After twenty-five years on the Nutmeg Board of Education, Bob Bombast thought he had learned a thing or two about school law. One thing Bob clearly understood was the need to keep religion out of our public schools. While he fondly remembered the good old days when he and his fellow students would recite Bible verses to start the school day, he knew that the Supreme Court had put a kibosh on the practice back in the 1960s. Bob was therefore stunned when his little granddaughter brought a flyer home from school:
BE A CHRISTIAN SUPERHERO!!
3rd through 6th Graders who have accepted Jesus into their hearts are invited
to come to our Christian Fellowship Club each Wednesday after school
at Acorn Elementary School from 3:30 p.m. to 5 p.m.
Games, stories and ice cream cake, all in praise of his Goodness!
Be there if you want to walk with God in the next world!
Bob tried to remain calm as he asked his granddaughter where she got this invitation.
"From the teacher," she answered sweetly. "Every Friday she passes out papers from all sorts of people. I can read this all by myself. Aren't you proud?"
Bob told her how very proud he was of her, but he was deeply troubled by the distribution of this religious material. Early the next day Bob stopped by the office of Ms. Principal at Acorn Elementary School and threw the flyer on her desk. Ms. Principal recognized the flyer and said that she was just following district policy in passing out information from various community organizations. Bob told her that she was sadly mistaken if she thought that an overtly religious group could be considered a "community organization." He told Ms. Principal that the public schools cannot support religion by passing out flyers or letting religious clubs use school facilities. On behalf of the Nutmeg Board of Education, Bob directed Ms. Principal to "desist forthwith" from any further distribution of such material and to call the parents running the Fellowship to tell them that they had better find a neutral site for their meetings.
Ms. Principal did as Bob asked. She called the parents and told them that the Board had directed her not to let the Fellowship use the school or pass out flyers. Given their obvious generosity of spirit, she concluded, she was confident that they would cooperate by moving their club to another venue.
She was wrong. The parents told Ms. Principal that they would be at the school on Wednesday and that she could expect to hear from their lawyer. It did not take long. Later that day, local legal scourge Bill Alot faxed over a letter demanding that the Board rescind its directive and cease and desist from its persecution of the Fellowship. Her head spinning, Ms. Principal called Bob up, described the conversation and the letter, and asked him what to do. Bob told her not to worry.
At the Board meeting last night, Bob explained the situation in executive session and urged the Board members to call the Fellowship's bluff. What would you do?
* * *
The First Amendment provides that government "shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." These fifteen words have generated a mountain of judicial exegesis. The United States Supreme Court considers the religion clauses almost every term, and in 2005 it decided two separate cases on posting the Ten Commandments on public property. Over the years, the rules have changed, and recent rulings require that public officials treat private religious speech no differently from other private speech. If the Nutmeg Public Schools generally permit non-profit groups to distribute flyers to school children, it acts at its peril if it denies that opportunity to the Fellowship because of its religious nature.
In the 1960s and 1970s the Court was vigilant in these matters. In 1963, it struck down a Pennsylvania statute providing for Bible readings at the start of each school day. In 1971, the Court ruled against a state subsidy of religious school teacher salaries in Lemon v. Kurtzman. There, the Court announced the now-famous Lemon test for determining whether the actions of government violate the Establishment Clause: (1) is there a secular purpose? (2) does the action neither advance nor inhibit religion? and (3) does the action avoid excessive entanglement between church and state? In the 1970s and 1980s, the Lemon test was applied repeatedly in rulings against various government actions related to religion. For example, courts found Bible study clubs in public schools or assigning public school teachers to private schools impermissible, holding that these activities advanced religion by conveying an impression of state support.
Since the 1990s, however, the Court has been increasingly tolerant of religious activity in our schools. It ruled in 1990 that Bible study clubs are permissible, and in 1993 it ruled that a religious organization must be given the same right to use school facilities as secular organizations. The trend continued in 1997, when the Court reversed a 1985 ruling to hold that public school teachers may provide Title I services in religious schools. In 2000, the Court ruled that government can provide equipment to religious schools on the same basis that it provides such equipment to public schools, and in 2002, the Court held that a voucher program in Cleveland was constitutional, because any benefit to religion came from parent choices, not government action.
To be sure, the Court has been steadfast that school officials cannot act to support religious activity. For example, it ruled in 1992 and again in 2000 that prayer at school events is not permissible. However, when private actions are at issue, the Court now requires that school officials treat religious speech/activity as any other.
In recent years, the lower courts have applied these principles to require equal treatment of religious organizations. For example, if a school district permits community organizations to distribute promotional information, it creates a public forum. As a matter of free speech, school officials must then permit distribution of such material from religious groups. While school officials still have the right to decide whether to permit outside organizations to distribute material (or to have other access to school facilities), they must exercise that authority with an even hand.
These issues are not simple, as illustrated by the two Ten Commandments cases decided this June. The Justices ruled 5-4 in one case that a display up since 1961 on the Texas Capitol is permissible, but ruled 5-4 in the other that more recent displays in Kentucky courthouses violate the Establishment Clause. Happily, there is still some certainly for educators; in both cases the Court cited with favor the 1980 case striking down a Kentucky statute requiring posting of the Ten Commandments in classrooms.
Finally, Ms. Principal and Bob better get another thing straight. Bob is entitled to his opinion, but unless and until he is hired as superintendent he should not be telling Ms. Principal what to do.
Thomas Mooney is a partner in the School Law practice.