Legal Leeway on Church-State in School.

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.

Schools routinely grant parental requests to opt out of such things as sex education, Halloween parties or selected reading assignments. Students should not be punished academically for making such requests, and meaningful alternative assignments should be given. Not all excusal requests are feasible, however. Some, such as a request to opt out of all discussions about religion, may be impossible to grant without disrupting the classroom and the curriculum.

In some cases, schools may wish to consider an opt-in policy, particularly for activities parents are more likely to find objectionable. For example, many parents do not allow their children to watch R-rated movies. If while studying a unit on the Holocaust a school wishes to show excerpts from the movie Schindler's List, teachers would be wise to send an explanatory note home with students including a parental permission form. Other schools have chosen to require parental permission for extracurricular activities, such as sports and student clubs.

Most parents appreciate being given a greater degree of control over their children's education and will respond favorably to a school or district's willingness to defer to their judgment on such matters. Students may appreciate the fact that the stigma associated with opting out may be alleviated by the use of opt-in policy.

* Distribution of Religious Literature: Most courts now hold that students have the right to distribute religious literature on public school campuses subject to reasonable time, place and manner restrictions imposed by the school. At least two federal district courts have allowed outside groups such as the Gideons to place materials in a public school as long as other community groups are given similar privileges. These printed materials can be placed in a rack or upon a table with a disclaimer indicating that they are not sponsored or endorsed by the school. Only passive distribution is permitted, however, and no outside adult should be allowed to come onto campus and hand out the materials.

School districts that wish to avoid opening their schools to all outside groups may simply inform organizations like the Gideons that they may distribute their materials on the sidewalk just beyond school property.

* Religious Holidays: While having made no definitive ruling on religious holidays in the schools, the Supreme Court let stand a lower federal court decision stating that recognition of holidays may be constitutional if the purpose is to provide secular instruction about religious traditions rather than to promote the particular religion involved. This includes the use of religious music and symbols as long as they are part of the academic program.

Students who for religious reasons ask to be excused from classroom discussions or activities related to particular holidays should be accommodated whenever possible. Similarly, students who need to be absent from school to celebrate their own religious holidays should be granted a reasonable number of excused absences.

* Creationism: Laws requiring the teaching of creationism have been struck down by the courts for promoting a particular religious viewpoint. On the other hand, the Supreme Court stated in Edwards v. Aguillard: "Teaching a variety of scientific theories about the origins of humankind to schoolchildren might be validly done with the clear secular intent of enhancing the effectiveness of science instruction."

In the interest of fairness and of a liberal education, students should be exposed to the prevailing scientific theories as well as given some understanding of the debate that continues both inside and outside the scientific community on the subject of origins.

* Released Time: The Supreme Court long has recognized the right of school districts to release students for off-campus religious instruction during the school day. Schools are not required to create released-time programs, however, nor should they give academic credit to students who participate in such a program.

* Character Education: Schools can and should promote moral and civic values throughout the school culture. But which values? Those expressed in our Constitution and Bill of Rights (e.g., freedom of religion, speech and press; equal protection/nondiscrimination; due process/fairness), as well as the shared values of local communities (e.g., honesty, kindness, courage, responsibility and respect for others) can and should be reinforced.

Schools may not invoke religious authority. However, they can and should recognize and respect the fact that most Americans derive their values from a religious tradition. For that reason, schools should be careful not to undermine those traditions by teaching students that values are merely a matter of personal choice or that there are no moral absolutes. Remember that the primary moral educators of children are their parents, and it is our duty to cooperate in that endeavor.

Lingering Disagreement

Despite the new consensus that has emerged on most questions of religion and schools, at least one area of disagreement persists. Not surprisingly, it involves drawing a line between the right of the speaker to share his or her religious viewpoint and the right of the audience to be left alone.

A classroom is not a public forum. The teacher maintains discretion to exercise reasonable judgment over what she or he believes is appropriate in the classroom. Several recent court decisions indicate that a teacher may prohibit a student from delivering what amounts to a sermon to a captive audience of schoolchildren. On the other hand, some teachers may be jumping to this remedy too soon, needlessly stifling legitimate student expression simply because it is religious.

Most would agree that a student who is asked to give a speech on the topic of his choice should be allowed to recount a life-changing experience at a Catholic youth camp where he learned to pray the rosary and recommitted his life to Christ. On the other hand, we would not allow the student to distribute beads to each student and have the entire class pray the rosary together. At some point the teacher must step in to protect the rights of the captive audience of young, impressionable children.

A thoughtful teacher, however, will try to permit as much student expression as possible as long as students are respectful of the fact that other students may have other viewpoints and beliefs. In our hypothetical, the teacher probably should step forward and say something like this: "Thank you for that inspirational speech, but we will not be able to pray the rosary together. Those of you who would like a set of the beads Johnny bought for you may see him after class."

Drawing the line between the rights of the student speaker and the audience can be particularly difficult at graduation. A number of conflicting court decisions have been handed down. Although the Supreme Court has not addressed this issue, a consensus seems to be emerging in the lower courts that a school does not violate the establishment clause if a student speaker on his own initiative begins to pray or express a religious viewpoint. The real difficulty arises when the student asks for audience participation. At this point, the student would seem to have crossed the line we drew in our hypothetical. Whether schools must discipline students who violate school policy by stepping across this line remains to be seen.

A far better approach to the annual graduation prayer dilemma would seem to be a privately sponsored, voluntarily attended baccalaureate service held after school hours, perhaps at a local church. The school can announce the event and even allow it to be held on campus if other community groups are given similar privileges. In fact, a school is prohibited from discriminating against religious groups in the after-hours use of its facilities. However, schools may not sponsor religious exercises. If a school board continues to insist on some accommodation of religion at the graduation ceremony, a genuinely neutral moment of silence might be considered.

A New Accommodation

By being the fair, neutral, honest brokers in matters of religion, schools fulfill one of the highest ideals of a democratic society. And by accommodating the religious beliefs and practices of students as best we can, schools build trust with parents and communities.

The good news is that school districts from rural North Carolina to Los Angeles are demonstrating that this new common ground approach to church-state issues works. Religious conservatives as well as civil libertarians are voicing their support for an educational model based on inclusion, fairness and mutual respect.

Administrators can reap substantial gains for their school districts by taking advantage of this emerging consensus. Board policies should be drafted drawing upon a range of community leaders for input and support. In-service training should ensure that First Amendment principles are understood clearly. Finally, quality resources should be made available to all.

When disparate forces work together, school districts find they can move from the battleground to the common ground.

Oliver Thomas serves as special counsel to the Freedom Forum First Amendment Center at Vanderbilt University and to the Notional Council of Churches. He also chairs his local board of education.