Phyllis Errico, Editor

Religion and the Public Schools

There are very few issues today which promote as much discussion as religion and public instruction. Naturally when you put these two issues together the results are dynamic, controversial and often confusing. From the wide array of religious beliefs represented in this country to the countless fact situations that may arise in the education context we have an extensive amount of action in state and federal courts with decisions that range from clear as crystal to as cloudy as mud. This issue arises in many instances in the public education context including: compulsory attendance, pre-entrance health requirements, release time for religious purposes, school holidays, tuition tax credits, vouchers, curriculum, school activities, access to school facilities and holiday displays and pageants to name a few. Although the above list is illustrative rather than exhaustive in nature it provides a sample of just how large and complicated the interface between religion and public education really is.

Religious freedom is at the cornerstone of this country’s origin and thus is an issue that has been in the forefront of this country’s history. The First Amendment to the United States Constitution provides the legal framework for most religious issues. The First Amendment has two germane provisions, the Establishment Clause and the Free Exercise Clause, the first of which prohibits the establishment of religion and the second which guarantees its free exercise. These protections extend to the states through the Fourteenth Amendment. The common purpose of these two provisions is to secure religious liberty in this country and to avoid the European model of favoritism of particular religions. The concept of separation between church and state is one which has arisen out of the Supreme Court’s interpretation of these constitutional provisions. Issues of balance between education and religion date back over 50 years and cases trying to balance these issues remains a mainstay on the Supreme Court’s docket today. Two tools which are useful in framing this issue and resolving day-to-day problems are The Federal Guidelines on Religious Expression in Public Schools, first issued in 1995 and updated and re-released in 1999 and The Virginia State Board of Education Guidelines Concerning Religious Activity in the Public Schools, adopted June 22, 1995. Both publications illustrate the areas of concern regarding religion and the public schools.

There are several different views and opinions on the proper interface between religion and public education. At one end of the spectrum you will find advocates who believe that religion has no place in public education and should not be mentioned either directly or indirectly because to do so would clearly violate the establishment clause and would favor religion over non-religion. A subset of this group are advocates who though often extremely religious themselves feel strongly that religion and its values fall squarely within the purview of parental control and therefore that the school has no role in this aspect of a student’s life. These opponents point out the very essence of religious freedom will be threatened if religion is present in public education because this arena cannot possibly represent the religious diversity of the citizens of this country.

On the other end of the spectrum and growing increasingly popular are advocates who believe the lack of religion in our public schools is at the root of the disciplinary, moral and value crisis in our public schools today. These individuals advocate not only the teaching about religion as part of the crucial history of this nation but also believe that the Constitution allows and supports religious tolerance even in the public schools. In addition, the advocates of religion in the public schools believe that religion will bring structure, discipline and a common value system and that religion will enhance the overall public school environment by providing a focus of faith and belief, thus creating a more peaceful and productive learning environment.

To say that the Supreme Court and other federal and state courts have considered the issue of religion and public instruction often would be an understatement. Below is a list of some of the most significant court cases dealing with these issues over the last 50 plus years. It is crucial to note that many of these rulings are very fact specific and should be analyzed and applied cautiously to other fact situations.

• Everson v. Board of Education, 330 U.S. 1 (1947). The Supreme Court upheld a New Jersey statute authorizing a local school district to reimburse parents for the cost of bus transportation to public and religious schools.

• McCollum v. Board of Education, 333 U.S. 306 (1952). The Court found unconstitutional an in-school religious instruction program because public school buildings were being used to disseminate religious doctrine.

• Zorach v. Clauson, 343 U.S. 306 (1952). The Supreme Court ruled constitutional a release time program in which a requesting student would be released from school to attend out-of-school religious instruction.

• Engel v. Vitale, 370 U.S. 421 (1962) The Court ruled that recitation of state composed prayer in public school was unconstitutional.

• School District of Abington Township v. Schempp; Murray v. Curlett, 374 U.S. 203 (1963). The Supreme Court held unconstitutional state laws requiring readings from the Bible or a prayer at the start of each public school day.

• Board of Education of Central School District No. 1 v. Allen, 392 U.S. 236 (1968). The court ruled constitutional a provision allowing textbooks to be loaned to students attending private parochial schools as well as public schools.

• Epperson v. Arkansas, 393 U.S. 97 (1968),The court ruled that a statute barring the teaching of evolution unconstitutional.

• Lemon v. Kurtzman, Early v. Dicenso, 403 U.S. 602 (1971). The court held unconstitutional programs which provided supplements to salaries of teachers at parochial schools and purchasing books and supplies for secular subjects at parochial schools. The court enacted a three-part test for First Amendment analysis; (1) the law must have a secular purpose, and (2) the law must neither advance nor inhibit religion, and (3) the law must not excessively entangle church and state.

• Wolman v. Walter, 433 U.S. 229 (1977). The court held constitutional a statute which allowed books, instructional materials, and testing services to both public and private school students.

• Wallace v. Jaffree,472 U.S. 38 (1985) The Court ruled that Alabama’s moment of silence statue was unconstitutional as it establishes religion because it was an attempt to bring prayer into the schools.

• School District of the City of Grand Rapids v. Ball, 473 U.S. 373 (1985). The court ruled that state aid to religious schools violates the establishment clause when it has the primary effect of advancing religion.

• Aquilar v. Felton, 473 U.S. 402 (1985). The court ruled unconstitutional using Chapter I Federal funds to pay salaries of public employees teaching secular subjects in parochial schools.

• Mueller v. Allen, 463 U.S. 388 (1983). The court held constitutional a statute providing a tax deduction for tuition, textbooks and transportation for children to attend public, private or sectarian schools.

• Wisconsin v. Yoder, 406 U.S. 205 (1972) The court held that Amish children could be exempt from compulsory school attendance.

• Lynch v. Donnelly, 465 U.S. 668 (1984). The court found constitutional a crèche display on municipal property, which was surrounded by secular Christmas symbols, noting that this was an accommodation rather than an endorsement.

• Board of Education of the West Side Community Schools v. Mergens, 496 U.S. 226 (1990). The Court ruled that the Federal Equal Access Act prohibits schools which have created a limited open forum from denying student groups use of the school premises based on the religious content of the meetings.

• Lee v. Weisman, 505 U.S. 577 (1992). The court ruled unconstitutional the practice that public school officials invite the clergy to perform invocation and benediction at public school graduation.

• Zobrest v. Catalina Foothills School District, 113 S. CT. 2462 (1993). The Supreme Court ruled constitutional a practice of allowing public school employees to be placed at a sectarian school to provide sign language interpreting services. The basis of this ruling was that the child is the primary beneficiary and not the sectarian institution.

• Lambs Chapel v. Center Moriches Union Free School District, 508 U.S. 384 (1993). The court held unconstitutional a policy, which prohibits non-school use of facilities to religious group, based on the content of its program.

• Board of Education of Kiryas Joel Village School District v. Grumet, 512 U.S. 687 (1994). The court ruled unconstitutional the creation of a separate religious school district to receive state and federal financial assistance to educate handicapped children.

• Rosenberger v. University of Virginia, 515 U.S. 819 (1995) The court ruled unconstitutional the University’s refusal to authorize payment of religious student group’s publication on the basis of its religious content.

• Agostini v. Felton, 117 S. Ct. 1997 (1997). The court overruled its decision in Aguilar v. Felton, 473 U.S. 402 (1985) in holding that public school teachers may provide remedial education to disadvantaged parochial school children on the grounds of the private school because the aid was neutral and the benefit was to the child.

• Santa Fe Independent School District v. Doe, 99-0062 (2000) The court held unconstitutional a school district’s policy permitting student-led prayer at football games.

• Mitchell v. Helmes, 98-1648. (2000) The court held constitutional a program that loans equipment and resources to sectarian schools under federal chapter 2 funding.

The balancing of education and religion manifests itself repeatedly in certain circumstances in the public school setting. This balance is discussed below along with the general rule and best practice in several different areas of interaction.

Compulsory School Attendance

This issue first came to the forefront in this country through the case of Wisconsin v. Yoder. The Supreme Court allowed an exemption from compulsory school attendance based on religious beliefs. Based on the ruling in this case many states have enacted statutes which allow alternatives to compulsory public school attendance such as private school or home schooling. These home schooling statutes usually provide for some monitoring of student progress and require some minimum level of progress by the student in order to remain in this type of setting. There are also statutes which exempt students and their parents from the compulsory school attendance laws on the basis of religious beliefs, such as Virginia’s statute found in Virginia Code 22.1-254 (B) (1) which provides that a school board shall excuse from attendance at school any pupil who, together with his parents, by reason of bona fide religious training or belief is conscientiously opposed to attendance at school. This bonafide religious belief provides a further exemption from certain physical and immunization requirements for the purposes of enrollment in public schools. Virginia Code section 22.1-2 provides that a child whose parent or guardian objects on religious grounds to a physical examination for the purposes of enrollment in school, and who shows no visual evidence of sickness, may submit instead a statement in writing that to the best of his knowledge the child is in good health and free from any communicable or contagious disease. A similar exemption from mandatory enrollment immunizations is provided in Virginia Code Section 22.1-371.2.

Non-Instructional School Time

Although the Supreme Court has been clear in its ruling that state-sponsored or directed prayer is not permitted in the public educational context, students may pray or read religious materials when not engaged in school activities and may participate in before-school, after-school and in- school club activities including religious clubs. This does not include the right to compel other students to participate in, or listen to such activities. Therefore best practice dictates school administrators to allow activities that do not disrupt the school setting and are consistent with other group or club activities regardless of the religious content.

Graduation and Baccalaureate

School officials may not organize, mandate or approve policies authorizing prayer, however a student may choose to use his or her opportunity to speak at such an event to convey a prayer or religious message. This would be viewed not as a state action that may promote or establish religion but rather as the student’s free expression, which should be permitted, provided it does not disrupt the school event.

The Supreme Court has not decided a case dealing specifically with a religious baccalaureate service, however if a baccalaureate is a non-school event there should be no danger of a First Amendment violation. A caution in these situations is that school officials not be involved in these events and that if they happen to be held on school grounds that this occur in the same manner as any other outside group may contract to use the school facilities under non school use of facilities policies.

Curriculum and School Programs

Although it is clear that the public school curriculum and classroom may not be used to proselytize or indoctrinate students to a particular religion it is quite permissible to teach about religion. This may include the history of religion, comparative religion and religion in literature, art, music, architecture social studies and other areas. In addition, it would be permissible for a student to choose religious material for a curriculum assignment. It would also be permissible to have religious books among the library collection and also to include religious music in pageants or programs. It is important in these instances to have a balanced presentation including other materials.

Student Dress

This issue is difficult and depends on the specific dress codes of a school division or particular school. It is generally true that students may display religious messages on their clothing to the same extent that they do other messages. Students may wear jewelry that expresses their religion as well. Generally speaking, if a student’s dress is allowed under the dress code and is not disruptive to the school environment then it should be permitted. Dress codes in general should be content-neutral and should allow certain garb regardless of the religious message. An exception from this general rule might be obscenity which would most likely violate another portion of a conduct code. It is important to note that if an article of clothing is disruptive to the school environment then the school administration may prohibit the wearing of this clothing.

Equal Access

The Federal Equal Access Act provides that in secondary school settings student-led religious groups may have the same access as other non-curriculum related groups. Virtually all high schools and a fair number of middle schools in this country have non-curriculum-related clubs or groups who meet either during school time or after school in school facilities. The Equal Access Act is a neutral statute in that it provides the same privileges for student-led religious groups as for any other student group. This would apply to meeting times, meeting spaces, announcements, and access to bulletin boards and other issues. It is important to note that any faculty involvement in these clubs should be custodial in nature and not participatory. It should also be noted that any outside or adult-led religious group should be handled under the same guidelines as other non-school use of facilities.

Moment of Silence

This issue has been addressed by the courts and is one which is at the forefront in Virginia today. A moment of silence statute may not on its face be unconstitutional, however the courts have looked toward the legislative history to determine whether the intent was to favor or promote prayer, and if so then the statute may be in violation of the establishment clause, Wallace v. Jaffree 472 U.S. 38 (1985). Virginia has had a statute allowing a daily observance of one minute of silence for a number of years. The 2000 General Assembly amended this statute to require such minute of silence in each classroom at the start of each school day. This change in law took effect on July 1, 2000 and as each local school division readied themselves for the start of a new year by drafting policies to carry out this law, the first legal challenge to the law was filed by the ACLU on behalf of students in several named jurisdictions in Virginia. This lawsuit may take some time to work its way through the courts and in the meantime each public school classroom in Virginia will begin each day with a minute of silence.

This issue of religion and public instruction is intimately related to the school choice issue specifically as it relates to funding of vouchers or tuition tax credits. Advocates of pure choice would advocate a neutral tax credit which would allow a parent to apply their “school funds” to any program, public or private, secular or non-sectarian in nature. Whereas strict constructionists of the establishment clause would find such a plan distasteful as it would benefit religious institutions. One of the most difficult areas of public instruction is to serve all children regardless of their race, religion, national origin, disabilities, income, etc. The presence or suggestion of religion in public instruction while welcome by many is destined to offend some, who may feel that, the school arena is not the appropriate one for religion.

Given the extensive and less than clear history and string of litigation in the area of religion and public instruction, it is most difficult to predict the future and thus to suggest a “safe” course of action in this arena. The current litigation styled Brown v. Gilmore challenging Virginia’s minute of silence law should be watched closely as it may provide the most current and perhaps a clearer understanding of judicial sentiment in this most controversial area. As we await the guidance of the court in the above case a path of tolerance and accommodation without suggestion or indoctrination is perhaps the most prudent path. This is an area of natural conflict and no mater the judicial guidance there will arise conflict whether it is an activity in school with some degree of religious significance or history, or the wearing of jewelry which is interpreted as of a religious or perhaps even satanic in nature, school officials will be faced with challenges in this area. Tolerance where the school setting is not disrupted is the path which may lead to the most harmony.

Click here for summary of recent Virginia Legislative history of “Religion and the Public Schools.”

U.S. Department Of Education
Federal Guidelines on Religious Expression in Public Schools

Virginia State Board of Education (1999)
Guidelines concerning Religious Activity in Public Schools (1995)

National School Boards Association
Religion, Education and the U.S. Constitution

Rapp, James A., Education Law
Volume 1 Chapter 2, Religion, State and Education

Gittins, Naomi E., ed. Religion, Education, and the U.S. Constitution. Alexandria, VA: National School Boards Association, 1990.

United States. Department of Education. “Federal Guidelines on Religious Expression in Public Schools.” pub date?. Washington: U.S. Dept. of Education. 11 October 2000

Whitehead, John N. The Rights of Religious Persons in Public Education. Rev. ed. Wheaton, Illinois, Crossway Books, 1994.

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