Specific Activities Involving Students' Rights and Religion in the Public School (from the Student Rights in the Public School Handbook)

SECTION TWO:
QUESTIONS AND ANSWERS: SPECIFIC INSTANCES OF RELIGIOUS FREEDOM IN PUBLIC SCHOOLS

In the years since the American Center for Law and Justice began advocating for the rights of Christian students, we have received literally thousands of inquiries. Several frequently recurring questions relate to the rights of Christian students to engage in specific activities in government schools. A brief response to each of these is set out below.

I. May Students Distribute Literature and Share the Gospel on School Grounds?

YES! Students' First Amendment rights include the right to distribute Gospel tracts during non-instructional time, the right to wear shirts communicating Christian messages and symbols, and the right to pray and discuss matters of religion with others. Further, schools may not prevent students from bringing their Bibles to school. In fact, school officials must allow students to read their Bibles during free time, even if that free time occurs during class. The standard that must be applied by the school is: Does the activity "materially or substantially disrupt schooldiscipline?" Unless a student is disruptive, the school must refrain from interfering with their religious activities.

The distribution of free religious literature is protected by the First Amendment. Religious and political speech are protected by the First Amendment.24 Furthermore, "[a]dvocacy and persuasive speech are included within the First Amendment guarantee if the speech is otherwise protected."25

The Supreme Court of the United States' consistent jurisprudence, for fifty years, has recognized that free distribution of literature is a form of expression protected by the Constitution of the United States.26 In Lovell v. City of Griffin, the Supreme Court of the United States put the case for constitutional protection of leaflets and pamphlets quite clearly:

The liberty of the press is not confined to newspapers and periodicals. It necessarily embraces pamphlets and leaflets. These indeed have been historic weapons in the defense of liberty, as the pamphlets of Thomas Paine and others in our history abundantly attest. The press in its historic connotation comprehends every sort of publication which affords a vehicle of information and opinion. What we have had recent occasion to say with respect to the vital importance of protecting this essential liberty from every sort of infringement need not be repeated.27

The constitutional value of leaflets and pamphlets is not lessened by the fact that they address matters of religion.28 The role of religious leaflets and tracts is historic:

The hand distribution of religious tracts is an age-old form of missionary evangelism - as old as the history of printing presses. It has been a potent force in various religious movements down through the years . . . . It is more than preaching; it is more than distribution of religious literature. It is a combination of both. Its purpose is as evangelical as the revival meeting. This form of religious activity occupies the same high estate under the First Amendment as do worship in the churches and preaching from the pulpits.29

School officials may not lump a student's right to distribute free literature together with more disruptive forms of expression, such as solicitation. As the Supreme Court has explained, the experience of thousands of "residents of metropolitan areas [who] know from daily experience [that] confrontation by a person asking for money disrupts passage and is more intrusive and intimidating than an encounter with a person giving out information."30 Distribution of literature is inherently even less disruptive than spoken expression. As the Supreme Court stated, "[o]ne need not ponder the contents of a leaflet or pamphlet in order mechanically to take it out of someone's hand, but one must listen, comprehend, decide and act in order to respond to a solicitation."31

The applicable standard - material and substantial disruption - is not met by an undifferentiated fear or apprehension of disruption. In other words, it is not enough for school officials to fear that allowing religious speech will offend some members of the community. "Undifferentiated fear or apprehension of disturbance is not enough to overcome the right to freedom of expression."32 Where a student wishes to peacefully distribute free literature on school grounds during non-instructional time, there simply is nothing which "might reasonably [lead] school authorities to forecast substantial disruption of or material interference with school activities . . . ."33

School officials need not fear that leaflet distribution by students may be imputed to them, and that the Establishment Clause would thereby be violated. This very argument has been rejected by the Supreme Court of the United States. In Mergens, the Court stated that the activities of student evangelists in a public school do not present any Establishment Clause problems:

[P]etitioners urge that, because the student religious meetings are held under school aegis, and because the state's compulsory attendance laws bring the students together (and thereby provide a ready-made audience for student evangelists), an objective observer in the position of a secondary school student will perceive official school support for such religious meetings . . . . We disagree.34

Of course, Mergens merely reflects the Establishment Clause's intended limitation - not on the rights of individual students - but on the power of governments (including school officials). As the Mergens Court stated, "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."35

II. Can We Have Student-led Prayer at Graduation or Other School Events?

YES! In Lee v. Weisman,36 the Supreme Court held only that it violates the Establishment Clause for school officials to invite clergy to give prayers at commencement. The Court made clear that its decision was limited to the particular facts before the Court.37 Thus, any change from the factual situation presented in Lee might alter the resulting opinion from the Court.

In June, 2000, the Supreme Court took its decision in Lee v. Weisman, regarding school-organized prayer at graduations, a step further, and applied Lee to prohibit a school district from encouraging and endorsing prayers during pre-game ceremonies for high school football games. In Santa Fe Independent School District v. Doe,38 the Court concluded that a school district policy violated the Establishment Clause by making the question of whether prayer would be offered at football games the subject of student debate and majority vote.

In its decision in the Santa Fe case, the Court specifically noted that not every instance in which a religious message or invocation is offered during a school event will violate the Establishment Clause. Although the Court did not specifically state it, they may have in mind the fact that students may choose to offer a prayer or invocation when they are offered the chance to open an assembly or event, and that they might do so without the direction or assistance of school officials.

Subsequent to the Supreme Court's decisions in Lee and Santa Fe, courts will revisit the topic of graduation prayer, including the issue of student-led, student-initiated prayer. For an update on the current status of the law regarding graduation prayer, please contact the ACLJ's national headquarters at 1-800-296-4529 or visit the ACLJ website at http://www.aclj.org.

III. Can Valedictorians, Salutatorians, or Honorary Speakers Give Speeches on Religious Subjects, Including Reading From the Bible?

YES! As stated previously, it is well-settled that religious speech is protected by the First Amendment of the Constitution.39 Remember that school administrators can only prohibit protected speech by students when it "materially and substantially interfere[s] with the requirements of appropriate discipline in the operation of the school."40

If students have been granted freedom to compose their own speeches (e.g., valedictorian or salutatorian addresses), protected student expression should not be subjected to censorship because of its religious viewpoint. It is a fundamental proposition of constitutional law that a government official may not suppress or exclude speech for the sole reason that the speech expresses a religious perspective.41 Denial of this bedrock principle would undermine the essential guarantees of free speech and religious freedom under the First Amendment.

There is quite a difference between refusing to direct prayer or invite clergy to give prayer at graduation, and choosing to prohibit individual student expression based on its content. The First Amendment precludes any governmental effort to single out and censor - or otherwise burden - the speech of private parties solely because that speech is religious.42 A decision by a school board to respect the free speech rights of students and to refrain from censoring student speech based solely on its content is not a deliberate violation of the law. Students do not "shed their constitutional rights to freedom of speech or expression at the schoolhouse gate."43 Nor do students shed those rights as they pass through the auditorium doors to attend graduation or promotional exercises.

IV. Can We Have Baccalaureate Services?

YES! Students, community groups and area churches are entitled to sponsor events, such as baccalaureate services. If school facilities are available to the community for use, these groups should be allowed to use school facilities also, regardless of the religious nature of their activities. A policy of equal access for religious speech conveys a message "of neutrality rather than endorsement; if a State refused to let religious groups use facilities open to others, then it would demonstrate not neutrality but hostility toward religion."44 At least three federal courts have considered this question and have concluded that privately-sponsored baccalaureate services may be conducted on a public high school campus without violating the Establishment Clause.45

V. Are Official "Moments of Silence" Permissible Under Current Law?

YES! In Wallace v. Jaffree,46 the Supreme Court took a look at the issue of official "moments of silence." While the Court struck down the particular "moment of silence" statute in that case, a majority of the Justices in that case clearly recognized that moments of silence are constitutionally permissible.47 And all the parties in the Wallace case agreed that another Alabama statute mandating a "moment of silence" during classtime was constitutional.48 In Wallace, the Supreme Court held only that the particular facts of the case made a second Alabama statute calling for a moment of silence for meditation "or voluntary prayer" during class unconstitutional.49 The Court justified its decision striking that second statute down on two factors: (1) the clearly expressed intent of the statute's sponsors to advance religion; and, (2) the express language of the statute calling for a moment of silence for meditation "or voluntary prayer."50

In light of Wallace, it is clear that any official moment of silence must be motivated by a well-defined secular purpose and be neutral on its face, leaving the use of the "moment of silence" to individuals and the dictates of their own consciences.

VI. Do Students Have a Right to Pray Together at School and Participate in Events Like the See You at the Pole and the National Day of Prayer?

YES! See You at the Pole and the National Day of Prayer is a student event, and it is not organized or conducted by school administrators or officials. Students across the nation annually gather with like-minded peers around the flagpole at their respective schools before the class day begins and pray for their schools, teachers, administrators and country.

This question brings us back to this settled legal principle: students retain their constitutional rights of free speech and expression, including the right to pray and share personal beliefs, while on school grounds. After Tinker, school officials may restrict protected student speech only if it materially and substantially interferes with appropriate discipline. Thus, school officials may not prevent students from gathering together for prayer and religious discussion on school grounds, provided that students do so in a non-disruptive manner during non-instructional time. Non-instructional time would be immediately before and after school, at lunchtime, or any other "free" time when students are permitted to talk and mingle with peers on campus.

Of course, while school officials may not stop students from engaging in protected religious expression unless it causes a material or substantial disruption of school order, they may impose reasonable regulations governing the time, place and manner of student activities. Such regulations cannot target the religious content of the student activity. In addition, any restriction must be "narrowly tailored to serve a significant government interest, and leave open ample alternative channels of communication."51 Students may also participate in before or after school events with religious content, such as "see you at the flag pole" gatherings,52 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.

VII. Can Students Participate in Events Like the See You at the Pole and the National Day of Prayer Even if the Event is not Part of an Officially Recognized Club?

YES! As the Supreme Court made clear in Tinker, students have substantial rights under the First Amendment. As long as a student's conduct does not "materially or substantially interfere with school discipline," he has the right to gather with other students on campus for prayer, even if no prayer group or Bible Club is officially recognized on their campus.

Prayer is a protected form of speech that cannot be banned by school officials when it is being offered in a manner such as See You At The Pole. A school official who refuses to allow students the right to pray on their campus is engaging in censorship.

If there is an officially recognized Bible Club or prayer group on campus, then students in the club can advertise the Prayer Rally. Students must be allowed to use the same forms of advertisement that the other clubs are allowed to use, such as the public address system, bulletin boards, and the school newspaper.

VIII. Is It Constitutional to Have Holiday Observances in the Public Schools?

YES! Students, of course, are free to express their beliefs and convictions as they apply to particular holidays, provided they do so in a non-disruptive manner. For example, students have the right to distribute Christmas cards or religious tracts on the "true meaning of Christmas" to their peers during non-instructional time. Students could also wish their classmates a "Merry Christmas" or a "Happy Hanukkah." School officials could not constitutionally prohibit such activities.

Students may express their individual beliefs during classroom discussions, as well as in the context of appropriate class assignments. For instance, an elementary student instructed to draw a "Thanksgiving" picture may choose to draw a picture of a pilgrim praying to God. Or, when told to prepare an essay on a topic of choice, a student may select the birth of Christ or any other religious topic the student wishes. School officials cannot discriminate against a student's work simply because of its religious nature.

Regarding official public school observance of religious holidays, the Eighth Circuit concluded that religious songs and symbols can be used in the public schools if they are "presented in a prudent and objective manner and only as part of the cultural and religious heritage of the holiday . . . ."53 That court also stated that the study and performance of religious songs is constitutional if the purpose is the "advancement of the students' knowledge of society's cultural and religious heritage, as well as the provision of an opportunity for students to perform a full range of music, poetry and drama that is likely to be of interest to the students and their audience."54

The decision from the Eighth Circuit Court drew largely from the Supreme Court of the United States' decision in School District of Abington Township v. Schempp.55 In Schempp, the Supreme Court said, "It certainly may be said that the Bible is worthy of study for its literary and historic qualities. Nothing we have said here indicates that such study of the Bible or of religion, when presented objectively as part of a secular program of education, may not be effected consistently with the First Amendment."56

IX. Can the Bible be Used as Part of the Curriculum of the School?

YES! In Stone v. Graham,57 the Supreme Court said, "the Bible may constitutionally be used in an appropriate study of history, civilization, ethics, comparative religion, or the like."58 Thus, it would be constitutional for a public school teacher to have students study the Biblical passages that relate to Christmas (e.g., Matthew 1:18-2:22 and Luke 2:1-20) if the purpose was to study the historical or literary significance of the passages. Of course, any student that had ideological or religious objections to reading the Bible should be excused from the assignment.

In addition, the Bible was an important book in the early history of this country. The Court's view in Stone v. Graham suggests that it is constitutionally permissible to develop a curriculum that evaluates the role of the Bible in this country and Western Civilization. The Bible is also considered to be literature from antiquity. A school board could establish a policy that allows the Bible to be discussed as part of a literature program in the school.59

X. Can Members of the Community or Organizations Use School Facilities for Religious Purposes?

YES! Members of the local community also have free speech rights in the school if the district rents school facilities during non-school hours. In other words, if the school district rents its facilities to non-school groups during non-school hours, then the school district has a constitutional duty to rent to religious speakers, such as a local church that wants to rent a facility for its annual Christmas pageant.60

In Lamb's Chapel v. Center Moriches School District, the Supreme Court rejected the exclusion of religious speakers from public school facilities. Refusing to uphold a religious exclusion, the Lamb's Chapel Court stated that "the principle that has emerged from our cases 'is that the First Amendment forbids the government to regulate speech in ways that favor some viewpoints or ideas at the expense of others.'"61 Lamb's Chapel affirms the rights of religious persons to express their views publicly.

XI. Can Christmas Vacation Still be Called Christmas Vacation?

YES! School districts are under no constitutional obligation to rename "Christmas vacation" as "Winter vacation" or some similar name. Any suggestion to the contrary is simply unnecessary and should be avoided. The Supreme Court itself has acknowledged with approval that Congress recognizes a National Holiday on December 25 and that Congress calls it "Christmas."62

CONCLUSION

No one is better equipped and positioned to shine the light of the Gospel into America's public schools than the students who are compelled by law to attend those schools. Although teachers, administrators, parents, and pastors can all pray for the success of students seeking to live out their faiths while in school, it is the student whose religious expression enjoys full constitutional protections during the school day. The Constitution, laws, and court decisions all are constructed to protect your wise use of your God-ordained freedoms while on campus.

The American Center for Law and Justice is committed to protecting students' freedoms of speech, religion, and assembly. We have dedicated ourselves to the task of guaranteeing that local school boards understand and obey the First Amendment, the Equal Access Act, and the controlling decisions of the Supreme Court of the United States. The American Center for Law and Justice has proven our commitment, even instituting appropriate legal proceedings when necessary, by working to ensure that school boards pay due respect to the rights of religious students in America's public schools.

This booklet provides general information and guidance on students' rights. The American Center for Law and Justice is ready to answer your specific questions on these and other issues.