PUBLIC SCHOOLS

 

Is prayer allowed in public schools?

The Supreme Court has made it clear that school-sponsored prayer, religious instruction, and teacher-led prayer in public schools are unconstitutional. See: Engel v. Vitale (1962) and Abington School District v. Schempp (1963). Although students are free to pray on their own time, no organized prayer should occur in a manner that suggests it is school-sponsored. This means that teachers and coaches should not be participating in prayer with students on school grounds or at school events.

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Can students hold a “See You at the Pole” prayer gathering?

Only if the event is completely student-initiated. The school (including teachers and other school staff) should not be involved in initiating, sponsoring, or promoting the event, nor should school staff participate in the exercise. Generally speaking, any prayer events such as “See You at the Pole” should not occur during ordinary school hours.

 

Can public schools participate in a religious baccalaureate service?

The Establishment Clause prevents public schools from advancing, endorsing, or promoting religion. Public schools violate the Establishment Clause whenever their actions would make a reasonable observer believe they are endorsing religion. This would include organizing, hosting, paying for, or controlling aspects of a baccalaureate religious service.

 

This restriction on public schools extends to their teachers, coaches, and other staff. When these individuals are acting in an official capacity, they are an extension of the school and of the government. That said, if the event is privately organized and takes place outside of school hours, teachers, coaches, or other staff may attend in their private capacities.

 

As a private event, attendance must be voluntary, and the school may not require or request attendance by any student. For example, the school may not request that the school choir perform at the event. If a group of individual students decide on their own that they want to attend at baccalaureate and the private organizers allow them to sing at the event, that is permissible.

 

Are religious, atheist, or humanist clubs allowed in public schools?

Yes, assuming they meet certain conditions. The federal Equal Access Act ensures that schools cannot discriminate against atheists and humanists seeking to form student clubs. If schools allow noncurricular clubs, such as Christian clubs, then they must allow atheist and humanist clubs as well. If a school does not allow any noncurricular clubs to exist, then the school may prevent a religious or humanist club from forming as well.

 

It is important to note that for clubs to exist and be afforded these rights, they must be student-initiated and student-led. This means that teachers, coaches, or other staff members are not allowed to initiate or lead these meetings, and they may not play any role in the religious aspects of the club. At all times that a teacher, coach, or staff member is acting in their official capacity, they must take a neutral position on religion because they are an extension of the school and the government.

 

Can public schools teach creationism in science class?

No. Courts have consistently ruled that creationism, no matter how it is disguised (often it is injected into schools as “intelligent design”), cannot be taught in public school science classes. Any creationist incursion into public schools will be met with the overwhelming precedent upholding the teaching of evolution and striking down the teaching of creationism. It is also unconstitutional to prohibit the teaching of evolution. See Epperson v. Arkansas, 393 U.S. 97 (1968).

 

Courts have also ruled that it is unconstitutional for a school to put a disclaimer in science textbooks that casts doubt about the scientific validity of evolution. Further, a school may not include a disclaimer that attempts to put “intelligent design,” which has no scientific validity but instead is a disguised form of theological belief, on the same footing as evolution.

 

Can public schools teach students about religion?

In some contexts, yes. It is acceptable, for example, for schools to teach about world religions in a social studies class. The subject must be taught objectively, with no proselytizing or preaching, no suggestion that one religion is “right” and others “wrong,” and no promotion of truth claims that are not empirically validated. In other words, a social studies teacher cannot use her class as a means of arguing that Christianity is true and Islam or other religions are false.

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Can public schools or outside groups pass out Bibles at public schools?

Teachers and other staff at public schools cannot pass out Bibles in school. Students, on the other hand, are not an extension of the government and have the individual right to express their religious beliefs, so long as they are not being disruptive. As such, if a student decides to pass out Bibles in his or her free time, without any assistance from the school or staff, then the student is acting within their rights. This is also true of humanist, freethinker, or secular students who want to pass out materials about their beliefs.

 

This issue gets more difficult when outside groups try to pass out Bibles or religious literature at or near a school. If this is happening at your child’s school, you can contact the AHA’s legal center to discuss the details. In these cases the specific details are important. One thing to bear in mind is that, no matter what is happening, equal treatment must be given to all religions. Thus, if Christian religious literature is allowed in any way, then atheist and humanist literature must be given the same access. If Christians are allowed to pass out literature on the sidewalk near your child’s school, then atheists and humanists must be allowed as well. But again, talk to us about the details of your situation.

 

Can outside religious groups hold meetings on school grounds?

Public schools, like public libraries or public parks, may be made available for use by the public if the school administration chooses to open its doors to the public outside of school hours. To be clear, a public school is not required to make its facilities available after hours to the public. And, public schools are allowed to set a rental price and time, place, and manner restrictions if they apply equally to all parties renting space.

 

The Supreme Court has ruled that if a school does make its facilities available, it must do so on a viewpoint-neutral basis. Good News Cub v. Milford Central School, 533 U.S. 98 (2001) (holding that an organization that rented space outside of school hours, for meetings accessible to any student with parental consent, not sponsored by the school, and in order to teach children moral values could not be discriminated against solely because its viewpoint was religious); Lamb’s Chapel v. Center Moriches Union Free School District, 508 U.S. 384 (1993) (holding that a school that allowed social, civic, and recreational groups to use its premises could not exclude Lamb’s Chapel solely based on the organization’s religious viewpoint or the content of the speech in their meetings).

 

There is a distinction between restrictions based on viewpoint and restrictions on conduct/activity. In Bronx Household of Faith v. Board of Education of New York, the Second Circuit ruled that a restriction on holding worship services was constitutional because a worship service is an activity that changes the nature of the site, and an activity is not a viewpoint. 650 F.3d 30 (2nd Cir.), cert. denied, No. 11-386, 2011 WL 4479210 (U.S. 2011). Schools may also restrict rentals to only school-sponsored events because doing so would be viewpoint-neutral.

 

When space is made available, religious groups are entitled to rent or access these facilities on the same basis as any other group, meaning that religious groups cannot be denied access, but also meaning that religious groups cannot receive any special favors, such as a reduced rental price.

 

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TEN COMMANDMENTS

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Are Ten Commandments displays on public property unconstitutional?

 

Ten Commandments displays on public property are usually unconstitutional. The Supreme Court has stated that the text of the Ten Commandments is undoubtedly religious and that Ten Commandments displays have religious significance. Nonetheless, the Court has also held that Ten Commandments displays on public property can be constitutional in certain settings when the displays convey a secular or historical meaning. As such, assessing the constitutionality of a Ten Commandments display requires a fact-intensive inquiry into the display’s context, physical setting, purpose, and history. If you believe, after reading the information below, that a Ten Commandments display is unconstitutional, please contact us by using our report-a-violation page.

 

In 2005, the Supreme Court decided two cases involving challenges to Ten Commandments displays on government property, allowing one display to stay while ruling the other unconstitutional. These cases provide the framework for analyzing whether any particular Ten Commandments display is, or is not, constitutional. In Van Orden v. Perry, 545 U.S. 677 (2005), the Court held that a Ten Commandments display on the grounds of the Texas State Capitol was constitutional. On the same day, however, the Court ruled in McCreary County v. ACLU, 545 U.S. 844 (2005), that Ten Commandments displays in two Kentucky courthouses were unconstitutional in violation of the Establishment Clause of the First Amendment.

 

Van Orden involved a challenge to a Ten Commandments monument donated to the state by a private organization and displayed on Texas State Capitol grounds. In Van Orden, 17 other monuments and 21 historical markers commemorating “people, ideals, and events that compose the Texas identity” surrounded the Ten Commandments display on Capitol grounds. Justice Rehnquist, writing for a plurality of the Court, examined the nature of the monument and the historical meanings of the Ten Commandments in our nation’s history. Under this analysis, Justice Rehnquist held that the inclusion of the Ten Commandments monument on Capitol grounds was constitutional, emphasizing that all three branches of government have continuously acknowledged the role of religion in American life. Justice Breyer, meanwhile, wrote the controlling concurrence in the case and upheld the display based on its context, physical setting, purpose, and history. Justice Breyer noted that the monument conveyed both a religious and secular meaning. He stated that the display’s physical setting “suggest[ed] little or nothing of the sacred” because the display stood near numerous other monuments and memorials commemorating the state’s history. Justice Breyer reasoned that because the display was not challenged for 40 years, it conveyed a predominantly secular message, claiming that individuals would have already challenged the display had they viewed it as an endorsement of religion by the state.

 

Conversely, in McCreary, the Court invalidated postings of the Ten Commandments in two Kentucky courthouses. The displays in McCreary were “large, gold-framed copies” of the Ten Commandments that initially stood by themselves. The Court in McCreary, in finding the displays unconstitutional, highlighted the overtly religious motivation behind the postings. The Court stressed that it was clear that local officials erected the displays to promote religion rather than to commemorate the historical and secular impact of the Ten Commandments, in contrast with Van Orden. For these reasons, the Court found the that the courthouse displays had an unconstitutional purpose, holding that “[w]hen the government initiates an effort to place [the Ten Commandments] alone in public view, a religious object is unmistakable.

 

As a result of these two cases, the following questions are frequently relevant, though not dispositive, in assessing a Ten Commandments display on public property:

 

• Does the display stand alone or is it part of an array of other monuments/displays?

• Does the display, itself, contain secular elements?

• Is the display’s physical setting conducive to religious activities, and how has the display been used?

• Who provided, donated, or funded the display (i.e., the government or a private entity)? Is there otherwise evidence of a religious motive in the display’s placement?

• How long has the display stood, and has it been legally challenged?

 

Again, if you are aware of a Ten Commandments display on public property and have questions about its constitutionality, contact our office to discuss it in more detail.

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GOVERNMENT NATIVITY SCENE DISPLAYS

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Do government nativity scene displays violate the First Amendment?

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The government may not advance, promote, affiliate with, or favor any particular religion, and it also cannot favor religion over nonreligion. Therefore, even during the holiday season, government entities generally cannot place patently religious symbols such as a nativity scene, or crèche, on public property or finance crèche displays on private property. Various courts, including the Supreme Court, have found government crèche displays to be unconstitutional under the Establishment Clause of the First Amendment. That said, there are certain situation when such displays are permissible, so if you see a display in your community and question it, contact our legal center to discuss the details.

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Evaluating the constitutionality of a crèche display requires a fact-intensive inquiry. Courts examine the display’s physical setting and the message it conveys to a reasonable observer. Courts consider, for example, whether the crèche stands alone or with other, nonreligious symbols and whether the crèche is the dominant feature of the display. In short, if the crèche display conveys a message of government endorsement of religion to a reasonable observer, the display is unconstitutional. If you believe that a government crèche display is unconstitutional, please contact us by using our report-a-violation page.

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Legal Framework: Lynch and Allegheny

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The Supreme Court has decided two cases concerning the constitutionality of crèche displays. In Lynch v. Donnelly, 465 U.S. 668 (1984), the Supreme Court held that the City of Pawtucket did not violate the Establishment Clause by including a crèche in its annual Christmas display in a privately-owned park. The Court emphasized that the display at issue included many nonreligious and non-Christian items, such as carolers, reindeer, a Santa Claus house, and candy-striped poles. Nonetheless, five years later, the Court in County of Allegheny v. ACLU, 492 U.S. 573 (1989), held that a crèche at a county courthouse violated the Establishment Clause. In Allegheny, the Court concluded that the county’s crèche display had the “effect of endorsing a patently Christian message.” Because the Allegheny crèche was the primary feature of the display, the Court ruled it violated the Establishment Clause.

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IN GOD WE TRUST

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Can public schools display "In God We Trust" in classrooms?  

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In 1956, President Dwight D. Eisenhower signed into law a bill declaring “In God We Trust” the nation’s official motto. Before that, the phrase "E Pluribus Unum" (Latin for “Out of Many One”) had been the country's de facto since the founding era, having been placed on the Great Seal of the United States in 1782. The term “In God We Trust” first appeared on U.S. coins in 1864, during the Civil War, when religious sentiment reached a peak, according to the historical association of the U.S. Treasury, but it didn't become the nation's motto until almost a century later.

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We believe the motto "In God We Trust" is unconstitutional, and we also believe that governmental efforts to promote usage of it, by placing it on police cruisers, for example, or by posting signs displaying it in schools and other public buildings, are unconstitutional. Unfortunately, however, the few cases that others have brought challenging the "In God We Trust" motto have not been successful. We are hopeful that the judicial climate for such cases will improve at some point, but at this time the legal landscape is not promising for such challenges. 

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Although we are not pursuing litigation, we encourage atheists, humanists and others who value church-state separation to be vocal within their communities in speaking up to object to the use of "In God We Trust."  Call your municipal officials, initiate petitions and present them, notify local reporters of such activities, write letters to the editor -- and keep doing it persistently, so the issue never goes away locally. We believe that this is an issue where public activism is likely to be more effective, at least in the short term, than litigation.

 

 

LEGAL DISCLAIMER

 

The information and materials on this website are intended only for informational purposes and should not be treated as legal advice. The information is general in nature and therefore may not be applicable to certain factual or legal circumstances and relates to laws and legal precedent that may quickly become outdated. No attorney-client relationship is created or intended as a result of the information posted on this page or anywhere else on this web site.

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