Religion in Public Schools

What's Allowed?  What Isn't?

(You see a student passing out religious literature—should you stop him? You want to hold a class discussion on religion and political movements, but can you? Attorney Jay Sekulow gives you the answers.)

Can students form religious clubs that meet on campus? What about handing out religious literature or evangelizing their fellow students? Can they address religious themes in their assignments?

Such questions have vexed public school educators for years. Because of ongoing conflict over religion and public education, many teachers and administrators have opted to “play it safe” by restricting student religious expression.

But is that necessary? Not according to the U.S. Department of Education. Although many educators don’t know it, guidelines issued by the U.S. Department of Education in 1995 and revised in 1998 affirm that students have broad rights of religious expression in public schools. In the following article, attorney Jay Sekulow, chief counsel for the American Center for Law and Justice, explains what these guidelines, titled Religious Expression in Public Schools, mean for you and your students.

Q:  What are the rules for establishing a Bible Club on public school campuses?
A:  The Department of Education (DOE) guidelines specifically address the Equal Access Act, which established the right of secondary school students to have Bible Clubs on their campus. Here is how the guidelines interpret the Equal Access Act:

Student religious groups at public secondary schools have the same right of access to school facilities as is enjoyed by other comparable student groups.¹

This applies to all schools that meet the requirements of the Equal Access Act: namely, any school “receiving Federal funds that allows one or more student noncurriculum-related clubs to meet on its premises during noninstructional time.” Such schools “may not refuse access to student religious groups.”²

Student meetings may include prayer services, Bible reading or other worship exercises.³ What is more, a school must allow religious student groups meeting under the Act to use the school media to announce their meetings on the same terms as other groups. These media specifically include the public address system, school newspaper and school bulletin board.⁴

Finally, student religious groups may meet not only before or after school, but “during their lunch periods or other noninstructional times during the school day.”⁵ (Emphasis added.)

Q:  What do the DOE guidelines say about student prayer and religious discussion?
A:  In a nutshell, students have the right to pray or have religious discussions during the school day—provided that students do so in a nondisruptive manner. These rights include the right to “speak to, and attempt to persuade, their peers about religious topics just as they do with regard to political topics.”⁶

The DOE guidelines point out that, “The Establishment Clause of the First Amendment does not prohibit purely private religious speech by students. Students therefore have the same right to engage in individual or group prayer and religious discussion during the school day as they do to engage in other comparable activity. For example, students may read their Bibles or other scriptures, say grace before meals, and pray before tests to the same extent they may engage in comparable nondisruptive activities. Local school authorities ... may not structure or administer such rules to discriminate against religious activity or speech.”⁷

In short, “students in informal settings, such as cafeterias and hallways, may pray and discuss their religious views with each other, subject to the same rules of order as apply to other student activities and speech.”

Q:  Do the guidelines discuss rallies like the annual “See You at the Pole” rally?
A:  Yes. The guidelines make it very clear that such events are considered to be constitutional. While school officials should remain neutral on the issue of student religious speech, “Students may ... participate in before- or after-school events with religious content, such as ‘see you at the flag pole’ [sic] gatherings, on the same terms as they may participate in other noncurriculum activities on school premises.”⁸

Q:  Do the guidelines address the issue of prayer at graduation ceremonies and baccalaureate ceremonies?
A:  No and yes. The guidelines offer no direction regarding graduation prayer, but affirm the rights of students as to baccalaureate services: “If a school generally opens its facilities to private groups, it must make its facilities available on the same terms to organizers of privately sponsored religious baccalaureate services.”⁹

In short, baccalaureate services can take place on campus as long as they are privately sponsored and the school facilities are open for the use of outside organizations during nonschool hours.

Q:  According to the guidelines, is it constitutional to teach about religion in a public school?
A:  Yes. Schools may teach about religion, even when such teaching includes the use of the Bible. It must be remembered that school officials should be careful not to actually teach religion in such a manner that endorses a particular religious belief. But school officials “may teach ... the history of religion, comparative religion, the Bible (or other scripture)-as-literature, and the role of religion in the history of the United States and other countries.”¹⁰ In addition, it is permissible to consider religious influences on art, music, literature and social studies.¹¹ Public school officials can also teach about religious holidays and even observe those holidays as long as they do not promote such observances, or make the observation a religious event.¹²

Q:  Can students distribute religious literature to their schoolmates?
A:  Yes. While there are some limitations on the right of students to hand their schoolmates religious literature, it is important to understand that school officials cannot discriminate against students solely because of the religious nature of their literature.

The guidelines are very clear:

Students have a right to distribute religious literature to their schoolmates on the same terms as they are permitted to distribute other literature that is unrelated to school curriculum or activities. Schools may impose the same reasonable time, place, and manner or other constitutional restrictions on distribution of religious literature as they do on nonschool literature generally, but they may not single out religious literature for special regulation.¹³(Emphasis added.)

Q:  What do the guidelines say about religious excusals and release time for off-campus religious instruction?
A:  These two issues are ultimately controlled by state law. If state law permits excusals, then school officials are permitted to allow students to be excused from an assignment that is objectionable to the student or the student’s parents on religious or other conscientious grounds.

Release time programs allow students to leave campus and go to another location for the sole purpose of receiving religious instruction. Release time is subject to applicable state laws.¹⁴

However, since the Religious Freedom Restoration Act was struck down by the U.S. Supreme Court in 1997, religious excusals and release time are not considered a federal right.¹⁵

School officials must be careful neither to encourage nor discourage students to take advantage of these rights. Thus, school officials can neither reward nor punish students who do or do not exercise these rights.¹⁶

Q:  Do the guidelines address the issue of teaching values in public schools?
A:  Yes. School officials are permitted to teach “civic values and virtue, and the moral code that holds us together as a community.”¹⁷ Because school officials are government employees there are potential problems if school officials do not remain neutral with respect to religion. “Neutral” means that a school official can neither support nor oppose religion when teaching values in public schools.

It is important to note that some of the values that will be taught are religious, but that does not make teaching these values in school unlawful. Again, the issue is neutrality. The prohibition of murder, for example, does not become unteachable simply because the Bible commands Christians not to murder.

Q:  What about wearing clothing with religious messages?
A:  Students have the right to wear T-shirts and other clothes with religious messages on them. The major principle here is that “religious messages may not be singled out for suppression.”¹⁸

“Students may display religious messages on items of clothing to the same extent that they are permitted to display other comparable messages.”¹⁹

What this means is simple. If T-shirts are permitted by school officials, there cannot be a requirement that forbids the wearing of T-shirts with religious messages.

It should be noted, however, that school officials may from time to time prohibit certain T-shirts. An example of this would be a T-shirt that depicts violence. If such a shirt has been prohibited, it is possible that a Christian shirt that has blood on it will also be prohibited. The important thing to remember is: If only a Christian shirt is being prohibited, it is likely that some form of religious discrimination is occurring.

Q:  What do the guidelines say about student assignments?
A:  The First Amendment protects student rights, including the right of students to express their religious beliefs in their schoolwork. School officials may not discriminate against a student due to the religious content of a particular student’s assignment: “Students may express their beliefs about religion in the form of homework, artwork and other written and oral assignments free of discrimination based on the religious content of their submissions.”²⁰

As long as the religious beliefs expressed are relevant to the particular assignment, students are free to express those beliefs.

Conclusion:
The Department of Education guidelines should help clear up some areas of law that are important to Christians. Hopefully, these guidelines will help ensure that Christian students will no longer be treated as second-class citizens—and help them realize that they have the right not only to read their Bibles and pray, but to openly spread the good news about God’s goodness and mercy.

Notes:
¹Religious Expression in Public Schools, Richard W. Riley. Full text of this document is available on the Web at http://www.ed.gov/Speeches/08-1995/religion.html.
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This article appeared in Teachers in Focus magazine. Copyright © 1999 Focus on the Family. All rights reserved. International copyright secured.

Jay Alan Sekulow is Chief Counsel for the American Center for Law and Justice. He has served as lead counsel in two significant United States Supreme Court cases regarding religious expression: Lamb’s Chapel vs. Center Moriches School District and Westside Board of Education vs. Mergens.