Expression of Religion in Public Schools

JurisdictionUnited States,Federal
CitationVol. 40 No. 11 Pg. 47
Publication year2011
40 Colo.Law. 47
Colorado Bar Journal

2011, November, Pg. 47. Expression of Religion in Public Schools

The Colorado Lawyer
November 2011
Vol. 40, No. 11 [Page 47]

Government Counsel

Expression of Religion in Public Schools

by Theresa L. Sidebotham

Government Counsel articles provide information to attorneys dealing with state and federal administrative agencies, as well as attorneys representing public or private clients in the areas of municipal, county, and school or special district law.

Coordinating Editor

David D. Smith, Glenwood Springs, of Garfield and Hecht, P.C.-(970) 947-1936,

About the Author

Theresa Lynn Sidebotham is an associate with Rothgerber Johnson and Lyons, LLP in the Colorado Springs office. Her practice focuses on religious institution law, education law, and general litigation-(719) 386-3059,

This article discusses the intersection of religious expression and public schools. It focuses on the Equal Access Act, student speech, school personnel speech, access for community viewpoints, and released time.

Confusion is widespread as to what may be taught, expressed, or otherwise introduced onto the premises of the nation's public schools. "Nowhere has the proper line of demarcation [in the appropriate amount of separation between church and state] been more difficult to define than in our nation's public schools."(fn1) As the Tenth Circuit has said:

So long as the state engages in the widespread business of molding the belief structure of children, the often recited metaphor of a "wall of separation" between the church and the state is unavoidably illusory.(fn2)

Conflicts between belief systems arise in various ways, and the testing ground lies at the intersection-or collision-between the Establishment and Free Exercise Clauses of the U.S. Constitution:

In the milieu of public education, there is not an impregnable wall of separation. Rather, the inevitable conflicts . . . dictate that there must be some measure of accommodation to avoid the constitutionally impressible result of totally subordinating either religion clause to the other.(fn3)

Case law dictates the steps of this complicated process, which, when approached with care, preserves the integrity of religious practice, free choice, and the government's interest in education.

The First Amendment provides: "Congress shall make no law respecting an establishment or religion, or prohibiting the free exercise thereof; or abridge the freedom of speech. . . ."(fn4) As discussed in detail below, the Free Exercise Clause has several common law tests that are used to analyze a Constitutional challenge to a policy or practice.

To evaluate a school policy under the Establishment Clause, the courts consistently use the Lemon test, which approves the policy if: "(1) it has a secular purpose, (2) its primary effect neither advances nor inhibits religion, and (3) it does not foster excessive government entanglement with religion."(fn5) The Tenth Circuit uses a hybrid Lemon test with three prongs. It always asks: first, "whether the government conduct was motivated by an intent to endorse religion"; and second, "whether the conduct has the effect of endorsing religion." If the government has involved itself with a religious institution, it also asks whether there is excessive entanglement.(fn6)

This article gives an overview of five areas where questions about the interplay between the First Amendment and education commonly arise. These areas are: (1) the Equal Access Act; (2) student speech; (3) speech for school personnel; (4) access for community points of view; and (5) released time.

The Equal Access Act in

Light of Recent Developments

The Equal Access Act, passed in 1984, protects the rights of public high school student groups to meet on publicly owned property, even for a religious purpose. The basic outline of rights under the Act has developed through case law. Recent developments in the U.S. Supreme Court may fundamentally change how the Act is interpreted.

Basic Provisions of the Equal Access Act

The Act provides:

It shall be unlawful for any public secondary school which receives Federal financial assistance and which has a limited open forum to deny equal access or a fair opportunity to, or discriminate against, any students who wish to conduct a meeting within that limited open forum on the basis of the religious, political, philosophical, or other content of the speech at such meetings.(fn7)

The Act defines "fair opportunity" as follows:

Schools shall be deemed to offer a fair opportunity to students who wish to conduct a meeting within its limited open forum if such school uniformly provides that-

1) the meeting is voluntary and student-initiated;

2) there is no sponsorship of the meeting by the school, the government, or its agents or employees;

3) employees or agents of the school or government are present at religious meetings only in a nonparticipatory capacity;

4) the meeting does not materially and substantially interfere with the orderly conduct of educational activities within the school; and

5) nonschool persons may not direct, conduct, control, or regularly attend activities of student groups.(fn8)

The year after the Act was passed, it was tested. A high school student group asked permission to form a Christian club, which the school refused to approve. The students filed suit.(fn9) At issue was both the constitutionality of the Act and whether the school had a "limited open forum," defined by the Act as when a school "grants an offering to or opportunity for one or more noncurriculum-related student groups to meet on school premises during noninstructional time."(fn10) The Court concluded that the school's existing student groups included one or more "noncurriculum related student groups," such as scuba and chess.(fn11) Because the school had a limited open forum, it was required to give the religious group equal access.(fn12) In addition, the Court held that the Act does not facially violate the Establishment Clause, and a "school does not endorse or support student speech that it merely permits on a nondiscriminatory basis."(fn13)

Cases continued to test the parameters of the Act.(fn14) In 2008, students in California applied to form a Bible club and the school denied their charter.(fn15) The school denied that it had created a limited open forum, but the court found that it had likely done so when it chartered the Red Cross Club.(fn16) Not only was the school strategically approving or denying club applications based on viewpoint, it also apparently began to enforce its policy only when confronted with a religious club.(fn17)

Another case considered the meaning of noninstructional time. The court held that the school had to permit the local Bible club to meet during its activity period, which qualified as noninstructional time because there was no actual classroom instruction going on then.(fn18) The court pointed out:

Just as putting a "Horse" sign around a cow's neck does not make a bovine equine, a school's decision that a free-wheeling activity period constitutes actual classroom instructional time does not make it so.(fn19)

When a group has the right to access, it should receive the same treatment and benefits as other groups. One case stated a Christian club should: (1) receive student club funding; (2) be included in the yearbook free of charge; and (3) have the same access to the public address system and bulletin boards (but not to pray or proselytize through the public systems).(fn20) On the other hand, it could not have access to district funds, because the Act provides that a school may not "expend public funds beyond the incidental cost of providing the space for student-initiated meetings."(fn21) Another case held that a Christian student club would be likely to prevail on the issue of making announcements on the public address system and broadcasting its promotional video like other clubs.(fn22)

Membership Limited by the Student Club

The Equal Access Act says nothing about membership standards students may impose on their own clubs. The concept of limited membership may be affected by a recent U.S. Supreme Court case.

The Second Circuit considered the issue in 1996, when a high school club included a charter provision that only Christians could be club officers.(fn23) The school refused recognition on the ground that the provision violated the school policy prohibiting all student groups from discriminating on various grounds, including religion.(fn24) The students argued that "forcing the Club to accept the possibility of non-Christian officers" could change the form and content of the club.(fn25) The court accepted the argument only with respect to the three leadership positions that really safeguarded the Christian content of the club.(fn26) It concluded that the

religious test for leadership positions has been made purely for expressive purposes-to guarantee that meetings include the desired worship and observance-rather than for the sake of exclusion itself.(fn27)

The court concluded the students had been denied equal access.(fn28)

In a 2008 Ninth Circuit case, students applied to form a club called Truth, with meetings open to everyone, but voting membership limited to professing Christians.(fn29) The school district rejected the application, based primarily on the membership restrictions.(fn30) The court held for the district on the basis that the district's nondiscrimination policies did not discriminate against religious speech, and that religious groups were accorded the same rights and privileges as other student groups.(fn31)

In 2009, a similar case arose in a university setting, when Christian student groups did not wish to comply with the university's...

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