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Illinois School Board Journal
January/February 2007

Issues of faith
Balancing religion in public schools
by Brad Colwell, Merry Rhoades and Margaret Noe

Brad Colwell is a professor, Department of Education Administration and Higher Education, and department chair at Southern Illinois University-Carbondale. Merry Rhoades is a shareholder in the law firm of Tueth, Keeney, Cooper, Mohan & Jackstadt, P.C., in Edwardsville. Margaret Noe is Associate Chancellor for Access and Equal Opportunity and an assistant professor of educational leadership at the University of Illinois-Springfield.

One of the most vexing legal problems for public school districts is the issue of "separation of church and state." Ironically, even though these terms are not found in the United States Constitution, public schools continue to struggle with finding the proper balance between respecting individuals' rights to express their religious beliefs at school versus giving the perception of a school's endorsement of religious activity.

The First Amendment to the U.S. Constitution provides that Congress "shall make no law respecting an establishment of religion" and further that it will "make no law . . . prohibiting the free exercise thereof." However, the primary accusation against most school districts is that a school official has taken an action that infringes on the school's perceived obligation to be "religion free."

The focus of this article, however, is to debunk the myth that school and religion must be absolutely separate — that's not the law — and to determine what is a legal interaction between a public school and religion.

In 1971, the U.S. Supreme Court devised a three-part test to determine if there has been a violation of the First Amendment's Establishment Clause: (1) the rule/practice must have a secular purpose; (2) its primary effect does not advance nor inhibit religion; and (3) it must not foster excessive entanglement with religion. Consequently, the Court has been clear to state that simply having religious content or a message consistent with a religious doctrine does not run afoul of the Establishment Clause, but there are limits to which a school district must adhere.

Courts across the country clearly state the key word in this continuous struggle is: neutrality. This means school board policies can neither advance nor inhibit religion; there can be no special treatment — positive or negative. However, even though "neutrality" is a straight forward concept, school administrators throughout Illinois and other states will quickly assert that the difficulty is in implementing "neutral" policies.

Now let's turn to the 10 most contentious religious issues that confront most school districts. There won't be clear answers to every issue, but rather, the goal is to provide a basic understanding of the law surrounding these very difficult legal concepts.

Ten problematic issues

I. Holiday Displays

As the holiday season approaches, school officials in metropolitan school districts often encounter what, if any, holiday displays are legal and respectful of a diversity of religious faiths. Namely, the issue is whether schools can show traditional religious displays (i.e., nativity) or sing traditional carols that include reference to Christ's birth. This difficult issue posits tradition against sensitivity to others' viewpoints.

In 1984, the U.S. Supreme Court ruled a city's display of a nativity scene, as part of its annual Christmas holiday display, did not violate the Establishment Clause. The Court noted that there was a legitimate secular purpose for the nativity to be included since it was included for purposes of celebrating the Christmas holiday and depicting origins of that holiday. The focus of inquiry was on the nativity scene in context of the Christmas season, rather than exclusively on the religious component. The Court noted that to focus exclusively on the religious component of any activity would inevitably lead to its invalidation under the Establishment Clause.

Nonetheless, Illinois schools should avoid exclusive displays of religious Christmas symbols. As noted below, the U.S. Supreme Court will look at the motivation of the district in showing the display or singing the holiday songs. If it is religious in nature, then the practice will be overturned. Remember: neutrality is the key.

II. Monuments

A. Ten Commandments

In 2005, the U.S. Supreme Court issued two rulings regarding the display of the Ten Commandments on government property. Even though the two decisions appear to be contradictory, the Court's rulings underscored its case-by-case approach to deciding these issues as well as determined that the government's motivation in displaying the Commandments was essential.

In the first case, the Supreme Court struck down the posting of the Ten Commandments at a county courthouse as violating the Establishment Clause. The Court ruled it was permissible to look at the public body's purpose in displaying the Ten Commandments, particularly that it could review the evolution of the display when evaluating the county's claim of a secular purpose for the display. Ultimately, the Court found there was sufficient evidence that the county's purpose was to emphasize and celebrate the Commandments' religious message, in violation of the First Amendment, despite the county's attempt to revise the display to include other historical documents.

The same day, the Supreme Court issued a second opinion that upheld the display of the Ten Commandments, which were situated along side 21 other historical displays surrounding the Texas State Capitol. The Court's analysis was driven both by the nature of the monument and by the nation's history. Specifically, the inclusion of the Commandments had both a religious and non-religious significance that could not be said to violate the Establishment Clause.

Unlike the first two cases that addressed the outdoor displaying of the Ten Commandments, the Supreme Court in 1981 ruled on whether the Commandments could be posted inside a classroom. The Supreme Court held unconstitutional a Kentucky statute requiring the posting of the Ten Commandments in every public school classroom as it gave the perception of the school's endorsement of religion.

B. Religious Symbols/Artifacts

The law is clear that public schools should be void of any religious symbols or artifacts. This would include hanging of a cross, crucifix or pictures of the Virgin Mary or the Lord's Supper. To include any of these religious symbols, regardless of location, would certainly violate a school district's charge of neutrality toward religion.

The newest twist on this issue is school districts allowing students and community members to create memorials or murals depicting Bible scriptures or drawings of religious symbols on school property. At least three federal court cases have been decided since 2002, and all three courts denied the religious depictions. The courts basically said a school district could restrict student speech if the depictions were made as part of a curricular activity (assuming it was viewpoint neutral). Moreover, a school district has the right to prevent the school walls from becoming the site for a religious debate.

III. Curricular Issues

As a matter of policy, it is important that Illinois school districts be able to retain control over curriculum content and teaching methodologies. One obvious legal parameter is that public schools cannot provide overt religious instruction as part of the school's curriculum. However, the U.S. Supreme Court has ruled that it does not violate the Establishment Clause for schools to offer a class that studies the Bible from a literary and historic viewpoint, as long as it is presented objectively as part of a secular program of education. Again, the principle is that the Court is trying to insure government "neutrality" — not mandate that schools be totally free of any reference to religion.

A. Evolution

The issue of teaching evolution has been one of growing concern recently by parents who believe in a Divine creator, also known as Intelligent Design. In a highly publicized case last year, a federal district court in Pennsylvania ruled on the constitutionality of a policy directing high school biology teachers to read a statement mentioning Intelligent Design as an alternative to Darwin's theory of evolution. The court concluded that the board policy amounted to an endorsement of religion in violation of the Establishment Clause. This ruling was consistent with long-standing U.S. Supreme Court rulings that struck down a state's prohibition on the teaching of evolution (1968), and later overturned a requirement that public schools teach "creation science" along with evolution (1987).

B. Course Grades

Can a teacher assign a lower grade to a student's work that has religious content? The answer is that a teacher cannot determine a grade solely based on a disagreement with a student's religious views. However, a federal appellate court in Tennessee agreed that a teacher could give a ninth-grade student a grade of zero on her proposed research paper covering the life of Jesus Christ without violating the student's freedom of speech rights.

The court concluded that the teacher had wide discretion to regulate classroom speech in performing her teaching function. But more important, the student did not comply with the teacher's neutral curricular guidelines, namely the student was to research a topic with which she was not familiar and provide at least four references. Here, the student was well versed in religious matters and only cited to one source — the Bible.

IV. Distribution of Material

A. Bibles

No reported case has held that distribution of Bibles to elementary school students during school hours and on school property — even if done outside the classroom — is permissible. Earlier this year, a federal court concluded that a Missouri school district must end its practice of distributing Bibles provided by Gideons International to students in their elementary classrooms. The court concluded the distribution was for the sole purpose of promoting Christianity to students.

The issue, however, is a little less clear regarding distribution of Bibles to high school students. A federal appellate court in Virginia distinguished between distribution of Bibles to elementary and high school students because of the heightened impressionability of younger children. Nonetheless, the practice even at a high school is still legally risky, and all courts have agreed that distribution to elementary students is absolutely prohibited.

B. Promotional Materials/Flyers

School districts may, but are not mandated, to "open their doors" to community groups to use the school. One such way outside groups can benefit is by having the school (i.e., teachers) distribute flyers to students promoting events sponsored by these groups. A key legal concept, though, is that once a school "opens its doors" to community groups (Boy Scouts, 4-H), it must also allow the same opportunity for religious-affiliated groups to have its materials distributed to students. Remember: the key is neutrality — a school cannot deny access to a group solely because it has a religious affiliation.

It is imperative that school boards have a clear policy on distribution of literature to students. Such policy should have specified guidelines for administrators to use when assessing the appropriateness of the literature requested to be distributed and never be left solely to the administrator's discretion.

Specifically, a distribution policy may include restrictions regarding the content of the distributed material so long as the regulations are both viewpoint neutral and reasonable in light of the purpose served by the school (i.e., could regulate commercial or political speech). A school board can include in its policy that all requested material be presented to the school's administration for approval at least 24-48 hours in advance of distribution. This would allow sufficient time to assess if the material is in compliance with board policy.

In a recent case, an elementary school's distribution of flyers announcing community activities of a religious nature at churches did not constitute endorsement of religion by school. The court noted that the school distributed flyers advertising both religious and nonreligious community events, religious activities were not school-sponsored events, and they did not take place on school grounds. Further, the students were not likely to misperceive the distribution of flyers by the school as endorsement of religion, and distribution of flyers did not send a message of disfavor to students who did not attend the advertised religious activities.

V. Prayer

The issue of prayer in schools has a long history. Most recently, Congress reinvigorated the debate with its passage of the No Child Left Behind (NCLB) Act. Included within this behemoth statute is a provision that requires school districts to certify to their state educational agency that "no policy of the educational agency prevents, or otherwise denies participation in, constitutionally protected prayer in public elementary and secondary schools." NCLB provides that the U.S. Department of Education offer guidance to school districts on constitutionally protected prayer every two years.

Case law has addressed three other key areas in which prayer and public schools have intersected: commencement, athletics events and school board meetings.

A. Commencement Prayer

In 1992, the U.S. Supreme Court issued its seminal ruling regarding delivering a prayer during commencement exercises. The Court determined that an eighth- grade student was "coerced" into standing against her will during the invocation and benediction delivered by a local rabbi. The Court gave great weight to the fact that even though the attendance at the ceremony was voluntary, students should not be expected to bypass celebration of a milestone solely to avoid a prayer, nor should a student have to conform to a religious exercise as a condition of receiving a diploma.

The issue of commencement prayer is sometimes clouded when graduates take a vote to include a prayer or when a student speaker delivers a prayer as part of their address. For example, after lengthy litigation, a federal appellate court ruled that a Florida school system's policy of permitting a graduating student, elected by her class, to deliver an unrestricted message of her choice at the beginning and/or closing of graduation ceremonies did not violate the Establishment Clause. However, a federal court in Virginia noted that a student vote to include a graduation invocation failed to protect the rights of those in the minority, and the prayer was not allowed.

The issue of a prayer being offered as part of a student speech is just as difficult because students have free speech rights. The legal key for school districts is to find the appropriate oversight role and still be neutral.

For example, in California, a high school senior brought litigation after school officials refused to allow him to give proselytizing comments as part of his salutatorian speech at graduation, but did allow him to distribute the full text of his proposed address just outside the site of the graduation. The federal appellate court concluded the district's practice was legal because the school district's control over the graduation ceremony, especially student speech, makes it apparent that the speech would have borne the imprint of the district. This is consistent with a 2002 case where a California court found that restrictions placed on proselytizing during a graduation speech were required to avoid a violation of the Establishment Clause.

B. Athletic Events

Today, it is commonplace for student athletes to bow their head or kneel during an extracurricular event to celebrate a successful play. This spontaneous student action is permissible so long as it is a student-initiated practice. On the other hand, coaches or other employees should not initiate, supervise, or in any way participate in student-led prayers during practices or before/after a ballgame. Further, in 2000, a federal court struck down a Texas school district's practice of delivering a student-led prayer over the public address system before the start of an extracurricular contest.

C. Board Meetings

Some Illinois public bodies, including boards of education, still offer a prayer before the start of a board meeting. Even though there is no case law on this issue from Illinois, federal courts have concluded such a practice violates the Establishment Clause because the prayers were conducted on school property by school officials (or selected clergy) and went beyond what was necessary to solemnize the board meeting.

It is appropriate, though, for a school board meeting to start with the Pledge of Allegiance. Unlike the Pledge stated by students at the start of a school day (see Section VIII below), recitation of the Pledge is an acceptable practice at the start of a board meeting as long as the participants are free to leave at anytime.

VI. Moment of Silence

The Illinois School Code provides that in each public school classroom the teacher may have all students observe a brief period of silence at the beginning of every school day. It should not be conducted as a religious exercise, but rather as an opportunity for silent prayer or reflection on the activities of the day. It is permissible to have all students participate in the period of silence because it is a neutral act which affords students the opportunity to reflect on whatever they wish — whether religious or non-religious.

VII. Baccalaureate Service

School districts will occasionally conduct a baccalaureate service to honor high school graduates. Such services are legal, assuming there is no formal affiliation with a church or religious organization. When, however, these services are sponsored by a local ministerial alliance or church, it is imperative that a school takes clear steps to remain distinct from the sponsoring organization, primarily the school cannot provide any financial assistance.

Moreover, if the baccalaureate service is to be held at the school, it is essential that the church group comply with all rules for facility usage, including payment of the rental fee and proof of insurance. Student attendance at such event must be permissive; however, schools administrators must refrain from participation in the church-sponsored service since it would cloud the perception of the school's neutrality toward religion.

VIII. Pledge of Allegiance

The Illinois School Code provides that the Pledge of Allegiance must be recited each day by elementary and secondary students in districts receiving public funds. School officials should not mandate that students stand or recite the Pledge against their will. However, those students not participating should not be allowed to cause a disruption during the recitation of the Pledge.

A well-publicized issue has been raised regarding whether reciting the Pledge of Allegiance at school is a violation of the Establishment Clause. In 2003, a federal appellate court in California ruled that having students recite the Pledge, which includes the phrase "under God," was unconstitutional because it had the effect of instilling in students a respect for the ideals set forth in the Pledge, including the religious values it incorporates. However, in 2004, the U. S. Supreme Court dismissed the case on a technicality. In 2003, a court in Virginia ruled on this same issue and concluded that the Pledge has been recited so often that any theological meaning has been lost over the years.

IX. Student Clubs/Organizations

In 1984, Congress enacted the Equal Access Act, a federal law that requires that high schools receiving public funds, and that have a limited open forum, allow non-curriculum related student clubs to meet and use facilities on equal terms. In 1990, the U.S. Supreme Court upheld the constitutionality of the Act when it reversed a school district's decision to deny a Christian student group permission to establish an officially recognized club. The key was that other non-curricular clubs were allowed to meet, but the school denied the religious student group permission to meet during non-instructional hours.

If a school district permits non-curriculum related student groups to use school premises, the school should consider the following: (1) the meetings must be voluntary and student-initiated; (2) there can be no governmental sponsorship of the meeting by the school; (3) school employees may only attend in a non-participatory capacity, and non-school participants should be excluded; and (4) the meeting must not materially or substantially interfere with the orderly conduct of educational activities within the school.

School districts should also have a policy regarding the establishment of school clubs. Such rules might include having: (1) a faculty sponsor, (2) bylaws, and/or (3) a minimum number of interested students. These rules should be neutral and applicable to all clubs. Any club(s) not meeting the policy's requirements could legitimately be denied recognition by the school district. However, schools must use caution to ensure that they do not discriminate against a club because of its affiliation (i.e., Boy Scouts; Gay, Lesbian, Bisexual, Transgender Clubs; or FISH Clubs). In sum, school officials' decisions about a club must be viewpoint neutral.

X. Access to Facilities

Throughout the school year, community groups and organizations will seek to use local district facilities. School boards have the right to keep all outside groups from using a facility. But once the school lets one community group use its buildings, the district must let all groups that meet the stated criteria use the school's facilities.

A school cannot discriminate against a community group's request to use district facilities simply because their activity exhibits a religious viewpoint on a particular subject. This occurs primarily when a group seeks to rent a school's auditorium or gymnasium to conduct religious services. Numerous courts have addressed this issue, including the U.S. Supreme Court, which concluded that a school's exclusion of a Christian children's club from meeting at school after hours because of its religious nature was unconstitutional viewpoint discrimination.

All Illinois school districts should have a written policy regarding facility use, which must be of general applicability and be viewpoint neutral. Such policy should include reasonable restrictions on time, place, and manner of expressive activities and the right to confine any group's expression to that compatible with the use of the building. (See sidebar, "Facility use in a limited open forum.")

Conclusion

As is apparent from extensive litigation over the years, issues relating to religion and public schools are not easy to resolve. One thing is clear, though: public schools must be neutral toward religion. In being neutral, there may well be times that a school will not be totally "religion free," but still be compliance with law.

In evaluating the issues discussed above, school boards should note that each of these events is "fact specific." Consequently, the best advice anyone can offer is to be sure to contact the district's school attorney for legal guidance before proceeding with any activity that impacts public schools and religion.

References

Case Law

Adler v. Duval County School Board (unrestricted student speech at commencement)

Agostini v. Felton (public teachers in religious schools)

Coles v. Cleveland Bd. of Education (Prayer at board meetings)

Doe v. Duncanville Independent School District (coach-led prayer before extracurricular event)

Doe v. South Iron R-1 School District (distribution of Bibles to elementary students)

Edwards v. Aguillard (teaching evolution)

Elk Grove Unified School Dist. v. Newdow (student recitation of Pledge of Allegiance)

Epperson v. Arkansas (teaching evolution)

Good News Club v. Milford Central School (religious club's access to school facilities)

Hills v. Scottsdale Unified School District (distribution of literature)

Kitzmiller v. Dover Area School Dist. (Intelligent Design)

Lassonde v. Pleasanton Unified School District (salutatorian commencement address)

Lee v. Weisman (commencement prayer)

Lynch v. Donnelly (nativity scene display)

McCreary County, KY v. ACLU of Kentucky (Ten Commandments displayed at county courthouse)

Newdow v. U.S.A. (Pledge of Allegiance at board meetings)

Peck v. Upshur County Board of Education (distribution of Bible to high schoolers)

Rusk v. Crestview Local School District (distribution of literature)

Santa Fe Independent School District v. Doe (prayer at a ballgame)

Settle v. Dickson County School Board (teacher's authority to assign grade)

Stone v. Graham (Ten Commandments in classrooms)

Van Orden v. Perry (Ten Commandments displayed at state capitol)

Westside Comm. Schools v. Mergens (constitutionality of the Equal Access Act)

Statutes

Equal Access Act

No Child Left Behind Act

Student Reflection Act

U.S. Constitution (First Amendment)

Facility use in a limited open forum

Illinois Association of School Boards' Policy Services has two sample policies for school boards in need of a facility use policy or who wish to update their current policies. In addition, Policy Services offers sample administrative procedures for implementing the board policy.

One sample policy (7:330) addresses equal access by student groups to buildings; the other (8:20) addresses use of school facilities by community groups.

The policy governing student use of buildings is directed at districts with secondary schools that either wish to establish or already have established a "limited open forum," as discussed in section XI of the cover story, and implements the federal Equal Access Act.

Such a policy would allow non-school sponsored student groups to meet at the school if certain broad conditions are met. Those conditions relate to when the meetings are held (non-instructional times), who initiates the meeting (high school students), that the meeting is voluntary, that it is not school sponsored and that school employees present at religious meetings are there only in a non-participatory capacity. In addition, the policy may state that the activities do not interfere with "the orderly conduct of educational activities."

The other policy, which falls under "Community Relations," deals with use of school facilities by those who do not have the direct connection to the district. Student groups may also use this policy, which can specify that use of school facilities for a school purpose always take precedence and that facility users must abide by the district's conduct rules. The policy also might differentiate between those who can use school buildings free of charge — students and school-related organizations — and community groups who might be charged a fee.

Both of these policies, which fall within the scope of board work, need procedures that define just how they will be implemented.

While IASB also offers guidance for administrative procedures, this "how" of implementing the policy should be left up to the superintendent to develop, according to Nancy Bohl, IASB policy services consultant.

The "how" questions might address specific hours that the building might be open to student or community use; guidelines on advance notice of use; a fee schedule for community groups; an application for use; emergency procedures that must be followed; questions of supervision; and an appeal procedure for those denied use.

Although most administrative procedures usually are not brought back to the board, a superintendent may want the school board to review facility use procedures due to their nature and the impact they might have on the community.

For more information on policy development, contact IASB Policy Services in either the Springfield or Lombard offices.

Meeting problem issues head-on

Sometimes school boards hesitate when it comes to discussion and policy work around issues where controversy might be involved — issues like redistricting, drug testing, school closure and, most understandably, religion.

How one suburban Chicago district resolved its religious policy issues was the subject of "The school board can't hide from the First Amendment" in the July/August 1979 issue of The Illinois School Board Journal. In that article Richard A. Thompson, then-president of the Glenbard THSD 87 school board and himself a Presbyterian minister, described a year-long debate over whether the board should curtail religious activities in its four high schools or look the other way.

In what he described as a "highly church-oriented" area, the community wanted to continue the status quo where adult representatives of religious organizations could contact students in the cafeteria and announce events over the public address system, and local ministers led football players in prayer before games. The board, however, realized that to be in compliance with the U.S. Constitution, it would need to develop policies around the issues of school facility use by the community and students, religious services at school, religion in the curriculum and music performances.

The policies that the board developed with legal assistance and community input are not as important today as the lessons that the school board learned from its experience. Those lessons, taken directly from that Journal article, are as timely today as they were 28 years ago.

1. Some problems won't go away by themselves. True, time has a way of eliminating certain types of problems—in which case the best decision is to do nothing. Most problems, however, call for firm action based on careful analysis of the facts. The Glenbard school board could probably have saved headaches and heartaches if it had addressed the religion issue when the improper activities were first called to its attention.

2. Don't expect to resolve community controversy by handing it to the administration. For one thing, there is little the administration can do without authority—and authority can only be delegated through formal action of the board. If the board doesn't act, the administration cannot act. Without board policy, the administration is at the mercy of every power group in the community. So in addition to being ineffective, the board's failure to assume responsibility is unfair to the administrative staff.

3. People can learn — including school board members. Just because community sentiment leans a certain way doesn't mean it always will. People's attitudes will be favorably altered if the board deals with controversial issues in an open, forthright manner. School boards must treat all people as adults with full rights of citizenship.

Thompson said he believed the Glenbard board handled the situation correctly once it met the issue head-on, citizens were allowed to speak and the board explained its reasoning. While acknowledging that things could change with future court decisions and community sentiment, he at least was confident that "members of the board rest more easily in the belief that its policies are lawful and that it has fulfilled its responsibilities by facing reality."