This document discusses religion in public schools and the legal framework surrounding issues of establishment of religion and free exercise of religion. It covers US Supreme Court rulings establishing guidelines like the Lemon Test to determine if laws violate the separation of church and state. Contemporary issues covered include requirements to say the Pledge of Allegiance, limits on school prayer, exemptions for religious reasons, wearing religious symbols, and rights of student religious groups. The document aims to outline the complex legal issues around religion in schools.

1. Religion in the Schools
William Allan Kritsonis, PhD

2. Religion in the Schools
 Court battles are being waged between
those who demand that schools and
religion be kept separate and those who
demand that school accommodate religion
in public schools.
 The chapter focuses on legal framework of
religion in school battles and an in-dept
examination of contemporary religious
issues in Texas schools

3. Legal Framework
 The First Amendment begins with a statement
about religion: “Congress shall make no law
respecting an establishment of religion, or
prohibiting the free exercise thereof…”
 This statement applies that state governments
and public schools through provisions of the
Fourteenth Amendment, has two distinct
components:
 the establishment clause (Congress shall make n law
respecting an establishment of religion”)
 the free exercise clause (“or prohibiting the free
exercise thereof”).

4. Establishment Clause
 U.S. Supreme Court has construed the an
before the word establishment to mean that not
only is government not to set up a state church,
but it also is not to aid any particular religion.
 In short the separation of church and state.
 Starting with the Everson case in 1947, The
court ruled that New Jersey could reimburse the
transportation expenses of parents who sent
their children to parochial or other private
schools. It did not violate the wall of separation
between church and state because both public
and private schools students would get to school
safely.

5. A year later in McCollum v. Board of
Education, the Court ruled that a release-time
program in which religious instruction was
given to students on a voluntary basis in the
public schools did breach the wall of
separation.
 Four years later in Zorach v. Clauson, the
Court upheld a New York program that allowed
students interested in religious instruction to
leave school early so they could receive
religious instruction at off-campus centers.

6. Supreme Court Guidelines for
Church State Issues
 In the early 1970’s the Justices developed a set
of guidelines for resolving church-state
guidelines.
 1. The purpose of a challenged law or practice must be
secular (as opposed to sectarian).
 2. The primary effect of the law or practice must be one
that neither advances nor inhibits religion (and thus
does not impair the practice of one’s religious beliefs).
 3. The law or practice must not involve excessive
entanglement between state and church (this guideline
is most often related to state efforts to aid religiously
affiliated private schools).

7. More Recently…
 Members of the Court have urged amending or
abolishing Lemon guidelines ((named after 1971
Lemon v. Kurtzman decision) in favor of more
flexible approaches.
 In 1997 the Court returned to Lemon guidelines
to uphold a government program that permits
public school teachers to deliver remedial
education to educationally at-risk students under
Title I of the Elementary and Secondary Schools
Education Act, on religious private school
campuses (Agostini v. Felton).

8.  Cases involving inclusion of religion in
public schools the Court has considered
whether there is government
endorsement of religion and whether
there is a psychologically coercive effect
on objectors (Lee v. Weisman, 1992).
 U.S. Court of Appeals for the Fifth Circuit
employs five guidelines in determining
establishment clause issues involving
public schools. Lemon plus two from the
Lee case.

9. Provisions of Texas Constitution
 Reflect a desire to separate church and state.
 Article I, Section 6 states:
 “no man shall be compelled to attend, erect, or
support any place of worship, or to maintain any
ministry against his consent.”
 “no preference shall ever be given by law to any
religious society of mode of worship.”
 ArticleI, Section 7 specifically prohibits the
expenditure of public school dollars for
sectarian purposes.
 It reads: “No money shall be appropriated, or drawn
from the Treasury for the benefit of any sect, or
religious society, theological or religious seminary; nor
shall property belonging to the State be appropriated
for any such purposes.” Assumed to be more strict
than the First Amendment establishment clause.

10. Free Exercise of Religion
 Second Component of First Amendment is the
“free exercise clause”.
 This clause assures that people shall be free to
exercise their religious beliefs without
government restraint or persecution.
 Applies to school districts under the Fourteenth
Amendment.
 Provides extensive protection for religious
expression and exercise.

11. Article I, Section 6 of Texas
Constitution states:
 “All men have a natural and indefeasible right to
worship Almighty God according to the dictates
of their own consciences….No human authority
ought, in any case whatever, to control or
interfere with the rights of conscience in matters
of religion….[I]t shall be the duty of the
Legislature to pass such laws as may be
necessary to protect equally every religious
denomination in the peaceable enjoyment of its
own mode of public worship.”

12.  The right to the free exercise of religion is
not absolute--there are limits to what the
court can allow.
 The court can not always protect
religious freedom when accompanied by
an action.
 In 1978, the Supreme Court decided in
Reynolds v. United States that Mormons
have the right to believe in polygamy, but
Congress has the right to prohibit its
practice.

13. Religion Defined
 First Amendment established clause purposes,
courts generally define religion as deity-based,
and having general recognition as a bonafide
religion. But for free exercise clause purposes,
the definition is more relaxed and can extend to
a belief system that is philosophically rather than
theologically based.
 A person can believe in whatever the person
wishes, the person cannot practice beliefs in
such a way as to disrupt the learning
environment or interfere with the rights of others.
Rules of order apply to everyone.

14.  Federal and state statutes protect
religious freedom.
 Example: Title VII of the 1964 Civil
Rights Act outlaws discrimination on the
basis of race, color, religion, sex, and
national origin in public and private
employment. Does allow sectarian
private schools to hire individuals due to
religious preference.

15.  Court ruling make it difficult for a school district
with a community use policy to exclude religious
groups from holding religious services on
schools grounds.
 Texas Education Code provisions protect
religious freedom.
 Students can pray and mediate voluntarily and
individually in schools as long as there is no disruption of
instructional or other activities.
 No person may require, encourage, coerce or a student
to engage in or refrain from prayer and meditation.
 Prohibits asking bout the religious affiliation of anyone
applying for public school employment.
 In 1961 the Supreme Court ruled that requiring public
officers to declare a belief in God constitutes a religious
test for public office that invades the individual’s right to
religious freedom.

16. Contemporary Issues
 Concerns about the role of religion in
Texas public schools have surfaced over a
variety of issues. We will briefly examine
the following:
 The Pledge of allegiance
 School Prayer
 Religious Exemptions
 Wearing religious symbols
 And student religious groups and the Equal
Access Act.

17. Pledge of Allegiance
 Texas Education Code Section 25.082(b) requires students to recite
the pledge of allegiance to both the U.S. and Texas flags in all
public schools each day. Subsection ( c ) provides that a student is
excused from doing so upon written request from the parent or
guardian.
School Prayer:
 Courts have ruled that schools cannot mandate or promote prayer.
 Public School nor its employees may not lead, promote, or
participate in prayers with or among students during curricular or
extracurricular activities, including before, during, or after school-
related sporting events. Employees do not have to leave the room
when students pray on their own or treat students with disrespect.
 Silent meditation is legal, but not if or prayer is added to the
mandate by a state (Wallace v. Jaffree).
 School may not sponsor a prayer at commencement, but a student
volunteer may pray as long as the message is nonsectarian and
nonproselytizing.
 Graduation are closed forums.
 Texas Education Code and the federal courts recognize that
students can engage in personal prayer at school and at school-
sponsored extracurricular events separate and apart from school
involvement.

18. Religious Exemptions
 Thegovernment may never compel a
person to profess a belief.
 This includes saying the pledge, saluting the
flag, bowing for amount of silence.
 A student who refuses to salute the flag for
philosophical reasons is entitled to the same
exemption as a student who asserts a religious
reason for not doing so.

19. Wearing Religious Symbols:
 Title VII of the 1964 Civil Rights Act prevents
discrimination in employment on the basis of
race, color, religion sex or national origin.
 School districts must accommodate a teacher’s
wearing of religious symbols and attire unless it
would be undue hardship to do so. Undue
hardship can encompass a non-economic
burden such as maintaining the appearance of
religious neutrality in the classroom.

20.  School districts can impose restrictive dress
codes for students.
 Dress codes cannot deny students First
Amendment rights to engage in religiously
motivated speech and free exercise of religion.
 In 1997, New Caney I.S.D. students were
successful in challenging the application of the
district’s gang -related apparel rule to the
wearing of rosary beads. The school district was
worried about gang violence, but the judge found
insufficient evidence of actual disruption at New
Caney High School to justify infringing on the
students’ religiously motivated speech (Chalifoux
v. New Caney I.S.D.)

21. Student Religious Groups and the Equal Access Act
 Equal Access Act give non-curriculum-related
student groups access to public secondary schools
during noninstructional time to engage in religious,
political, philosophical, or other types of
expression.
 Must be student-initiated groups
 Voluntary
 And student led
 District and school personnel are prohibited from
sponsoring meetings but may attend in a custodial
capacity.
 Non-school person may “direct, conduct, control, or
regularly attend activities of student groups.”

22.  In 1990, the U.S. Supreme Court ruled that the
Equal Access Act does not violate the
Constitution (Westside Community School v.
Mergens).
 Equal Access Act does not limit First
Amendment rights of individual students to come
together voluntarily during the school day for
religious expression on school grounds,
including prayer and the distribution of religious
literature, so long as it is done in a non
disruptive manner (Clark v. Dallas I.S.D.).

23. In Conclusion
 Texas and U.S. Constitutions make it clear that
public schools are to neutral regarding religion.
Provide strong support for the individual freedom
of religious belief and exercise.
 School sponsored prayer violates the wall of
separation between church and state.
 Common line of reason running through case
law is that public schools must avoid either
advancing or inhibiting religion.