Public Schools and Religious Freedom Law Update

As an attorney and member of the Christian Legal Society of America I am often asked about the status of religion in the public school. It seems that every time we turn around religion in public school is generating some sort of controversy. Regardless of weather one agrees with rulings from the United States Supreme Court, the fact remains that the law is stable on issues pertaining to religious expression in the public school.

As a youth pastor and attorney, I’m asked about what is actually allowed in public schools pertaining to religious expression. Below is a brief overview to provide information to students, parents, teachers and pastors or religious leaders on the status of the law pertaining to several issues of religious expression.

The Equal Access Act of 1984[1] has served as a foundation upon which the courts and presidential administrations have often built their analysis of issues involving religion in the public school. The Equal Access Act requires public secondary schools to permit students to meet for religious speech, including prayer, Bible study, and worship on the same basis as other non-curriculum student groups. The U.S. Supreme Court upheld the constitutionality of the act when it ruled that student religious meetings on public secondary school campuses do not violate the establishment clause[2].

The Equal Access Act is triggered if the school allows at least one non-curriculum-related student group to meet. Most schools have at least one non-curriculum-related student meeting. Students, rather than teachers, should initiate student religious meetings and obtain permission to meet from school administrators. The Equal Access Act speaks in terms of teachers being present at student religious meetings in a non-participatory capacity. Students may organize prayer groups, religious clubs, and “see you at the pole” gatherings before school to the same extent that students are permitted to organize other non-curricular student activities groups. Such groups must be given the same access to school facilitates for assembling as is given to other non-curricular groups.

The Equal Access Act applies only to public secondary schools, but the Supreme Court in 2001 extended the Equal Access Act principal to public elementary schools[3]. Community religious groups may meet with school children immediately afterschool hours on the same basis as other community groups (such as scout) are allowed to meet. The children must have a signed parental permission slip to attend the after-school meetings.

Both the Clinton and Bush administrations established a “guidance” based upon the Supreme court rulings pertaining to religious expression in public schools. It is important to note that both the Clinton and Bush administrations guidance reports are very similar, and both are used by the U.S. Department of Education in helping to determine whether a school district is in compliance regarding the constitutionality of protected prayer and religious expression. The Department of Education can withhold federal funding if a school district is not in compliance with certain guidelines. I will not go in detail regarding the Clinton / Bush administration guidance papers. They can be found on the United States Secretary of Education website.

The guidance documents from both the Clinton and Bush administrations are remarkably similar, which augments their persuasive value. Together they provide powerful tools for persuading public school officials to respect religious expression in the public schools. The two documents agree that while the government may not establish religion in public schools, it must respect privately initiated religious expression and activities[4]. The guidance documents also agree that public school officials “must be neutral in their treatment of religion, showing neither favoritism toward nor hostility against religious expression”[5].

While it is important to read both documents in their entirety, some of the basic conclusions from the documents which the U.S. Department of Education acknowledges are as follows:

• Students may pray alone or in groups;
• Students may read their Bibles;
• Students may talk to other students about their religious beliefs;
• Students may distribute religious literature to others on the same basis as they could distribute non-religious literature;
• Students may wear clothing with religious messages if they may wear clothing with non-religious messages;
• Students may participate in “see you at the pole” events;
• Students may have religious meetings at the same time that other students are allowed together for non-religious meetings;
• School officials “may neither discourage nor encourage participation” by students in religious events;
• Schools may allow community groups to sponsor religious baccalaureate services but may not mandate or organize such services;
• Schools may teach about religion, including the Bible, as part of classes in history, comparative religion, the Bible as literature, music, art, and literature; but they may not teach religion in a devotional manner or in an attempt to inoculate religion;
• Schools may teach about religious holidays;
• Students may express religious beliefs in their homework, artwork or other assignments;
• Released-time programs are permissible if students are released for religious instruction off the school campus;
• Schools must comply with the Equal Access Act by allowing students to meet for religious speech, including prayer, Bible reading, and worship on campus during non-instructional time if the school allows one or more non-curriculum-related groups to meet;
• Schools must comply with the Equal Access Act by giving religious student groups the same access to the school public address system, the school newspaper, and the school bulletin boards to announce their meetings as other non-curriculum-related students are given;
• Schools must comply with the Equal Access Act by allowing religious student groups to meet during lunch periods or other non-instructional time during the school day, as well as before or after school day, if other non-curriculum-related students are allowed to meet then.

Again, as a youth pastor, parent and Christian attorney I feel obligated to distribute the current status of the law regarding expression of religious freedom in the public-school setting. There are numerous “urban myths” and discombobulated ideas about what is allowed in the public-school pertaining to one’s religious activity. The above is the current status of the law pertaining to public schools and religious freedom as of July 2019. It is important for pastors, parents, and most of all students to be aware of what the constitution allows them to do on the public-school campus.

Feel free to copy and disseminate as needed and should anyone have questions please do not hesitate to contact our office.

[1] 20 U.S.C. Section 4071-4074

[2] Bd. of Educ. vs Mergens, 496 US 226 (1990).

[3] The Goodnews Club vs Milford Central Sch, 533 US 98 (2001).

[4] 68 Fed. Reg. 9646.

[5] id.