Legal Leeway on Church-State in School

School Administrator, Jan, 1999 by Oliver S. Thomas

What the law has to say about prayer, Bible clubs, creationism and other forms of religious expression

Consider it one of the miracles of American history. Asked to draft a provision on religion, the framers of our Constitution--many of whom were lawyers--gave us just 16 words: "Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof ..." Yet these 16 words, together with the "no religious test" clause found in Article VI, have provided Americans with all they need to enjoy the blessings of religious liberty.

The twin pillars of no establishment and free exercise set forth in the First Amendment ensure that the public square of America will be neither naked (stripped of religious influences) nor sacred (a theocracy). They guarantee a civil public square where all faiths are welcome, but none is promoted by the state.

The establishment clause keeps government Out of religion. Sometimes referred to as the separation of church and state, the establishment clause requires that the government be neutral among religions and between religion and non-religion. The state doesn't advance. Nor does it inhibit. Government is to be the fair, neutral, honest broker for believers and nonbelievers alike.

Staying Neutral

As the caretaker for all the children in a community, a public school has the responsibility to protect the conscience of every student. This will include children of various religious faiths, as well as those of no religious faith. Only by maintaining a posture of neutrality can the school be fair to all.

Government neutrality does not mean that schools should ignore religion in the curriculum or censor religious perspectives in the classroom. To the contrary, schools must teach about religion if students are to understand the world in which they live. Similarly, schools should respect the rights of students to think and speak in religious terms. The establishment clause prohibits government, not students, from endorsing religion.

The free exercise clause ensures that citizens are free to practice their religion with a minimum of government interference. This includes the right of students to practice their faith within the public schools. Only if a student's religious behavior is disruptive or infringes upon the rights of others (such as being coercive) should it be prohibited.

Areas of Contention

Beyond the general principles of no establishment and free exercise, widespread agreement exists now on many of the specific church-state questions that dog school administrators.

* School Prayer: Students generally are free to pray alone or in groups, as long as the activity is not disruptive and does not infringe upon the rights of others. Of course, these religious activities must be truly voluntary (i.e., the school may not provide the students with a captive audience of their peers). School employees may not lead or participate in such on-campus religious activities during the school day.

A neutral moment of silence, on the other hand, can be led by school employees as long as it does not promote prayer over other types of quiet contemplation. Similarly, a school may create a free speech forum at a school-sponsored event during which students might express themselves religiously or otherwise. However, such a forum cannot be skewed toward religion by the school, and speech critical of religion--or, for that matter, critical of the school--would have to be permitted.

* Teaching about Religion: The Supreme Court long has recognized that teaching about religion is an appropriate function of public schools. Such teaching should be academic in nature and a normal part of the school curriculum. Study about religion may not be used as an opportunity to proselytize or indoctrinate in a particular faith.

Teaching about religion in a public school is different from teaching in a Sunday school or in a private religious academy. Public school teachers generally teach by attribution (e.g., many Hindus believe ...) and should not assume the historical accuracy or inaccuracy of sacred texts. Good instructional materials as well as proper teacher training can help schools avoid problems associated with the academic treatment of religion.

* Bible Clubs and Equal Access: The federal Equal Access Act guarantees the rights of students to form religious and political clubs on public school campuses if the school has created a "limited open forum" where other noncurriculum-related student clubs are allowed to meet. The act is designed to protect the rights of students only and prohibits outside adults from leading, directing or even regularly attending such meetings, although occasional outside speakers are permitted.

In addition, teachers may be present at religious club meetings in what the courts have called "a nonparticipatory capacity" only.

* Excusals: Schools should do their best to accommodate the requests of parents to excuse their children from portions of the curriculum they find offensive to their religious beliefs. After all, it is parents--not schools--who have the fundamental constitutional right to control the educational upbringing of their children.