Schools, worship, and the First Amendment.

• Author: Cordes, Mark W.
• Position: IV. Worship in Public Schools and the Establishment Clause through VI. Conclusion, with footnotes, p. 39-65

4. WORSHIP IN PUBLIC SCHOOLS AND THE ESTABLISHMENT CLAUSE

   The most troubling aspect of the majority opinion in Bronx Household IV was its treatment of the Establishment Clause issue. (217) Although the Second Circuit was careful to clarify that it was not saying that allowing worship in public schools would in fact violate the Establishment Clause, only that it was reasonable for the school district to believe that it might, its analysis strongly suggests that allowing worship posed significant Establishment Clause problems. (218) Indeed, the court stated that there was a "strong basis" to believe such a practice would violate the Establishment Clause. (219)

   This is troubling because it might lead school districts who want to accommodate religious groups by making their facilities available for worship decline to do so because of Establishment Clause concerns. Even if a court determines that exclusion of worship services from public schools does not violate the Free speech or Free Exercise clauses, schools should still be free to allow worship services if they so choose. Indeed, many, if not most, school districts have no problem letting religious groups use their facilities for worship at appropriate times. This is what is called "play in the joints," where even if the state is not required to accommodate religion under the Free Exercise or Free speech clauses, it is still permitted to do so under the Establishment Clause. (220)

   The supreme Court has employed a variety of tests over the years for resolving Establishment Clause issues, including the Lemon test, endorsement test, and coercion test. The Lemon tripartite test requires that valid government action must have a secular purpose, have a primary effect that neither advances nor inhibits religion, and avoid excessive entanglement with religion. (221) Although at one time the Lemon test dominated Establishment Clause analysis, (222) its influence has greatly diminished over the past quarter-century and the Court often completely ignores the test. (223) In the context of religion in public schools, the Court has often used the first prong of the Lemon test to invalidate government action where government itself promotes a religious agenda. (224) As discussed in Part II.B, the primary focus in cases involving religion in public schools has been between government-promoted prayer or religious exercise, which inevitably violates the Establishment Clause, and privately-initiated religious exercise, which is permitted and sometimes protected under the First Amendment. (225)

   With regard to the coercion and endorsement tests, the Court continues to apply both tests to varying degrees depending on the particular Establishment Clause concern before the Court. (226) It is fair to say that government coercion of religious exercise always violates the Constitution. (227) Government endorsement of religion also violates the Establishment Clause, though both tests are subject to a variety of interpretations. Common to both approaches, however, is that it is government action--either coercing religious exercise or endorsing religion--that is impermissible. (228)

   In the context of resolving Establishment Clause issues in the limited public forum, however, the Court has largely resorted to a neutrality analysis. Neutrality has long been an important part of Establishment Clause analysis, dating back to the Court's initial Establishment Clause case in Everson v. Board of Education (229) and to the Schempp school prayer decision. (230) But the past quarter century has seen neutrality emerge as one of the Court's primary analytical vehicles for resolving an assortment of Establishment Clause issues. (231)

   This has been particularly true in the context of the limited public forum cases, where the Court has relied almost exclusively on the neutrality of the created forum to find that inclusion of religious speech in a school-created forum would not violate the Establishment Clause. This was first hinted at in Widmar, where the Court applied the Lemon test and held that providing equal access to a public forum to religious groups would not have a primary effect of advancing religion. (232) In particular, the Court noted that an equal-access policy would not confer the state's imprimatur on religion, because it would be treating student religious groups the same as any other student groups. (233) The Court made a similar observation in Lamb's Chapel, stating that under the circumstances, where other community groups repeatedly used school property, there was no realistic danger of perceived endorsement. (234) Although the Court did not specifically stress neutrality in these cases, it was essentially the neutral treatment of religion that prevented Establishment Clause violations.

   This emphasis on neutrality in addressing the Establishment Clause issue came to the forefront in the other three limited forum cases--Mergens, Rosenberger, and Good News Club. As noted earlier, these cases increasingly began to stress neutrality in rejecting Establishment Clause concerns. (235) For example, Justice O'Connor's plurality opinion in Mergens explains that inclusion of religious groups would not violate the Establishment Clause, as the basic message of the Equal Access Act was "one of neutrality rather than endorsement; if a State refused to let religious groups use facilities open to others, then it would demonstrate not neutrality but hostility toward religion." (236) Justices Scalia and Kennedy, in a concurring opinion, similarly stressed that neutral treatment of religious groups satisfied the Establishment Clause. (237)

   The Court's two most recent cases, Rosenberger and Good News Club, have particularly emphasized the importance of neutrality in Establishment Clause analysis. The Court began its Establishment Clause discussion in Rosenberger by stating, "[a] central lesson of our decisions is that a significant factor in upholding governmental programs in the face of Establishment Clause attack is their neutrality towards religion," noting that it had previously applied that principle "to religious speakers who participate in broad-reaching government programs neutral in design." (238) On that basis, the Court held that including a religious publication in the university's funding program for student groups would not violate the Establishment Clause, because it would simply be treating religion neutrally, not preferentially. (239) Similarly, the Court in Good News Club characterized neutrality as a significant factor in its Establishment Clause analysis, stating that "[b]ecause allowing the Club to speak on school grounds would ensure neutrality, not threaten it, [the school] face[d] an uphill battle in arguing that the Establishment Clause compels it to exclude the Good News Club." (240) Thus, though neutrality was not dispositive, it created a strong presumption of constitutionality.

   It is not surprising that the Court so strongly stresses neutrality and related concepts in these decisions, because neutrality reinforces some of the Court's basic Establishment Clause concerns. First, a program's neutrality ensures that any religious speech emanates from private choices, rather than government. As noted earlier, a fundamental distinction in many Establishment Clause cases is that government itself has no business promoting religion, but privately initiated religious action generally poses no constitutional threat. (241) This is most clearly seen in the school prayer cases, where the Court has drawn a fundamental distinction between government-sponsored prayer or religious activity that inevitably violates the Establishment Clause, and student-initiated prayer--a constitutionally permitted and often protected practice. (242) The focus, therefore, is whether the religious exercise is primarily attributable to the state or to private parties.

   Where religious exercise such as worship arises from a neutral program open to various participants, the religious exercise is clearly attributable to private parties and not to the government. (243) This is certainly true of worship services that might occur through a neutral limited forum program. Any worship occurring in such situations is attributable to the private choice of parties using the facility, rather than to the government itself.

   Neutrality also reinforces Establishment Clause values relating to endorsement concerns. The Court has often expressed sensitivity to this topic with regard to religion in public schools. As the Court has noted in various public forum cases, religious speech in the context of a neutral limited forum negates any concerns of perceived state endorsement of religion. (244) In such situations, the objective observer will attribute the religious speech not to the government, but to the choice of the private party. The endorsement issue will be discussed more fully below, but a neutral program negates concerns of the state's endorsement of the religious speech in question.

   Thus, if worship services occur as part of a neutral program that treats religious speech and exercise the same as nonreligious speech, then it creates an extremely strong presumption of constitutionality. As important as neutrality is to the Court's Establishment Clause framework, however, it is not dispositive. Instead, the Court's cases suggest the possibility that other considerations might still indicate an Establishment Clause violation. As noted above, the Court in Good News Club said the program's neutrality created an uphill battle to show an Establishment Clause violation, but did not preclude the possibility altogether. (245) Similarly, the Court in Rosenberger, though strongly emphasizing the program's neutrality, also pointed to other factors mitigating Establishment Clause concerns. (246)

   As a starting point, the neutrality of programs where worship might occur on school property as part of a limited public forum...