Freedom of Religion and Public Education: Overview of Legal Problems
BY: HG URMILA DEVI DASI
Nov 25, USA (SUN) The first schools in America were generally run by religious organizations and helped to maintain the authority of both government and religion. The very Protestant influence in schools inspired Catholics to open their own educational institutions (Spring, 2001, chap. 2). Arguing over whether Catholic or Protestant doctrine should be taught in school became more prevalent after a huge Irish Catholic migration in the mid 19th century. In the 1800’s, Horace Mann’s common schools sought to educate children in general Biblical principles of morality without reference to any particular Christian sect (Spring, chap 6) In fact, until the Fourteenth Amendment to the Federal constitution was passed, many states had an official religion (F. Brown, lecture, October, 2004).
The meaning of constitutional freedom of religion and restriction of government’s establishment or prohibition has changed over the country’s history. Originally, a tacit support of Christianity, especially Protestant sects, was practically an unquestioned part of government speeches and general protocol. Even today, there are many references to a Supreme Being and our dependence on Him from our money to opening exercises of the Supreme Court. It is of note from a historical point of view that although the Fourteenth Amendment was passed in the late 19th century, it was not until about the middle of the 20th century that its language began to regularly be applied to religion in the public schools, as can readily be observed from the dates of the cases cited herein.
The First Amendment to the Federal Constitution states, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” The First (and by extension to the states, the Fourteenth Amendment) stipulation neither to support nor hinder religion has resulted in laws such as this one in North Carolina:
To Ensure Freedom of Religion. - No local board of education shall have a policy of denying, or that effectively prevents participation in, prayer in public schools by individuals on a voluntary basis, except when necessary to maintain order and discipline. No local board of education shall encourage or require any person to participate in prayer or influence the form or content of any prayer in public schools. This subdivision shall not be construed to direct any local board of education to take any action in violation of the Constitutions of North Carolina or the United States (§ 115C-47, chapter 115C, 29b)
Major Legal Cases
Religious instruction, prayer, and Bible reading in public schools
There are a number of important cases to consider regarding how religion can be expressed in the public schools. As noted above, until the passage of the 14th amendment to the Federal constitution, each state could have its own official religion. For decades many public schools, therefore, had included prayer, Bible reading, classes in religious instruction, and so forth in their program of instruction. Although the 14th amendment was passed soon after the Civil War, it was not until the mid 20th century that cases were brought to the courts using this amendment to demand that religion be, to a large extent, removed from public schools. In McCollum v. Board of Education, 333 U.S. 203 (1948), the Court found religious instruction in public schools a violation of the establishment clause and therefore unconstitutional. However, in Zorach v. Clausen, 343 U.S. 306 (1952), the decision was that release time from public school classes for religious instruction does not violate the establishment clause.
Prayer in school, especially at the start of the day, had been a regular feature in most public schools since their creation. In Engel v. Vitale, 370 U.S. 421 (1962), the Court found such school prayer unconstitutional. The school board in New York had the argument that the prayer students were saying was non-sectarian and voluntary. Nevertheless, the Court’s majority opinion included the statement that governments cannot “...compose official prayers for any group of the American people to recite as a part of a religious program carried on by government.” In Lee v. Weisman, 112 SCt. 2649 (1992), prayer at public school graduation ceremonies was found to violate the establishment clause and is therefore unconstitutional. The circumstance prompting that case was that of was a rabbi who included a prayer as part of commencement addresses.
However, students’ voluntary prayer was allowed in Santa Fe v. Doe, 539 U.S. 290 (2000), where the decision included the following statement: “nothing in the Constitution as interpreted by this Court prohibits any public school student from voluntarily praying at any time before, during, or after the school day.” The Federal government, while having no constitutional power over schools, often encourages such student voluntary prayer with incentives. For example, in Section 9524 of the Elementary and Secondary Education Act ("ESEA") of 1965, as amended by the No Child Left Behind Act of 2001, there is a stipulation that in order to receive federal 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” (U.S. DOE bulletin, para 1, 2003). It is of interest that in the above case (i.e. Santa Fe Independent School District v. Doe, 530 U.S. 290, 2000), the overall ruling by the Court was that student-led prayers at public school football games violate the Establishment Clause of the First Amendment. It should be noted, however, that, although students were leading the prayer, the district had previously mandated that the football games be open with such prayers. The wording of the policy when the case came before the Court seemed to those justices who gave the majority opinion to indicate that the district expected such prayer to continue to be school policy. Thus, although a student was leading the prayer, the practice was state-sponsored and highly encouraged.
It is of interest regarding prayer that in Wallace v. Jaffree, 472 U.S. 38 (1985), the Court found state law enforcing a moment of silence in schools to have a religious purpose and therefore be unconstitutional. It is of note that in North Carolina such a minute of silence is observed in public schools despite this legal opinion.
It was not until 1963 that the Supreme Court, in Abington School District v. Schempp, 374 U.S. 203, found that Bible reading over the school intercom was unconstitutional. The statute called for the reading of ten verses from the Bible and the Pledge of Allegiance in public school every morning. Children were exempt upon request from their parents. This section of the majority opinion is of interest:
It is insisted that unless these religious exercises are permitted a "religion of secularism" is established in the schools. We agree of course that the State may not establish a religion of secularism: in the sense of affirmatively opposing or showing hostility to religion, thus preferring those who believe in no religion over those who do believe.
A similar decision that same year, in Murray v. Curlett, 374 U.S. 203 (1963), was that forcing a child to participate in Bible reading and prayer was also, unsurprisingly, unconstitutional.
Even a section of the Bible, such as the Ten Commandments, is unconstitutional to display in public schools, as decided in Stone v. Graham, 449 U.S. 39 (1980). Such sections of sacred literature could be displayed as part of an overall historical exhibit, but not alone or prominently.
Evolution and creation
It is not only a question of whether and how religious scripture can be read and presented in public schools, but also how these government supported educational institutions can teach about philosophies and scientific theories which contradict and undermine basic faith in a divine creator, whatever the religion. In Epperson v. Arkansas, 393 U.S. 97 (1968), the Court decided that the state cannot ban the teaching of evolution. Although the standard of Abington was that the government must avoid any practice which opposes religion-which the teaching of evolution certainly does-the Court found this statue unconstitutional because it tried to suppress a theory only on the grounds of a conflict with a literal understanding of Genesis (Russo, 2004, p. 54). There are, of course, other sacred writings besides the Biblical book of Genesis which support the principle of creation by a divine, benevolent, Supreme Being. It is interesting to consider how the Court might have decided the case if the plaintiffs had brought the argument that evolution opposes religion in general, not just one particular religion.
In a similar vein, in Edwards v. Aguillard, 482 U.S. 578 (1987) the Court found a state law requiring equal treatment for creationism to have a religious purpose, being therefore unconstitutional. The reasoning was that the case failed the first Lemon test, that of having a secular purpose. The justices felt the law would affect the teaching of science so that the theory of evolution would be rejected in favor of a particular religious point of view (Russo, 2004, p. 550). It is of interest that in 2002, both Ohio and Georgia, in state and county school boards respectively, allowed or endorsed teaching scientific criticism of evolution (Pew Forum, 5th sec., para 3).
Pledge of Allegiance
The pledge of allegiance has also been a matter of religious controversy in public schools, for several different reasons. In Minersville v. Gobitis, 310 U.S. 586 (1940), the Supreme Court decided that even if it violates their religious scruples, a public school may require students to salute the flag and pledge allegiance. The court overturned Gobitis in West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943). In that case, it was decided that no one can be forced to salute the flag or say the pledge of allegiance if doing so would be against the individual's conscience. This year (2004), the Supreme Court in Elk Grove v. Newdow, No. 02-1624, found that a decision to eliminate the words “under God” from the pledge (9th circuit) was invalidated because the non-custodial father who brought the case to court did not have the standing to do so.
Students are allowed to wear religious garb to school, as decided in Issacs v. Board of Education of Howard County, 40 F.Supp.2nd 335 (134 Educ. L. Rep. 166, D, Md. 1999), even to the point that Sikh students could wear ceremonial daggers under their clothes, decided by Cheema v. Thompson, 67 F.3rd 883 (104 Educ. L. Rep. 57, 9th Cir. 1995).
Religious groups using public school facility
However, teachers wearing religious garb in public schools is explicitly forbidden in several states. The first case involved allowing nuns to teach in their habits, in Hysong v. School District of Gallitzin Borough, 30 A. 482 (PA 1894). However, soon after this case, the Pennsylvania legislature passed a law that disallowed not only garb but also insignia (Russo, 2004, p. 50). This 19th century law is still vigorously enforced. For example, in 2003, a teacher’s aide in Pennsylvania’s Indiana County was suspended without pay for wearing a necklace with a cross on it. She had been warned that such insignia was against the law and to remove it or tuck it in her clothes (Campbell, 2003). In this century there was a case forbidding a nun from wearing her habit, in Gerhardt v. Heid, 267 N.W. 127, (N.D. 1936). There has been no Supreme Court ruling on the matter of teachers’ wearing religious dress or insignia. North Carolina statues are silent on this issue (§ 115C-47).
The right of religious groups using public school property when the school or district allowed almost anyone else to do so as well was the decision of Board of Education v. Mergens, 496 U.S. 226 (1990). Here the court ruled that the Equal Access Act does not violate the First Amendment. Public schools that receive federal funds and maintain a “limited open forum” on school grounds after school hours cannot deny “equal access” to student groups based upon “religious, political, philosophical, or other content.” In a similar decision in Lamb's Chapel et al. v. Center Moriches Union Free School District, 508 U.S. 384 (1993), the Court said that school districts cannot deny churches access to school premises after-hours, if the district allowed the use of its building to other groups. The decisions in these cases were based on the right to freedom of speech, and not the establishment clause.
The Court decided to hear a similar case, Good News Club v. Milford Central School, 533 U.S. 98(2001), because the Eighth Circuit had allowed a similar kind of club in Missouri to meet in school facilities (Russo, 2004, p. 384). In Good News, the Court ruled that Milford Central School cannot keep Good News Club from using its facilities because the school had created a limited public forum and prohibiting the religious club was viewpoint discrimination. Again, the decision was based on free speech instead of whether or not the government was involved with establishing religion.
An interesting and perhaps unique case was that of Kiryas Joel Village School District v. Grumet, 512 U.S. 687 (1994). Hassidic Jews in New York had educated their children in private schools with handicapped students receiving government services in an annex to the private schools. When the Court stopped this practice, the members of the community were able to get the state to declare their area a separate school district so they could have one public school that also provided services for their handicapped children. The state school boards association and others brought the case to court. The Supreme Court agreed with the appellate court that the New York State Legislature cannot create a separate school district for a religious community and still stay within the bounds of the Establishment Clause. In fact, the justices decided that this law was tantamount to the government establishing a specific religion. The majority opinion included the following statement:
(1) the statute violated the establishment of religion clause by extending the benefit of a special franchise and delegating a governmental power to an electorate defined by common religious belief and practice, in a manner that failed to foreclose religious favoritism, as (a) the Satmar community did not receive its governmental authority simply as one of many communities eligible for equal treatment under a general law, and (b) given the historic context of the case, there was no reason to suppose that the Satmar community was merely one in a series of communities receiving the benefit of special school district laws; and (2) the statute was not a constitutionally permissible accommodation of the sect members' religiously grounded preferences. Also, (1) the legislature's act was substantially equivalent to defining a political subdivision--and hence the qualification for the subdivision's franchise--by a religious test, which act resulted in a purposeful and forbidden fusion of governmental and religious functions; but (2) this conclusion did not imply that any political subdivision that was coterminous with the boundaries of a religiously homogeneous community would suffer the same constitutional infirmity.
Private religious schools
It is also important to understand the cases addressing private, religious education. In a landmark case, Pierce v. Society of Sisters, 268 U.S. 510 (1925), the court invalidated an Oregon law that required all children between the ages of eight and 16 to attend public schools. A Roman Catholic orphanage and military academy brought suit. The Court said the Oregon law interfered with parents’ rights to oversee and guide their children's education. The justices’ opinion was that the “fundamental theory of liberty…excludes any general power of the state to standardize its children by forcing them to accept instruction from public teachers only.” The Court acknowledged the power of the state to “reasonably regulate all schools,” including inspections, supervision, and examinations of both teachers and students. It even allowed the states to have an interest in the moral character and patriotism of teachers, as well as the ability to mandate “certain studies plainly essential to good citizenship.”
In Pierce, although the rights of parents to direct their children’s education was vindicated, the suit had been brought to court as a business concern by the schools involved. The Court decided that corporations cannot claim rights under the 14th Amendment. However, in this case, the majority opinion included the following statement:
The injunctions here sought are not against the exercise of any proper power. Appellees asked protection against the arbitrary, unreasonable, and unlawful interference with their patrons and the consequent destruction of their business and property…prevention of (such) impending injury by unlawful action is a well-recognized function of courts of equity.
Thus, in this case the Court also agreed that the rights of the businesses to exist had been interfered with unlawfully, although if their business was disturbed or closed because of lawful state action, such corporations could not seek redress in the courts.
The government can supervise and regulate private, religious schools, but the amount of help that can be given such institutions is very limited and somewhat confusing. For example, in Everson v. Board of Education, 330 U.S. 1 (1947), the Court said that state reimbursement for bus fares to attend religious schools is constitutional. Similarly, in Board of Education v. Allen, 392 U.S. 236 (1968), the Court decided that the state's lending of textbooks to private and religious schools is also constitutional. Also found as constitutional was federal funding to private, religious, and public colleges in order to build classrooms, in Tilton v. Richardson, 403 U.S. 671 (1971). What is allowed was further clarified in Meek v. Pittenger, 421 U.S. 349 (1975), when the Court decided that states can lend textbooks but no other materials to religious schools.
However, in Lemon v. Kurtzman, 403 U.S. 602 (1971), the Court decided that state supplements to the salary of Catholic school teachers are unconstitutional. This case established a set of general guidelines for all future cases regarding government and religion, guidelines which came to be known as the “Lemon Test.” It has three parts as follows: (a) the statute must have a secular legislative purpose, (b) its principal or primary effect must be one that neither advances nor inhibits religion, and (c) the statute must not foster an excessive government entanglement with religion.
Another restriction on government aiding private, religious schools was established in the two cases, Committee v. Nyquist, 413 U.S. 756 (1973), and in Sloan v. Lemon, 413 U.S. 825 (1973). In both of them, the Court ruled that states cannot reimburse parents for sending their children to religious schools. However, in Mueller v. Allen, 463 U.S. 388 (1983), the Court ruled that taxpayers can deduct tuition, textbooks, and transportation expenses from state income taxes that were incurred by attending private and religious schools. The rationale here was that the former case had favored religion, whereas in this case, all parents, including those with children in public schools, could take advantage of the deduction.
In Aguilar v. Felton, 473 U.S. 402 (1985), the Court ruled that sending public school teachers to religious schools to provide remedial education and counseling is unconstitutional. However, in Agostini v. Felton, 117 S.Ct. 1997, 138 L.Ed.2d 391 (1997), the Court overturned Aguilar and said that public school teachers providing supplemental, remedial instruction to disadvantaged students in religious schools does not violate the Establishment Clause. Aguilar was seen to be inconsistent with more recent rulings and “no longer good law.” The justices who wrote the majority opinion also decided that federally funded programs which aid disadvantaged children on a neutral basis and have safeguards such as exists in Title I programs are consistent with the Establishment Clause. In a similar vein, in Zobrest et al. v. Catalina Foothills School District, 509 U.S. 1 (1993), the decision was that a school district does not violate the Establishment Clause by furnishing a sign-interpreter to a deaf child in a sectarian school.
The Court ruled that states can reimburse religious schools for the cost of giving standardized tests in Committee for Public Education v. Regan, 444 U.S. 646 (1980). The caveat was that only the actual cost of the tests could be reimbursed. In a similar case, Mitchell v. Helms, 530 U.S. 793 (2000), the Court established that Chapter 2 of the Education and Consolidation and Improvement Act of 1981 does not violate the Establishment Clause when it provides educational equipment to religious schools with taxpayer money.
In Roemer v. Board of Public Works, 426 U.S. 736 (1976), the Court decided that states can provide grants to private and religious colleges. The thinking here is that college-aged students are mature enough not to be indoctrinated by their college’s religious inclination, as would secondary and primary students.
Perhaps more extreme than the previous cases dealing with public support of private education is Zelman v. Simmons-Harris, 536 U.S. 639 (2002). In the 5-to-4 opinion written by Chief Justice William Rehnquist, the Court upheld Ohio's voucher program that gives tax dollars to parents in Cleveland to send their children to religious or non-religious schools. It is the first time the court has upheld a voucher system.
Summary of Relevant Cases
It is difficult to summarize the present legal situation concerning religion and education in America because many decisions are fraught with caveats and provisions. Some general conclusions can be reached, however. In the area of prayer, reading of sacred literature, and instruction in religion, no student-or most likely teacher, though that is more difficult to ascertain-can be prohibited from privately, voluntarily praying, reading scripture, or studying religious topics. Naturally, such activities would not be able to conflict with school activities; no court opines that students can hide Bibles in their desk to read surreptitiously during math class. On the other hand, students can choose religious topics for oral, written, and artistic assignments as long as these subjects come within the range of what the teacher mandated. Any religious activity or instruction that public schools or teachers therein sponsor, or even appear to sponsor, violates the Establishment Clause and is therefore prohibited as part of public school programs. This prohibition includes sporting events, graduation ceremonies, and any event, publication, and so forth which is, or seems to be, coming from the authority of the school. Students should never feel even somewhat socially coerced to participate in, or even show respect for, such activities of a religious nature, even if, for example, the prayer said is very generic and apparently non-sectarian. Religion can only be taught if the subject is part of and relevant to instruction on history, art, and so forth. In other words, schools can teach about religions, but not teach religion itself.
The unconstitutionality of religious instruction extends to a block on teaching Biblical creationism as part of science, or disallowing evolutionary theory as a subject simply because it disagrees with Genesis. The rationale is that the government cannot advance any particular religion either directly or indirectly.
Because each student’s right to his or her religion must be respected, the Supreme Court has decided that individual pupils may be excused from saying the Pledge of Allegiance on religious grounds. So far, the fact that the words “under God” are part of the pledge has not be successfully challenged, or even truly addressed, by the courts. A recent decision by the 9th circuit was deemed inadmissible without touching upon the real issue.
Students’ religious rights have extended to the ability to wear religious dress and insignia to public school. However, teachers have not been accorded the same freedom in the cases that have been decided in various states. There is no Federal ruling on the subject of teachers’ religious attire.
Religious groups are generally allowed to use school property after instructional hours, whether the school involved serves elementary, middle, or high school students. The provision is whether or not the school or district involved makes school facility available to most groups as a limited public forum. At issue here is free speech, not freedom of religion.
Parents have the right to educate their children in private schools that meet basic government requirements for safety and minimum academic competence. Those schools can be of a totally sectarian religious nature. To what extent government can aid those schools while upholding the Establishment Clause continues to be a difficult and convoluted maze. The Courts’ opinions seem to indicate that aid to religious schools is acceptable if it is neutral in the sense of benefiting all children, and if it meets the three pronged Lemon test described previously.
America was founded primarily by Europeans seeking relief from sectarian religious persecution. Most of the early settlers wanted their new communities to be a haven for their own understanding of religion, and some continued the very practices against those of other religious dispositions that had been used against them in their homelands. Irrespective of such hypocrisy, gradually some degree of religious tolerance developed as a norm of civilization in the United States.
Although rejecting persecution of those with differing beliefs and practices, religion-mostly forms of Protestant Christianity-were part of public, government education in individual states for most of the country’s history. Indeed, education has been intertwined with religion for most of humanity’s history throughout the globe. Within the last half-century or so the desire to preserve the dignity of people’s ability to worship as they choose, or not worship at all, has lead to all religion being purged from public education. At the same time, there had been a growing need and interest in teaching children about developing good character, and inner values which aid a rational society.
A current and perhaps growing "character education" movement carefully, sometimes comically, avoids mention of religious grounding for ethical and moral discourse. The values endorsed seem to be extracted from the ether sometime between 1776 and today…
…Value systems differ in a pluralistic society, and these differences often, most often, indicate religious differences. Whose religion do we want to place in historical cultural context?
We might reasonably assume that these questions would be of prime concern to the multiculturalists and, thus, forge a bond between them and the advocates of teaching the role of religion in history and culture. Not so. To date, the multicultural sector of American education has shown slight interest in religion as a social reality or a feature of culture…
…The potential capacity and appeal of multicultural education increases my puzzlement over its persistent neglect of religion--all religion. I have gone through dozens of books, articles and seminar papers on multicultural education, and religion, by and large, is simply absent… To acknowledge religious diversity is not, however, to take account of the religious content of a culture, a town, or a family...I think multicultural education should learn from archaeology that you never understand a culture until you can grasp its beliefs and rituals. (Elliott Wright, sec 3, paras 4-7, 1994).
Campbell, G. (2003, April 24). Teacher's Aide Suspended for Wearing Cross. KDKA. Retrieved November 15, 2004, from http://kdka.com/local/local_story_114110626.html
Elementary and Secondary Education. (2004, November). In North Carolina General Statutes (115C). Retrieved November 14, 2004, from http://www.ncleg.net/statutes/generalstatutes/html/bychapter/chapter_115c.html
Guidance on Constitutionally Protected Prayer in Public Elementary and Secondary Schools. (2003). U.S. Department of Education.
Religion & Public Schools. (2004). The Pew Forum on Religion & Public Life. Retrieved November 15, 2004, from http://pewforum.org/issues/display.php?IssueID=4#1
Russo, C. J. (2004). Reutter's The Law of Public Education (5th ed.) New York: Foundation Press. (Original work published 1970)
Spring, J. (2001). The American School: 1642-2000. New York: McGraw Hill.
Wright, E.. Religion in the Public Schools: The Issue in Cultural and Historical Perspective (1994). In Indiana Humanities Counci (chap.) Retrieved November 15, 2004, from http://www.ihc4u.org/wright.htm