The First Amendment and Religion in Public Schools

The first ten amendments to the U.S. Constitution were ratified in 1791. Also known as the Bill of Rights, James Madison composed the first ten amendments to restrict governmental power and protect religious freedom along with other individual liberties.

The Religion Clauses

The First Amendment reflects these democratic ideals. It begins,

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof…”

These are known as the establishment clause and the free exercise clause of the First Amendment. We refer to them together as the religion clauses:

• The establishment clause was designed to protect the separation of church and state.
• The free exercise elause was designed to protect individual freedom of religion.

The Supreme Court has noted that the religion clauses aren’t exactly the most precisely drafted clauses. But they aren’t necessarily supposed to be. The Framers weren’t trying to write a statute. Rather, their goal was to provide an objective.

The Free Speech Clause

Similarly, the First Amendment right to free speech protects private religious speech, amongst other types.

The free speech clause of the First Amendment says:

"Congress shall make no law ... abridging the freedom of speech."

This right extends to the written word and other forms of expressive conduct. In the context of religion, the free exercise clause protects religious activity regardless of whether it’s expressive. And the free speech clause protects expressive religious exercises.

First Amendment Protections

The language of the First Amendment tells us these freedoms begin as a prohibition on Congress, our federal lawmaking branch. Specifically, Congress may not pass laws that infringe upon these constitutional rights.

Through the passage of the Fourteenth Amendment and the doctrine of incorporation, the U.S. Supreme Court has determined these prohibitions extend to government action of any kind and at any level. We sometimes refer to government action in this context as state action.

Thus, our rights to free speech, free exercise of religion, and a separate church and state are protected from government interference. This interference can take many forms, including state regulatory schemes, local ordinances, court injunctions, and district policies.

Legal Standards

Of course, these rights are not absolute. As the ultimate interpreter of the Constitution, the Supreme Court has developed legal frameworks and standards for determining whether a government restriction violates the First Amendment. Case law sets precedents for lower courts to adhere to and follow. Thus, its rulings clarify the practical implications of the religion and free speech clauses within public school environments.

These standards usually involve weighing the government interest served by the restriction against the First Amendment protections burdened by it. For example, strict scrutiny is the most difficult standard to meet. It requires a government restriction to further a compelling state interest in the least restrictive manner available.

Supreme Court Decisions on Religion in Public Schools

Under the Establishment Clause, the government can’t endorse religion or promote certain religions over others. Under the free exercise clause, the state can’t interfere with religious freedom or one’s ability to practice their religion.

First Amendment challenges often stem from government restrictions in the public school setting. Public schools are owned and operated by the government, so their actions are subject to First Amendment constraints.

Barring a few exceptions, the First Amendment doesn’t generally apply to restrictions imposed by private entities. And it doesn’t constrain government restrictions on government speech.

With their broad language, the religion clauses have sparked robust discussion surrounding their scope. Similarly, the Supreme Court’s interpretations have varied over the years.

Engel v. Vitale

In 1962, the Supreme Court addressed a New York public school matter. In Engel v. Vitale, the public-school board encouraged teachers to begin the day with their classes reciting the following prayer aloud:

“Almighty God, we acknowledge our dependence upon Thee, and we beg Thy blessing upon us, our parents, our teachers and our country.”

During the prayer, students could choose to leave the room or stay silent if they wanted to.

Still, the Court found the practice violated the First Amendment. It held that the daily practice was a religious activity, thus inconsistent with the Establishment Clause. At a minimum, “it is no part of the business of government to compose official prayers for any group of the American people to recite as a part of a religious program carried on by government.”

State action that establishes an official religion violates the Establishment Clause. It didn’t matter that students could choose not to participate or that the prayer didn’t favor a particular religion.

That didn’t affect the meaning or interpretation of the Establishment Clause. Making the kids participate might factor into a free exercise analysis.

However, students don’t need to be forced to participate in religious activity for it to violate the Establishment Clause. Likewise, the non-denominational aspect of the prayer didn’t free the school from its obligations or constraints under the establishment clause.

Lemon v. Kurtzman

In 1971, the Court established a three-pronged test for evaluating whether a state action constitutes an “establishment of religion” in Lemon v. Kurtzman. The Lemon Court reviewed two states’ laws that provided public funds for private non-secular schools. The Court held the laws to be unconstitutional and established the Lemon test. To be upheld, it requires the law to:

• Serve a primary purpose that’s secular
• Neither promote nor hinder religion
• Not excessively entangle church and state

If it doesn’t satisfy one or more of these criteria, the law violates the Establishment Clause.

Abington School Dist. v. Schempp

The following year, the Court decided Abington School Dist. v. Schempp. The Abington Court addressed a Pennsylvania state law for public schools. The law required the school day to begin with scripture readings from the Bible.

The Court found this state-sanctioned religious exercise violated the Establishment Clause, as did the law mandating it. The state contended the requirement served several state interests like curbing materialism and advancing morality.

It even alleged that prohibiting exercises like this amounted to the state promoting the religion of secularism. The Court rejected these arguments. It clarified that religion plays a respected role in American life. Still, the Establishment Clause requires the government to remain neutral.

Wallace v. Jaffree

In 1985, the Court decided  Wallace v. Jaffree. In Wallace, the Court reviewed a state law permitting public schools to observe a moment of silence for meditation or prayer. The phrase “or prayer” was later added to the statute.

And the evidence revealed the only reason for this was to restore voluntary prayer in public schools. Applying the Lemon test, the Court determined the law failed to satisfy the first prong because its entire purpose was to promote religion.

The Court explained that preserving a student’s right to engage in voluntary prayer at school is one thing. The legislative goal of returning prayer to school, however, is another. Accordingly, the Court invalidated the unconstitutional law.

Lee v. Weisman

Likewise, the Court held in 1992 that prayer at a public-school graduation ceremony violated the establishment clause. In Lee v. Weisman, a school district policy permitted public high schools and middle schools to invite a member of the clergy to commencements.

School officials chose the religious leaders and provided them with district guidelines for the prayers. The guidelines recommended inclusive, nonsectarian messaging.

The Court said the school’s involvement in this religious activity was so pervasive that it amounted to “state-sponsored and state-directed religious exercise in a public school.”

It also labeled the state’s actions as coercive. The Court reasoned that people don’t exactly view participation and attendance at life’s milestone events as optional.

The state essentially required students to participate in a religious activity. At the very least, the Court explained, the establishment clause prohibits the government from coercing people to support religion or take part in religious exercises.

Santa Fe Independent School District v. Doe

In 2000, the Court held that a student vote doesn’t change establishment clause obligations. The Santa Fe Independent School District v. Doe Court reviewed a school district policy. It allowed high school students to vote on whether they wanted a student-led prayer before home football games. If so, a fellow student would be elected for that purpose.

The Court noted the following:

• The language of the policy favored a pre-game prayer
• The school’s deeply rooted history of a student chaplain delivering one
• The prevailing perception that the policy was about prayer

Together, these factors supported that the policy failed the Lemon test’s first prong. The policy purpose wasn’t secular. Instead, it was to continue with a popular school-sponsored religious activity.

The Court also clarified that the relevant speech wasn’t private speech protected by the First Amendment. The prayer in this case would be considered government-sponsored speech or government speech.

Religion and Public Education Curriculum

Because of the establishment clause, religious teachings are generally prohibited in public schools. Therefore, we sometimes see the establishment clause of the First Amendment implicated in matters of public education curriculum.

However, the mere mention of religion isn’t prohibited in public schools. Indeed, public schools frequently recognize religious holidays like Christmas or Ramadan. But they must be careful not to observe these religious holidays in such a way that favors or endorses them or their religious themes.

For example, the 8th Circuit U.S. Court of Appeals addressed Florey v. Sioux Falls School District in 1980. The court held that public schools may host things like Christmas programs if they focus on the” secular or cultural basis or heritage of the holidays.”

Likewise, the Court explained that religion doesn’t have to be avoided as a subject within a “secular program or education.”  It can be included in a legitimate school curriculum as long as it doesn’t advance a particular religion or viewpoint.

Epperson v. Arkansas

In 1968, the Court reviewed an anti-evolution Arkansas statute in Epperson v. Arkansas. The statute prohibited public school teachers from teaching any theory, like evolution, that humans ascended or descended from a lower animal life form. The law also banned the use of textbooks that taught such a doctrine.

The Court acknowledged that state and local officials generally control public school curriculum. However, the Court determined that the state’s motivation for the Arkansas law was to promote a Christian fundamentalist belief.

Specifically, fundamentalists believe in a strict literal interpretation of the Book of Genesis, which says God created the world in six days. And evolution conflicted with this belief.

As such, the Court determined the intent behind the law was to extinguish this theory because it clashed with creationism. This squarely contradicts the First Amendment. Accordingly, the Court struck down the law.

Edwards v. Aguillard

Likewise, the Court struck down a Louisiana state law in Edwards v. Aguillard. The law required public schools to balance evolution-based science lessons with creation-based science lessons. The Court determined the law served the primary purpose of discrediting evolution in favor of the religious theory that a higher power created the human race.

Released Time

Several Supreme Court cases have also tackled public school policies that “release” students from school for religious exercises.

Illinois ex rel. McCollum v. Board of Education

In 1948, the Court struck down one such program in Illinois ex rel. McCollum v. Board of Education. The program allowed students to receive religious instruction during the school day upon a parent’s request.

Lessons were taught by external parties approved and/or supervised by the superintendent. A council representing various faiths provided the religious instructors. Attendance was taken as in any other class. Students who were not participating in religious instruction were required to attend their regularly scheduled classes.

The Court explained that students are legally obligated to attend school during the day. This program freed them from their legal duty only if they received religious instruction.

However, publicly supported and publicly funded school systems shouldn’t assist religious groups with spreading their various faiths. That is a direct violation of the Establishment Clause.

The Court also clarified that the Establishment Clause doesn’t just prohibit the government from favoring one religion over another. It prohibits even neutral government assistance for all religions.

Zorach v. Clauson

Four years later in Zorach v. Clauson, the Supreme Court evaluated another released time program. Upon parental requests, public school students could leave campus for devotional activity or religious instruction during the school day. The religious teachers would report to the school student that didn’t show up at the religious center. And students who didn’t participate were expected to attend their regular classes.

This Supreme Court decision recognized important constitutional differences between this program and the one in McCollum. The decision was upheld on the grounds that the school was not endorsing any particular religion by offering public assistance and resources, thereby allowing religions to propagate their faith.

Instead, it’s just accommodating the students’ schedules to go off campus for religious activities. Not doing so would be callous toward religious people’s spiritual needs. It would also demonstrate a state preference for no religion over any religion.

Can Public School Students Express Their Religious Beliefs Without Violating the First Amendment?

The Establishment Clause prohibits school administrators and other school employees from promoting or discouraging prayer or any other religious expression or activities. They are, after all, government employees.

They generally have the right to practice and express their religion at school. For example, Muslim teachers may wear hijabs. Christian students may discuss their beliefs with classmates. Some of these activities are protected by the free exercise clause. The free speech clause generally protects others as a form of expression or student speech.

The Equal Access Act

Congress passed the Equal Access Act of 1984 to protect the rights of secondary school student groups to meet on campus for religious activity. The Act prevents federal funding for school districts that prohibit such meetings. Essentially, it requires public schools to provide equal access for religious clubs or groups of students to use school facilities to meet for religious activity. Of course, the activities must:

• Be student-initiated
• Occur during noninstructional time
• Not be disruptive to the educational environment
• Comply with school rules and policies

The First Amendment right to free speech and expression, as well as its free exercise clause, protects students’ ability to distribute religious materials like Bible reading plans on campus. Students can also include religious messages or lessons in schoolwork if doing so complies with the assignment guidelines.

The Supreme Court has addressed innumerable First Amendment cases about religion and our public schools. The Court’s interpretation of our First Amendment rights in this environment has also shifted over time. It has been moving increasingly toward accommodating religion. Time will tell if this trend continues.

Of course, schools may set policies and restrictions on when or where certain activities may occur, for example. But they can’t place unfair restrictions on students' speech or religious rights.