Rights On Campus - 2004

The Supreme Court has consistently upheld the rights of students to express themselves on public school campuses. In 1969 the Supreme Court held that students have the right to speak and express themselves on campus. Then in 1990, in the Westside Community Board of Education v. Mergens decision, the Court held that Bible clubs and prayer groups can meet on public secondary school campuses. This case interpreted the Equal Access Act which Congress passed in 1984 to insure that high school students were not discriminated against in the public schools because of their religious beliefs. The following is a brief look at what the Supreme Court decision means to the American Christian student. The Supreme Court's decision in Mergens is a chance for students to share the Gospel with their peers. It is also a sign of the times. Changes are occurring around us daily. The Gospel cannot be stopped. This Supreme Court decision is an answer to the prayers of God's people across our nation and around our world. This 8-1 decision is a clear message to the country that the time is ripe for action. The American Center for Law and Justice receives thousands of inquiries concerning students' rights in public schools. What follows is a brief response to the most commonly asked questions:

What does a Supreme Court decision mean?

A Supreme Court decision has several meanings in our system of government. The one we are concerned with is the decision's effect on our laws as they affect our public high schools. A decision is binding on all lower courts, both federal and state. This means that they must follow the Supreme Court ruling when the facts are similar. There is no appeal from the Supreme Court. When the Supreme Court rules in a case it becomes the law of the land.

Does the Constitution actually require that the "separation of church and state" keep religion out of the public schools?

No! First, the Constitution never mentions the phrase "separation of church and state." That phrase was first used by Thomas Jefferson in an address to the Danbury Baptist Association in 1802, 13 years after the Constitution was written and accepted as the law of the United States. Neither is the phrase recorded in the notes of the Constitutional Convention. The constitution does say: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof[.]" In fact, the Court has said, on numerous occasions, that separation is impossible. Therefore, the Constitution does not demand that religion be kept out of our public schools. The Constitution only prohibits school-sponsored religious activities. Free Exercise of Religion is our right under the Constitution.

What did the Supreme Court say in the Mergens Bible Club Case?

In the Mergens Bible Club case, the Supreme Court ruled that public secondary schools that receive federal funds and allow noncurriculum related clubs to meet on campus must also allow Bible clubs (Bible clubs also includes prayer groups) to meet on campus during non-instructional time. As Justice O'Connor held speaking for the Court in Mergens, "[I]f a State refused to let religious groups use facilities open to others, then it would demonstrate not neutrality but hostility toward religion."[FN1] The way that our educational system is set up, almost all public secondary schools receive federal funds. This means that if the school has clubs that are allowed to meet on campus that are not a part of a class that is being taught, or are not directly related to a school class, then the school must allow your Bible club the same privilege. In other words, the school must give the Bible club or prayer group official recognition on campus. If the school allows service type clubs, such as Interact, Zonta, or 4-H, or clubs like a chess club, it must allow Bible clubs.

Can the Bible Club advertise on campus?

Yes! Once the Bible club is officially recognized it must be allowed to use the public address system, the school bulletin boards, the school newspaper, and take part in club fairs. Thus, the students can use any form of media available to the other clubs to get the message to the rest of the school.

Does this mean that students can now start or attend a Bible club in their public school?

Yes! The Supreme Court has opened the door for student initiated Bible clubs. The church cannot enter the school and start an outreach program. Students, however, can now begin their own Christian clubs which have any agenda the students desire. The schools must allow students the freedom to actually start or attend their own meetings on the high school campus where the student attends school.

Did the Supreme Court limit the rights of Bible clubs in any way?

No! The Supreme Court did not limit the rights of Bible clubs in any way. Bible clubs must be treated like any other club in the school with full rights and privileges. The school cannot limit the Bible club in any way. The Bible clubs must be allowed to meet either before school or after school or during a club period with any other clubs. The clubs have a right not only to meet, but also to reach other students with the message that the Bible clubs are meeting.

Are the rights of public high school students limited on campus?

The public high school's mission is to educate students so that they can become productive members of our society. When students do not disrupt the mission of the school they have the same rights as other citizens of the United States. Students even have the right to discuss religion during class time, when religion is a relevant topic. Student behavior that is not illegal or disruptive cannot be stopped by the schools simply because the particular message is offensive to school officials.

Can students bring their Bibles to school or wear a Christian shirt?

Yes! There is no law that prohibits a student from bringing a Bible on campus with him. The student is only bound by an obligation not to "materially or substantially disrupt school discipline."[FN2] If the student brings his Bible or wears his Christian shirt, the school cannot force the student to remove the shirt or the Bible. Shirts with a message are a form of free speech protected by the First Amendment. Mergens clarifies that student speech cannot be discriminated against on campus because of its content.

Can public school students share their faith on their campus?

Yes! In Mergens, the Court reinforced students' rights to evangelize on the high school campus. When we combine Mergens with Tinker v. Des Moines we find that students' rights are fully protected. Now students can express their First Amendment rights and enjoy the freedom of religion on high school campuses across the country. School officials do not have the right to control student speech just because the particular speech is religious in nature. Students have the right to pass out papers and tracts that are Christian to their peers on campus. As long as the students do not disrupt school discipline, school officials must allow them to be student evangelists. It was argued that to allow the students to meet on campus and to act as student evangelists would violate the Establishment Clause of the First Amendment. This argument was rejected by the Court in Mergens. Thus, Mergens is a great victory for Christian high school students in America. With the decision in Mergens, the Supreme Court has sent a clear message to the school systems of America. No longer will religious discrimination be tolerated under the guise of "separation of church and state."

What about the rights of junior high school students on their campuses?

This is one of our most frequently asked questions. Junior High School students have the right to pray and have religious discussions on their campus with their peers. They can distribute literature with some restrictions. (see below.) Junior High School students can wear religious t-shirts to school. In addition, junior high school students are covered by the Guidelines which were issued by the Department of Education and discussed below.

The Eighth Circuit Court of Appeals recently upheld the right of junior high school students to form religious clubs on their campuses, when other groups are also meeting. [FN3] It should be noted that clubs, such as the Boy Scouts, were permitted to meet on school property after school hours. Finding that age was not necessarily a valid reason for discrimination, the Court stated that "the age of the junior high school students does not create an Establishment Clause violation." [FN4] The Court of Appeals justified its decision by looking at the private nature of the language involved in student clubs when it stated that "[t]here 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."[FN5]

Furthermore, the Court found that "nothing in the first amendment postpones the right of religious speech until high school, or draws a line between daylight and evening hours."[FN6] In the Eighth Circuit, junior high school students have a First Amendment right to use facilities for Bible club meetings when those facilities are being used by other student groups. To our knowledge, no other court has specifically addressed the rights of junior high school students to initiate and attend Bible clubs on their campuses. The court's decision in Good News/Good Sports does, however, set out a thoughtful analysis of why junior high school students should not be discriminated against because of their religious beliefs or their age.

What rights do college students have on their campuses?

This is another frequently asked question. For the present it should suffice for us to say that all of the rights we have discussed in this booklet concerning high school and junior high school students are equally applicable to college students. In fact, the rights of college students are even greater than those of high school students. Future editions of this booklet will include an entirely separate section dealing with the rights of college students.

In a case just decided by the Supreme Court, the University of Virginia authorized payments from a Student Activities Fund for the printing costs of a variety of publications written by student groups. [FN7] The University prohibited funding of any student publication that "primarily promotes or manifests a particular belief in or about a deity or an ultimate reality." [FN8] When a Christian newspaper applied for funding, University officials denied the request because of the newspaper's religious viewpoint. School officials were troubled by the mission of the Christian newpaper, which was "to challenge Christians to live, in work and deed, according to the faith they proclaim and to encourage students to consider what a personal relationship with Jesus Christ means." [FN9]

In response to school officials' arguments that they had a shortage of available funds, the Court stated that "[t]he government cannot justify viewpoint discrimination among private speakers on the economic fact of scarcity. Had the meeting rooms in Lamb's Chapel been scarce . . . our decision would have been no different."[FN10] The Court further stated that the treatment of religion must be neutral when dealing with government programs. "We have held that the guarantee of neutrality is respected, not offended, when the government, following neutral criteria and evenhanded policies, extends benefits to recipients whose ideologies and viewpoints, including religious ones, are broad and diverse."[FN11] Ultimately, the Supreme Court reversed the decision of the Court of Appeals and allowed the funding of the Christian newspaper at the University. Thus, even in issues of indirect public funding, it is unconstitutional for government officials to discriminate solely on the basis of a student or a student group's religious beliefs. Indirect public funding would include money from the student activity fund. This means that even Christian groups must be permitted to use funds from the student activity fees, if other student groups are being permitted to use those funds.

What rights do I have on campus during the school day?

In Tinker, the Supreme Court held that "students [do not] shed their constitutional rights to freedom of speech or expression at the schoolhouse gate."[FN12] This means that students have the right to express their religious beliefs during the school day. "When [a student] is in the cafeteria, or on the playing field, or on the campus during the authorized hours, he may express his opinions." [FN13] If school officials refuse to allow you to pray on campus they are censoring your speech and denying your constitutional rights.

Tinker held that students retain their First Amendment rights when they are rightfully on a public school campus. The one limitation the Court placed on the rights of the students is simple: students must not "materially or substantially disrupt school discipline."[FN14] Thus, as long as students do not disrupt the school they have the right to pray on campus, even around the flagpole.

The nature of public schools does not justify the forfeiture of constitutional rights. In fact, the nature of public schools should enhance the constitutional rights of students and teachers. The school is to teach the student how the laws of the land apply. What better place for a real-life lesson on freedom of speech and religion?

What happens now?

Now the battle begins. The Court has given Christians the right to gather together in public schools. We must begin to use the right we have been given. If the Supreme Court allows us to meet and we fail to meet, what good comes of the right? Like a muscle, our rights must be exercised or they will disappear again. God has opened up a huge mission field. Our missionaries to this field must be our high school students. They can reach their generation for Jesus. They need your support. Pray that the Lord will send laborers to work the fields of the harvest in this hour of great need. God has opened a door. We must walk through it!

What if my local high school refuses to allow students to meet or hand out literature on their campus in spite of the Tinker and Mergens decisions?

The American Center for Law and Justice is undertaking a national campaign to protect students' freedoms of speech, religion and assembly. We are going to make sure that the Mergens decision is obeyed by local school boards. We will institute legal proceedings, when appropriate, to ensure the compliance of school boards with the Court's holding in Mergens.

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