Yes. The First Amendment applies to all levels of government, including public schools. Although the courts have permitted school officials to limit the rights of students under some circumstances, the courts have also recognized that students — like all citizens — are guaranteed the rights protected by the First Amendment.

Earlier in our history, however, the First Amendment did not apply to the states — and thus not to public schools. When adopted in 1791, the First Amendment applied only to Congress and the federal government (“Congress shall make no law …”). This meant that when public schools were founded in the mid-19th century, students could not make First Amendment claims against the actions of school officials.

The restrictions on student speech lasted into the 20th century. In 1908, for example, the Wisconsin Supreme Court ruled that school officials could suspend two students for writing a poem ridiculing their teachers that was published in a local newspaper. The Wisconsin court reasoned, “such power is essential to the preservation of order, decency, decorum, and good government in the public schools.” And in 1915, the California Court of Appeals ruled that school officials could suspend a student for criticizing and “slamming” school officials in a student assembly speech.

In fact, despite the passage of the 14th Amendment in 1868, which provides that “no state shall … deprive any person of life, liberty or property without due process of law,” it was not until 1925, by way of the Supreme Court case of Gitlow v. New York, that the Supreme Court held that the freedom of speech guaranteed by the First Amendment is one of the “liberties” incorporated by the Due Process Clause of the 14th Amendment.

In subsequent cases, the Court has applied all of the freedoms of the First Amendment to the states — and thus to public schools — through the 14th Amendment. But not until 1943, in the flag-salute case of West Virginia v. Barnette, did the U.S. Supreme Court explicitly extend First Amendment protection to students attending public schools.

The Barnette case began when several students who were Jehovah’s Witnesses refused to salute the flag for religious reasons. School officials punished the students and their parents. The students then sued, claiming a violation of their First Amendment rights.

At the time that the students sued, Supreme Court precedent painted a bleak picture for their chances. Just a few years earlier, the Court had ruled in favor of a similar compulsory flag-salute law in Minersville School District v. Gobitis. As the Court stated in that ruling, “national unity is the basis of national security.”

However, the high court reversed itself in Barnette, holding that the free-speech and free exercise of religion provisions of the First Amendment guarantee the right of students to be excused from the flag salute on grounds of conscience.

Writing for the majority, Justice Robert Jackson said that the Supreme Court must ensure “scrupulous protection of constitutional freedoms of the individual, if we are not to strangle the free mind at its source and teach youth to discount important principles of our government as mere platitudes.” The Court then warned of the dangers of coercion by government in oft-cited, eloquent language:

“If there is any fixed star in our Constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.”

The meaning of the establishment clause, often referred to as the “separation of church and state,” has been much debated throughout our history. Does it require, as described in Thomas Jefferson’s famous 1802 letter to the Danbury Baptists, a high “wall of separation”? Or may government support religion as long as no one religion is favored over others? How can school officials determine when they are violating the establishment clause?

In the last several decades, the Supreme Court has crafted several tests to determine when state action becomes “establishment” of religion. No one test is currently favored by a majority of the Court. Nevertheless, no matter what test is used, it is fair to say that the Court has been stricter about applying the establishment clause in public schools than in other government settings. For example, the Court has upheld legislative prayer (Marsh v. Chambers, 1983), but struck down teacher-led prayer in public schools (Engel v. Vitale, 1962). The Court applies the establishment clause more rigorously in public schools, mostly for two reasons: (1) students are impressionable young people, and (2) they are a “captive audience” required by the state to attend school.

When applying the establishment clause to public schools, the Court often emphasizes the importance of “neutrality” by school officials toward religion. This means that public schools may neither inculcate nor inhibit religion. They also may not prefer one religion over another — or religion over nonreligion.

No. By “neutrality” the Supreme Court does not mean hostility to religion. Nor does it mean ignoring religion. Neutrality means protecting the religious-liberty rights of all students while simultaneously rejecting school endorsement or promotion of religion.

In 1995, 24 major religious and educational organizations defined religious liberty in public schools this way:

Public schools may not inculcate nor inhibit religion. They must be places where religion and religious conviction are treated with fairness and respect.

Public schools uphold the First Amendment when they protect the religious-liberty rights of students of all faiths or none. Schools demonstrate fairness when they ensure that the curriculum includes study about religion as an important part of a complete education.

The establishment clause speaks to what government may or may not do. It does not apply to the private speech of students. School officials should keep in mind the distinction between government (in this case “school”) speech endorsing religion — which the establishment clause prohibits — and private (in this case “student”) speech endorsing religion, which the free-speech and free-exercise clauses protect.

Student religious expression may, however, raise establishment clause concerns when such expression takes place before a captive audience in a classroom or at a school-sponsored event. Students have the right to pray alone or in groups or to discuss their faith with classmates, as long as they aren’t disruptive or coercive. And they may express their religious views in class assignments or discussions, as long as it is relevant to the subject under consideration and meets the requirements of the assignment. But students don’t have a right to force a captive audience to participate in religious exercises.

It isn’t entirely clear under current law where teachers and administrators may draw a line limiting student religious expression before a captive audience in a classroom or school-sponsored event. In several recent cases, lower courts have deferred to the judgment of educators about when to limit the religious expression of students in a classroom or school setting. A general guide might be to allow students to express their religious views in a classroom or at a school event as long as they don’t ask the audience to participate in a religious activity, use the opportunity to deliver a proselytizing sermon, or give the impression that their views are supported by or endorsed by the school.

Here are some questions that teachers and administrators should ask themselves when planning activities that may involve religious content (e.g., a holiday assembly in December):

• Do I have a distinct educational or civic purpose in mind? If so, what is it? (It may not be the purpose of the public school to promote or denigrate religion.)
• Have I done what I can to ensure that this activity is not designed in any way to either promote or inhibit religion?
• Does this activity serve the educational mission of the school or the academic goals of the course?
• Have I done what I can to ensure that no student or parent may be made to feel like an outsider, and not a full member of the community, by this activity?
• If I am teaching about religion, am I balanced, accurate, and academic in my approach?

The free-exercise clause of the First Amendment states that the government “shall make no law … prohibiting the free exercise of religion.” Although the text sounds absolute, “no law” does not always mean “no law.” The Supreme Court has had to place some limits on the freedom to practice religion. To take an easy example cited by the Court in one of its landmark “free-exercise” cases (Reynolds v. U.S., 1878), the First Amendment would not protect the practice of human sacrifice even if some religion required it. In other words, while the freedom to believe is absolute, the freedom to act on those beliefs is not.

But where may government draw the line on the practice of religion? The courts have struggled with the answer to that question for much of our history. Over time, the Supreme Court developed a test to help judges determine the limits of free exercise. First fully articulated in the 1963 case of Sherbert v. Verner, this test is sometimes referred to as the Sherbert or “compelling interest” test. The test has four parts: two that apply to any person who claims that his freedom of religion has been violated, and two that apply to the government agency accused of violating those rights.

For the individual, the court must determine

• whether the person has a claim involving a sincere religious belief, and
• whether the government action places a substantial burden on the person’s ability to act on that belief.

If these two elements are established, then the government must prove

• that it is acting in furtherance of a “compelling state interest,” and
• that it has pursued that interest in the manner least restrictive, or least burdensome, to religion.

The Supreme Court, however, curtailed the application of the Sherbert test in the 1990 case of Employment Division v. Smith. In that case, the Court held that a burden on free exercise no longer had to be justified by a compelling state interest if the burden was an unintended result of laws that are generally applicable.

After Smith, only laws (or government actions) that (1) were intended to prohibit the free exercise of religion, or (2) violated other constitutional rights, such as freedom of speech, were subject to the compelling-interest test. For example, a state could not pass a law stating that Native Americans are prohibited from using peyote, but it could accomplish the same result by prohibiting the use of peyote by everyone.

In the wake of Smith, many religious and civil liberties groups have worked to restore the Sherbert test — or compelling-interest test — through legislation. These efforts have been successful in some states. In other states, the courts have ruled that the compelling-interest test is applicable to religious claims by virtue of the state’s own constitution. In many states, however, the level of protection for free-exercise claims is uncertain.

The application of the “compelling interest” test, established by the Supreme Court in 1963 in Sherbert v. Verner, was sharply curtailed by the 1990 Supreme Court decision Employment Division v. Smith. But some states — such as Florida, Texas and Connecticut — have passed laws requiring the use of a compelling-interest test in free-exercise cases. Moreover, since most cases involving public schools involve more than one constitutional right (e.g., the religion claim can be linked with a parental right or free-speech claim), some might argue that the compelling-interest test must be used even under Smith.

Regardless of how this is eventually settled in the courts, public schools fulfill the spirit of the First Amendment when they use the Sherbert test to accommodate the religious claims of students and parents where feasible.

As good educational policy, school officials, whenever possible, should try to accommodate the requests of parents and students for excusal for religious reasons from specific classroom discussions or activities. In “A Parent’s Guide to Religion in the Public Schools,” the National PTA and the First Amendment Center give the following advice concerning excusal requests:

If focused on a specific discussion, assignment, or activity, such requests should be routinely granted to strike a balance between the student’s religious freedom and the school’s interest in providing a well-rounded education. If it is proved that particular lessons substantially burden a student’s free exercise of religion and if the school cannot prove a compelling interest in requiring attendance, some courts may require the school to excuse the student.

It is important for teachers and administrators to ask themselves the questions posed in the Sherbert test as they make decisions about how to accommodate excusal requests.

Let’s look at one example of how the Sherbert test might be used in a public school: If parents ask for their child to be excused from reading a particular book for religious reasons, the teacher and administrator should first ask if the request is based on a sincere religious belief. Note that the religious belief need not be rational or even sensible to the school official. It need only be sincere. When parents and students take the time to object to a particular reading or activity, they are usually sincere. Next, school officials must determine whether or not reading the assigned book would constitute a “substantial burden” on the student’s religious liberty rights. This is more difficult to determine, but if the parent and student find the book deeply offensive to their religious beliefs, then making the student read the book might place a substantial burden on her religious freedom. One federal appeals court has ruled that merely exposing students to ideas that contradict their religious beliefs does not constitute a substantial burden on religious exercise (Mozet v. Hawkins County, 6th Cir. 1985).

If a student can prove that the school has placed a substantial burden on her sincere exercise of religion, then the inquiry shifts to the school. First, the school must show that it has a “compelling state interest” — described by the Supreme Court as “an interest of the highest order” (Wisconsin v. Yoder, 1972). Clearly, public schools have a compelling interest in the education and welfare of children. In this instance, for example, the school clearly has a compelling interest in teaching the student to read. But the last part of the test requires that the school pursue that interest in a manner least restrictive of a complaining student’s religion. Thus the school may have an interest in teaching the student to read, but can that interest be accomplished without making the student read that particular book? In other words, the school should choose a course of action that does not violate the student’s religion if such a course of action is available and feasible for the school.

This may be easy to do if a student and parent object to a particular reading assignment on religious grounds. When this happens, the teacher may simply assign an alternate selection. If, however, requests for exemption become too frequent or too burdensome for the school, a court will probably find the school’s refusal to offer additional alternatives to be justified.

Enforcing adherence to religious requirements, such as special diet or dress, is the responsibility of a parent, not of the public school.

However, some religious requirements or practices may conflict with school practices or schedules. In those cases, school officials should try to accommodate these needs if feasible. Let’s look at a few examples.

Jehovah’s Witnesses may ask that their children be excused from birthday or holiday activities. Teachers should honor these requests by planning alternate activities or time in the library for affected students.

The school may have a “no caps” policy because of concerns about gang activity. But exemptions should be made for Orthodox Jews and other students who must wear head coverings for religious reasons.

Muslim students may request permission to pray in a designated area during the school day. If space is available, and if the educational process isn’t disrupted, schools should try to grant this request. Schools may not set up “prayer rooms,” but they may find ways to allow students to meet their religious obligations.

Students of various faiths may have dietary restrictions. Under the establishment clause, schools probably cannot prepare special foods to fulfill a student’s particular religious requirements. But schools may help their religious students and others by labeling foods and offering a variety of choices at every meal.

It is not entirely clear under current law how much accommodation schools must make for “free exercise” claims. And the legal requirement to accommodate requests may vary from state to state, depending on state law and state constitutional provisions. Nevertheless, schools uphold the principles of religious liberty and the spirit of the First Amendment when they make every effort to accommodate religious requests for exemption from school policies or practices.

Schools should have policies concerning absences that take into account the religious needs and requirements of students. Students should be allowed a reasonable number of excused absences, without penalties, to observe religious holidays within their traditions. Students may be asked to complete makeup assignments or tests in conjunction with such absences.

Yes. Contrary to popular myth, the Supreme Court has never outlawed “prayer in schools.” Students are free to pray alone or in groups, as long as such prayers are not disruptive and do not infringe upon the rights of others. But this right “to engage in voluntary prayer does not include the right to have a captive audience listen or to compel other students to participate.” (This is the language supported by a broad range of civil liberties and religious groups in a joint statement of current law.)

What the Supreme Court has repeatedly struck down are state-sponsored or state-organized prayers in public schools.

The Supreme Court has made clear that prayers organized or sponsored by a public school — even when delivered by a student — violate the First Amendment, whether in a classroom, over the public address system, at a graduation exercise, or even at a high school football game. (Engel v. Vitale, 1962; School Dist. of Abington Township v. Schempp, 1963; Lee v. Weisman, 1992; Santa Fe Independent School. Dist. v. Doe, 2000)

Yes, if, and only if, the moment of silence is genuinely neutral. A neutral moment of silence that does not encourage prayer over any other quiet, contemplative activity will not be struck down, even though some students may choose to use the time for prayer. (See Bown v. Gwinnett County School Dist., 11th Cir. 1997)

If a moment of silence is used to promote prayer, it will be struck down by the courts. In Wallace v. Jaffree (1985) the Supreme Court struck down an Alabama “moment of silence” law because it was enacted for the express purpose of promoting prayer in public schools. At the same time, however, the Court indicated that a moment of silence would be constitutional if it is genuinely neutral. Many states and local school districts currently have moment-of-silence policies in place.

This is one of the most confusing and controversial areas of the current school-prayer debate. While the courts have not clarified all of the issues, some are clearer than others.

For instance, inviting outside adults to lead prayers at graduation ceremonies is clearly unconstitutional. The Supreme Court resolved this issue in the 1992 case Lee v. Weisman, which began when prayers were delivered by clergy at a middle school’s commencement exercises in Providence, Rhode Island. The school designed the program, provided for the invocation, selected the clergy, and even supplied guidelines for the prayer.

Therefore, the Supreme Court held that the practice violated the First Amendment’s prohibition against laws “respecting an establishment of religion.” The majority based its decision on the fact that (1) it is not the business of schools to sponsor or organize religious activities, and (2) students who might have objected to the prayer were subtly coerced to participate. This psychological coercion was not resolved by the fact that attendance at the graduation was “voluntary.” In the Court’s view, few students would want to miss the culminating event of their academic career.

A murkier issue is student-initiated, student-led prayer at school-sponsored events. On one side of the debate are those who believe that student religious speech at graduation ceremonies or other school-sponsored events violates the establishment clause. They are bolstered by the 2000 Supreme Court case Santa Fe v. Doe, which involved the traditional practice of student-led prayers over the public-address system before high school football games.

According to the district, students would vote each year on whether they would have prayers at home football games. If they decided to do so, they would then select a student to deliver the prayers. To ensure fairness, the school district said it required these prayers to be “non-sectarian [and] non-proselytizing.”

A 6-to-3 majority of the Supreme Court still found the Santa Fe policy to be unconstitutional. The majority opinion first pointed out that constitutional rights are not subject to a vote. To the contrary, the judges said the purpose of the Bill of Rights was to place some rights beyond the reach of political majorities. Thus, the Constitution protects a person’s right to freedom of speech, press, or religion even if no one else agrees with the ideas a person professes.

In addition, the Court found that having a student, as opposed to an adult, lead the prayer did not solve the constitutional dilemma. A football game is still a school-sponsored event, they held, and the school was still coercing the students, however subtly, to participate in a religious exercise.

Finally, the Court ruled that the requirement that the prayer be “non-sectarian” and “non-proselytizing” not only failed to solve the problems addressed in Lee v. Weisman, it may have aggravated them. In other words, while some might like the idea of an inclusive, nonsectarian “civil” religion, others might not. To some people, the idea of nonsectarian prayer is offensive, as though a prayer were being addressed “to whom it may concern.” Moreover, the Supreme Court made clear in Lee v. Weisman that even nondenominational prayers or generic religiosity may not be established by the government at graduation exercises.

Another thorny part of this issue is determining whether a particular prayer tends to proselytize. Such determinations entangle school officials in religious matters in unconstitutional ways. In fact, one Texas school district was sued for discriminating against those who wished to offer more-sectarian prayers at graduation exercises.

On the other side of this debate are those who contend that not allowing students to express themselves religiously at school events violates the students’ free exercise of religion and free speech.

Case law indicates, however, that this may be true only in instances involving strictly student speech, and not when a student is conveying a message controlled or endorsed by the school. As the 11th Circuit case of Adler v. Duval County (2001) suggests, it would seem possible for a school to provide a forum for student speech within a graduation ceremony when prayer or religious speech might occur.

For example, a school might allow the valedictorian or class president an opportunity to speak during the ceremony. If such a student chose to express a religious viewpoint, it seems unlikely it would be found unconstitutional unless the school had suggested or otherwise encouraged the religious speech. (See Doe v. Madison School Dist., 9th Cir. 1998.) In effect, this means that in order to distance itself from the student’s remarks, the school must create a limited open forum for student speech in the graduation program.

Again, there is a risk for school officials in this approach. By creating a limited open forum for student speech, the school may have to accept almost anything the student wishes to say. Although the school would not be required to allow speech that was profane, sexually explicit, defamatory, or disruptive, the speech could include political or religious views offensive to many, as well as speech critical of school officials.

If school officials feel a solemnizing event needs to occur at a graduation exercise, a neutral moment of silence might be the best option. This way, everyone could pray, meditate, or silently reflect on the previous year’s efforts in her own way.

Yes. Students are free to share their faith with their peers, as long as the activity is not disruptive and does not infringe upon the rights of others.

School officials possess substantial discretion to impose rules of order and other pedagogical restrictions on student activities. But they may not structure or administer such rules to discriminate against religious activity or speech.

This means that students have the same right to engage in individual or group prayer and religious discussion during the school day as they do to engage in other comparable activities. For example, students may read their Bibles or other scriptures, say grace before meals, and pray before tests. Generally, students may share their faith or pray in a nondisruptive manner when not engaged in school activities or instruction, subject to the rules that normally pertain in the applicable setting. Specifically, students in informal settings, such as cafeterias and hallways, may pray and discuss their religious views with each other, subject to the same rules of order as applied to other student activities and speech. Students may also speak to and attempt to persuade their peers about religious topics just as they do with regard to political topics. School officials, however, should intercede if a student’s speech begins to constitute harassment of a student or group of students.

Students may also participate in before- or after-school events with religious content, such as “See You at the Pole” gatherings, on the same terms as they may participate in other noncurriculum activities on school premises. School officials may neither discourage nor encourage participation in such an event. Keep in mind, however, that the right to engage in voluntary prayer or religious discussion free from discrimination does not necessarily include the right to preach to a “captive audience,” like an assembly, or to compel other students to participate. To that end, teachers and school administrators should work to ensure that no student is in any way coerced — either psychologically or physically — to participate in a religious activity (see Lee v. Weisman, 1992).

Yes, within limits. Generally, if it is relevant to the subject under consideration and meets the requirements of the assignment, students should be allowed to express their religious or nonreligious views during a class discussion, as part of a written assignment, or as part of an art activity.

This does not mean, however, that students have the right to compel a captive audience to participate in prayer or listen to a proselytizing sermon. School officials should allow students to express their views about religion, but should draw the line when students wish to invite others to participate in religious practices or want to give a speech that is primarily proselytizing. There is no bright legal line that can be drawn between permissible and impermissible student religious expression in a classroom assignment or at a school-sponsored event. In recent lower court decisions, judges have deferred to the judgment of educators to determine where to draw the line. (C.H. v. Olivia, 2nd Cir. 2000)

Schools have great latitude to control the speech that occurs in a classroom and, in that setting, can probably prohibit the distribution of student publications altogether. Similarly, schools may impose any reasonable constraint on student speech in a school-sponsored publication such as the school newspaper.

Preserving the speech rights of students and maintaining the integrity of public education are not mutually exclusive. Schools should model First Amendment principles by encouraging and supporting the rights of students to express their ideas in writings. On the other hand, students should not expect to have unfettered access to their classmates and should be prepared to abide by reasonable time, place and manner restrictions.

Schools must continue to maintain order, discipline and the educational mission of the school as they seek to accommodate the rights of the students. As a result, the free-speech rights of students are not co-extensive with the rights of adults. Hate speech and sexually explicit speech, though protected for adults, are probably not protected in a public school.

Court decisions on the issue generally fall into two categories.

Most courts hold that although schools may place some restrictions on distribution of religious materials by students, they may not ban them altogether. The courts base their decisions on the landmark case of Tinker v. Des Moines School District, which upheld the right of students to wear black armbands protesting the Vietnam War, even in a public school. Included in this right of free speech is not only the right to speak for oneself but also to distribute the writings (i.e., speech) of others. Thus, courts have generally upheld the rights of students to distribute non-school religious literature subject to the school’s right to suppress such materials if they create substantial disruption, harm the rights of other students or infringe upon other compelling interests of the school. Again, the Mergens decision makes clear that the fear of a First Amendment violation is not sufficient justification to suppress a student distribution of material that happens to be religious. Some states, such as California, have incorporated the majority view into their own state education codes.

A minority of decisions hold that schools can prohibit the distribution of any material that is not sponsored by the school. Of course, the ban must be applied even-handedly to all students. A school could not, for example, allow the distribution of political literature while barring religious publications. This is particularly evident in light of the Supreme Court’s 1990 decision in Westside Community Board of Education v. Mergens, upholding the federal Equal Access Act. Under this minority view, however, a blanket prohibition on all student distributions would be permissible.

Study of history or literature would be incomplete without exposure to the scriptures of the world's major religious traditions. Some knowledge of biblical literature, for example, is necessary to comprehend much in the history, law, art and literature of Western civilization, just as exposure to the Quran is important for understanding Islamic civilization. In this sense, the classical religious texts are part of our study of history and culture.

At the same time, students need to recognize that, while scriptures tell us much about the history and cultures of humankind, they are considered sacred accounts by adherents to their respective traditions. Religious documents give students of history the opportunity to examine directly how religious traditions understand divine revelation and human values.

In a history class, selections from these accounts should always be treated with respect and used only in the appropriate historical and cultural context. Alert students to the fact that there are a variety of interpretations of scripture within each religious tradition.

No. Just because schools may not prohibit the distribution of all student materials does not mean that schools have no control over what may be distributed on school premises. On the contrary, courts have repeatedly held that schools may place reasonable “time, place and manner” restrictions on all student materials distributed on campus. Thus, schools may specify when the distribution can occur (e.g., lunch hour or before or after classes begin), where it can occur (e.g., outside the school office) and how it can occur (e.g., from fixed locations as opposed to roving distribution). One recent decision upheld a policy confining the distribution of student literature to a table placed in a location designated by the principal and to the sidewalks adjacent to school property. Of course, any such restriction must be reasonable.

It is also likely that schools may insist on screening all student materials prior to distribution to ensure their appropriateness for a public school. Any such screening policy should provide for a speedy decision, a statement of reasons for rejecting the literature and a prompt appeals process. Because the speech rights of students are not coextensive with those of adults, schools may prohibit the distribution of some types of student literature altogether. Included in this category would be:

• Materials that would be likely to cause substantial disruption of the operation of the school. Literature that uses fighting words or other inflammatory language about students or groups of students would be an example of this type of material. Student speech may not be prohibited simply because it is considered offensive by some (see Saxe v. State College Area School Dist., 3rd Cir. 2001).
• Material that violates the rights of others. Included in this category would be literature that is libelous, invades the privacy of others or infringes on a copyright.
• Materials that are obscene, lewd or sexually explicit.
• Commercial materials that advertise products unsuitable for minors.
• Materials that students would reasonably believe to be sponsored or endorsed by the school. One recent example of this category of speech was a religious newspaper that was formatted to look like the school newspaper.

Though schools have considerable latitude in prohibiting the distribution of materials that conflict with their educational mission, schools generally may not ban materials solely on the basis of content. Similarly, schools should not allow a heckler’s veto by prohibiting the distribution of only those materials that are unpopular or controversial. If Christian students are allowed to distribute their newsletters, then Buddhists, Muslims and even Wiccans must be given the same privilege.

Yes, if the school allows other extracurricular (noncurriculum-related) groups. Although schools do not have to open or maintain a limited open forum, once they do, they may not discriminate against a student group because of the content of its speech.

The Equal Access Act (EAA), passed by Congress in 1984 and upheld as constitutional by the Supreme Court in 1990, makes it “unlawful for any public secondary school that receives federal funds and which has a limited open forum to deny equal access or a fair opportunity to, or discriminate against, any students who wish to conduct a meeting within that limited open forum on the basis of the religious, political, philosophical, or other content of the speech at such meetings.”

The EAA covers student-initiated and student-led clubs in secondary schools with a limited open forum. According to the act, “non-school persons may not direct, conduct, or regularly attend activities of student groups.”

A “limited open forum” is created whenever a public secondary school provides an opportunity for one or more “noncurriculum related groups” to meet on school premises during noninstructional time. The forum created is said to be "limited" because only the school’s students can take advantage of it.

In the 1990 Supreme Court case of Westside Community Board of Education v. Mergens, the Court interpreted a “noncurriculum related student group” to mean “any student group [or club] that does not directly relate to the body of courses offered by the school.”

According to the Court, a student group directly relates to a school’s curriculum only if (1) the subject matter of the group is actually taught, or will soon be taught, in a regularly offered course; (2) the subject matter of the group concerns the body of courses as a whole; or (3) participation in the group is required for a particular course or results in academic credit.

As examples, the Court identified three groups that were noncurriculum-related at the Westside schools: (1) a scuba club, (2) a chess club, and (3) a service club. The Court found these groups to be noncurriculum-related because they did not meet the criteria set forth above. Conversely, the French club was found to be curriculum-related since the school regularly offered French classes.

Subject to review by the courts, local school authorities must determine whether a student group is curriculum related or not. Schools may not, however, substitute their own definition of “noncurriculum related” for the definition provided by the Court.

If the school violates the EAA, an aggrieved person may bring suit in U.S. district court to compel the school to observe the law. Although violations of equal access will not result in the loss of federal funds, the school could be liable for damages and the attorney’s fees of a student group that successfully challenges a denial to meet under the act.

The Equal Access Act does not take away a school’s authority to establish reasonable time, place, and manner regulations for a limited open forum. For example, a school may establish for its student clubs a reasonable meeting time on any one school day, a combination of days, or all school days. It may assign the rooms in which student groups can meet. It may enforce order and discipline during the meetings. The key, however, is that the school’s time, place, and manner regulations must be uniform, nondiscriminatory, and neutral in viewpoint.

No. The Equal Access Act states that “employees or agents of the school or government are present at religious meetings only in a nonparticipatory capacity.”

For insurance purposes, or because of state law or local school policy, teachers or other school employees are commonly required to be present during student meetings. But if the student club is religious in nature, school employees may be present as monitors only. Such custodial supervision does not constitute sponsorship or endorsement of the group by the school.

Yes, if the students invite these visitors and if the school does not have a policy barring all guest speakers or outside adults from extracurricular club meetings. However, the Equal Access Act states that the nonschool persons “may not direct, conduct, control, or regularly attend activities of student groups.”

Yes. A student group may use school media — such as the public-address system, school paper, and school bulletin board — as long as other noncurriculum-related student groups are allowed to do so. Any policy concerning the use of school media must be applied to all noncurriculum-related student groups in a nondiscriminatory manner. Schools, however, may issue disclaimers indicating that extracurricular student groups are not school-sponsored or endorsed.

Yes. According to guidelines endorsed by a broad coalition of educational and religious liberty organizations, “student groups that are unlawful, or that materially and substantially interfere with the orderly conduct of educational activities, may be excluded. However, a student group cannot be denied equal access simply because its ideas are unpopular. Freedom of speech includes the ideas the majority may find repugnant.” *

Most schools require students to submit a statement outlining the purpose and nature of the proposed club. School officials do not have to allow meetings of groups that advocate violence or hate or engage in illegal activity. This does not mean, however, that schools may bar students from forming clubs to discuss controversial social and legal issues such as abortion or sexual orientation. Again, student-initiated clubs in a limited open forum may not be barred on the basis of the viewpoint of their speech. Some schools require parental permission for students to join an extracurricular club. Although this step is not required by the Equal Access Act, it has enabled schools to keep the forum open in communities where student clubs have sparked controversy.

* “The Equal Access Act: Questions and Answers,” found in Haynes & Thomas, Finding Common Ground (2001).

Probably not, but current law is unclear on this point. Although the Equal Access Act does not apply to public schools below the secondary level, some courts have held that the free-speech clause protects the right of middle school or elementary school students to form religious or political clubs on an equal footing with other student-initiated clubs. When the EAA was debated in Congress, many lawmakers expressed doubt that young children could form religious clubs that would be truly initiated and led by students. In addition, younger students are more likely to view religious clubs meeting at the school as “school sponsored.” For these and other reasons, Congress declined to apply equal access below the secondary level.

May administrators permit students to form religious or political clubs in middle schools, even if the law does not require that such clubs be allowed? Again, current law is unclear on this point. If school officials decide to allow middle school students to form religious or political clubs, then at the very least the school should have in place a clear policy and ground rules for the clubs, consistent with the EAA, and explain that the student clubs are not school-sponsored (see Good News Club v. School Dist. of Ladue, 8th Cir. 1994).

Yes. In the 1960s school-prayer cases that prompted rulings against state-sponsored school prayer and devotional Bible reading, the U.S. Supreme Court indicated that public school education may include teaching about religion. In Abington v. Schempp, Associate Justice Tom Clark wrote for the Court:

“[I]t might well be said that one’s education is not complete without a study of comparative religion or the history of religion and its relationship to the advancement of civilization. It certainly may be said that the Bible is worthy of study for its literary and historic qualities. 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.”

No. The grade level of the students and the academic requirements of the course should determine which religions to study and how much to discuss about religion.

In the elementary grades, the study of family, community, culture, history, literature, the nation, and other themes and topics should naturally involve some discussion of religion. Elementary students are introduced to the basic ideas and practices of the world’s major religions by focusing on the generally agreed-upon meanings of religious faiths — the core beliefs and symbols as well as important figures and events. Stories drawn from various faiths may be included among the wide variety of stories read by students, but the material selected must always be presented in the context of learning about religion. On the secondary level, the social studies, literature, and the arts offer opportunities for the inclusion of study about religions, their ideas, and practices. The academic needs of the course should determine which religions are studied and how much time is required to provide an adequate understanding of the concepts and practices under consideration.

In a U.S. history course, for example, some faith communities may be given more time than others simply because of their predominant influence on the development of the nation. In world history, a variety of faiths must be studied, based on the regions of the world, in order to understand the various civilizations and cultures that have shaped history and society.

Fair and balanced study about religion on the secondary level includes critical thinking about historical events involving religious traditions. Religious beliefs have been at the heart of some of the best and worst developments in human history. The full historical record, and various interpretations of it, should be available for analysis and discussion. Using primary sources whenever possible allows students to work directly with the historical record.

Of course, fairness and balance in U.S. or world history and literature is difficult to achieve, given the brief treatment of religious ideas and events in most textbooks and the limited time available in the course syllabus. Teachers will need scholarly supplemental resources that enable them to cover the required material within the allotted time, while enriching the discussion with study of religion. In fact, some schools now offer electives in religious studies to provide additional opportunities for students to study about the major faith communities in greater depth.

Overall, the curriculum should include all major voices, and many minor ones, in an effort to provide the best possible education.

Yes, if the school district policy allows guest speakers in the classroom.

If a guest speaker is invited, care should be taken to find someone with the academic background necessary for an objective and scholarly discussion of the historical period and the religion under consideration. Faculty from local colleges and universities often make excellent guest speakers, or they can recommend others who might be appropriate for working with students in a public school setting. Religious leaders in the community may also be a resource. Remember, however, that they have commitments to their own faith. Above all else, be certain that any guest speaker understands the First Amendment guidelines for teaching about religion in public education and is clear about the academic nature of the assignment.

Recreating religious practices or ceremonies through role-playing activities should not take place in a public school classroom for three reasons:

1. Such reenactments run the risk of blurring the distinction between teaching about religion (which is constitutional) and school-sponsored practice of religion (which is unconstitutional).
2. Role-playing religious practices or rituals may violate the religious liberty, or freedom of conscience, of the students in the classroom. Even if the students are all volunteers, many parents don't want their children participating in a religious activity of a faith not their own. The fact that the exercise is "acting" doesn't prevent potential problems.
3. Simulations or role-playing, no matter how carefully planned or well-intentioned, risk trivializing, caricaturing or oversimplifying the religious tradition that is being studied. Teachers should use audiovisual resources and primary sources to introduce students to the ceremonies and rituals of the world's religions.

Some states have passed laws requiring that creationist theory based on the biblical account be taught in science classrooms. The courts have found these laws to be unconstitutional on the ground that they promote a particular religious view. The Supreme Court has acknowledged, however, that a variety of scientific theories about origins can be appropriately taught in science classes. In Edwards v. Aguillard, the Court stated:

”[T]eaching a variety of scientific theories about the origins of humankind to schoolchildren might be validly done with the clear secular intent of enhancing the effectiveness of science instruction.”

Though science instruction may not endorse or promote religious doctrine, the account of creation found in various scriptures may be discussed in a religious-studies class or in any course that considers religious explanations for the origin of life.

Probably not. Although the U.S. Supreme Court has not addressed the issue of teaching intelligent design in public schools, a federal district court ruled in 2005 against a public school district that required the presentation of intelligent design as an alternative to the theory of evolution. The judge found that intelligent design was a religiously based theory and therefore the school board policy was an endorsement of religion in violation of the establishment clause. Proponents of intelligent design argue that the court ruling was an attempt to censor valid scientific criticism of Darwinian evolution. The controversy continues to divide people in many school districts across the nation.

The Supreme Court has held that public schools may teach students about the Bible as long as such teaching is “presented objectively as part of a secular program of education.” The cases are Abington School Dist. v. Schempp (1963) and Stone v. Graham (1980).

The Court has also held, in McCollum v. Board of Education in 1948, that religious groups may not teach religious courses on school premises during the school day.

Guidelines produced by the U.S. Department of Education in 1995, “Religious Expression in Public Schools,” reiterate that public schools “may not provide religious instruction, but they may teach about religion, including the Bible or other scripture” (emphasis in original Aug. 10, 1995, letter by Sec. Richard Riley). In keeping with the First Amendment’s mandate of government neutrality toward religion, any study of religion in a public school must be educational, not devotional. This principle holds true whether teaching about the Bible occurs in literature, history or any other class and whether the course is required or an elective.

A relatively small number of lower court decisions have dealt directly with the constitutionality of Bible classes in public schools. ¹ These rulings show that the constitutionality of such classes is highly dependent on such factors as how the class is taught, who teaches it, and which instructional materials and lessons are used.

How the class is taught: Any class about the Bible must be taught in an objective, academic manner. ² The class should neither promote nor disparage religion, nor should it be taught from a particular sectarian point of view. ³

Who teaches the class: A superintendent or school board should select teachers for a class about the Bible in the same manner all other teachers are selected. ⁴ School districts should not delegate the employment of such teachers to an outside committee that selects teachers based upon their religious beliefs or perspectives. ⁵ Teachers should be selected based upon their academic qualifications, rather than their religious beliefs or nonbeliefs. ⁶ Teachers should not be disqualified, however, simply because they have received religious training. ⁷

Funding for an elective course in religion may be provided by outside sources as long as the funds are contributed with “no strings attached.” ⁸

Which instructional materials are used: Decisions concerning instructional materials, including which translation of the Bible may be used, should remain under the control of the board of education. ⁹ The Bible may be used as a primary text, although it probably should not be the only text for a course. ¹⁰ Schools should avoid the use of instructional materials and lessons that are of a devotional nature, such as those used in a Sunday school. Supernatural occurrences and divine action described in the Bible may not be taught as historical fact in a public school. ¹¹ The historicity of many persons and events described in the Bible may or may not be confirmed by evidence outside of biblical literature.

Notes

1 See Hall v. Board of Commissioners of Conecuh County, 656 F.2d 999 (5th Cir. 1981); Gibson v. Lee County School Board, 1 F. Supp.2d 1426 (M.D. Fla. 1998); Chandler v. James, 985 F. Supp. 1062 (M.D. Ala. 1997); Herdahl v. Pontotoc County School District, 933 F. Supp. 582 (N.D. Miss. 1996); Doe v. Human, 725 F. Supp. 1503 (W.D. Ark. 1989), aff’d without opinion, 923 F.2d 857 (8th Cir. 1990), cert. denied, 499 U.S. 922 (1991); Crockett v. Sorenson, 568 F. Supp. 1422 (W.D. Va. 1983); Wiley v. Franklin, 468 F. Supp. 133 (E.D. Tenn. 1979), supp. op., 474 F. Supp. 525 (E.D. Tenn. 1979), supp. op., 497 F. Supp. 390 (E.D. Tenn. 1980); Vaughn v. Reed, 313 F. Supp. 431 (W.D. Va. 1970). Compare Malnak v. Yogi, 592 F.2d 197 (3d Cir. 1979) (holding unconstitutional a school course in which students participated in transcendental meditation ceremonies).

2 Schempp, 374 U.S. at 225; Graham, 449 U.S. at 42; Hall, 656 F.2d at 1002; Gibson, 1 F. Supp. 2d at 1432; Chandler, 985 F. Supp. at 1063; Herdahl, 933 F. Supp. at 592; Human, 725 F. Supp. at 1508; Crockett, 568 F. Supp. at 1427; Wiley, 497 F. Supp. at 392, 394; Vaughn, 313 F. Supp. at 433; Malnak v. Yogi, 592 F.2d 197 (3d Cir. 1979) (holding unconstitutional a school course in which students participated in transcendental meditation ceremonies).

3 Wiley, 497 F. Supp. at 394. See also Gibson, 1 F. Supp.2d at 1433-34; Herdahl, 933 F. Supp. at 595.

4 Crockett, 568 F. Supp. at 1431. See also Gibson, 1 F. Supp.2d at 1433; Vaughn, 313 F. Supp. at 434.

5 Herdahl, 933 F. Supp. at 593-594; Wiley, 468 F. Supp. at 152.

6 Wiley, 468 F. Supp. at 152.

7 Wiley, 497 F. Supp. at 393.

8 Crockett, 568 F. Supp. at 1431. See also Gibson, 1 F. Supp.2d at 1433; Herdahl, 933 F. Supp. at 598-599.

9 Crockett, 568 F. Supp. at 1431. See also Gibson, 1 F. Supp.2d at 1433.

10 Herdahl, 933 F. Supp. at 595 & n.9, 600. See also Hall, 656 F.2d at 1002-1003; Wiley, 468 F. Supp. at 151; Chandler, 985 F. Supp. at 1063.

11 Gibson, 1 F. Supp.2d at 1434; Herdahl, 933 F. Supp. at 596, 600; Wiley, 474 F. Supp. at 531.

If teachers are to understand clearly how to teach about the Bible — and to feel safe doing so — then local school boards should adopt policies on the role of study about religion in the curriculum. The policy should reflect constitutional principles and current law, and should be developed with the full involvement of parents and other community members. Parents need to be assured that the goals of the school in teaching about religion, including teaching about the Bible, are academic and not devotional, and that academic teaching about the Bible is not intended to either undermine or reinforce the beliefs of those who accept the Bible as sacred scripture or of those who do not. Faith formation is the responsibility of parents and religious communities, not the public schools.

In recent years, a consensus has emerged among many religious and educational groups about the appropriate role for religion in the public school curriculum. In 1989, a coalition of 17 religious and educational organizations issued the following statements to distinguish between teaching about religion in public schools and religious indoctrination:

• The school’s approach to religion is academic, not devotional.
• The school may strive for student awareness of religions, but should not press for student acceptance of any religion.
• The school may sponsor study about religion, but may not sponsor the practice of religion.
• The school may expose students to a diversity of religious views, but may not impose, discourage, or encourage any particular view.
• The school may educate about all religions, but may not promote or denigrate any religion.
• The school may inform the student about various beliefs, but should not seek to conform him or her to any particular belief. (This consensus statement, as well as extensive guidelines and resources for teaching about religion in public schools, can be found in Finding Common Ground: A First Amendment Guide to Religion and Public Education, by Charles C. Haynes and Oliver Thomas. Finding Common Ground is available at www.ASCD.org or from www.Amazon.com.)

When teaching about the Bible in a public school, teachers must understand the important distinction between advocacy, indoctrination, proselytizing, and the practice of religion — which is unconstitutional — and teaching about religion that is objective, nonjudgmental, academic, neutral, balanced and fair — which is constitutional.

Selecting a Bible for use in literature, history or elective Bible courses is important, since there is no single Bible. There is a Jewish Bible (the Hebrew Scriptures, or Tanakh), and there are various Christian Bibles — such as Catholic, Protestant and Orthodox — some with additional books, arranged in a different order. These differences are significant. For example, Judaism does not include the Christian New Testament in its Bible, and the Catholic Old Testament has 46 books while the Protestant has 39. There are also various English translations within each of these traditions.

To adopt any particular Bible — or translation — is likely to suggest to students that it is normative, the best Bible. One solution is to use a biblical sourcebook that includes the key texts of each of the major Bibles or an anthology of various translations.

At the outset and at crucial points in the course, teachers should remind students about the differences between the various Bibles and discuss some of the major views concerning authorship and compilation of the books of the Bible. Students should also understand the differences in translations, read from several translations, and reflect on the significance of these differences for the various traditions.

The Bible is interpreted in many different ways, religious and secular. For example: In Judaism, the Hebrew Bible is typically read through the eyes of various rabbinic commentators. For Roman Catholics, the authoritative interpretation of the church is crucial for understanding the Bible. Some Christians and Jews use the findings of modern secular scholarship to interpret the Bible, while others reject some or all of modern scholarship.

Because there are many ways to interpret the Bible — religious and secular — public school teachers should expose students to a variety of interpretations. Teachers should allow students to encounter the text directly (like any primary source), and then draw on the resources of different religious and secular interpretative traditions for understanding it. To do this effectively requires the use of secondary sources that provide a discussion of the various religious and secular approaches to the Bible.

Teaching about the Bible, either in literature and history courses or in Bible electives, requires considerable preparation. School districts and universities should offer in-service workshops and summer institutes for teachers who are teaching about the Bible in literature and history courses.

When selecting teachers to teach Bible electives, school districts should look for teachers who have some background in the academic study of religion. Unless they have already received academic preparation, teachers selected to teach a course about the Bible should receive substantive in-service training from qualified scholars before being permitted to teach such courses. Electives in biblical studies should only be offered if there are teachers academically competent to teach them.

For the future, we recommend changes in teacher education to help ensure that study about religion, including the Bible, is done well in public schools. Literature and history teachers should be encouraged, as part of their certification, to take at least one course in religious studies that prepares them to teach about religions in their subject. Teachers who wish to teach a Bible elective should have taken college-level courses in biblical studies. Eventually, religious studies should become a certifiable field, requiring at least an undergraduate minor. State departments of education will need to set certification requirements, review curricula, and adopt appropriate academic standards for electives in religious studies.

Academic study of the Bible in a public secondary school may appropriately take place in literature courses. Students might study the Bible as literature. They would examine the Bible as they would other literature in terms of aesthetic categories, as an anthology of narratives and poetry, exploring its language, symbolism and motifs. Students might also study the Bible in literature, the ways in which later writers have used Bible literature, language and symbols. Much drama, poetry and fiction contains material from the Bible.

A literature elective in the Bible would focus on the Bible as a literary text. This might include the Bible as literature and the Bible in literature. A primary goal of the course would be basic biblical literacy — a grasp of the language, major narratives, symbols and characters of the Bible. The course might also explore the influence of the Bible in classic and contemporary poems, plays and novels.

Of course, the Bible is not simply literature — for a number of religious traditions it is scripture. A “Bible Literature” course, therefore, could also include some discussion of how various religious traditions understand the text. This would require that literature teachers be adequately prepared to address in an academic and objective manner the relevant, major religious readings of the text.

The study of history offers a number of opportunities to study about the Bible. When studying the origins of Judaism, for example, students may learn different theories of how the Bible came to be. In a study of the history of the ancient world, students may learn how the content of the Bible sheds light on the history and beliefs of Jews and Christians — adherents of the religions that affirm the Bible as scripture. A study of the Reformation might include a discussion of how Protestants and Catholics differ in their interpretation and use of the Bible.

In U.S. history, there are natural opportunities for students to learn about the role of religion and the Bible in American life and society. For example, many historical documents — including many presidential addresses and congressional debates — contain biblical references. Throughout American history, the Bible has been invoked on various sides of many public-policy debates and in conjunction with social movements such as abolition, temperance and the civil rights movement. A government or civics course may include some discussion of the biblical sources for parts of our legal system.

Learning about the history of the Bible, as well as the role of the Bible in history, are appropriate topics in a variety of courses in the social studies.

An elective history course that focuses on the Bible is a difficult undertaking for public schools because of the complex scholarly and religious debates about the historicity of the Bible. Such a course would need to include non-biblical sources from a variety of scholarly perspectives. Students would study archeological findings and other historical evidence in order to understand the history and cultures of the ancient world. Teachers who may be assigned to teach a history course focused on the Bible need a great deal of preparation and sophistication.

Unless schools are prepared to design a course that meets the above requirements, they will face legal and educational challenges. In view of these requirements, most public schools that have offered a Bible elective have found it safer and more age-appropriate to use the Bible literature approach discussed earlier in this guide.

Schools must keep in mind that the Bible is seen by millions of Jews and Christians as scripture. For adherents of these faiths, the Bible makes sense of events in terms of God’s purposes and actions. This means that the Bible may not be treated as a history textbook by public school teachers but must be studied by examining a variety of perspectives — religious and non-religious — on the meaning and significance of the biblical account.

As we have already noted, sorting out what is historical in the Bible is complicated and potentially controversial. Teachers who teach a history course focused on the Bible need to be sensitive to the differences between conventional secular history and the varieties of sacred history. Students must learn something about the contending ways of assessing the historicity of the Bible. They cannot be uncritically taught to accept the Bible as literally true, as history. Nor should they be uncritically taught to accept as historical only what secular historians find verifiable in the Bible.

Sometimes, in an attempt to make study about the Bible more “acceptable” in public schools, educators are willing to jettison accounts of miraculous events. But this too is problematic, for it radically distorts the meaning of the Bible. For those who accept the Bible as scripture, God is at work in history, and there is a religious meaning in the patterns of history. A Bible elective in a public school may examine all parts of the Bible, as long as the teacher understands how to teach about the religious content of the Bible from a variety of perspectives.

Given the importance and influence of religion, public schools should include study about religion in some depth on the secondary level. As already suggested, such study may include study about the Bible, where appropriate, in history and literature courses as well as in elective courses that deal with the Bible.

However, a course that includes study about the Bible and its influence will not educate students about religion generally. Just as there is more to history than American history, so there is more to religion than the Bible, Judaism and Christianity.

Public schools should also include study about other religious faiths in the core curriculum and offer electives in world religions. Because religion plays a significant role in history and society, study about religion is essential to understanding both the nation and the world. Moreover, knowledge of the roles of religion in the past and present promotes crosscultural understanding in our increasingly diverse society.

Some school districts require that high schools offering a Bible elective also offer an elective in world religions. There is considerable merit in this approach. This gives students an opportunity to learn about a variety of religions and conveys to students from faiths other than the biblical traditions that their religions are also worthy of study. It is important for public schools to convey the message that the curriculum is designed to offer a good education, and not to prefer any religious faith or group.

The study of family, community, various cultures, the nation and other themes and topics important in elementary education may involve some discussion of religion. Elementary students are introduced to the basic ideas and practices of the world’s major religions in a number of textbooks and curriculums used in public schools. These discussions of religion focus on the generally agreed-upon meanings of religious faiths — the core beliefs and symbols, as well as important figures and events. Such discussions may include an introduction to biblical literature as students learn something about the various biblical faiths.

This early exposure to study about religion builds a foundation for later, more complex discussions in secondary school literature and history courses. Such teaching is introductory in nature; elementary education is not the place for in-depth treatment of religion. Stories drawn from various religious faiths may be included among the wide variety of stories read by students. But the material selected must always be presented in the context of learning about religion.

One court has permitted elective Bible courses at the elementary level (in Wiley v. Franklin, 468 F. Supp. 133 (E.D. Tenn. 1979)). But if such instruction is undertaken, it must be done academically and objectively by a qualified teacher. Children would need to understand that they are studying about what the people of a particular religious tradition believe and practice. Devotional books intended for faith formation or religious education may not be used in a public school classroom.

As in secondary schools, a balanced and fair curriculum in the elementary grades would not limit study about religion to Judaism and Christianity, but would include a variety of the world’s major religious faiths.

Teachers must be alert to the distinction between teaching about religious holidays, which is permissible, and celebrating religious holidays, which is not. Recognition of and information about holidays may focus on how and when they are celebrated, their origins, histories and generally agreed-upon meanings. If the approach is objective and sensitive, neither promoting nor inhibiting religion, this study can foster understanding and mutual respect for differences in belief. Teachers may not, however, use the study of religious holidays as an opportunity to proselytize or otherwise inject their personal religious beliefs into the discussion.

The use of religious symbols is permissible as a teaching aid or resource, provided they are used only as examples of cultural or religious heritage. Religious symbols may be displayed only on a temporary basis as part of the academic lesson being studied. Students may choose to create artwork with religious symbols, but teachers should not assign or suggest such creations.

Guest speakers also can help teachers present the appropriate information, but only if they understand their role as informational, not devotional, in nature.

In addition, the use of art, drama, music, or literature with religious themes is permissible if it serves a sound educational goal in the curriculum. Such themes should be included on the basis of their academic or aesthetic value, and not as a vehicle for promoting religious beliefs. For example, sacred music may be sung or played as part of the academic study of music. School concerts that present a variety of selections may include religious music. Concerts should, however, avoid programs dominated by religious music, especially when these coincide with a particular religious holiday.

Decisions about what to do in December should begin with the understanding that public schools may not sponsor religious devotions or celebrations; study about religious holidays does not extend to religious worship or practice.

Does this mean that all seasonal activities must be banned from the schools? Probably not, and in any event, such an effort would be unrealistic. The resolution would seem to lie in devising holiday programs that serve an educational purpose for all students — programs that make no students feel excluded or forcibly identified with a religion not their own.

Holiday concerts in December may appropriately include music related to Christmas, Hanukkah, and other religious traditions, but religious music should not dominate. Any dramatic productions should emphasize the cultural aspects of the holidays. Conversely, Nativity pageants or plays portraying the Hanukkah miracle would not be appropriate in the public school setting.

Teachers may also teach about religious holidays in the classroom, but they must be alert to the distinction between teaching about such holidays, which is permissible, and celebrating them, which is not. Guest speakers also can help teachers present the appropriate information, but only if they understand their role as informational, not devotional, in nature.

In short, while recognizing the holiday season, none of the school activities in December should have the purpose, or effect, of promoting or inhibiting religion.

Students from certain religious traditions may ask to be excused from classroom discussions or activities related to particular holidays. For example, holidays such as Halloween and Valentine’s Day, which are considered by many people to be secular, are viewed by others as having religious overtones.

Excusal requests may be especially common in the elementary grades, where holidays are often marked by parties and similar nonacademic activities. Such requests should be routinely granted in the interest of creating good policy and upholding the religious-liberty principles of the First Amendment.

In addition, some parents and students may make requests for excusals from discussions of certain holidays, even when these holidays are treated from an academic perspective. If these requests are focused on a limited, specific discussion, administrators should grant such requests, in order to strike a balance between the student’s religious freedom and the school’s interest in providing a well-rounded education.

Administrators and teachers should understand, however, that a policy or practice of excusing students from a specific activity or discussion may not be used as a rationale for school sponsorship of religious celebration or worship for the remaining students.

The school probably does not have to give equal time for other outside speakers. But if the school is bringing speakers in to discuss holidays in December, it makes educational sense to include Christmas. All outside speakers should follow First Amendment guidelines for teaching about the holidays.

Generally no. Adults from outside the school do not have an automatic right to distribute materials to students in a public school. May school officials allow them to do so? Although this area of the law is somewhat unclear, it is fair to say that schools should exercise great caution before giving an outside group access to students during the school day. Giving some groups access opens the door to others. Moreover, if a religious group is allowed to actively distribute religious literature to students on campus, that activity is likely to violate the establishment clause.

At least one lower court has upheld “passive” distribution of materials in a secondary school by religious and other community groups. Note that in this case the group left materials for students to browse through and take only if they wished. Also, a wide variety of community groups were given similar privileges, and the school posted a disclaimer explaining that the school did not endorse these materials. Under those conditions, this court allowed passive distribution, but only in the secondary-school setting (see Peck v. Upshur County, 4th Cir. 1998, although other federal courts have rejected this distinction).

Schools may announce community events or meetings of groups — including religious groups — that work with students. All of these groups should be treated in the same way. The school should make clear that it does not sponsor these community groups (see Child Evangelism Fellowship v. Stafford Township, 3rd Cir. 2004).

Although outside groups generally have no right to distribute religious materials on campus, flyers from religious groups may be another matter. If a school allows outside groups such as the Girl Scouts to send flyers home with students about programs for youth, some courts have ruled that schools may not deny that privilege to a religious group. *

* See Hills v. Scottsdale S.D. County Pub. Schools, 9th Cir. 2003; Rusk v. Crestview Local School Dist., 6th Cir. 2004; Child Evangelism Fellowship v. Mont. Co. Public Schools, 4th Cir. 2004.

Generally, yes. Although schools are not required to open their facilities to any community group, when they do, all groups — including those with a religious viewpoint — must be treated the same (see Good News Club v. Milford Central School Dist., 2001). In fact, the Supreme Court has ruled unanimously that schools may not discriminate on the basis of religious viewpoint when making their facilities available to community groups during nonschool hours (see Lamb’s Chapel v. Center Moriches Union Free School Dist., 1993).

Schools may, of course, impose reasonable, content-neutral restrictions on the use of their facilities. For example, schools may decide when meetings may be held, how long they may last, whether they may continue during weeks or months when school is not in session, what maintenance fee must be paid, and what insurance might be required.

Some content-based restrictions may also be allowed. For example, schools may probably exclude for-profit, commercial businesses even though community nonprofits are allowed to use school facilities after hours. They may also limit the use of the facilities to such things as “educational purposes,” but such distinctions may prove difficult to administer, as many groups may claim to meet the stipulated purpose.

Schools should be aware that the imposition of content-based restrictions could raise difficult constitutional questions. For example, the Supreme Court has held in Good News v. Milford that in the case of the Good News Club, a content-based restriction excluding religious worship and instruction amounted to impermissible viewpoint discrimination. School districts should be especially mindful to consult with legal counsel if they decide to draft content-based restrictions.

Yes, but only if appropriate constitutional safeguards are in place. Remember, public schools must remain neutral among religions and between religion and nonreligion. For that reason, religious groups must refrain from proselytizing students during any cooperative programs with public schools. Participation or nonparticipation by students in such cooperative programs should not affect the student’s academic ranking or ability to participate in other school activities. In addition, cooperative programs may not be limited to religious groups, but must be open to all responsible community groups.

For more detailed guidelines, see “Public Schools and Religious Communities: A First Amendment Guide” published by the American Jewish Congress, Christian Legal Society, and First Amendment Center and co-signed by 12 additional educational and religious organizations (1999).

In these guidelines, a “cooperative arrangement” is defined as a shared participation in specific programs and activities in accordance with a written agreement. Before entering into a cooperative arrangement, public schools and religious communities should understand and accept the following principles:

1. Under the First Amendment, public schools must be neutral concerning religion in all of their activities. School officials must take the necessary steps to ensure that any cooperative activities that take place are wholly secular. Persons invited to address students during the school day shall be advised of this requirement and must agree to abide by it before being allowed access to students.
2. Students have the right to engage in, or decline to engage in, religious activities at their own initiative, so long as they do not interfere with the rights of others. School districts are urged to adopt policies that reflect recent consensus statements on current law concerning religion in public schools. “Religion in the Public Schools: A Joint Statement of Current Law,” the U.S. Department of Education’s guidelines on “Religious Expression in Public Schools,” and other consensus guidelines are available: Write to the First Amendment Center Online to request copies.
3. Cooperative programs between religious institutions and the public schools are permissible only if:
• Participation in programs is not limited to religious groups. That is, schools must be open to participation by all responsible community groups. Qualifications should not be established which have the practical effect of including only religious groups. Eligibility shall be stated in writing.
• A student’s grades, class ranking or participation in any school program will not be affected by his or her willingness to participate or not participate in a cooperative program with a religious institution.
• Student participation in any cooperative program may not be conditioned on membership in any religious group, acceptance or rejection of any religious belief, or participation (or refusal to participate) in any religious activity.

In times of sudden crisis (e.g., violent or accidental death of students or teachers), schools may call on a wide range of qualified counselors, including religious leaders, to assist school-employed counselors in helping children cope with the crisis at hand. Of course, religious leaders may not be the only grief counselors invited on campus during a crisis. Religious leaders may not otherwise be given routine access to students during the school day. Even when counseling to deal with a sudden crisis, religious leaders should remember that a public school is not a place for proselytizing or other overt religious activity.

To the extent that schools cooperate with adults who are important in a student's life (parents or other relatives, guardians, foster parents, social workers or neighbors) to help the child deal with school work, behavioral problems, or other issues, schools may also cooperate with an adult acknowledged by a student as his or her religious leader. However, a school may not in any way compel or coerce a student to speak to representatives of religious institutions.

Public schools may cooperate with mentoring projects run by religious institutions provided that:

• Other community organizations are given an equal opportunity and are subject to the same secular selection criteria to operate such programs in partnership with the schools.
• Referrals are made without regard to a student's religious beliefs or lack of them.
• Participation in the program is not conditioned on mandatory participation, or refusal to participate, in religious programs operated by a religious institution.
• At no time do school officials encourage or discourage student participation in the religious programs of religious institutions.

In order to provide for the safety of students traveling to and from schools, the school district may ask local institutions (e.g., businesses, firehouses, religious institutions) to serve as temporary shelters for students who seek to avoid danger or threatening situations. The school shall provide signs indicating that the place is a shelter available for students.

Public schools may arrange to use the facilities of private landholders, including churches, temples, mosques or other religious institutions. Of course, all such facilities must meet applicable health and safety codes. But if the arrangement involves the use of sanctuaries, playgrounds, libraries or other facilities owned by religious groups, then the following First Amendment guidelines must be followed:

1. The schools must have a secular educational purpose for seeking to use the facilities, such as after-school recreation, extended day care, homework study hall, etc.
2. Where schools lease space from religious institutions for use as regular public school classrooms, the leased space is in effect a public school facility. Religious symbols or messages may not be displayed in the leased areas.
3. Cooperative programs using the facilities of religious institutions must not afford an actual opportunity for proselytizing by clergy, school employees, or adult volunteers of any school children during the school-affiliated program. (Of course, the law is not violated if a cooperative program’s use of a religious facility coincidentally results in a student gaining an interest in attending worship services there. But the law prohibits clergy from leading devotions as part of the school program.)
4. As stated above, religious symbols and messages may not be displayed in space leased from religious institutions for use as public-school classrooms. The rules are somewhat different for cooperative programs. A room bedecked with scriptural injunctions about repentance and salvation would not be appropriate for cooperative programs; a room with religious symbols or icons might well be.
5. School officials may neither select nor reject the use of a private religious facility based on the popularity or unpopularity of its religious teachings. Religion-neutral criteria should be employed, e.g., proximity to the schools in question; suitability of the facility for the intended use; health and safety; comparative expenses (if any); accessibility for parent pickup or busing.
6. The school's arrangement for use of a private religious facility should not involve or necessitate an ongoing administrative entanglement between the school district and the religious institution, in which one party ends up exerting influence over the content, scheduling or staffing of the other's activities.

Yes. The Supreme Court has long recognized that public schools may choose to create off-campus released-time programs as a means of accommodating the needs of religious students and parents. The schools may not encourage or discourage participation or penalize students who do not attend.

As employees of the government, public school teachers and administrators are subject to the establishment clause and thus required to be neutral concerning religion while carrying out their duties. That means, for example, that school officials do not have the right to pray with or in the presence of students during the school day.

Of course, teachers and administrators — like students — bring their faith with them through the schoolhouse door each morning. Because of the First Amendment, however, school officials who wish to pray or engage in other religious activities — unless they are silent — should do so outside the presence of students.

If a group of teachers wishes to meet for prayer or scriptural study in the faculty lounge during free time in the school day or before or after school, most legal experts see no constitutional reason why they should not be permitted to do so, as long as the activity is outside the presence of students and does not interfere with their duties or the rights of other teachers.

When not on duty, of course, educators are free like all other citizens to practice their faith. But school officials must refrain from using their position in the public school to promote their outside religious activities.

The U.S. Department of Education put it this way in its 2003 guidelines on prayer in public schools:

“When acting in their official capacities as representatives of the state, teachers, school administrators, and other school employees are prohibited by the Establishment Clause from encouraging or discouraging prayer, and from actively participating in such activity with students. Teachers may, however, take part in religious activities where the overall context makes clear that they are not participating in their official capacities. Before school or during lunch, for example, teachers may meet with other teachers for prayer or Bible study to the same extent that they may engage in other conversation or nonreligious activities. Similarly, teachers may participate in their personal capacities in privately sponsored baccalaureate ceremonies.”

Most experts agree that teachers are permitted to wear unobtrusive jewelry, such as a cross or a Star of David. But they should not wear clothing with a proselytizing message (e.g., a “Jesus Saves” T-shirt).

Some teachers prefer not to answer the question, believing that it is inappropriate for a teacher to inject personal beliefs into the classroom. Other teachers may choose to answer the question directly and succinctly in the interest of an open and honest classroom environment.

Before answering the question, however, teachers should consider the age of the students. Middle and high school students may be able to distinguish between a personal conviction and the official position of the school; very young children may not. In any case, the teacher may answer at most with a brief statement of personal belief — but may not turn the question into an opportunity to proselytize for or against religion. Teachers may neither reward nor punish students because they agree or disagree with the religious views of the teacher.

Generally, teachers must instruct their students in accordance with the established curriculum. For example, the 9th Circuit ruled in 1994 against a high school biology teacher who had challenged his school district’s requirement that he teach evolution, as well as its order barring him from discussing his religious beliefs with students. In the words of the court, “[a] school district’s restriction on [a] teacher’s right of free speech in prohibiting [the] teacher from talking with students about religion during the school day, including times when he was not actually teaching class, [is] justified by the school district’s interest in avoiding [an] Establishment Clause violation.” (Peloza v. Capistrano Unified School Dist., 9th Cir. 1994)

More recently, a state appeals court ruled again that a high school teacher did not have a First Amendment right to refuse to teach evolution in a high school biology class (LeVake v. Independent School Dist. No. 656, Minn. App. 2001). The teacher had argued that the school district had reassigned him to another school and another course because it wanted to silence his criticism of evolution as a viable scientific theory. The state appeals court rejected that argument, pointing out that the teacher could not override the established curriculum.

Other courts have similarly found that teachers do not have a First Amendment right to trump school district decisions regarding the curriculum (Clark v. Holmes, 7th Cir. 1972, Webster v. New Lenox School Dist. No. 122, 7th Cir. 1990). One court wrote: “the First Amendment has never required school districts to abdicate control over public school curricula to the unfettered discretion of individual teachers.” (Kirkland v. Northside Independent School Dist., 5th Cir. 1989)

More recently, the 4th Circuit ruled that a teacher had “no First Amendment right to insist on the makeup of the curriculum." (Boring v. Buncombe County Bd. of Education, 1998)

No, not unless the school has a legitimate civil or secular purpose for limiting activities; it may not curtain programs only to accommodate a particular religious group. Though the U.S. Supreme Court has not ruled directly on this issue, causing some ambiguity, the Court has heard many cases concerning the First Amendment's establishment clause. From one of those cases came the Lemon test used by the courts to determine if a law runs contrary to the establishment clause. The secular-purpose standard mentioned above is one part of this test, which the Court developed in 1971 in deciding the case Lemon v. Kurtzman. The Lemon test has three parts; first, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion; third, the statute must not foster an excessive government entanglement with religion. So, for example, if school officials could show that there would be little or no participation in a school activity on a given night due to some religious observance or activity, causing the school to waste school funds, they would probably withstand a constitutional challenge.

A school may issue a disclaimer that plainly states that in affording such student groups an opportunity to meet, it is merely making its facilities available, nothing more.

Probably not. It is likely that many courts would allow a school to prohibit teachers' religious garb in order to maintain religious neutrality. The courts may view such garb as creating a potential establishment-clause problem, particularly at the elementary school level.

Pennsylvania and Oregon have laws that prohibit teachers from wearing religious clothing to schools. Both laws have been upheld in court challenges brought under the First Amendment and Title VII, the major anti-discrimination employment law. The courts reasoned that the statutes furthered the states' goal of ensuring neutrality with respect to religion in the schools.

In the Pennsylvania case, U.S. v. Board of Education, the 3rd Circuit rejected the Title VII religious-discrimination claim of a Muslim teacher who was prevented from wearing her religious clothing to school. The school acted pursuant to a state law, called the “Garb Statute,” which provided: “[N]o teacher in any public school shall wear in said school or while engaged in the performance of his duty as such teacher any dress, mark, emblem or insignia indicating the fact that such teacher is a member or adherent of any religious order, sect or denomination.”

The teacher and the Equal Employment Opportunity Commission contended that the school should have allowed the teacher to wear her head scarf and long, loose dress as a “reasonable accommodation” of her religious faith. The appeals court disagreed, determining that “the preservation of religious neutrality is a compelling state interest.”

In its 1986 decision Cooper v. Eugene School District, the Oregon Supreme Court rejected the free-exercise challenge of a Sikh teacher suspended for wearing religious clothing — a white turban and white clothes — to her special education classes. The Oregon high court upheld the state law, which provided: “No teacher in any public school shall wear any religious dress while engaged in the performance of duties as a teacher.” The court wrote that “the aim of maintaining the religious neutrality of the public schools furthers a constitutional obligation beyond an ordinary policy preference of the legislature.”

The First Amendment Center’s A Teacher’s Guide to Religion in the Public Schools provides that “teachers are permitted to wear non-obtrusive jewelry, such as a cross or Star of David. But teachers should not wear clothing with a proselytizing message (e.g. a ‘Jesus Saves’ T-shirt)."

No.

First, the 9th U.S. Circuit Court of Appeals has temporarily put off enforcing its Newdow ruling. Newdow's case failed before the U.S. Supreme Court in 2004; he has filed a new case that is being litigated in a lower court.

Second, a 9th Circuit decision directly affects schools only in states within the 9th Circuit’s jurisdiction: Alaska, Hawaii, California, Oregon, Washington, Montana, Idaho, Nevada and New Mexico. A public school in any other state is governed, to varying degrees, by the legal interpretations of its individual state’s supreme court, of the federal appeals court encompassing that state, and of the U.S. Supreme Court.

Third, the Newdow ruling, even if enforced, would not prevent students from voluntarily deciding to recite the pledge, without any government involvement. Such an interpretation of Newdow would be consistent with prior Supreme Court rulings on school prayer and student speech, under which state-sponsored school prayers are unconstitutional, but truly voluntary, nondisruptive prayers by students would be constitutionally protected.

Fourth, although courts outside the 9th Circuit could voluntarily decide to follow Newdow’s interpretation of Supreme Court precedents, such courts could instead decide to follow the dissenting view that the reference to God in the pledge is mere “ceremonial deism” (like “In God We Trust” on coins) and is no danger to First Amendment freedoms.

Fifth and finally, schools that are especially risk-averse can avoid offending atheists, polytheists and others concerned about theocratic government by using the pre-1954 version of the pledge, which didn’t have the words “under God.” Of course, if teachers loudly correct students who voluntarily say “under God,” or teachers otherwise campaign against nondisruptive students voluntarily expressing religious beliefs, then schools run the risk of promoting official disapproval of religion, which would be unconstitutional.

No matter what happens in regard to Newdow, schools must ensure that students are not coerced into reciting the pledge against their religious or political beliefs. Such coercion would violate the First Amendment’s guarantees of freedom of speech and freedom of religion. For instance, schools should be sensitive to the fact that children of Jehovah’s Witnesses object to saluting the flag and to reciting the pledge because their church teaches that such actions are a form of idol worship forbidden by the Ten Commandments.

Yes, if they are privately sponsored. Public schools may not sponsor religious baccalaureate ceremonies. But parents, faith groups, and other community organizations are free to hold such services for students who wish to attend. The school may announce the baccalaureate in the same way it announces other community events. If the school allows community groups to rent or otherwise use its facilities after hours, then a privately sponsored baccalaureate may be held on campus under the same terms offered to any private group.

The answer will depend in part on the age of the graduating students and the nature of the prayer. Including a prayer by a student would pose no problems at the university level. However, high schools and junior highs have to be more careful and may need to consider the content of the prayer. Courts have found that if students organize themselves wholly independently of the school to present a sectarian prayer, if it even appears that the school was involved, the act would violate the Constitution. It is important to note that because graduation ceremonies are school-sponsored, it is difficult to avoid the appearance of school involvement. A student-initiated prayer that was non-sectarian and non-proselytizing might not violate the establishment clause, but many people object to such exercises as “civil religion” that dilutes prayer. One federal district court has held that a student chosen on the basis of neutral criteria (the valedictorian or class president, for example) may deliver a prayer of any sort on his or her own if the school is not involved – because for the school to censor the student’s religious speech would also violate the Constitution. It’s a tricky area. For those who want prayer to be included in secondary-school graduations, the best approach may be to hold a privately sponsored, voluntarily attended baccalaureate service after school hours, perhaps at a local church.

No, the U.S. Supreme Court struck down an anti-evolution law in its 1968 decision Epperson v. Arkansas. The Court reasoned that such a law violated the establishment clause of the First Amendment. “The State’s undoubted right to prescribe the curriculum for its public schools does not carry with it the right to prohibit, on pain of criminal penalty, the teaching of a scientific theory or doctrine where that prohibition is based upon reasons that violate the First Amendment,” Justice Abe Fortas wrote for the Court.

No, the U.S. Supreme Court struck down such a law in Louisiana in its 1987 decision Edwards v. Aguillard. The Court determined that the “preeminent purpose of the Louisiana Legislature was clearly to advance the religious viewpoint that a supernatural being created humankind.” The Court added that “the purpose of the Creationism Act was to restructure the science curriculum to conform with a particular religious viewpoint.” A federal district had invalidated a similar Arkansas law in 1982.

There are no First Amendment barriers to prevent a public school chorus from performing in a house of worship during non-worship times. The 10th U.S. Circuit Court of Appeals addressed this issue in its 1997 opinion Bauchman v. West High School and rejected the notion that merely singing in a religious venue would support an establishment-clause claim. The situation would likely be different if a performance coincided with an actual worship service, as that could be construed as the school’s endorsing or supporting the church or that religion.