Encounter in the Public Schools

United States Department of Education
August 10, 1995

Because of persistent misunderstanding of public policy with regard to religion and the schools among educators, parents, and students, President Clinton directed the Department of Education to articulate clearly the principles that now governed religious expression and the teaching of religion in the public schools. “Religious Expression in Public Schools” (1995) clarifies just what the law was in relation to some of the most contested issues in America.  The document is reproduced below along a letter from Secretary of Education Richard W. Riley to school superintendents.

Dear Superintendent:

On July 12th, President Clinton directed the Secretary of Education, in consultation with the Attorney General, to provide every school district in America with a statement of principles addressing the extent to which religious expression and activity are permitted in our public schools. In response to the President’s request, I am sending to you this statement of principles.

In the last two years, I have visited with many educators, parents, students, and religious leaders. I have become increasingly aware of the real need to find a new common ground and inject fresh air into the growing and, at times divisive debate about religion in our public schools. President Clinton and I hope that this information will provide useful guidance to educators, parents, and students in defining the proper place for religious expression and religious freedom in our public schools.

As the President explained, the First Amendment imposes two basic and equally important obligations on public school officials in their dealings with religion. First, schools may not forbid students acting on their own from expressing their personal religious views or beliefs solely because they are of a religious nature. Schools may not discriminate against private religious expression by students, but must instead give students the same right to engage in religious activity and discussion as they have to engage in other comparable activity. Generally, this means that students may pray in a non-disruptive manner during the school day when they are not engaged in school activities and instruction, subject to the same rules of order as apply to other student speech.

At the same time, schools may not endorse religious activity or doctrine, nor may they coerce participation in religious activity. Among other things, of course, school administrators and teachers may not organize or encourage prayer exercises in the classroom. And the right of religious expression in school does not include the right to have a “captive audience” listen, or to compel other students to participate. School officials should not permit student religious speech to turn into religious harassment aimed at a student or a small group of students. Students do not have the right to make repeated invitations to other students to participate in religious activity in the face of a request to stop.

The statement of principles set forth below derives from the First Amendment. Implementation of these principles, of course, will depend on specific factual contexts and will require careful consideration in particular cases.

Although most schools have been implementing these principles already, some problems have arisen where people are unaware of, or do not understand, these obligations. It is my sincere hope that these principles will help to end much of the confusion regarding religious expression in public schools and that they can provide a basis for school officials, teachers, parents, and students to work together to find common ground—helping us to get on with the important work of education. I want to recognize again the efforts of religious and other civic groups who came together earlier this year to issue a statement of current law on religion in the public schools, from which we drew heavily in developing these principles.

I encourage you to share this information widely and in the most appropriate manner with your school community. Accept my sincere thanks for your continuing work on behalf of all of America’s children.

Sincerely,

Richard W. Riley
U.S. Secretary of Education

RELIGIOUS EXPRESSION IN PUBLIC SCHOOLS

Student prayer and religious discussion: The Establishment Clause of the First Amendment does not prohibit purely private religious speech by students. Students therefore 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 activity. For example, students may read their Bibles or other scriptures, say grace before meals, and pray before tests to the same extent they may engage in comparable non-disruptive activities. Local school authorities 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.

Generally, students may pray in a non-disruptive manner when not engaged in school activities or instruction, and 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 apply 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 to stop student speech that constitutes harassment aimed at a student or a group of students.

Students may also participate in before or after school events with religious content, such as “see you at the flag 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.

The right to engage in voluntary prayer or religious discussion free from discrimination does not include the right to have a captive audience listen, or to compel other students to participate. Teachers and school administrators should ensure that no student is in any way coerced to participate in religious activity.

Graduation prayer and baccalaureates: Under current Supreme Court decisions, school officials may not mandate or organize prayer at graduation, nor organize religious baccalaureate ceremonies. If a school generally opens its facilities to private groups, it must make its facilities available on the same terms to organizers of privately sponsored religious baccalaureate services. A school may not extend preferential treatment to baccalaureate ceremonies and may in some instances be obliged to disclaim official endorsement of such ceremonies.

Official neutrality regarding religious activity: Teachers and school administrators, when acting in those capacities are representatives of the state and are prohibited by the establishment clause from soliciting or encouraging religious activity, and from participating in such activity with students. Teachers and administrators also are prohibited from discouraging activity because of its religious content, and from soliciting or encouraging antireligious activity.

Teaching about religion: Public schools may not provide religious instruction, but they may teach about religion including the Bible or other scripture: the history of religion, comparative religion, the Bible (or other scripture) as literature, and the role of religion in the history of the United States and other countries all are permissible public school subjects. Similarly, it is permissible to consider religious influences on art, music, literature, and social studies. Although public schools may teach about religious holidays, including their religious aspects, and may celebrate the secular aspects of holidays, schools may not observe holidays as religious events or promote such observance by students.

Student assignments: Students may express their beliefs about religion in the form of homework, art-work, and other written and oral assignments free of 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.

Religious literature: Students have a right to distribute religious literature to their schoolmates on the same terms as they are permitted to distribute other literature that is unrelated to school curriculum or activities. Schools may impose the same reasonable time, place, and manner or other constitutional restrictions on distribution of religious literature as they do on non-school literature generally, but they may not single out religious literature for special regulation.

Religious excusals:  Subject to applicable State laws, schools enjoy substantial discretion to excuse individual students from lessons that are objectionable to the student or the students’ parents on religious or other conscientious grounds. School officials may neither encourage nor discourage students from availing themselves of an excusal option. Under the Religious Freedom Restoration Act, 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, the school would be legally required to excuse the student.

Released time: Subject to applicable State laws, schools have the discretion to dismiss students to off-premises religious instruction, provided that schools do not encourage or discourage participation or penalize those who do not attend. Schools may not allow religious instruction by outsiders on school premises during the school day.

Teaching values: Though schools must be neutral with respect to religion, they may play an active role with respect to teaching civic values and virtue, and the moral code that holds us together as a community. The fact that some of these values are held also by religions does not make it unlawful to teach them in school.

Student garb: Students may display religious messages on items of clothing to the same extent that they are permitted to display other comparable messages. Religious messages may not be singled out for suppression, but rather are subject to the same rules as generally apply to comparable messages. When wearing particular attire, such as yarmulkes and head scarves, during the school day is part of students’ religious practice, under the Religious Freedom Restoration Act schools generally may not prohibit the wearing of such items.

THE EQUAL ACCESS ACT

The Equal Access Act is designed to ensure that, consistent with the First Amendment, student religious activities are accorded the same access to public school facilities as are student secular activities. Based on decisions of the Federal courts, as well as its interpretations of the Act, the Department of Justice has advised that the Act should be interpreted as providing, among other things, that:

General provisions: Student religious groups at public secondary schools have the same right of access to school facilities as is enjoyed by other comparable student groups. Under the Equal Access Act, a school receiving Federal funds that allows one or more student noncurriculum-related clubs to meet on its premises during noninstructional time may not refuse access to student religious groups.

Prayer services and worship exercises covered: A meeting, as defined and protected by the Equal Access Act, may include a prayer service, Bible reading, or other worship exercise.

Equal access to means of publicizing meetings: A school receiving Federal funds must allow student groups meeting under the Act to use the school media—including the public address system, the school newspaper, and the school bulletin board—to announce their meetings on the same terms as other noncurriculum-related student groups are allowed to use the school media. Any policy concerning the use of school media must be applied to all noncurriculum- related student groups in a nondiscriminatory matter. Schools, however, may inform students that certain groups are not school sponsored.

Lunch-time and recess covered: A school creates a limited open forum under the Equal Access Act, triggering equal access rights for religious groups, when it allows students to meet during their lunch periods or other non-instructional time during the school day, as well as when it allows students to meet before and after the school day.

[“Religious Expression in Public Schools.” United States Department of Education. 10 August 1995. United States Court of Appeals, 5th Circuit Library Archive.]

The National Congress of Parents and Teachers
Freedom Forum First Amendment Center at Vanderbilt University
Nashville, Tennessee

Parents are recognized as having the primary responsibility for the upbringing of their children, including education. For this reason, parents need to be fully informed about school policies and practices, including all issues concerning religion and religious liberty in public education.

The following questions and answers are intended to help parents understand the religious liberty rights of students and the appropriate role for religion in the public school curriculum. A number of recent documents represent a growing consensus among many religious and educational groups about the constitutional and educational role of religion in public schools. (1) This pamphlet is designed to build on these agreements and to encourage communities to find common ground when they are divided.

The following questions and answers provide general information on the subject of religious expression and practices in schools. The answers are based on First Amendment religious liberty principles as currently interpreted by the courts and agreed to by a wide range of religious and educational organizations. For a more in-depth examination of the issues, parents should consult the guide listed at the end of this publication. If parents have specific legal questions, the services of a qualified attorney should be sought.

Keep in mind, however, that the law alone cannot answer every question. Parents in each community must work with school officials to do not only what is constitutional, but also what is right for all citizens. The religious liberty principles of the First Amendment provide the civic framework within which we are able to debate our differences, to understand one another, and to forge school policies that serve the common good in public education.

FINDING COMMON GROUND
1. In our community we want to work together to address religion in school issues. How do we go about finding common ground?

Parents and school officials in many local communities have had success finding common ground using the following strategies:

Include all of the stakeholders. Because public schools belong to all citizens, they must model the democratic process and constitutional principles in the development of policies and curricula. Policy decisions by officials or governing bodies should be made only after appropriate involvement of those affected by the decisions and with due consideration of those holding dissenting views.

Listen to all sides. If we are to build trust and to truly listen to one another, school officials must acknowledge what is valid about criticism of school policies and practices, particularly concerning the treatment of religion and religious perspectives. At the same time, parents with deep religious convictions need to acknowledge that the vast majority of public school administrators and teachers do not intend to be hostile to religion and want to be fair in their treatment of parents and students.

Work for comprehensive policies. Many school districts contribute to confusion and distrust by having no policies concerning many of the issues addressed in this pamphlet. By working with parents to develop comprehensive policies, schools demonstrate the importance of taking religious liberty seriously.

Be pro-active. School districts unprepared for controversy fare poorly when a conflict arises. Where there are no policies (or policies are not known or supported by parents), there is a much greater likelihood of lawsuits, shouting matches at school board meetings, and polarization in the community. A pro-active approach takes seriously the importance of articulating the proper role for religion and religious perspectives in the public schools. The resulting policies and practices create a climate of trust in the community and demonstrate the public schools’ active commitment to the guiding principles of our democracy.

Commit to civil debate. Conflict and debate are vital in a democracy. Yet, if we are going to live with our deepest differences, then how we debate, and not only what we debate, is critical. Personal attacks, name-calling, ridicule, and similar tactics destroy the fabric of our society and undermine the educational mission of our schools. All parties should treat one another with civility and respect and should strive to be accurate and fair. Through constructive dialogue, we have much to learn from one another.

RELIGIOUS LIBERTY AND PUBLIC SCHOOLS
2. Is there general agreement on how religious faith should be treated in public schools under the First Amendment?

Yes. In a recent statement of principles, a broad range of religious and educational groups agreed to the following description of religious liberty and public schools within the First Amendment framework:

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, where appropriate, as an important part of a complete education. (2)

STUDENT RELIGIOUS EXPRESSION
3. Does this mean that students may express their faith while in school?

Yes. Schools should respect the right of students to engage in religious activity and discussion.

Generally, individual students are free to pray, read their scriptures, discuss their faith, and invite others to join their particular religious group. Only if a student’s behavior is disruptive or coercive should it be prohibited. No student should be allowed to harass or pressure others in a public school setting.

If doing so is relevant to the subject under consideration and meets the requirements of the assignment, students also have the right to express their religious views during a class discussion or as part of a written assignment or art activity.

STUDENT PRAYER
4. May students pray together in public schools?

Yes. Students are free to pray alone or in groups, as long as the activity is not disruptive and does not infringe upon the rights of others. These activities must be truly voluntary and student-initiated. For example, students are permitted to gather around the flagpole for prayer before school begins, as long as the event is not sponsored by the school and other students are not pressured to attend. Students do not have a right to force a captive audience to participate in religious exercises.

5. Didn’t the Supreme Court rule against student prayer in public schools?

No. The Supreme Court has struck down state-sponsored or state-organized prayer in public schools. The Court has interpreted the First Amendment to mean that government must be neutral among religions and between religion and nonreligion. This means that school officials may not organize, mandate, or participate in student religious activities, including prayer. A moment of silence, however, may be led by school officials, as long as it does not promote prayer over other types of quiet contemplation.

6. Does this mean that students may offer prayers at graduation ceremonies?

Not necessarily. Lower courts are divided about whether a student may offer prayers at graduation exercises. Parents should seek legal advice about what rules apply in their state.

Some schools create a “free speech forum” at school-sponsored events, during which time students are free to express themselves religiously or otherwise. Such a forum, however, would have to be open to all kinds of speech, including speech critical of religion or the school.

BACCALAUREATE SERVICES  
7. What about baccalaureate services?

Although a public school may not sponsor religious baccalaureate ceremonies, parents, faith groups, and other community organizations are free to sponsor 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.

TEACHING ABOUT RELIGION
8. Is it constitutional to teach about religion in public schools?

Yes. The Supreme Court has indicated many times that teaching about religion, as distinguished from religious indoctrination, is an important part of a complete education. The public school’s approach to religion in the curriculum must be academic, not devotional.

Study about religion belongs in the curriculum wherever it naturally arises. On the secondary level, the social studies, literature and the arts offer many opportunities for the inclusion of information about religions—their ideas and practices. On the elementary level, natural opportunities arise in discussions of the family and community life and in instruction about festivals and different cultures.

Religion may also be studied in special courses. Some secondary schools, for example, offer electives in “World Religions,” “Bible as/in History or Literature,” and “Religion in America.”

RELIGIOUS HOLIDAYS
9. How should religious holidays be treated in the schools?

Religious holidays offer opportunities to teach about religion in elementary and secondary schools. Teaching about religious holidays, which is permissible, is different from celebrating religious holidays, which is not. Study of holidays serves academic goals of educating students about history and cultures as well as about the traditions of particular religions.

The use of religious symbols as examples of religious or cultural heritage is permissible as a teaching aid or resource. Religious symbols should only be displayed on a temporary basis as part of the academic program.

Sacred music may be sung or played as part of a school’s academic program. School concerts that present a variety of selections may include religious music. The use of music, art, drama, or literature with religious themes is permissible if it serves a sound educational goal in the curriculum, but not if used as a vehicle for promoting religious belief.

EXCUSAL REQUESTS
10. May students be excused from parts of the curriculum for religious reasons?

Whenever possible, school officials should try to accommodate the requests of parents and students for excusal from classroom discussions or activities for religious reasons. If focused on a specific discussion, assignment, or activity, such requests should be routinely granted in order to strike a balance between the student’s religious freedom and the school’s interest in providing a well-rounded education.

Under the Religious Freedom Restoration Act (3) 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, the school would be legally required to excuse the student.

STUDENT RELIGIOUS CLUBS
11. May students form religious clubs in public schools?

Under the federal Equal Access Act (4) secondary public schools receiving federal funds must allow students to form religious clubs if the school allows other noncurriculum related clubs to meet during noninstructional time. “Noncurriculum related” means any club not directly related to the courses offered by the school. Student religious clubs may have access to school facilities and media on the same basis as other noncurriculum-related student clubs.

The Equal Access Act protects the rights of students to form religious clubs. Outside adults may not direct or regularly attend meetings of such clubs. Teachers may be present at religious club meetings as monitors, but they may not participate in club activities.

Public schools are free to prohibit any club activities that are illegal or that would cause substantial disruption of the school. (5)

STUDENT RELIGIOUS GARB
12. May students wear religious garb and display religious symbols in public schools?
Yes. Students who must wear religious garb such as head scarves or yarmulkes should be permitted to do so in school. Students may also display religious messages on clothing to the same extent that other messages are permitted.

DISTRIBUTION OF RELIGIOUS LITERATURE
13. May students distribute religious literature in the schools?

Generally, students have a right to distribute religious literature on public school campuses subject to reasonable time, place and manner restrictions imposed by the school. This means that the school may specify at what times the distribution may occur (e.g., lunch hour or before or after classes begin), where it may occur (e.g., outside the school office), and how it may occur (e.g., from fixed locations as opposed to roving distribution). These restrictions should be reasonable and must apply evenly to all non-school student literature.

Public schools may prohibit the distribution of some literature altogether. Some examples would be materials that are obscene, defamatory, or disruptive of the educational environment.

RELEASE TIME
14. May students be released for off-campus religious instruction during the school day?
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.

CHARACTER EDUCATION
15. What is the relationship between religion and character education in public schools?

Parents are the first and most important moral educators of their children. Thus public schools should develop character education programs only in close partnership with parents and the community. Local communities need to work together to identify the core moral and civic virtues that they wish to be taught and modeled in all aspects of school life. (6) In public schools, where teachers may neither promote nor denigrate religion, the core moral and civic values agreed to in the community may be taught if done so without religious indoctrination. At the same time, core values should not be taught in such a way as to suggest that religious authority is unnecessary or unimportant. Sound character education programs affirm the value of religious and philosophical commitments and avoid any suggestion that morality is simply a matter of individual choice without reference to absolute truth.

The National PTA encourages its nearly 7 million members to be involved in key child education, health, and welfare issues. The organization serves as an advocate for children and families in schools, the community, and before government agencies.

The Freedom Forum First Amendment Center at Vanderbilt University is an independent operating program of The Freedom Forum. The Center was established by The Freedom Forum, one of the nation’s largest foundations, on Dec. 15, 1991, the 200th Anniversary of Ratification of the Bill of Rights to the U.S. Constitution.

The First Amendment Center’s mission is to foster a better public understanding of and appreciation for First Amendment rights and values, including freedom of religion, free speech and press, and the right to petition government and to assemble peacefully.

The Freedom Forum is a nonpartisan, international foundation dedicated to free press, free speech, and free spirit for all people. The foundation pursues its priorities through programs including conferences, educational activities, publishing, broadcasting, online services, partnerships, training and research. The Freedom Forum makes limited grants in connection with its programs; unsolicited grant applications are not accepted.

Major operating programs are The Freedom Forum Media Studies Center at Columbia University in New York City, The Freedom Forum First Amendment Center at Vanderbilt University in Nashville, Tenn., and The Newseum at The Freedom Forum Headquarters in Arlington, Virginia

Endnotes
1. One of these documents is a directive sent to school superintendents from the U.S. Department of Education. Copies of the U.S. Department of Education guidelines may be obtained by calling 1-800-USA-LEARN. Another document, Religion in the Public Schools: A Joint Statement of Current Law, has been endorsed by a broad range of religious organizations. It is available by writing: “Religion in the Public Schools” 15 East 84th Street, Suite 501, New York, New York, 10028.
2. For free copies of Religious liberty Public Education, and the Future of American Democracy: A Statement of Principles, contact The Freedom Forum First Amendment Center at Vanderbilt University.
3. See 42 United States Code Section 2000bb to 2000bb-4.
4. See 20 United States Code Section 4071 to 4074.
5. For comprehensive guidelines on how to interpret the Equal Access Act, consult chapter 11 of Finding Common Ground: A First Amendment Guide to Religion and Public Education, available from The Freedom Forum First Amendment Center.
6. The Character Education Partnership provides complete information on how to start a character education program and a clearinghouse of character education resources. Contact the Character Education Partnership at 809 Franklin Street, Alexandria, Virginia, 22314, Tel.: (800) 988-8081.

[“A Parent’s Guide to Religion in Public Shools.” Publication No. 215.07-FAC. The National Congress of Parents and Teachers and The Freedom Forum First Amendment Center at Vanderbilt University. www.freedomforum.org. 2008.]

Freedom Forum First Amendment Center at Vanderbilt University
Nashville, Tennessee

Our nation urgently needs a reaffirmation of our shared commitment, as American citizens, to the guiding principles of the Religious Liberty clauses of the First Amendment to the Constitution. The rights and responsibilities of the Religious Liberty clauses provide the civic framework within which we are able to debate our differences, to understand one another, and to forge public policies that serve the common good in public education.

Today, many American communities are divided over educational philosophy, school reform, and the role of religion and values in our public schools. Conflict and debate are vital to democracy. Yet, if controversies about public education are to advance the best interests of the nation, then how we debate, and not only what we debate, is critical.

In the spirit of the First Amendment, we propose the following principles as civic ground rules for addressing conflicts in public education:

I. RELIGIOUS LIBERTY FOR ALL
Religious liberty is an inalienable right of every person.
As Americans, we all share the responsibility to guard that right for every citizen. The Constitution of the United States with its Bill of Rights provides a civic framework of rights and responsibilities that enables Americans to work together for the common good in public education.

II. THE MEANING OF CITIZENSHIP
Citizenship in a diverse society means living with our deepest differences and committing ourselves to work for public policies that are in the best interest of all individuals, families, communities and our nation.

The framers of our Constitution referred to this concept of moral responsibility as civic virtue.

III. PUBLIC SCHOOLS BELONG TO ALL CITIZENS
Public schools must model the democratic process and constitutional principles in the development of policies and curricula.

Policy decisions by officials or governing bodies should be made only after appropriate involvement of those affected by the decision and with due consideration for the rights of those holding dissenting views.

IV. RELIGIOUS LIBERTY AND PUBLIC SCHOOLS
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, where appropriate, as an important part of a complete education.

V. THE RELATIONSHIP BETWEEN PARENTS AND SCHOOLS
Parents are recognized as having the primary responsibility for the upbringing of their children, including education.

Parents who send their children to public schools delegate to public school educators some of the responsibility for their children’s education. In so doing, parents acknowledge the crucial role of educators without abdicating their parental duty. Parents may also choose not to send their children to public schools and have their children educated at home or in private schools. However, private citizens, including business leaders and others, also have the right to expect public education to give students tools for living in a productive democratic society. All citizens must have a shared commitment to offer students the best possible education. Parents have a special responsibility to participate in the activity of their children’s schools. Children and schools benefit greatly when parents and educators work closely together to shape school policies and practices and to ensure that public education supports the societal values of their community without undermining family values and convictions

VI. CONDUCT OF PUBLIC DISPUTES
Civil debate, the cornerstone of a true democracy, is vital to the success of any effort to improve and reform America’s public schools.

Personal attacks, name-calling, ridicule, and similar tactics destroy the fabric of our society and undermine the educational mission of our schools. Even when our differences are deep, all parties engaged in public disputes should treat one another with civility and respect, and should strive to be accurate and fair. Through constructive dialogue we have much to learn from one another.

Sponsors:
American Center for Law and Justice
American Federation of Teachers
Association for Supervisor and Curriculum Development
Carnegie Foundation for the Advancement of Teaching
Central Conference of American Rabbis
Christian Coalition
Christian Educators Association International
Christian Legal Society
Citizens for Excellence in Education
The Freedom Forum First Amendment Center at Vanderbilt University
National Association of Evangelicals
National Association of Secondary School Principals
National Council of Churches of Christ in the U.S.A.
National Education Association
National School Boards Association
People for the American Way
Union of American Hebrew Congregations

[Excerpt from “Religious Liberty, Public Education, and the Future of Democracy: A Statement of Principles.” Chapter 2. Freedom Forum First Amendment Center at Vanderbilt University. www.freedomforum.org.]

United States Department of Education
February 7, 2003

INTRODUCTION 

Section 9524 of the Elementary and Secondary Education Act (“ESEA”) of 1965, as amended by the No Child Left Behind Act of 2001, requires the Secretary to issue guidance on constitutionally protected prayer in public elementary and secondary schools. In addition, Section 9524 requires that, as a condition of receiving ESEA funds, a local educational agency (“LEA”) must certify in writing to its State educational agency (“SEA”) that it has no policy that prevents, or otherwise denies participation in, constitutionally protected prayer in public schools as set forth in this guidance.

The purpose of this guidance is to provide SEAs, LEAs, and the public with information on the current state of the law concerning constitutionally protected prayer in the public schools, and thus to clarify the extent to which prayer in public schools is legally protected. This guidance also sets forth the responsibilities of SEAs and LEAs with respect to Section 9524 of the ESEA. As required by the Act, this guidance has been jointly approved by the Office of the General Counsel in the Department of Education and the Office of Legal Counsel in the Department of Justice as reflecting the current state of the law. It will be made available on the Internet through the Department of Education’s web site (www.ed.gov). The guidance will be updated on a biennial basis, beginning in September 2004, and provided to SEAs, LEAs, and the public.

…

OVERVIEW OF GOVERNING CONSTITUTIONAL PRINCIPLES 

The relationship between religion and government in the United States is governed by the First Amendment to the Constitution, which both prevents the government from establishing religion and protects privately initiated religious expression and activities from government interference and discrimination. [ 1 ] The First Amendment thus establishes certain limits on the conduct of public school officials as it relates to religious activity, including prayer.

The legal rules that govern the issue of constitutionally protected prayer in the public schools are similar to those that govern religious expression generally. Thus, in discussing the operation of Section 9524 of the ESEA, this guidance sometimes speaks in terms of “religious expression.” There are a variety of issues relating to religion in the public schools, however, that this guidance is not intended to address.

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.

Accommodation of Prayer During Instructional Time
It has long been established that schools have the discretion to dismiss students to off-premises religious instruction, provided that schools do not encourage or discourage participation in such instruction or penalize students for attending or not attending. Similarly, schools may excuse students from class to remove a significant burden on their religious exercise, where doing so would not impose material burdens on other students. For example, it would be lawful for schools to excuse Muslim students briefly from class to enable them to fulfill their religious obligations to pray during Ramadan.
Where school officials have a practice of excusing students from class on the basis of parents’ requests for accommodation of nonreligious needs, religiously motivated requests for excusal may not be accorded less favorable treatment. In addition, in some circumstances, based on federal or state constitutional law or pursuant to state statutes, schools may be required to make accommodations that relieve substantial burdens on students’ religious exercise. Schools officials are therefore encouraged to consult with their attorneys regarding such obligations.

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.

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).

[Excerpts from 2003 version of “Guidance on Constitutionally Protected Prayer in Public Elementary and Secondary Schools.” United States Department of Education. http://www2.ed.gov/. February 7, 2003.]

A Guide to Religious Liberty in Public Schools
The First Amendment Center
Charles C. Haynes and Olver Thomas

2001

Chapter 1: From Battleground to Common Ground

More than 200 years after their enactment, the first 16 words of the Bill of Rights undergird the boldest and most successful experiment in religious freedom in human history. Despite periodic outbreaks of nativism, anti-Semitism and religious conflict, Americans can be justly proud that we begin the new century as one nation of many peoples and faiths.

THE CHALLENGE

The challenge for 21st-century America is not only to sustain this extraordinary arrangement, but to expand the principles of religious liberty more fairly and justly to each and every citizen. This is no small task. Today the United States is the most religiously diverse society on Earth and, among developed countries, the most religious. But exploding religious pluralism combined with bitter culture wars are making our public square an increasingly crowded and often hostile arena.

Nowhere is it more important — or more difficult — to address our growing ideological and religious diversity than in the public schools. Not only are our schools a key battleground in the culture wars, they are the principal institution charged with enabling Americans to live with our deepest differences. If we fail in our schools to teach and model the rights and responsibilities that flow from the First Amendment, then surely we endanger the future of our daring experiment in religious liberty.

This guide is built on the conviction that finding common ground on many of the issues that divide us is possible within the civic framework provided by the Religious Liberty clauses of the First Amendment to the U.S. Constitution. The key is for all sides to step back from the debate and to give fresh consideration to the democratic first principles that bind us together as a people. Then, in light of our shared civic commitments, we can work for policies and practices in public education that best protect the conscience of every student and parent in our schools.

A NEW CONSENSUS

Here is the good news: Although underreported by the media and still unknown to many school leaders, a new model has emerged for addressing religion and religious liberty in public schools. Over the past decade, religious and educational groups from across the

spectrum have adopted the consensus guidelines included in this guide. Where these agreements have been applied in local districts, they have enabled a growing number of divided communities to move from battleground to common ground.

The measure of just how much consensus we now have was highlighted in early 2000 when every public-school principal in the United States received a packet of comprehensive religious liberty guidelines from President Clinton and the U.S. Department of Education (see Chapters 6, 10, and 12). For the first time in American history, all administrators were given the closest thing possible to a legal safe harbor for addressing perennial conflicts over religion in the schools.

This new consensus on religion in public schools began to emerge as a response to the textbook trials in Alabama and Tennessee in the mid-1980s. Although the constitutional questions were quite different, both cases called attention to the fact that the public-school curriculum largely ignored religious ways of understanding the world. The educational issues raised by the trials were reinforced by several textbook studies. The liberal People for the American Way reached much the same conclusion as the conservative Paul Vitz: Public- school texts included little or nothing about religion.

In the wake of these trials and studies, we convened leading educational and religious organizations in an effort to find common ground on the question of religion in the curriculum. Groups ranging from the National Association for Evangelicals to the Association for Supervision and Curriculum Development agreed that ignoring religion was neither educationally sound nor consistent with the First Amendment. We were convinced that we can (and must) do better in public education.

After a year and a half of discussion and debate, we reached agreement on our first set of guidelines, “Religion in the Public School Curriculum: Questions and Answers.” Four months later we forged a second agreement, “Religious Holidays in the Public Schools: Questions and Answers.” This was soon followed by a third statement providing consensus guidelines for implementing the Equal Access Act. After a long history of shouting past one another, we had begun to find common ground.

[Excerpts from Finding Common Ground: A Guide to Religious Liberty in Public Schools. Charles C. Haynes and Oliver Thomas. (New York: The First Amendment Center), 2001. pp. 3-5.]

Freedom Forum First Amendment Center at Vanderbilt University

Charles C. Haynes

Each day millions of parents from diverse religious backgrounds entrust the education of their children to the teachers in our nation’s public schools. For this reason, teachers need to be fully informed about the constitutional and educational principles for understanding the role of religion in public education. This teacher’s guide is intended to move beyond the confusion and conflict that has surrounded religion in public schools since the early days of the common school movement. For most of our history, extremes have shaped much of the debate. On one end of the spectrum are those who advocate promotion of religion (usually their own) in school practices and policies. On the other end are those who view public schools as religion-free zones. Neither of these approaches is consistent with the guiding principles of the Religion Clauses of the First Amendment.

Fortunately, however, there is another alternative that is consistent with the First Amendment and broadly supported by many educational and religious groups. The core of this alternative has been best articulated in “Religious Liberty, Public Education, and the Future of American Democracy,” a statement of principles issued by 24 national organizations. Principle IV states:

Public schools may not inculcate nor inhibit religion. They must be places where religion and reli- gious 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, where appropriate, as an important part of a complete education.ⁱ

The questions and answers that follow build on this shared vision of religious liberty in public education to provide teachers with a basic understanding of the issues concerning religion in their classrooms. The advice offered is based on First Amendment principles as currently interpreted by the courts and agreed to by a wide range of reli- gious and educational organizations. For a more in-depth examination of the issues, teachers should consult Finding Common Ground: A Guide to Religious Liberty in Public Schools.ⁱⁱ This guide is not intended to render legal advice on specific legal questions; it is designed to provide general information on the subject of religion and public schools.

Keep in mind, however, that the law alone cannot answer every question. Teachers and administrators, working with parents and others in the community, must work to apply the First Amendment fairly and justly for all students in our public schools.

…

ⁱ This shared vision of religious liberty in public education is remarkable both for who says it and for what it says. The National Education Association, the American Federation of Teachers, the National School Boards Association, the Association for Supervision and Curriculum Development, the National PTA and the American Association of School Administrators join with the Christian Legal Society, the American Center for Law and Justice, and Citizens for Excellence in Education in asserting these principles. People for the American Way, the Anti- Defamation League and the Union of American Hebrew Congregations are on the list, as are the Council on Islamic Education, the Christian Educators Association International, and the Christian Coalition. Free copies are available through the First Amendment Center.

ⁱⁱ Finding Common Ground by Charles C. Haynes and Oliver Thomas is available at www.amazon.com. A discount is available through the First Amendment Center for orders of 10 books or more. For the discount, call 202/292-6288.

ⁱⁱⁱ Based on guidelines originally published by the Public Education Religion Studies Center at Wright State University.

Endorsed by the following organizations:

American Association of School Administrators
American Federation of Teachers 
American Jewish Committee 
American Jewish Congress Association for Supervision and Curriculum Development 
Baptist Joint Committee on Public Affairs 
Christian Educators Association International 
Christian Legal Society 
Council on Islamic Education 
National Association of Elementary School Principals 
National Association of Evangelicals 
National Association of Secondary School Principals 
National Council of Churches of Christ in the U.S.A. 
National Council for the Social Studies 
National Education Association 
National PTA 
National School Boards Association 
Union of American Hebrew Congregations 
Union of Orthodox Jewish Congregations of America

[Excerpts from “A Teacher’s Guide to Religion in Public Schools.” Charles C. Haynes. Freedom Forum First Amendment Center. www.freedomforum.org. 2008.]