Religious Freedom in Our Public Schools

Family North Carolina Magazine—Sep/Oct 2006
With the recent onslaught of lawsuits challenging everything from the “under God” in the Pledge of Allegiance to student after school Bible clubs, it can be hard to decipher just what religious freedoms exist within public schools. The good news is that the First Amendment, along with other important pieces of legislation, give broad rights to religious students in the public school system, but sadly, these freedoms are often denied. Every year students across the country are prevented from exercising their religious rights in public schools because administrators are either misinformed on the law or are fearful of lawsuits that may arise if they allow students to participate in religious activities. Therefore, it is important to be aware of the liberties parents, students, and teachers have under the law, because rights not defended are rights lost.

The Pledge
The North Carolina General Assembly recently passed legislation requiring the recitation of the Pledge of Allegiance in all North Carolina classrooms. The Pledge has frequently been a source of controversy due to the “under God” clause, and there have been many legal challenges to its constitutionality. The most recent legal battle was brought by the atheist father of a California third grader who claimed that the phrase “under God” in the Pledge was a violation of the Establishment Clause.[1] The Supreme Court dismissed the case on technical grounds, ensuring that for now “under God” will stay in the Pledge.

Previously, teachers in North Carolina are only encouraged to display the flag and set aside instructional time for recitation of the Pledge. The new legislation makes these suggestions requirements, but allows students the opportunity to opt out of the recitation with no penalty if they so choose.

Prayer and Religious Expression
The First Amendment guarantees a student’s right to private religious speech within schools. Therefore students wishing to pray, read their Bibles during free periods, say grace in the cafeteria, or carry on religious discussions with friends are free to do so. However, all expression within schools is subject to reasonable time, place and manner restrictions.[2] Officials do have the authority to maintain order and discipline within the school, which means that students only have these rights as long as their activities are non-disruptive.

The federal No Child Left Behind Act of 2001 further bolsters the religious freedoms of public school students. It requires all local education agencies wishing to receive federal funding under the Elementary and Secondary Education Act (ESEA) to verify in writing that there are no policies in place that prevent or hinder a student’s constitutionally protected right to prayer.[3] All student led prayer is permissible in the public school, including the popular See You at the Pole event where students meet before school hours at the flag to pray for their schools, teachers and friends.[4]

Students also have the right to other forms of religious expression, including wearing religious attire and distributing religious literature. The only limits that can be put on these types of expression are neutral dress code and distribution policies that apply to comparable non-religious attire and materials.[5] It is also permissible for students to express their beliefs about religion in class assignments such as reports, artwork and speeches, or during class discussions, without suffering from grading penalties due to the religious content.[6]

Curriculum
Current laws allow students to be excused from certain lessons if they or their parents object to the teachings on moral or religious grounds.[7] This allows students to opt out of controversial lessons on sex education and even evolution.

Despite the claims of some that “separation of church and state” means that religion has no place within the classroom, lessons on religion can be given in relation to different religions of the world, the history of religion, comparative religion, religious writings, and the role of religion in history.[8] Instruction on the “civic values and moral code that holds us together as a society,” even if those values are also held by some religions, is also permitted.[9]

Extra Curricular Activities and Events
Student Organizations
Students wishing to start religious after school organizations are often denied access to school resources and facilities, usually out of fear that the club’s presence within the school will be seen as an endorsement of religion, in violation of the First Amendment’s Establishment Clause.[10] Across the country legal organizations such as the Alliance Defense Fund (ADF), the American Center for Law and Justice (ACLJ), and the Foundation for Individual Rights in Education (FIRE) have been founded to help defend students who have been prohibited from exercising their religious freedoms. Both ADF and the ACLJ have defended the religious rights of students before the Supreme Court, helping to create precedents that apply the federal Equal Access Act (EAA) to religious organizations. Under the EAA, if schools recognize any secular student organization and provide them with resources or facilities, they must also allow religious groups the same privileges. Through the work of groups like ADF, ACLJ, and FIRE, and courageous students willing to take a stand for religious liberty, students are now enjoying more access to public facilities and funding than ever before.[11]

A current battle facing religious student groups revolves around the right to limit membership. Many religious groups have policies requiring that members or leaders make professions of faith or ascribe to certain tenants and beliefs. Schools have begun to challenge these provisions, claiming that they violate discrimination policies on the basis of religion. For example, in 2004 Alpha Iota Omega (AIO), an all male Christian fraternity at the University of North Carolina at Chapel Hill was denied official student recognition for refusing to adopt the University’s non-discrimination policy in its student constitution, because it would have prohibited the group from considering religion when choosing leaders and members.[12] In 2002, the University threatened to remove all privileges and funding from the InterVarsity Christian Fellowship, another Christian organization for the very same reasons.[13] In both cases the actions of the University were questionable under current Supreme Court precedent that ensures individuals the “right to associate with others in pursuit of a wide variety of political, social, economic, educational, religious, and cultural ends,” and mandates that forced inclusion of unwanted persons within a group violates the right to freedom of expressive association “if the presence of that person affects in a significant way the group’s ability to advocate public or private viewpoints.”[14] After students in both organizations refused to give in to the administrations demands and sought legal aid, the University has changed its student organization policy. It now recognizes student groups that “select their members on the basis of commitment to a set of beliefs.”[15]

Events
In the 1990s, high school baccalaureate services came under attack as a promotion of religion by the state. In 1997, the Eleventh Circuit ruled in Chandler v. James that public schools cannot hold or organize baccalaureates, but private organizations can sponsor the services and use school facilities to the same extent that secular organizations are allowed to do so.[16]

Similarly, the Supreme Court has ruled that faculty led prayer at school graduations or sporting events is an unconstitutional violation of the Establishment Clause. Schools are also not allowed to organize or promote student-led prayer during these events, but the Court has ruled that completely student-initiated prayer or religious speech, such as a valedictory address or pre-game prayer is protected under the First Amendment. 

Teacher’s Rights
Although teachers and administrators may not promote or advance any religion while acting in their official capacities, they are free to pray, read their Bibles, and express their religious views when they are “off-duty.” Teachers may also advise after school clubs that are religious in nature, but may not take an active role in leading or organizing such clubs.[17] Similarly, school faculty may take part in privately sponsored baccalaureate services if they are acting in personal capacities, however they may not encourage or discourage students to attend.[18] 

Protecting Your Rights
The most important thing that parents and students can do to protect their religious liberties is to be aware of the rights they possess. Today, as religious expression is increasingly being silenced in the name of “tolerance,” students are often denied the most basic First Amendment freedoms of speech and association. However, knowledge of constitutional rights is a student’s best defense against assaults on religious freedom. Informed students and parents who approach school officials in a respectful manner can often end controversies over the denial of religious freedoms before they begin.


Endnotes

[1] CNN, “Court dismisses Pledge case,” http://www.cnn.com/2004/LAW/06/14/scotus.pledge/, 6/15/04.

[2] Alliance Defense Fund, “Truth in Our Schools,” downloaded from www.universitystudentspeech.org/issues/ReligiousFreedom/StudentRights.aspx

[3]U.S. Department of Education, “Guidance on Constitutionally Protected Prayer in Public Schools,” http://www.ed.gov/print/policy/gen/guid/religionandschools/prayer_guidance.html, February 7, 2003.

[5] American Center for Law and Justice, “United States Department of Education Guidelines on Religious Expression in Public Schools,” www.aclj.org/Issues/Resources/Document.aspx?ID=862.

[6] Ibid.

[7] North Carolina Department of Justice, “Religious Expression in North Carolina Public Schools,” downloaded from www.ncdoj.com.

[8] Ibid.

[9] Ibid.

[10] The applicable portion of the Constitution reads: “Congress shall make no law respecting an establishment of religion.”

[12] FIRE, “Victory for Freedom of Association at UNC-Chapel Hill,” www.thefire.org/index.php/article/5399.html, 3/7/05.

[13] FIRE, “Victory for Religious Liberty at UNC,” http://www.thefire.org/index.php/article/53.html, 1/2/03.

[14] Boy Scouts of America v. Dale, 530 U.S. 640 (2000).

[15] Alpha Iota Omega Christian Fraternity v. Moeser, 2006 U.S. Dist. LEXIS 28065 (2006).

[16] Chandler v. James, 998 F. Supp. 1255 (U.S. Dist. 1997).

[17] Op. cit., “Truth in Our Schools.”

[18] Op. cit. “Religious Expression.”

Stephanie Evans attended UNC-Chapel Hill on a Morehead Scholarship and is currently a second year law student at Campbell University School of Law. She wrote this article in the summer of 2006 while serving as an Alliance Defense Fund Blackstone Fellowship legal intern at the North Carolina Family Policy Council.

Copyright © 2006. North Carolina Family Policy Council. All rights reserved.