As a follow-up to my recent post about prayer in public schools, let’s look at what of religion is kosher in schools and what isn’t. As an authority, I’ve used Finding Common Ground: A Guide to Religious Liberty in Public Schools from the Freedom Forum, chapter four (“The Supreme Court, Religious Liberty and Public Education”). Thanks to a reader of this blog for the link.
For brevity, this summary must avoid the nuance and make some gray areas appear black and white, and it only focuses on religious freedom in schools. Remember also that this topic is in flux. It was only in 1940 that the U.S. Supreme Court concluded that religious free exercise should be included in the liberties granted to all citizens by the 14th Amendment (1868).
The First Amendment guarantee of religious liberty has two clauses.
First Amendment Establishment Clause
Congress shall make no law respecting an establishment of religion
The Lemon test, from a 1971 Supreme Court case, tests this clause. A negative answer to any of the three questions below means that the law is unconstitutional.
1. Does the law have a bona fide secular or civic purpose? The purpose of schools is education, so if the only purpose for a school activity is to celebrate a religious holiday (for example), it’s unconstitutional. On the other hand, allowing students religious exemptions from attending sex-education classes is constitutional.
Accommodating a student’s religion is valid, but promoting it is not. Permitting a student essay with a religious theme is valid, but requiring it is not.
2. Is the law neutral? That is, does the primary effect neither advance nor inhibit religion? Allowing students to be released from school to attend religious instruction elsewhere is valid, but promoting such classes is not. Religious groups must be allowed to use school facilities like any other group. Allowing a church to use a school building does advance religion, but an equal-access policy wouldn’t have advancing religion as its primary effect.
3. Does the law avoid excessive government entanglement with religion? The Supreme Court case Lemon v. Kurtzman, from which this test comes, found that a state law reimbursing nonpublic schools (mostly Catholic) for secular classes was an excessive government entanglement with religion.
First Amendment Free Exercise Clause
Congress shall make no law … prohibiting the free exercise [of religion]
For this clause, the Sherbert test is applied. First, the student who claims that their Free Exercise rights were violated must meet both tests below.
1. The student’s actions must have been motivated by sincere religious belief. Religious beliefs are judged only by the student. From the standpoint of a teacher or any other observer, they don’t have to be popular, rational, or sensible; they only have to be sincere. For the purposes of this test, the belief system must “[function] like a religion in the life of the individual,” which would include secular humanism.
2. The student’s actions have been substantially burdened by the government. The focus is on substantial. Coercion would be substantial; incidental burdens would not be. Forbidding students from handing out religious tracts to classmates might be a substantial burden, but requiring that they do it at a reasonable time and place would not be.
If the student has a valid claim (both 1 and 2 are met), we move to on to see if the government has a compelling reason to impose that burden. The government will win its case if it meets both tests below.
3. The government must be acting to further a compelling state interest. A compelling state interest might be public health and safety, but “compelling” has limits. Compulsory-attendance laws are a compelling interest, but Amish families successfully argued that it wasn’t compelling enough after eighth grade. Teaching children how to prevent the spread of HIV through sex-education classes is a compelling interest, but this may not be compelling enough if parents object on religious grounds.
4. The government must have pursued that interest in a manner least burdensome to religion. The school should burden a student’s religious beliefs as little as necessary. If a student objects to an assignment on religious grounds, the school might be required to find an alternative, though one student’s religion can’t determine the curriculum for the rest of the class.
These First Amendment clauses are not in tension
It’s wrong to see one clause favoring religion and the other opposed to it. According to Finding Common Ground, “Both clauses secure the rights of believers and nonbelievers alike to be free from government involvement in matters of conscience.”
The bottom line
Let’s consider the court’s stand on typical questions.
- Prayer, Bible reading, and expressing religious viewpoints are allowed if they’re done by the student. School-sponsored versions are not.
- Teachers and outside adults do not have the right to pray with students. Students are the ones obliged to be there, and it’s their rights that are protected.
- Moments of silence are okay, but not if they are used to promote prayer.
- Religious clubs should be treated like other clubs, though religious groups are prohibited in primary schools because of the risk of younger students being unable to distinguish student speech from government speech.
- Religious community groups that want to use school facilities after hours should be treated like other groups.
- Outside adults may not pray at graduation or other school events, though the law is less clear about student-led prayer. The better approach is a privately sponsored voluntary baccalaureate event, separate from graduation.
- Rules for students handing out literature must be even handed and not favor or discriminate against religious literature. Restrictions are allowed, but schools probably can’t ban all such distribution. Teachers and outside adults, on the other hand, have no right to distribute literature of any kind in schools.
If we are just a bunch of bitter old church people, grumpy at the world,
yelling at non-believers to get off our proverbial moral lawn,
that does not show forth light and preserve as salt.
— Ed Stetzer of Lifeway Research at 2013 SBC
Photo credit: Kim Sacha