Separation of Church and State--Viewpoints and Convictions Under the Law

       Recently, I was asked to explain clearly my position on religion in public schools, as it pertains to the separation of church and state. First, it is important to know that certain issues are not, by law, open to personal interpretation.  The following information is taken from the U.S. Department of Education, found at: http://www2.ed.gov/policy/gen/guid/religionandschools/prayer_guidance.html 

The Supreme Court has repeatedly held that the First Amendment requires public school officials to be neutral in their treatment of religion, showing neither favoritism toward nor hostility against religious expression such as prayer. [ 2 ] Accordingly, the First Amendment forbids religious activity that is sponsored by the government but protects religious activity that is initiated by private individuals, and the line between government-sponsored and privately initiated religious expression is vital to a proper understanding of the First Amendment's scope. As the Court has explained in several cases, "there is a crucial difference between government speech endorsing religion, which the Establishment Clause forbids, and private speech endorsing religion, which the Free Speech and Free Exercise Clauses protect." [ 3 ]

         The Supreme Court's decisions over the past forty years set forth principles that distinguish impermissible governmental religious speech from the constitutionally protected private religious speech of students. For example, teachers and other public school officials may not lead their classes in prayer, devotional readings from the Bible, or other religious activities. [ 4 ] Nor may school officials attempt to persuade or compel students to participate in prayer or other religious activities. [ 5 ] Such conduct is "attributable to the State" and thus violates the Establishment Clause. [ 6 ]

        Similarly, public school officials may not themselves decide that prayer should be included in school-sponsored events. In Lee v. Weisman [ 7 ], for example, the Supreme Court held that public school officials violated the Constitution in inviting a member of the clergy to deliver a prayer at a graduation ceremony. Nor may school officials grant religious speakers preferential access to public audiences, or otherwise select public speakers on a basis that favors religious speech. In Santa Fe Independent School District v. Doe [ 8 ], for example, the Court invalidated a school's football game speaker policy on the ground that it was designed by school officials to result in pregame prayer, thus favoring religious expression over secular expression.

       Although the Constitution forbids public school officials from directing or favoring prayer, students do not "shed their constitutional rights to freedom of speech or expression at the schoolhouse gate," [ 9 ] and the Supreme Court has made clear that "private religious speech, far from being a First Amendment orphan, is as fully protected under the Free Speech Clause as secular private expression." [ 10 ] Moreover, not all religious speech that takes place in the public schools or at school-sponsored events is governmental speech. [ 11 ] For example, "nothing in the Constitution ... prohibits any public school student from voluntarily praying at any time before, during, or after the school day," [ 12 ] and students may pray with fellow students during the school day on the same terms and conditions that they may engage in other conversation or speech. Likewise, local school authorities possess substantial discretion to impose rules of order and pedagogical restrictions on student activities, [ 13 ] but they may not structure or administer such rules to discriminate against student prayer or religious speech. For instance, where schools permit student expression on the basis of genuinely neutral criteria and students retain primary control over the content of their expression, the speech of students who choose to express themselves through religious means such as prayer is not attributable to the state and therefore may not be restricted because of its religious content. [ 14 ] Student remarks are not attributable to the state simply because they are delivered in a public setting or to a public audience. [ 15 ] As the Supreme Court has explained: "The proposition that schools do not endorse everything they fail to censor is not complicated," [ 16 ] and the Constitution mandates neutrality rather than hostility toward privately initiated religious expression. [ 17 ]

Applying the Governing Principles in Particular Contexts

Prayer During Noninstructional Time

        Students may pray when not engaged in school activities or instruction, subject to the same rules designed to prevent material disruption of the educational program that are applied to other privately initiated expressive activities. Among other things, students may read their Bibles or other scriptures, say grace before meals, and pray or study religious materials with fellow students during recess, the lunch hour, or other noninstructional time to the same extent that they may engage in nonreligious activities. While school authorities may impose rules of order and pedagogical restrictions on student activities, they may not discriminate against student prayer or religious speech in applying such rules and restrictions.

 Organized Prayer Groups and Activities

       Students may organize prayer groups, religious clubs, and "see you at the pole" gatherings before school to the same extent that students are permitted to organize other non-curricular student activities groups. Such groups must be given the same access to school facilities for assembling as is given to other non-curricular groups, without discrimination because of the religious content of their expression. School authorities possess substantial discretion concerning whether to permit the use of school media for student advertising or announcements regarding non-curricular activities. However, where student groups that meet for nonreligious activities are permitted to advertise or announce their meetings—for example, by advertising in a student newspaper, making announcements on a student activities bulletin board or public address system, or handing out leaflets—school authorities may not discriminate against groups who meet to pray. School authorities may disclaim sponsorship of non-curricular groups and events, provided they administer such disclaimers in a manner that neither favors nor disfavors groups that meet to engage in prayer or religious speech.

 Teachers, Administrators, and other School Employees

       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.

 Moments of Silence

        If a school has a "minute of silence" or other quiet periods during the school day, students are free to pray silently, or not to pray, during these periods of time. Teachers and other school employees may neither encourage nor discourage students from praying during such time periods.

 Religious Expression and Prayer in Class Assignments

        Students may express their beliefs about religion in homework, artwork, and other written and oral assignments free from discrimination based on the religious content of their submissions. Such home and classroom work should be judged by ordinary academic standards of substance and relevance and against other legitimate pedagogical concerns identified by the school. Thus, if a teacher's assignment involves writing a poem, the work of a student who submits a poem in the form of a prayer (for example, a psalm) should be judged on the basis of academic standards (such as literary quality) and neither penalized nor rewarded on account of its religious content.

 Student Assemblies and Extracurricular Events

       Student speakers at student assemblies and extracurricular activities such as sporting events may not be selected on a basis that either favors or disfavors religious speech. Where student speakers are selected on the basis of genuinely neutral, evenhanded criteria and retain primary control over the content of their expression, that expression is not attributable to the school and therefore may not be restricted because of its religious (or anti-religious) content. By contrast, where school officials determine or substantially control the content of what is expressed, such speech is attributable to the school and may not include prayer or other specifically religious (or anti-religious) content. To avoid any mistaken perception that a school endorses student speech that is not in fact attributable to the school, school officials may make appropriate, neutral disclaimers to clarify that such speech (whether religious or nonreligious) is the speaker's and not the school's.

 Prayer at Graduation

          School officials may not mandate or organize prayer at graduation or select speakers for such events in a manner that favors religious speech such as prayer. Where students or other private graduation speakers are selected on the basis of genuinely neutral, evenhanded criteria and retain primary control over the content of their expression, however, that expression is not attributable to the school and therefore may not be restricted because of its religious (or anti-religious) content. To avoid any mistaken perception that a school endorses student or other private speech that is not in fact attributable to the school, school officials may make appropriate, neutral disclaimers to clarify that such speech (whether religious or nonreligious) is the speaker's and not the school's.

 Baccalaureate Ceremonies

       School officials may not mandate or organize religious ceremonies. However, if a school makes its facilities and related services available to other private groups, it must make its facilities and services available on the same terms to organizers of privately sponsored religious baccalaureate ceremonies. In addition, a school may disclaim official endorsement of events sponsored by private groups, provided it does so in a manner that neither favors nor disfavors groups that meet to engage in prayer or religious speech.

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Notes: 

[ 1 ] The relevant portions of the First Amendment provide: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech . . . ." U.S. Const. amend. I. The Supreme Court has held that the Fourteenth Amendment makes these provisions applicable to all levels of government—federal, state, and local—and to all types of governmental policies and activities. See Everson v. Board of Educ., 330 U.S. 1 (1947); Cantwell v. Connecticut, 310 U.S. 296 (1940). 

[ 2 ] See, e.g., Everson, 330 U.S. at 18 (the First Amendment "requires the state to be a neutral in its relations with groups of religious believers and non-believers; it does not require the state to be their adversary. State power is no more to be used so as to handicap religions than it is to favor them"); Good News Club v. Milford Cent. Sch., 533 U.S. 98 (2001). 

[ 3 ] Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290, 302 (2000) (quoting Board of Educ. v. Mergens, 496 U.S. 226, 250 (1990) (plurality opinion)); accord Rosenberger v. Rector of Univ. of Virginia, 515 U.S. 819, 841 (1995). 

[ 4 ] Engel v. Vitale, 370 U.S. 421 (1962) (invalidating state laws directing the use of prayer in public schools); School Dist. of Abington Twp. v. Schempp, 374 U.S. 203 (1963) (invalidating state laws and policies requiring public schools to begin the school day with Bible readings and prayer); Mergens, 496 U.S. at 252 (plurality opinion) (explaining that "a school may not itself lead or direct a religious club"). The Supreme Court has also held, however, that the study of the Bible or of religion, when presented objectively as part of a secular program of education (e.g., in history or literature classes), is consistent with the First Amendment. See Schempp, 374 U.S. at 225. 

[ 5 ] See Lee v. Weisman, 505 U.S. 577, 599 (1992); see also Wallace v. Jaffree, 472 U.S. 38 (1985). 

[ 6 ] See Weisman, 505 U.S. at 587. 

[ 7 ] 505 U.S. 577 (1992).

[ 8 ] 530 U.S. 290 (2000). 

[ 9 ] Tinker v. Des Moines Indep. Community Sch. Dist., 393 U.S. 503, 506 (1969). 

[ 10 ] Capitol Square Review & Advisory Bd. v. Pinette, 515 U.S. 753, 760 (1995). 

[ 11 ] Santa Fe, 530 U.S. at 302 (explaining that "not every message" that is "authorized by a government policy and take[s] place on government property at government-sponsored school-related events" is "the government's own"). 

[ 12 ] Santa Fe, 530 U.S. at 313. 

[ 13 ] For example, the First Amendment permits public school officials to review student speeches for vulgarity, lewdness, or sexually explicit language. Bethel Sch. Dist. v. Fraser, 478 U.S. 675, 683-86 (1986). Without more, however, such review does not make student speech attributable to the state.

[ 14 ] Rosenberger v. Rector of Univ. of Virginia, 515 U.S. 819 (1995); Board of Educ. v. Mergens, 496 U.S. 226 (1990); Good News Club v. Milford Cent. Sch., 533 U.S. 98 (2001); Lamb's Chapel v. Center Moriches Union Free Sch. Dist., 508 U.S. 384 (1993); Widmar v. Vincent, 454 U.S. 263 (1981); Santa Fe, 530 U.S. at 304 n.15. In addition, in circumstances where students are entitled to pray, public schools may not restrict or censor their prayers on the ground that they might be deemed "too religious" to others. The Establishment Clause prohibits state officials from making judgments about what constitutes an appropriate prayer, and from favoring or disfavoring certain types of prayers—be they "nonsectarian" and "nonproselytizing" or the opposite—over others. See Engel v. Vitale, 370 U.S. 421, 429-30 (1962) (explaining that "one of the greatest dangers to the freedom of the individual to worship in his own way lay in the Government's placing its official stamp of approval upon one particular kind of prayer or one particular form of religious services," that "neither the power nor the prestige" of state officials may "be used to control, support or influence the kinds of prayer the American people can say," and that the state is "without power to prescribe by law any particular form of prayer"); Weisman, 505 U.S. at 594.

[ 15 ] Santa Fe, 530 U.S. at 302; Mergens, 496 U.S. at 248-50. 

[ 16 ] Mergens, 496 U.S. at 250 (plurality opinion); id. at 260-61 (Kennedy, J., concurring in part and in judgment). 

[ 17 ] Rosenberger, 515 U.S. at 845-46; Mergens, 496 U.S. at 248 (plurality opinion); id. at 260-61 (Kennedy, J., concurring in part and in judgment).

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 Discussion: 

My personal stance is that one’s faith is a deeply personal thing. Religion, however, is a public expression of personal faith. To dictate that all must practice a faith, a particular faith, or follow a specific denominational dogma, is in direct conflict with the intent and purpose of the Constitution of the United States and the Bill of Rights.

To favor, or promote individuals within a system on the bases of their profession of faith, membership at a particular place of worship, or by any other criteria other than education, experience, skill, disposition, and merit is a disservice to our students and infringes on the principles of freedom upon which our founding documents were drafted.

Although some people do not understand how or why religious practice in a public school system could be detrimental, one must only extend the idea to a practice of being instructed or indoctrinated in a belief contrary to one’s own—Southern Baptists required to pray the rosary; Catholics forced to deny the papal succession or the Eucharist; any Christian being forced to deny Christ and worship in the Islamic or Jewish manner—these thoughts bring about feelings of anger, angst, fear and even hatred. 

Christianity is the mainstream belief in the United States and here in Clay County; it is both respectful and kind—two values of the Christian faith—to allow those who hold different beliefs the right to do so in a non-threatening environment. It is right and respectful to allow and facilitate the observance the major holy days of other faiths by not scheduling mandatory testing on those days and allowing personnel to take leave, either with pay or without if necessary, to observe their religious practice. It is also right and respectful to serve food options that meet dietary restrictions—without impeding the rights of those without such convictions.

It would be grossly inappropriate for a teacher or an administrator at any level to require a certain political persuasion as criteria of employment or assessment. The same can be said for religion. There should be no restriction on casual conversation about one’s preferences, beliefs, philosophy, or practice regarding faith. It is through meaningful conversations that we learn and grow; but these should be restricted to non-instructional time. 

If a student asks about a personal belief or tenet of faith, it is the adult’s prerogative whether or not to answer—keeping in mind that the statement of one’s own belief or disbelief is as personal as one’s political affiliation, or marital status. A person can state that they’re married; they shouldn’t be allowed to force or intimidate another person to make that choice. 

           Regarding Religious Clubs and Organizations:

Students should be allowed to belong to any religious club or organization they wish. However, these should not be subsidized by school dollars. School dollars (tax-payer monies) should be reserved specifically for academic, artistic, and athletic activities to educate, enrich, and engage the students with whom we are entrusted. Funding for religious clubs and organizations should be done privately by the organization itself. All clubs, organizations, and affiliations should meet only after the contact hours of the academic day are over.

Regarding Christian Holiday Celebrations: 

The United States Supreme Court has determined that school may celebrate the holidays and create displays as long as they do so "within the context of the Christmas season" and the religious component of the display does NOT DOMINATE but simply represent one element of a holiday that has obtained secular statues in our society. Lynch v. Donnely, 465.U.S.668,679, and 691(1984). Students may not be obligated or forced to participate in any event that offends his or her beliefs, and school officials should make every effort to make alternate accommodations for students who choose not to participate in holiday activities due to religious conviction. 

Quite simply, the PUBLIC school system is a component of state government. As a government entity, it must function without preference to serve all of the state citizens equally, and to ensure their rights regarding religious practice and preference are protected. Ronald Reagan on the Separation of Church and State