.Ct. 1606 (2002), in which the court upheld a high school principal's decision to forbid the display of the cross in a student Bible Club's mural, after inviting all student groups to paint murals in the main hallway, stating that the principal was "not discriminating against religion but merely against displays, religious or secular, that he reasonably believed likely to lead to litigation or disorder." In that case, the court also restricted some displays of non-religious student groups.

8 See Santa Fe Independent School District v. Doe, 530 U.S. 290 (2000), holding unconstitutional student-initiated prayers carried over the school's public address system at football games. (See ch. 1, XI, below). See also Tinker, 393 U.S. 503.

9 See Santa Fe Indep. Sch. Dist., 530 U.S. 290.

10 See C.H. v. Oliva, 226 F.3d 198 (3rd Cir. 2000), cert. denied, 121 S.Ct. 2519 (2001), in which the court of appeals held, by equally divided vote, that a teacher could prevent an elementary school student from reading a religious story aloud to classmates.

11See Hazelwood School District v. Kuhlmeier, 484 U.S. 260 (1988), in which the Supreme Court determined that a high school paper published by students in a journalism class did not qualify as a "public forum," so that school officials retained the right to impose reasonable restrictions on student speech in the paper. The Court concluded that the high school principal's decision to remove two pages from the student newspaper did not violate students' free-speech rights, noting that "a school must be able to take into account the emotional maturity of the intended audience in determining whether to disseminate student speech on potentially sensitive topics, which might range from the existence of Santa Claus in an elementary school setting to the particulars of teenage sexual activity in a high school setting." Id. at 272.

12 Id. at 266.

13 Id. at 272-273.

14 Id.

15 Wisconsin v. Yoder, 406 U.S. 205 (1972). In this case, the Supreme Court upheld the right of Amish students whose parents objected to compulsory attendance at public school for their children to discontinue attendance beyond the eighth grade, on the grounds that such attendance contravened the teachings of their religion.

16 See Grove v. Mead School District No. 354, 753 F.2d 1528 (9th Cir. 1985), cert. denied, 474 U.S. 826 (1985). The Ninth Circuit held that use of a book about an American subculture that touched briefly on a particular religion in an English literature class did not violate a student's free exercise rights, nor did it violate the Establishment Clause of the First Amendment because the use of the book served a primarily secular educational function. See also Mozert v. Hawkins County Board of Education, 827 F.2d 1058 (6th Cir. 1987), cert. denied, 484 U.S. 1066 (1988), in which the court held that the requirement that public school students read a basic reader series that mentions mental telepathy did not create an impermissible burden on students' exercise of their religion, notwithstanding students' and their parents' religious objections to the texts, without a showing that students were required to affirm or deny a religious belief or to engage or refrain from engaging in any act either required or forbidden by the students' religious convictions.

17 See Spence v. Bailey, 465 F.2d 797 (6th Cir. 1972). Here, the court held that a student may be exempt from engaging in a school ROTC program if military training is contrary to his religious beliefs. See also Grove, 753 F.2d 1528, and Mozert, 827 F.2d 1058.

18 Mozert, 827 F.2d at 1069.

19 Illinois ex rel. McCollum v. Board of Education, 333 U.S. 203, 235 (1948) (Jackson, J. concurring). The Supreme Court held that use of public school buildings, during regular school hours, combined with the close cooperation between school authorities and secular groups in promoting religious education, clearly violates the First Amendment's requirement of the separation of church and state.

20 Smith v. Board of School Commissioners of Mobile County, 827 F.2d 684, 692 (11th Cir. 1987). The court of appeals held that use of textbooks did not advance secular humanism or inhibit theistic religion in violation of the Establishment Clause, even assuming humanism was a religion. In addition, use of the textbooks had the appropriate secular effect of attempting to instill in public school children such values as independent thought, tolerance of diverse views, self-respect, maturity, self-reliance, and logical decision making, without precluding the possibility that religion was also a source of moral values.

21 In Brown v. Woodland Joint Unified School District, 27 F.3d 1373 (9th Cir. 1994), the court ruled that the school district's use of the Impressions reading series, which discusses witch-craft, did not violate the federal constitutional rights of students in that it was used for a secular purpose as a teaching aid and did not communicate a message of the school's endorsement of the "religion" of witchcraft.

22 See, e.g., Judge Canby's concurrence in Grove v. Mead School District No. 354, 753 F.2d 1528, 1540 (9th Cir. 1985), cert. denied, 474 U.S. 826 (1985), in which he noted, "Luther's 'Ninety-Nine [sic] Theses' are hardly balanced or objective, yet their pronounced and even vehement bias does not prevent their study in a history class's exploration of the Protestant Reformation, nor is Protestantism itself 'advanced' thereby."

23 See School District of Abington Township, Pennsylvania v. Schempp, 374 U.S. 203, 224-225 (1963). Here, the Supreme Court held that the practice of providing for Bible reading and for recitation of the Lord's Prayer at the beginning of each school day was unconstitutional under the Establishment Clause, despite the fact that students were allowed to excuse themselves.

24 See, e.g., Church of God v. Amarillo Independent School District, 511 F.Supp. 613 (N.D. Tex. 1981), judgment affirmed, 670 F.2d 46 (5th Cir. 1982), holding that the policy of the school district, which limited the number of excused absences for religious holidays to two days each school year and which provided that students be given zeros for days for which they had unexcused absences, violated free exercise of religious beliefs of students who were members of a church that required abstinence from secular activity on seven annual holy days.

25 It should be noted that in Employment Division, Department of Human Resources of Oregon v. Smith, 494 U.S. 872, 879 (1990), the Supreme Court held that the right of free exercise does not relieve an individual of the obligation to comply with a "valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes)" (citations omitted). Based on this determination the Court concluded that the Free Exercise Clause of the First Amendment did not exempt religious use of peyote by Native Americans from a state antidrug law. Id. In light of this decision, some fear that a student's right to be absent from school without penalty in order to observe a religious holiday may be hampered if a school's policy regarding student absences is neutral as to religion and generally applicable to all students. As of yet, however, the Smith decision has not been shown to affect this right.

26 See, e.g., Chalifoux v. New Caney Independent School District, 976 F.Supp. 659 (S.D. Tex. 1997), in which the court held that the school must be able to prove that a restriction on wearing rosaries is necessary for controlling gang activity. See also Stephenson v. Davenport Community School District, 110 F.3d 1303 (8th Cir. 1997), where the court of appeals held that a school wrongly forced a student to remove a tattoo of a small cross between her thumb and index finger when no other evidence of gang activity was present and the school district's regulation prohibiting gang symbols without providing any definition of "gang" was too vague.

27 See Muller v. Jefferson Lighthouse School, 98 F.3d 1530, 1540-1544 (7th Cir. 1996), cert. denied, 520 U.S. 1156 (1997). In this case, the court of appeals held constitutional a public school's policy limiting the amount and location of distribution of religious material by students when prepared by nonstudents.

28 Equal Access Act, 20 U.S.C. §§ 4071-4074 (2001).

29 In Lee v. Weisman, 505 U.S. 577, 586 (1992), the Court determined that a policy of school-sponsored prayer at a public school graduation violates the Establishment Clause when state officials direct the performance of formal religious exercise and graduating student attendance is "in a fair and real sense obligatory . . . ." In that case, the inclusion of prayer was held to be an unconstitutional violation of the Establishment Clause, even when the school limited it to "nonsectarian" prayer.

30 In the Fifth Circuit's Jones v. Clear Creek Independent School District decision, 977 F.2d 963 (5th Cir. 1992), cert. denied, 508 U.S. 967 (1993), the written policy in question permitted a student volunteer to give an invocation if the senior class voted in favor of one, but required that any invocation be nonsectarian and nonproselytizing. The court applied the three-part test first articulated in Lemon v. Kurtzman, 403 U.S. 602 (1971), under which a government practice passes constitutional muster only if it (1) has a secular purpose, (2) neither advances nor inhibits religion, and (3) does not result in excessive entanglement of government in religion. Applying that test, the court in Jones found that the policy was constitutional (determining that "solemnization" was a sufficiently secular purpose, and that the policy neither had the effect of advancing religion nor fostered excessive government entanglement with religion).

31 In the Third Circuit ruling of ACLU v. Black Horse Pike Regional Board of Education, 84 F.3d 1471 (3rd Cir. 1996), the school board used the holding of Jones to craft a graduation prayer policy that would pass constitutional muster in the Fifth Circuit. The policy adopted by the school board allowed a vote of the senior class to determine if "prayer, a moment of reflection or nothing at all" would be included in the high school graduation ceremony. However, the Third Circuit rejected the Fifth Circuit's reasoning and held that the school's delegation of decision-making authority did not change the nature of the ceremony or diminish the effect that the prayer had on students of religious beliefs different from the speaker's. As such, it found the policy unconstitutional.

32 After a rehearing en banc, the Eleventh Circuit decided in Adler v. Duval County School Board, 206 F.3d 1070 (11th Cir. 2000) that it is constitutionally permissible for a student volunteer, chosen by the senior class, to present an unrestricted two-minute graduation message, wholly of his or her own choosing, without review by school officials. Three months after that decision was issued, the Supreme Court decided another case, in which it held that a school district policy permitting students to vote upon the delivery by a student of a "statement or invocation" prior to high school football games violated the Establishment Clause. (See discussion in ch. 1, XI, below.) In light of its decision in that case, the Supreme Court vacated the Eleventh Circuit's judgment in Adler and remanded the case to the Eleventh Circuit for further consideration. See Adler v. Duval County School Board, 531 U.S. 801 (2000). Yet, despite the similarities between the two cases, the Eleventh Circuit reinstated its prior en banc judgment, once again upholding the constitutionality of the school board's policy. See Adler v. Duval County School Board, 250 F.3d 1330 (11th Cir. 2001), cert. denied, 2001 WL 984867 (U.S.).

33 In Justice Souter's concurrence in Lee v. Weisman, he noted that students may "organize a privately sponsored baccalaureate if they desire the company of like-minded students." 505 U.S. at 629. For an analysis of Supreme Court precedents on the constitutionality of baccalaureate ceremonies, see Shumway v. Albany County School District No. One Board of Education, 826 F.Supp. 1320 (D. Wyo. 1993).

34 In Collins v. Chandler Unified School District, 644 F.2d 759 (9th Cir. 1981), cert. denied, 454 U.S. 863 (1981), the court struck down a school policy permitting voluntary student prayer at school assemblies. The court noted, "[n]either the fact that the prayer may be denominationally neutral nor the fact that its observance on the part of the students is voluntary can serve to free it from the limitations of the Establishment Clause . . . ." Id. at 761 (quoting Engel v. Vitale, 370 U.S. 421, 430 (1962)).

35 For instance, the court in Ingebretsen v. Jackson Public School District, 88 F.3d 274 (5th Cir. 1996), cert. denied, 519 U.S. 965 (1996) held that the school's policy of explicitly permitting such activities did not have a secular purpose (since its sole purpose was letting students and teachers know how they could organize prayer at assemblies); that it had the primary effect of advancing religion because the policy was, in essence, saying that the state wanted students to pray; and that the policy excessively entangled government with religion because school officials were responsible for reviewing the prayers and determining whether they were nonsectarian and nonproselytizing.

36 530 U.S. 290 (2000).

37 See id.

Chapter 2: Questions Teachers May Have ENDNOTES

1 The Supreme Court affirmed the constitutionality of teaching about religion in Abington v. Schemp, where it noted, "[O]ne's education is not complete without a study of comparative religion or the history of religion and its relationship to the advancement of civilization." 374 U.S. 203, 225 (1963).

2 See three-part test announced by the Supreme Court in Lemon v. Kurtzman, 403 U.S. 602 (1971), discussed in ch.1, n. 29.

3 In Hall v. Board of School Commissioners of Conecuh County, 656 F.2d 999 (5th Cir. 1981), the court held that a Bible literature course violated the Establishment Clause by using a fundamentalist Christian textbook that had the primary effect of advancing religion rather than teaching about it objectively.

4 In Gibson v. Lee County School Board, the court noted that objecting students could use videotapes and transcripts as evidence in any further litigation since they "clearly and specifically identify when, where, how and why the violations occur." 1 F.Supp. 2d 1426, 1434 (M.D. Fla. 1998).

5 For further discussion of this topic see The Bible & Public Schools-A First Amendment Guide, published by the First Amendment Center and the National Bible Association. The guide has been endorsed by a variety of organizations including the American Jewish Committee. The guide is available at www.freedomforum.org or www.teachaboutthebible.org.

6 See, e.g., Smith v. Board of School Commissioners of Mobile County, 827 F.2d 684, 691-692 (11th Cir. 1987).

7 This historic trial, dramatized in the play and film Inherit the Wind, involved the legendary trial lawyer Clarence Darrow's defense of a small-town teacher's right to teach the theory of evolution in his classroom. The court found the teacher guilty of violating a state statute that criminalized the teaching of evolution. The decision was later reversed on a technicality.

8 See Epperson v. Arkansas, 393 U.S. 97, 109 (1968), in which the Court held that a statute that criminalized the teaching of evolution violated the Establishment Clause since the purpose behind its enactment was to prohibit the teaching of a theory that "denied the divine creation of man." The Court noted that whereas a state may shape its school's curriculum, it may not "prohibit . . . the teaching of a scientific theory or doctrine where that prohibition is based upon reasons that violate the First Amendment." Id. at 107.

9 See, e.g., McLean v. Arkansas Board of Education, 529 F.Supp. 1255, 1264 (E.D. Ark. 1982), in which an Arkansas district court held that a law requiring "balanced treatment" of evolution and creation violated the Establishment Clause because "[i]t was simply and purely an effort to introduce the Biblical version of creation into the public school curricula," and "[t]he only inference which can be drawn from these circumstances is that the Act was passed with the specific purpose . . . of advancing religion." Id.

10 See Edwards v. Aguillard, 482 U.S. 578 (1987). In Edwards, the Supreme Court determined that the purpose of the law was not secular but was, rather, to promote a particular religious belief.

11 In recent years, the legislatures of Alabama, Nebraska, and New Mexico have mandated science curricula that challenge evolutionary theory. For instance, Alabama's legislation required every biology textbook used in the state public school system to include a sticker on the cover asserting that evolution is "a controversial theory. . . . No one was present when life first appeared on Earth. Therefore, any statement about life's origin should be considered as theory not fact." In Kansas, the State School Board voted in 1999 to reject the science curriculum recommended to it by scientists and educators and to adopt one recommended by a "creationist" organization, which involved removing all references to evolution; however, in February 2001, the board-whose "creationism" proponents had been voted out of office-reversed itself and adopted the curriculum originally recommended to it.

12 See, e.g., Freiler v. Tangipahoa Parish Board of Education, 185 F.3d 337 (5th Cir. 1999), cert. denied, 530 U.S. 1251 (2000). In this case, the court struck down a school board policy requiring teachers to read a disclaimer immediately before teaching evolution stating the following: The lesson on evolution is intended only "to inform students of the scientific concept and not intended to influence or dissuade the Biblical version of Creation or any other concept." Id. at 344-345. The court held that this policy was enacted with a religious purpose and had the primary effect of advancing and endorsing the particular religious view of the biblical version of creation in violation of the Establishment Clause.

13 Wallace v. Jaffree, 472 U.S. 38 (1985).

14 Brown v. Gilmore, 258 F. 3d 265 (4th Cir. 2001), cert. denied, 122. S.Ct. 465 (2001).

15 Id. Here, the court distinguished the case from Wallace, 472 U.S. 38 (1985), stating that in the latter case, the state offered no secular purpose for the law, and enacting a law solely for a religious purpose was "quite different from merely protecting every student's right to engage in voluntary prayer during an appropriate moment of silence during the school day."

16 See, e.g., Jager v. Douglas County School District, 862 F.2d 824 (11th Cir. 1989), cert. denied, 490 U.S. 1090 (1989), in which the Eleventh Circuit concluded that school personnel, including coaches, may not initiate invocations before, during, or after school-sponsored athletic events.

17 See, e.g., Sease v. School District of Philadelphia, 811 F.Supp. 183 (E.D. Pa. 1993), in which the court prohibited a school employee from organizing a school gospel choir whose music was manifestly religious.

18 See, e.g., Board of Education of Westside Community Schools v. Mergens, 496 U.S. 226, 252-53 (1990), in which the Supreme Court stated that the Equal Access Act permits a teacher, administrator, or other school employee to attend a religious club's meetings for "custodial purposes . . . to ensure order and good behavior" (citation omitted). In this case, the Supreme Court held that the Equal Access Act does not violate the Establishment Clause, and thus, a high school student Christian Club must be given equal access under the Act, like other "non-curriculum-related" student groups such as the scuba-diving club and chess club.

19 Edwards v. Aguillard, 482 U.S. at 584.

20 Id.

21 Lemon v. Kurtzman, 403 U.S. 602, 619 (1971).

22 The Second Circuit recently upheld a public school's "cease and desist" order prohibiting a teacher from expressing his religious beliefs in his official capacity. Noting that the teacher's references to religion to his students and their parents exposed the school to an Establishment Clause violation, the court concluded that the school has a compelling interest in preventing such a constitutional infraction. Therefore the prohibition of the teacher's conduct does not impermissibly violate his free exercise rights. Marchi v. Board of Cooperative Educational Services of Albany, 173 F.3d 469 (2nd Cir. 1999), cert. denied, 528 U.S. 869 (1999).

23 See, e.g., Roberts v. Madigan, 921 F.2d 1047 (10th Cir. 1990), cert. denied, 505 U.S. 1218 (1992), in which the court held it constitutional for a school district to prevent a public school teacher from keeping a Bible on his desk and reading it during daily "silent reading periods."

24 See Cooper v. Eugene School District No.4J, 301 Or. 358, 360, 723 P.2d 298, 300 (Or. 1986), appeal dismissed, 480 U.S. 942 (1987), where the court upheld a policy that forbade a public school teacher from "wear[ing] any religious dress while engaged in the performance of duties as a teacher." In this case, a tenured special education teacher donned a white turban and, at times, wore white clothing while teaching sixth and eighth grade classes, in accordance with her religious beliefs as a Sikh.

25 Cooper, 301 Or. at 373, 723 P.2d at 308; see also United States v. Board of Education for the School District of Philadelphia, 911 F.2d 882 (3rd Cir. 1990), in which the court of appeals did not require the school board to accommodate a teacher who wished to wear Muslim dress while teaching, thereby upholding a Pennsylvania statute that banned teachers from donning any religious attire so long as it was enforced in a nondiscriminatory manner.

26 Board of Education, 911 F.2d at 894.

27 See Fraternal Order of Police Newark Lodge No. 12 v. City of Newark, 170 F.3d 359 (3rd Cir. 1999), cert. denied, 528 U.S. 817 (1999), in which the court determined a police department violated the First Amendment by requiring two Sunni Muslim police officers to shave their beards in contravention of their religious beliefs.

28 See Id.

29 See Trans World Airlines, Inc. v. Hardison, 432 U.S. 63 (1977), in which the Supreme Court held that an employer must make reasonable accommodations, short of undue hardship, of the religious practices of its employees.

30 Id. at 75-76. Of course, pursuant to Employment Division v. Smith, 494 U.S. 872, 879 (1990), a school policy that impacts a teacher's right to be absent in order to observe a religious holiday, must be neutral, nondiscriminatory, and generally applicable. (See ch. 1, n.24 for a discussion of this case.)

31 Unpaid leave may be an example of "reasonable accommodation." However, the Supreme Court has held that unpaid leave is not a reasonable accommodation when paid leave is provided for all purposes except religious ones, because "such an arrangement would display a discrimination against religious practices that is the antitheses of reasonableness." Ansonia Board of Education v. Philbrook, 479 U.S. 60, 71 (1986).

32 Hardison, 432 U.S. at 75-76 (1977).

Chapter 3: Questions School Administrators May Have ENDNOTES

1 In its 1962 decision in Engel v. Vitale, 370 U.S. 421 (1962), the Supreme Court declared unconstitutional a New York statute instituting in public schools a nondenominational prayer that had been prepared by the New York Board of Regents. One year later, in Abington v. Schempp, 374 U.S. 203 (1963), the Court held that a Pennsylvania statute mandating that "at least 10 verses from the Holy Bible be read, without comment, at the opening of each public school on each school day" was a violation of the Establishment Clause.

2 Engel, 370 U.S. at 431.

3 See Board of Education, Island Trees Union Free School District No. 26 v. Pico, 457 U.S. 853, 871 (1982). Recognizing the broad discretion of local school boards in the management of school affairs, the Court, nonetheless, concluded that the removal of various books from the school library violated the free speech rights of students.

4 Id. at 872 (emphasis added; citations and quotations omitted).

5 Id. at 868-869 (citations and quotations omitted).

6 Epperson v. Arkansas, 393 U.S. 97, 104 (1968).

7 See, e.g., Roberts, 921 F.2d 1047, in which the court upheld as constitutional a school district's removal of Christian books from classroom shelves and its requirement that a public school teacher no longer keep a Bible on his desk and read it during daily "silent reading periods."

8 See Lynch v. Donnelly, 465 U.S. 668 (1984), in which the Supreme Court found constitutional a town's inclusion of a nativity scene in its winter holiday display because it had a legitimate secular purpose of depicting the origins of Christmas, and because the display also included such secular symbols as a teddy bear and a clown.

9 County of Allegheny v. ACLU, 492 U.S. 573, 620 (1989). In Allegheny, the Court found that a nativity scene in the county courthouse accompanied by a religious message had no secular purpose and therefore violated the Establishment Clause. The fact that the display clearly had no purpose that was even arguably secular, such as celebrating the winter holiday season, was apparent to the Court from the absence of any accoutrements that had secular meaning or were religiously neutral.

10 Edwards v. Aguillard, 482 U.S. at 583-584.

11 The Supreme Court declined to review and thereby let stand Florey v. Sioux Falls School District, 619 F.2d 1311, 1314 (8th Cir. 1980), cert. denied, 449 U.S. 987 (1980), a decision in which the court of appeals applied the three-prong Lemon test and concluded that a school's holiday observance that consisted of the use of music, art, literature, and symbols having a religious theme or base, for historical and cultural reasons, was constitutional because it did not have a religious purpose or a primary effect of advancing religion and did not foster excessive government entanglement.

12 Zorach v. Clauson, 343 U.S. 306, 314 (1952). In Zorach, the Court held that a statute providing for the release of public school students from school to attend a religious class was constitutional.

13 See Metzl v. Leininger, 57 F.3d 618, 621 (7th Cir. 1995), in which the Seventh Circuit held that a state law requiring all public schools to close on Good Friday was unconstitutional because it "accorded special recognition to Christianity beyond anything . . . necessary to accommodate the needs of [Illinois's] Christian majority." Judge Posner noted that the decision might have been decided differently if, for instance, the majority of students in every Illinois public school was Christian and would not go to school on Good Friday, in which case the state would be wasting its educational budget if it decided to remain open. Id.

14 See Stone v. Graham, 449 U.S. 39 (1980), in which the U.S. Supreme Court applied the three-part test announced in Lemon v. Kurtzman, 403 U.S. 602, 612-613 (1971) to determine that the statute's "avowed" secular purpose was invalid, rendering the statute unconstitutional. (For a more detailed examination of Lemon, see earlier sections of document.)

15 Stone, 449 U.S. 39 at 41.

16 Id.

17 Id. at 41-42.

18 Id. at 42.

19 See, e.g., Berger v. Rensselaer Central School Corporation, 982 F.2d 1160 (7th Cir. 1993), cert. denied, 508 U.S. 911 (1993).

20 See, e.g., Peck v. Upshur County Board of Education, 155 F.3d 274 (4th Cir. 1998), in which the court upheld as constitutional a school board policy permitting nonstudents to disseminate Bibles and other religious materials in public secondary schools during school hours, pursuant to reasonable time, place, and manner restrictions, because the policy applied neutrally to all outside, nonstudent private groups.

21 See, e.g., Bacon v. Bradley-Bourbonnais High School District No. 307, 707 F.Supp. 1005 (C.D. Ill. 1989). Here, the Court held that school authorities could not prohibit the distribution of Gideon Bibles on a school-owned sidewalk in front of a high school, because the walk was considered a public forum for use by the general public.

22 See Perry Education Association v. Perry Local Educators' Association, 460 U.S. 37, 45 (1984).

23 See Bacon, 707 F.Supp. at 1009 (quoting Tinker, 393 U.S. at 513).

24 See Good News Club v. Milford Central School, 533 U.S. 98, 121 S.Ct. 2093 (2001), in which the Supreme Court held that a school district could not prohibit an evangelical Christian youth organization from using classrooms after school hours because other nonreligious organizations were permitted to use school facilities. In this case, the organization sought to use school facilities, immediately following usual classroom instruction, for weekly adult-led programs, in which elementary school children pray, recite verses, sing the organization's theme song, are instructed in a moral lesson from the Old or New Testament, and are told a Bible story. Id. The Court reasoned that permitting the organization to meet on school premises would not violate the Establishment Clause because its meetings were to be (1) held after school hours, (2) not sponsored by the school, and (3) open to any student who obtained parental consent. Id. See also Lamb's Chapel v. Center Moriches Union Free School District, 508 U.S. 384 (1993), in which the Court concluded that to preclude religious groups from making presentations similar to those of other community organizations because of their religious viewpoint would constitute unconstitutional viewpoint discrimination.

25 See, e.g., Fairfax Covenant Church v. Fairfax County School Board, 17 F.3d 703 (4th Cir. 1994), cert. denied, 511 U.S. 1143 (1994), in which the court held that a policy that established higher rental rates for churches to use the school's facilities than other community organizations was a violation of the churches' right to free speech and free exercise of religion.

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