by: Attorney David Gibbs III
National Center for Life and Liberty
In 1947, the United States Supreme Court took a sharp left turn in its interpretation of the Establishment Clause of the First Amendment to the United States Constitution as it was applied to public schools in America. Since then, students, teachers, school officials, parents, and local religious leaders have been struggling to understand the parameters of the Establishment Clause as it relates to religious expression in public schools.
The decision of the United States Supreme Court in the case of Everson v. Board of Education, 330 U.S. 1 (1947), was the first time the United States Supreme Court held that the Establishment Clause restrained individual states and all other governmental entities from establishing or officially sponsoring religion. When Congress enacted the Bill of Rights in 1789, the Establishment Clause was intended to restrain only the conduct of the federal government. At that point in our nation’s history, states were left to establish a state religion if they wished. Therefore, since public schools were creatures of state and local governments, local governing bodies, such as school boards, could include the dominant religious beliefs of the community in the local school curriculum.
In the Everson case, the Court upheld a New Jersey statute permitting the state to reimburse Catholic parents for the expense of busing their children to and from parochial schools. However, in doing so, the Court ruled for the first time that the Establishment Clause prohibited all governmental entities, not just the federal government, from establishing religion. Many of the early American colonies had established dominant religious institutions. Although these state churches had fallen out of favor over time, the Everson decision constitutionally required all other governmental bodies to also abandon the practice. It was primarily this extension of the Establishment Clause to all governmental entities, including public schools, which became the source of today’s controversies regarding prayer and religious education in taxpayer-supported schools.
The Everson Court held that New Jersey’s transportation legislation did no more than provide a general program to help parents, regardless of their religion, to safely and efficiently transport their children to school. Therefore, the Court said, this law did not breach the “high and impregnable” wall of separation between church and state. The Everson decision was the first time the United States Supreme Court imposed Thomas Jefferson’s “wall of separation” word picture as a governing principle in America’s constitutional law.
The “wall of separation” was a phrase used by President Thomas Jefferson in a letter he wrote to the Danbury Baptist Convention in 1801. In response to a letter from the Convention expressing concern that the Constitution permitted the federal government to interfere in matters of religion, Jefferson assured this Connecticut church body that it had no need to fear intervention from the federal government because a “wall of separation” had been constitutionally erected between church and state.
The Court’s majority decision in the Everson case, written by Justice Hugo Black, held that it was constitutional for New Jersey public school districts to transport Catholic school students to their parochial schools, but then went on to state:
The First Amendment has erected a wall of separation between church and state. That wall must be kept high and impregnable. We could not approve the slightest breach. New Jersey has not breached it here.
This unprecedented conclusion followed a strong statement by the Court several pages earlier that specifically spelled out what the “high and impregnable” wall implied:
Neither a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another…. No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion.
The Everson Court’s application of the Establishment Clause to state and local governments, including school boards, and its elevation of Thomas Jefferson’s “wall of separation” comment to a constitutional principle continue even today to provide the legal bases for the exclusion of prayer and other official religious activities from public schools even against the wishes of the electorate and the parents.
While it does not appear that outlawing religion in public schools was the intent of the founders, nor was it the practice in America before 1947, the Everson decision set the stage for other challenges to religious practices in public schools. Daily prayer and Bible reading were challenged and dismissed from public schools in the early 1960s. Other forms of official religious expression became legally unwelcome in public schools with the elimination of graduation prayers in 1992 and prayers before football games in 2000. All religious limitations in public schools are based on the 1947 Court-imposed interpretation of the Establishment Clause as requiring a complete “separation of church and state” in all federal, state, and local governments. Interestingly, however, some courts continue to permit the teaching of non-Christian religions in public schools under the guise that such instruction is “cultural” and not religious.” This, too, is a double standard being imposed by modern courts on our nation’s public schools.
There is good news, however. Despite the Establishment Clause’s limitation on official religious expression in public schools, the First Amendment’s Free Speech and Free Exercise Clauses continue to protect most student religious speech in public schools. Most courts also adopt a reasonable approach to religious instruction in public schools. Even while the Establishment Clause, since the mid-Twentieth Century, has prohibited devotional and proselytizing religious speech by public school teachers and other school officials, teachers may still teach about religion in public schools if such teaching is objective, neutral, and academic. Court decisions in the last half century have also continued to protect at least some religious outreach activities in public schools by community religious leaders.
Making Sense of Religion in America’s Public Schools is intended to assist families, students, teachers, school officials and community leaders in sorting through the current legal maze of religious expression in America’s public schools. We want to encourage the free exercise of every available legal right of speech and religious expression in order to be faithful to the intent of America’s founders and to the successful education of today’s public school students.
May students include religion in school assignments?
When teachers give their students a choice of subject matter for an assignment, the students may express their own beliefs about religion in the form of homework, artwork, or other written and oral assignments, as long as the assignment otherwise meets the teacher’s academic objectives and requirements. Teachers must then judge homework and classroom work containing religious expression by using the same ordinary academic standards they would apply to non-religious expression.
The Supreme Court has stated that if a government school prohibits religious speech or activities, it would be demonstrating not neutrality, but an unconstitutional hostility toward religion. The Establishment Clause does not permit the government, including public schools, to treat religion and those who practice it differently or in any negative way that would subject the religious student to unique disabilities.
Students may give speeches, choose show-and-tell displays, present talent show selections, or do artwork using religious themes as long as the teacher has given the student a choice in topic selection and the student is careful to follow other general assignment instructions. Generally, school officials may only censor student speech for obscenity, promoting drugs, or for general lack of civility. Therefore, any time students are given a choice of subject matter in an assignment, a religious choice must be permitted; however, the choice should not be devotional or proselytizing. Some examples include the following: choosing to read a Christian book when other students are permitted to choose books for making a report, choosing a religious show-and-tell item, choosing a religious topic for a speech, choosing a religious topic for a writing assignment, or choosing a religious theme for an art project or talent show presentation. Religious artwork may be displayed alongside secular artwork where it is obvious that the choice of subject matter was the student’s choice. To prohibit such choices would be viewpoint discrimination in violation of the First Amendment rights of free speech and would demonstrate an unconstitutional hostility toward religion and toward religious students.
Students may write book reports or English themes or do discretionary assignments about religious subjects. However, such reports must closely follow all academic assignment instructions because a teacher may reject a religious assignment when it is not considered appropriate for that particular pedagogical exercise. For example, one teacher legally refused to allow a child to show a video of herself singing a Christian song because the purpose of the class assignment had been to increase the students’ communication skills by requiring a “live” classroom presentation by the student on a subject of the student’s choosing.
When the choice to use a religious topic is the student’s and not the teacher’s, there is no violation of the Establishment Clause, since students, as consumers rather than providers of government services, are not able to violate the Establishment Clause. Only teachers or other school officials are able to violate the Establishment Clause. The teacher can explain to the rest of the class that the topic choice is the student’s and that the viewpoint expressed is that of the student. Therefore, speeches with non- devotional and non-proselytizing religious content may be given in class to other students and student artwork with a religious theme may be hung in a classroom, as long as it is clear to the hearer or to the observer that the religious choice and viewpoint was the student’s. Students who would not want to hear a religious presentation that would violate their own religious beliefs could be excused from the classroom for the duration of the presentation upon a written request from the student’s parents.
In most cases where courts have not supported a student’s right to choose a religious topic for an assignment, the courts have determined that the student did not meet the teacher’s pedagogical requirements or that the student’s religious choice appeared to have official school endorsement. Where the assignment otherwise meets the teacher’s academic requirements and the use of the assignment does not appear to have official school endorsement, there is no constitutional violation in such individual student choices. If a teacher does not wish to permit a student to make a religious choice in completing an assignment, the teacher should not permit any of the students to have a free choice in the assignment topic.
The federal government has said that public schools must treat religion with fairness and respect and must vigorously protect student religious expression, as well as the religious consciences of all students. This directive pertains to religious speech both inside and outside the classroom. Many teachers would find it very interesting, for instance, to have a Muslim student explain his beliefs and customs in a classroom speech. That same teacher may not then prohibit a Christian student from also explaining his Christian beliefs and practices. Insofar as Islam is a cultural as well as a religious topic, the same is also true of Christianity; and the two should be treated exactly alike in school. The teacher should assume that hearing about the beliefs and customs of a Christian student is no more proselytizing or inappropriate than hearing about the beliefs and customs of a Muslim student. Both can have educational value for the rest of the class and both can be used by the teacher to encourage a respect for all viewpoints, including those with which the student disagrees. The American experiment encourages persuasive and open debate about all topics.
For a much more in-depth discussion of the legality of religious expressions in America’s public schools, pick up a copy or download Making Sense of Religion In America’s Public Schools.
The National Center for Life and Liberty
PO Box 270548
Flower Mound, TX 75027-0548
Phone: 888.233.NCLL (6255)
Email: info@NCLL.org
Web: www.NCLL.org