Religion in Public Schools: What Does the First Amendment Allow?

Religion in Public Schools: What Does the First Amendment Allow? August 17, 2016

separation of church and stateAs a follow-up to my recent post about prayer in public schools, let’s look at what of religion is allowed in U.S. public schools and what isn’t. As an authority, I’ve used chapter 4 of Finding Common Ground: A Guide to Religious Liberty in Public Schools from the First Amendment Center.

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 in the U.S. Constitution 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 itsprimary 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.

  1. 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.
  2. 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.”

See also: Movie Review: “God’s Still Not Dead: You Can’t Keep a Good Man Down”

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

(This is an update of a post that originally appeared 6/19/13.)

Photo credit: Kim Sacha, flickr, CC


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  • RichardSRussell

    If the rules had been set up to actively disparage god belief, or to strongly encourage polytheism or animism, ardent fundamentalists would be screaming at the top of their lungs that they were being discriminated against, that the schools were playing dirty, that it just wasn’t fair.

    And, of course, they’d be right.

    Strange, then, that they think they’re the ones being screwed when the rules are set up to be fair, even-handed, and as accommodating as possible to the preferences of the individual.

    • Dannorth

      I recommend reading “The Autoritarians” by Dr Robert Altemeyer.

      To no ones great surprise research showed that autoritarians are big on double standards.

  • Uzza

    The mere existence of all these clauses, and tests, and interpretations shows how this is all bullshit. The courts have never even had the nads to define what ‘religion’ is or is not. The 1st Amendment needs to be repealed and replaced with something along the lines of

    “Religion is irrelevant to Government”

    Then “I shouldn’t have to obey the law” would be thrown out equally with
    I shouldn’t have to obey the law because religion”.

    • eric

      That replacement would quickly be followed by a raft of clauses and tests and interpretations the courts would need to actually decide questions put before it. Well, unless you have a machine that lets a judge read your mind on how the words should be interpreted.

    • T-Paine

      Even if the 1st Amendment was replaced with “religion is irrelevant to Government” you still have to define what is or isn’t religion.

  • Myna A.

    Accommodating a student’s religion is valid, but promoting it is not.

    Public schools only served fish on Fridays before the end of Vatican II to accommodate the Catholic kids, and reminds me suddenly now of George Carlin’s, “It isn’t a sin anymore to eat meat on Friday but I’ll betcha there are still some guys in Hell doing time on the meat rap, right?”

    • Kevin K

      Much like there are probably some guys serving time in Oregon for possession of marijuana.