Proposed Guidelines for Student Religious Speech and Observance in Public Schools - Jay Alan Sekulow

Publication year1995

Proposed Guidelines for Student Religious Speech and Observance in Public Schools

Jay Alan Sekulow* James Henderson** and John Tuskey***

The First Amendment to the United States Constitution provides, "Congress shall make no law respecting an establishment of religion . . . ."I The First Amendment also provides, "Congress shall make no law . . . abridging the freedom of speech, or of the press . . . ."2 Perhaps no question has so bedeviled American courts in this century as that of how to reconcile these two provisions in this nation's public schools. Questions that arise include: Does allowing students to pray, share their faith with other students, or even discuss their religion at the public schools constitute an "establishment of religion?" May public schools go further in restricting students' religious speech than they may go in regulating other speech? Do public schools have to allow religious students to use school facilities to meet to discuss their religion? May schools recognize religious holidays?

We believe the key to answering most of these questions lies in several principles. The first principle is that religious speech, including religious worship and religious speech intended to persuade, is protected by the Free Speech Clause.3 The second principle is that the First Amendment Free Speech Clause never allows the government to restrict speech based on its viewpoint and generally requires a compelling state interest to restrict speech based on content (that is, subject matter).4 The third principle is that the First Amendment by its very terms prohibits only state, not private, action. These principles together establish that government, including public school officials, must treat religious speech just as it treats any other type of speech; the Establishment Clause provides no excuse for restricting private religious speech simply because it is religious. As the Supreme Court has 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."6

Equal treatment of all protected speech is not a difficult concept to understand. Yet, as attorneys at the American Center for Law and Justice ("ACLJ"), we daily see public school officials grappling with the question of how to accommodate religious speech in the public schools. Many officials are still under the misguided assumption that the Establishment Clause requires schools to stifle student religious speech; others seem to believe that allowing religious speech (or any controversial speech, for that matter) is more trouble than it is worth. Whatever the reason, we continue to be referred cases in which public school officials seek to restrict religious speech in ways they would not seek to regulate secular speech. As the Supreme Court has noted, such discrimination against private religious speech and speakers "demon-strate[s] not neutrality but hostility toward religion. 'The Establishment Clause does not license government to treat religion and those who treat and practice it . . . as subversive of American ideals and therefore subject to unique disabilities.'"6

Public school officials need guidance concerning how and when they may restrict students' expressive activity. They need to be educated regarding student speech rights in general and students' religious speech rights in particular. To that end, the ACLJ has drafted Model Student Speech Guidelines for use by public school officials. (Those Guidelines are attached as an appendix to this Article). This Article will explain and defend the Model Guidelines. First, we will discuss general principles regarding student speech, including the general conditions for restricting or regulating student speech, the concept of viewpoint neutrality, the Equal Access Act,7 and Establishment Clause concerns. After discussing general principles, we will apply those principles to specific situations the proposed guidelines cover, including student religious speech, student distribution of religious literature, student Bible clubs and prayer groups, student religious speech and prayer at graduation, and school observance of religious holidays. Our hope is that the Model Guidelines will assist public school officials in regulating speech in a way that allows them to maintain appropriate control over student discipline and conduct but that protects all student speech, including religious speech, consistently with the First Amendment Free Speech and Establishment Clauses.

I. General Principles Governing Student Speech A. Student Speech Rights in General

Tinker v. Des Moines Independent Community School District.

A quarter of a century ago, the Supreme Court firmly established the right of public school students to express themselves during the school day on school property.8 In Tinker v. Des Moines Independent Community School District,9 school officials suspended two high school students and a thirteen-year old junior high school student for wearing black armbands to protest the Vietnam War. In reversing the lower courts' judgments upholding the school officials' action, the Court unambiguously affirmed that students and teachers have free speech rights in public schools:

First Amendment rights, applied in light of the special characteristics of the school environment, are available to teachers and students. It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate. This has been the unmistakable holding of this Court for almost 50 years.10

Thus, not only in the classroom but also "[w]hen [a student] is in the cafeteria, or on the playing field, or on the campus during the authorized hours, he may express his opinions, even on controversial subjects."11

The holding in Tinker flows naturally from its underlying premise that the job of public schools is to educate, not to indoctrinate. That premise embodies a constitutional principle. As the Court noted in West Virginia v. Barnette12 (a case the Court cited in Tinker), "If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of public opinion . . . ,"13

The danger of indoctrination, or prescribing orthodoxy, is especially present in public schools, in which school officials have a captive audience for six to eight hours per day. As Professor Michael W. McConnell has noted:

The compulsory education laws, combined with the government's refusal (or supposed constitutional incapacity) to fund private alternatives to public education have the effect of removing children from their homes for six to eight hours a day and channeling them into public school. The public school dominates the education of children who attend it; it provides, or at least purports to provide, a comprehensive education.14

To deny students the right to express views contrary to those the state wishes to impose would turn the public schools into indoctrination centers in which students would be force-fed only that which the state wanted them to hear. School officials, in effect, would be prescribing orthodoxy. As the Court in Tinker saw things, student free speech was the antidote to this danger:

In our system, state-operated schools may not be enclaves of totalitarianism. School officials do not possess absolute authority over their students. Students in school as well as out of school are "persons" under our Constitution. They are possessed of fundamental rights which the State must respect, just as they themselves must respect their obligations to the State. In our system, students may not be regarded as closed-circuit recipients of only that which the State chooses to communicate. They may not be confined to the expression of those sentiments that are officially approved. In the absence of a specific showing of constitutionally valid reasons to regulate their speech, students are entitled to freedom of expression of their views. As Judge Gewin, speaking for the Fifth Circuit said, school officials cannot suppress "expression of feelings with which they do not wish to contend."15

Student speech rights are not absolute; school officials do have an interest in maintaining discipline and order, in teaching their prescribed curriculum, and in making sure that the schools are able to communicate the lessons school officials believe students need to learn. But the court in Tinker emphatically rejected the notion that those interests justify censoring student speech merely because school officials do not like the speech, or even because they fear some students may disagree with or be offended by the speech, or that the speech may cause some disturbance:

[I]n our system, undifferentiated fear or apprehension of disturbance is not enough to overcome the right of freedom of expression .... Any word spoken, in class, in the lunchroom, or on campus, that deviates from the views of another may start an argument. But our Constitution says we must take this risk . . . ,16

Thus, general fear of disturbance is not a sufficient reason to censor student speech.

It is important to remember that in Tinker, there was evidence that a few students made hostile remarks to the students wearing the armbands and that friends of a former student killed in Vietnam had stated that the armbands "might evolve into something which would be difficult to control."17 Moreover, anybody old enough to remember the Vietnam War remembers the division and social strife the war and resulting antiwar demonstrations caused. But the Court in Tinker held these concerns insufficient to justify censoring the students' protest.18 Tinker thus requires more than evidence of a general (even if reasonable) fear of disturbance to justify censoring...

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