THE ESTABLISHMENT CLAUSE
AMERICAN CIVIL LIBERTIES UNION
This publication was prepared by the Legal Department, the Public
Education Department and the Washington National Office of the American
Civil Liberties Union.
We are grateful to Andrew J. Thomas, Esq., of Munger, Tolles and Olson,
Los Angeles, California for his invaluable assistance.
AMERICAN CIVIL LIBERTIES UNION
132 West 43rd Street
New York, NY 10036
122 Maryland Ave., NE
Washington, DC 20002
Nadine Strossen, President
Ira Glasser, Executive Director
Kenneth B. Clark
Chair, National Advisory Council
The American Civil Liberties Union is a nationwide, nonpartisan
organization of 275,000 members dedicated to preserving and defending the
principles set forth in the Bill of Rights.
Duplication of this material is permitted, or you may obtain copies by
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Copyright 1993 American Civil Liberties Union
THE ESTABLISHMENT CLAUSE
AND PUBLIC SCHOOLS
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
"Congress shall make no law respecting an establishment
of religion, or prohibiting the free exercise thereof."
These opening words of the First Amendment to the Constitution set forth a
dual guarantee of religious liberty. Both the Establishment Clause and
the Free Exercise Clause operate to protect the religious liberty and
freedom of conscience of all Americans. Quoting Thomas Jefferson, the
Supreme Court has stated that the Establishment Clause was intended to
accomplish this end by erecting a "wall of separation between Church and
State." Everson v. Board of Educ. of Ewing, 330 U.S. 1, 15-16 (1947).
It is one of the fundamental principles of the Supreme Court's
Establishment Clause jurisprudence that the Constitution forbids not only
state practices that "aid one religion . . . or prefer one religion over
another," but also those practices that "aid all religions" and thus
endorse or prefer religion over nonreligion. Everson, 330 U.S. at 15.
See Wallace v. Jaffree, 472 U.S. 38, 53 (1985)("[T]he individual freedom
of conscience protected by the First Amendment embraces the right to
select any religious faith or none at all"); see also County of Allegheny
v. ACLU Greater Pittsburgh Chapter, 492 U.S. 573, 589-94, 598-602 (1989);
Texas Monthly, Inc. v. Bullock, 489 U.S. 1, 17 (1989); Torcaso v. Watkins,
367 U.S. 488, 495 (1961).
For the past 20 years, the federal courts have utilized the
three-pronged framework first set forth in Lemon v. Kurtzman, 403 U.S. 602
(1971), to maintain the separation of government and religion. Under the
so-called "Lemon test," a court must inquire (1) whether the government's
action has a secular or a religious purpose; (2) whether the primary
effect of the government's action is to advance or endorse religion; and
(3) whether the government's policy or practice fosters an excessive
entanglement between government and religion. See 403 U.S. at 612-13.
In recent years, the Supreme Court has also frequently asked whether the
challenged governmental action constitutes an impermissible "endorsement"
of religion. See, e.g., Allegheny, 492 U.S. at 592 (inquiry is whether
the government "convey[s] or attempt[s] to convey a message that religion
or a particular religious belief is favored or preferred"); id. at 592-94;
School District of the City of Grand Rapids v. Ball, 473 U.S. 373, 390
(1985)("[A]n important concern of the effects test is whether the
symbolic union of church and state effected by the challenged governmental
action is sufficiently likely to be perceived by adherents ... as an
endorsement, and by nonadherents as a disapproval, of their
individual religious choices").
I. GRADUATION PRAYER
The Supreme Court has long held that the Establishment Clause of
the First Amendment forbids school-sponsored prayer or religious
indoctrination. Over thirty years ago, the Court struck down classroom
prayers and scripture readings even where they were voluntary and students
had the option of being excused. See School Dist. of Abington Township v.
Schempp, 374 U.S. 203 (1963); Engel v. Vitale, 370 U.S. 421 (1962). The
Court earlier had struck down a "released-time" program providing
voluntary religious instruction in public schools during regular school
hours. See Illinois ex rel. McCollum v. Board of Educ., 333 U.S. 203,
More recently, the Supreme Court has held that a school district
may not require that students observe a moment of silence at the beginning
of the school day where the purpose of such a requirement is that students
use that time for prayer. Wallace, 472 U.S. at 40. In a similar vein,
the Court has held that the state may not require the posting of the Ten
Commandments in public school classrooms, Stone v. Graham, 449 U.S. 39, 41
(1980)(per curiam), and may not require the teaching of "creation science"
in public school science classes where evolution is taught, Edwards v.
Aguillard, 482 U.S. 578, 596-97 (1987).
The fundamental principle underlying all these decisions is that
the Constitution commands that public schools may not take sides in
matters of religion and may not endorse a particular religious perspective
or any religion at all.
A. The Supreme Court's Graduation Prayer Decision
In 1992, the Supreme Court held in Lee v. Weisman, ___ U.S. ___,
112 S.Ct. 2649 (1992), that prayer -- even nonsectarian and
nonproselytizing prayer -- at public school graduation ceremonies violated
the Establishment Clause of the Constitution. The Supreme Court held
that the inclusion of prayers as part of a school-sponsored and
school-supervised graduation ceremony contravened the Establishment Clause
both because of its inevitably coercive effect on students and because it
conveyed a message of government endorsement of religion. See id. at
The Supreme Court focused on the subtle coercive pressures that
accompany any religious exercise conducted as part of a school-sponsored
event. The Court held that even though the school district in Lee did not
require students to attend graduation in order to receive their diplomas,
the students' attendance and participation in graduation exercises was "in
a fair and real sense obligatory." Id. at 2655. As the Court observed:
Everyone knows that in our society and in our culture high school
graduation is one of life's most significant occasions.... Attendance may
not be required by official decree, yet it is apparent that a student is
not free to absent herself from the graduation exercise in any real sense
of the term "voluntary," for absence would require forfeiture of those
intangible benefits which have motivated the student through youth and all
her high school years.
Id. at 2659. Because attendance at high school graduation ceremonies is
in effect not voluntary -- and because the ceremonies themselves are an
adjunct to and, in some sense, the culmination of the public school
curriculum -- the inclusion of a religious program in graduation
ceremonies violates the Establishment Clause. As the Court stated in Lee:
The prayer exercises in this case are especially improper because the
State has in every practical sense compelled attendance and participation
in an explicit religious exercise at an event of singular importance to
every student, one the objecting student had no real alternative to
Id. at 2661.
The Supreme Court in Lee also focused on the unavoidable
entanglement of government and religion that results from any attempt by
school officials to control the content of graduation prayers, even if
that control extends, as it did in Lee, only to making sure that the
prayers given are nondenominational. Under Lee, school officials may not
in any way "assist in composing prayers as an incident to a formal
exercise for their students." Id. at 2657. As the Court explained:
The question is not the good faith of the school in attempting to make the
prayer acceptable to most persons, but the legitimacy of its undertaking
that enterprise at all when the object was to produce a prayer to be used
in a formal religious exercise which students, for all practical
purposes, are obliged to attend.
Id. at 2656. The Court observed that the religion clauses of the First
Amendment "mean that religious beliefs and religious expression are too
precious to be either proscribed or prescribed by the State." Id.
Contrary to protests voiced by the religious right, the Supreme
Court's holding in Lee is not anti-religious and does not interfere with
the rights of students, guaranteed by the Free Exercise Clause of the
First Amendment, to worship and pray according to the dictates of their
own consciences. As the Supreme Court stated over three decades ago in
It is neither sacrilegious nor antireligious to say that each separate
government in this country should stay out of the business of writing or
sanctioning official prayers and leave that purely religious function to
the people themselves and to those the people choose to look to for
370 U.S. at 435.
It is likewise clear that graduation prayer cannot be justified as
a permissible "accommodation" of religion under the Free Exercise Clause
of the First Amendment. Government efforts to accommodate the religious
beliefs and practices of individuals are permitted under the Establishment
Clause only when they remove government-imposed burdens on the free
exercise of religion. See Lee, 112 S.Ct. at 2676-77 (Souter, J.,
concurring); Allegheny, 492 U.S. at 601 n.51; id. at 631 (O'Connor, J.,
The absence of prayer from a school's official graduation ceremony
does not impose any burden on the ability of students to affirm their
religious beliefs before or after the ceremony. Nothing in Lee, for
example, would prevent or prohibit like-minded students from organizing a
privately sponsored baccalaureate service -- provided that it was held off
school grounds, was entirely voluntary, and was neither sponsored nor
supervised by school officials. See 112 S.Ct. at 2677 (Souter, J.,
B. Student-Initiated Graduation Prayer
1. The Fifth Circuit's decision in Jones v.
Clear Creek Indep. Sch. Dist.
This past year, a federal appeals court in Texas approved a school
board's policy allowing graduation prayer where a majority of the
graduating class had requested that a prayer be given by a student
volunteer at the school's graduation ceremony. Jones v. Clear Creek
Indep. Sch. Dist., 977 F.2d 963 (5th Cir. 1992), cert. denied, ___ U.S.
___ 113 S.Ct. 2950 (1993).
As a technical matter, the decision in Jones only applies within
the three states comprising the Fifth Circuit (Texas, Louisiana and
Mississippi). More fundamentally, in our view, Jones seriously misreads
the Supreme Court's holding in Lee.
The Supreme Court made clear that its decision in Lee did not turn
on the fact that school officials made the decision to include prayers in
the graduation ceremony or the fact that the principal selected the
particular clergyman who gave the prayers. Rather, the Court held that
prayers at public school graduation ceremonies carry the imprimatur of the
state and, therefore, impermissibly endorse religion because the prayers
are included as part of a program that is sponsored, supervised and
controlled b y the school and at which student attendance is, for all
practical purposes, obligatory. See 112 S.Ct. at 2657. Lee thus stands
for the straightforward proposition that when public schools reserve time
at a graduation ceremony for prayers, they violate the Constitution by
putting the power, prestige and endorsement of the state behind whatever
prayer is offered, no matter who offers it.
As the Supreme Court observed, "the school district's supervision
and control of a high school graduation ceremony places public pressure,
as well as peer pressure, on attending students" to act in a manner that
signifies participation in or approval of religious exercises that an
individual student may find repugnant to his or her own beliefs. 112
S.Ct. at 2658.
The Fifth Circuit in Jones relied in part on the fact that school
officials reviewed the student prayers to ensure that they were
nondenominational and nonproselytizing. 977 F.2d at 971.(1) Yet this
review by itself impermissibly involves school officials in deciding which
prayers are acceptable and which are not. As the Supreme Court warned in
its first school prayer decision, "one of the greatest dangers to the
freedom of the individual to worship in his own way [lies] in the
government's placing its official stamp of approval upon one particular
kind of prayer or one particular form of religious services." Engel, 370
U.S. at 429. In Lee, the Supreme Court reaffirmed this basic tenet when
it stated that "our precedents do not permit school officials to assist in
composing prayers as an incident to a formal exercise for their students."
112 S.Ct. at 2657.
This past summer, the Supreme Court decided not to review the
Fifth Circuit's decision in Jones. Over the past few months, leaders of
the religious right have claimed that the Supreme Court's action is an
endorsement of student-initiated prayer and a vindication of Jones. That
characterization is simply wrong as a matter of law. The Supreme Court's
decision does not indicate approval of the result in Jones, nor does it
transform the Fifth Circuit's decision into a national precedent.
The Supreme Court grants review on writ of certiorari in only a
small fraction of the cases that are presented to it each year. Its
decision not to grant review in a particular case is wholly discretionary
and is rarely explained, as it was not in the J ones case. See generally
P. Bator, D. Meltzer, P. Mishkin & D. Shapiro, Hart & Wechsler's The
Federal Courts and the Federal System, at 1855 (3d ed. 1988).
The Court has emphasized that a denial of certiorari is not a
decision on the merits and thus carries no precedential weight. See
Teague v. Lane, 489 U.S. 288, 296 (1989)("[A] denial of a writ of
certiorari imports no expression upon the merits of the case")(quoting
United States v. Carver, 260 U.S. 482, 490 (1923)(Holmes, J.)); Maryland
v. Baltimore Radio Show, 338 U.S. 912, 917-19 (1950)(opinion of
Frankfurter, J.). See generally 16 C. Wright, A. Miller, E. Cooper & E.
Gressman, Federal Practice & Procedure 4004, at 510-511 & n.20 (1977 &
Supp. 1993). As Justice William J. Brennan has explained:
A denial of certiorari is not an affirmance of the [lower] court judgment
as some erroneously think . . . . The denial does not mean that the Court
agrees with the result reached by the [lower] court. . . . The Court may
very well take the next case raising the same question and reach a
different result on the merits.
Lee v. Weisman, not Jones, is the law of the land, and Lee holds that
graduation prayer is unconstitutional.
2. Other decisions on student-initiated prayer
Following the Supreme Court's denial of certiorari in Jones, a
handful of federal courts have considered challenges to student-initiated
graduation prayers. Although the outcomes of these cases have been
somewhat mixed, the more well-reasoned decisions, including a decision by
the Court of Appeals for the Third Circuit, have held that
student-initiated graduation prayers run afoul of the separation of church
and state required by the Establishment Clause of the First Amendment.
Federal courts in Iowa, New Jersey, and Virginia have held that
student-initiated prayers of the type at issue in Jones are forbidden by
the Establishment Clause. See ACLU v. Blackhorse Pike Regional Bd. of
Educ., Dkt. No. 93-5368 (3d Cir. June 25, 1993 ); Friedmann v. Sheldon
Community Sch. Dist., Dkt. No. C93-4052 (N.D. Iowa, May 28, 1993), vacated
on standing grounds, Dkt. No. 93-2375 (8th Cir. May 28, 1993); Gearon v.
Loudon County Sch. Bd., Dkt. No. 93-730-A (E.D. Va. June 21, 1993), stayed
pending appeal, Dkt. No. 93-1770 (4th Cir. June 23, 1993). (2)
In Blackhorse Pike, the Court of Appeals for the Third Circuit
enjoined a proposed student-initiated graduation prayer, noting that:
the graduation ceremony is a school sponsored event; the fact that the
school board has chosen to delegate the decision regarding one segment of
that ceremony to members of the graduating class does not alter that
sponsorship, does not diminish the effect of a prayer on students who do
not share the same or any religious perspective, and does not serve to
distinguish, in any material way, the facts of this case from the facts of
Lee v. Weisman.
Slip op. at 1.
In Friedmann, the United States District Court for the Northern
District of Iowa held that graduation prayers offered by authority of a
majority student vote "run head on into the mandate of Lee v. Weisman" and
are constitutionally impermissible. Slip op. at 2. Likewise, in Gearon,
the United States District Court for the Eastern District of Virginia
found that a school district's protocol allowing students to vote for the
offering of a nonsectarian, nonproselytizing graduation prayer violated
the Establishment Clause. Slip op. at 4.
The Fifth Circuit's decision in Jones also runs contrary to the
decisions of other federal courts of appeal and that have addressed the
issue of student-initiated prayers at school-sponsored events. In Jager
v. Douglas County Sch. Dist., 862 F.2d 824 (11th Cir.), cert. denied, 490
U.S. 1090 (1989), the Court of Appeals for the Eleventh Circuit held that
prayers at public high school football games violated the Establishment
Clause, even though student clubs designated the individuals who gave the
prayer s. Likewise, in Collins v. Chandler Unified Sch. Dist., 644 F.2d
759, 762 (9th Cir.), cert. denied, 454 U.S. 863 (1981), the Ninth Circuit
Court of Appeals held that student-initiated prayer and Bible readings at
school assemblies violated the Establishment Clause, even though the
prayers and readings were given by student volunteers.(3) Finally, the
Fifth Circuit itself, in Karen B. v. Treen, 653 F.2d 897 (5th Cir. 1981),
aff'd, 455 U.S. 913 (1982), held that the Establishment Clause prohibited
student volunteers from leading fellow classmates in prayer, even though
students could be excused from participating. 653 F.2d at 901-02.(4)
As these cases demonstrate, Jones relies on a crabbed reading of
Lee that rests almost entirely on a distinction between school-initiated
and student-initiated graduation prayer that is irrelevant to the analysis
and result in Lee and that ignores the inherently coercive nature of a
religious exercise conducted as part of an event convened and sponsored by
The fact that a majority of students may ask the school district
to allow a prayer at graduation does not change the requirements of the
Establishment Clause. Indeed, the very purpose of the Establishment
Clause is to prevent a majoritarian government from imposing particular
religious beliefs -- or any religious beliefs at all -- on individuals in
our society who do not share those beliefs. See West Virginia Bd. of
Educ. v. Barnette, 319 U.S. 624 (1943). As Justice Jackson wrote for the
Court in Barnette:
The very purpose of a Bill of Rights was to withdraw certain subjects from
the vicissitudes of political controversy, to place them beyond the reach
of majorities and officials and to establish them as legal principles to
be applied by the courts. One's right to life, liberty, and property, to
free speech, a free press, freedom of worship and assembly, and other
fundamental rights may not be submitted to vote; they depend on the
outcome of no elections.
Id. at 638 (emphasis added).
The entire premise of the Bill of Rights is that individual
liberty must be safeguarded and must sometimes trump the desires of the
majority. High school students, by majority vote, may no more use the
machinery of the state to impose religion on a minority of dissenters
than may a majority of students ask the school board to violate the First
Amendment by engaging in censorship or violate the Fourth Amendment by
engaging in unreasonable searches of students. As the Supreme Court
declared in Lee,
[W]hile in some societies the wishes of the majority might prevail, the
Establishment Clause of the First Amendment is addressed to this
contingency and rejects [it]. The Constitution forbids the State to exact
religious conformity from a student as the price of attending her own
112 S.Ct. at 2660.
1. Even the Jones court limited its decision, however, to non-sectarian
prayers. The Fifth Circuit correctly indicated that a student-initiated
prayer that was sectarian or proselytizing would run afoul of the
Establishment Clause. See 977 F.2nd at 969.
2. Contra Harris v. Joint School District No. 241, 821 F.Supp. 638 (D.
Idaho 1993), appeal docketed, No. 93-35893 (9th Cir. June 15, 1993.)
3. Notably, the Ninth Circuit in Collins found "no meaningful
distinction between school authorities actually organizing the religious
activity and officials merely 'permitting' students to direct the
exercises." 644 F.2nd at 761.
4. Indeed, the Fifth Circuit itself no appears to have backed away from
the Jones court's exceedingly narrow reading of Lee. In a subsequent
case, Doe v. Duncanville Indep. Sch. Dist., 994 F.2nd 160 (5th Cir.
1993), the court struck down the practice of offering prayers before high
school basketball games. In Doe, the Fifth Circuit recognized that Lee
"is merely the most recent in a long line of cases carving out of the
Establishment Clause what essentially amounts to a per se rule prohibiting
public-school-related or -initiated religious expression or
indoctrination." Id. at 165.
II. BIBLE DISTRIBUTION
Earlier this year, the United States Court of Appeals for the
Seventh Circuit ruled that an Indiana school district's policy and
practice permitting representatives of Gideon International to distribute
Bibles in public schools during school hours violated the Establishment
Clause of the Constitution. See Berger v. Rensselaer Central School
Corp., 982 F.2d 1160 (7th Cir.), cert. denied, ___ U.S. ___, 113 S.Ct.
In Berger, the father of two elementary school children challenged
the local school district's longstanding practice of allowing the Gideons
to come into the public schools during instructional hours and distribute
Bibles to fifth-grade students. Even t hough the teachers did not
participate in handing out the Bibles to the students, and even though the
Bibles were not used for pedagogical purposes, the Seventh Circuit held
that the in-school Bible distribution was "a far more glaring offense to
First Am endment principles" than the nonsectarian graduation prayer at
issue in Lee. See Berger, 982 F.2d at 1169.
A long line of Supreme Court precedents establish that it is
impermissible for school officials to allow the machinery of the state to
be used to gather an audience for religious exercises or instruction. See
Illinois ex rel. McCollum v. Board of Educ., 333 U.S. 203; Engel, 370 U.S.
421. In McCollum, for example, the Supreme Court struck down a program
allowing religious instructors to come into the public schools to teach
sectarian classes during school hours, at a time when students would be
free to attend the religious classes or remain in their regular classes.
The Court stated that:
Here not only are the State's tax-supported public school buildings used
for the dissemination of religious doctrines. The State also affords
sectarian groups an invaluable aid in that it helps to provide pupils for
their religious classes through use of the State's compulsory public
333 U.S. at 212.
It violates one of the Establishment Clause's most fundamental
principles to turn government power over to religion. As the Supreme
Court has recognized, the public school is the forum through which basic
norms of citizenship are transmitted to the next generation and is thus a
"vital civic institution for the preservation of a democratic system of
government." See Abington Township, 374 U.S. at 230 (Brennan, J.,
concurring). When government permits a religious group to take over part
of the school's facilities during instructional time, however briefly, it
strongly implies official endorsement of that religion. In the Grand
Rapids case, the Supreme Court stressed the importance of avoiding any
"symbolic link" between government and religion. The Court held that the
second ("effects") prong of the Lemon test will not be satisfied where the
government fosters a "close identification of its powers and
responsibilities with those of any -- or all -- religious denominations."
School District of the City of Grand Rapids v. Ball, 473 U.S. at 385.
A school's participation in or supervision of the Gideons' Bible
distribution impermissibly suggests that the Gideons' program is a valid
part of a legally required education. The practice also carries the
unmistakable message that religion -- in this case, Christian Bible study
-- is the norm and the non-adherents are something less than full members
of the school community. "When the government puts its imprimatur on a
particular religion, it conveys a message of exclusion to all those who do
not adhere to the favored beliefs." Lee, 112 S.Ct. at 2665 (Blackmun,
J., concurring). See Wallace, 472 U.S. at 69 (O'Connor, J.,
concurring)(government endorsement of religion violates the Establishment
Clause because it "sends a message to nonadherents that they are
outsiders, not full members of the political community, and an
accompanying message to adherents that the are insiders, favored members
of the political community"); see also Lynch v. Donnelly, 465 U.S. 668,
688 (1984)(O'Connor, J., concurring).
As the Seventh Circuit aptly observed in Berger:
the act of accepting a Bible in front of other students, with the option
of returning it later privately or choosing not to read it, signals accord
with the Gideons' beliefs. Presumably, the fifth graders could make a
public show of not accepting the Bible, just as students could walk out
of the graduation ceremony in Lee, or leave during the scriptural reading
in Abington, but the First Amendment prohibits the government from putting
children in this difficult position.
982 F.2d at 1170.
Moreover, the Supreme Court repeatedly has emphasized the
impressionability of primary and secondary school children and the
pressure they are apt to feel from teachers, administrators and peers to
conform. As the Supreme Court recently observed in Lee, "there are
heightened concerns with protecting freedom of conscience from subtle
coercive pressure in the elementary and secondary public schools" 112
S.Ct. at 2658. See Edwards, 482 U.S. at 584; see also Grand Rapids, 473
U.S. at 390 ("The symbolism of a union between church and state is most
likely to influence children of tender years, whose experience is limited
and whose beliefs consequently are the function of environment as much as
of free and voluntary choice").
The Seventh Circuit also properly rejected the school district's
argument that barring the Gideons from distributing Bibles in the public
schools would violate the Gideons' First Amendment free speech rights. It
is well established that the free speech rights of individuals and
religious groups to engage in religious expression must be subordinated to
Establishment Clause concerns where those individuals or groups seek to
observe their religion in a manner that unduly involves the government.
See, e.g. , Engel v. Vitale, 370 U.S. 421 (students and teachers may not
recite prayers in school); McCollum, 333 U.S. 203 (teachers may not
provide religious instruction on public school property); see also Berger,
982 F.2d at 1168. Religious groups such as the Gideons remain free to
promote Bible study and otherwise proselytize in ways that do not carry
the imprimatur of state endorsement.
III. EQUAL ACCESS TO SCHOOL FACILITIES
The Establishment Clause issues are quite different where a school
district wishes to make its facilities available for use by student or
community groups during non-school hours. In such cases, the
Establishment Clause does not prohibit opening the school's facilities to
religious groups -- provided no elements of school sponsorship or
endorsement are present.
Indeed, once the school district opens its facilities for use by
students or members of the community during non-school hours, the Free
Speech Clause of the First Amendment requires that the school district not
discriminate based on the point of view of groups seeking access to those
facilities. See Cornelius v. NAACP Legal Defense and Educ. Fund, Inc.,
473 U.S. 788, 800 (1985); Perry Educ. Ass'n v. Perry Local Educators'
Ass'n, 460 U.S. 37, 46 (1983).
This year, in Lamb's Chapel v. Center Moriches School District,
___ U.S. ___, 113 S.Ct. 2141 (1993), the Supreme Court held that a school
district violated the First Amendment free speech rights of a local church
by refusing to permit the church to exhibit, on school property during
non-school hours, a film series dealing with family values and
child-rearing from a religious perspective, even though those same school
facilities were open to other groups in the community desiring to address
the same subjects from other perspectives. See id. at 2147-48.
The Supreme Court further held that allowing Lamb's Chapel to
exhibit its film series would not contravene the Establishment Clause
because the showing of the films "would not have been during school hours,
would not have been sponsored by the school, and would have been open to
the public" and because school property "had repeatedly been used by a
wide variety of private organizations." Id. at 2148. The presence of
these four factors, the Court held, ensured that there was "no realistic
danger that th e community would think that the District was endorsing
religion or any particular creed" and that the school's action satisfied
the three-part test of Lemon. 113 S.Ct. at 2148.
In Lamb's Chapel, the school district had made school facilities
available for use by private community groups during non-school hours
pursuant to a New York law authorizing local school boards to open school
property to the community for "social, civil, and recreational meetings
and entertainments, and other uses pertaining to the welfare of the
community" so long as such uses were "non-exclusive and open to the
general public." Id. at 2143-44 (quoting N.Y.E.L. sec. 414(1)(c)). The
school district, however, denied the request of Lamb's Chapel and its
pastor to show a religious film series because of the school district's
rule that school premises "shall not be used by any group for religious
purposes." Id. at 2144. The Supreme Court found that the school district
engaged in impermissible viewpoint discrimination in allowing community
groups to use school facilities to address family and child-rearing issues
from non-religious perspectives but in denying Lamb's Chapel access to
school property to address the same issues from a religious point of view.
See id. at 2147-48.
The question of when a religious group's use of government
property presents a valid claim of equal access and when, instead,
granting it access crosses the line into government endorsement of
religion can be a difficult one to answer. Though the answer inevitably
turns on issues of context and on the facts of the particular case, the
Supreme Court's decision in Lamb's Chapel provides some helpful guideposts
to assist school districts in this area.
In Lamb's Chapel, the proposed use of the public school auditorium
was limited, occasional, and comparable to other uses already permitted by
the school district. The proposed use was to occur in the evenings, well
after school hours. The activity was not uniquely religious, like worship
or prayer; it was open to the public; it concerned a subject of general
interest addressed to the entire community; and it was not to be promoted
by the school. See id. at 2144-46.
The result clearly would be different, however, if a religious
group were to seek special access to public school students during the
school day. See McCollum, 333 U.S. 203; Berger, 982 F.2d 1160. Any
request by a religious group for special privileges -- including access
that is significantly different in either quality or quantity from the
access granted to other student or community groups not available to
secular groups -- would raise serious Establishment Clause problems. See
Texas Monthly, 489 U .S. at 17.
IV. RELIGIOUS HOLIDAY PARTIES
In the past year, some religious activists have encouraged public
school districts to ignore the Supreme Court's Establishment Clause
rulings and to celebrate the religious significance of holidays such as
Christmas as part of the regular school curriculum. It is clear,
however, from the Supreme Court's cases dealing with public school
education, as well as the Court's decisions involving the public display
of religious symbols, that the Establishment Clause prohibits public
schools from sponsoring holiday observances -- including Christmas
programs or Christmas pageants -- that promote or emphasize the religious
significance of the holiday.
In two recent decisions, the Supreme Court has held that displays
of religious symbols such as nativity scenes on public property contravene
the Establishment Clause if they convey a message that is primarily
religious rather than secular. See Allegheny , 492 U.S. 573; Lynch, 465
U.S. 668 (1984). Under the test of Lemon as refined in Allegheny, the
government's display of religious symbols violates the Constitution where
the government's action "has either the purpose of effect of endorsing
religion." Allegheny, 492 U.S. at 592-93. As Justice O'Connor has
formulated the endorsement test, the inquiry is whether an "objective
observer," familiar with the government's practice and acquainted with
Free Exercise values, would view the governmental action a s an
endorsement of religion. See Wallace, 472 U.S. at 76 (O'Connor, J.,
In Lynch, for example, the Court upheld a city's display of a
nativity scene together with various secular symbols of Christmas,
including a Christmas tree and Santa Claus house. See Lynch, 465 U.S. at
679-85. In Allegheny, however, the Court ruled that a city's display in
the County Courthouse of a creche with a banner proclaiming "Glory to God
in the Highest" constituted an impermissible endorsement of religion under
the Establishment Clause. See Allegheny, 492 U.S. at 598-602. The Court
in Allegheny emphasized the importance of both the setting of the
religious symbols and their "patently Christian message." Id. at 601.
As discussed in preceding sections, the Supreme Court has been
especially vigilant in the public school context to ensure that schools do
not engage in practices that convey a religious message or imply an
endorsement of religion. One of the reasons for the Court's heightened
concern in the school cases is its recognition that elementary and
secondary school students are more impressionable than adults and more
susceptible to official pressure and peer pressure to conform to what they
may perceive as a school-sponsored religious orthodoxy. See, e.g., Lee,
112 S.Ct. at 2658.
Holiday observances in public schools which focus on the religious
significance of Christmas to Christians, rather than on those aspects of
the holiday that have become part of our country's secular culture, carry
precisely the dangers of religious endorsement and subtle coercive
pressure that have led the Supreme Court to mandate a strict separation of
church and state within the public schools.
Thus far, few courts have addressed the issue of public school
observances of religious holidays. In Florey v. Sioux Falls School
District 49-5, 619 F.2d 1311 (8th Cir.), cert. denied, 449 U.S. 987
(1980), the Eighth Circuit ruled that public schools may hold holiday
observances, such as Christmas concerts or programs, so long as the
programs deal with the "secular or cultural basis or heritage of the
holidays." Id. at 1317. The court approved a school district policy that
allowed public schools to observe only holidays that had a secular as
well as a religious basis and provided that religious symbols "may be used
only as a teaching aid or resource and only if they are displayed as a
part of the cultural and religious heritage of the holiday and are
temporary in nature." Id. The court contrasted these permissible
observances with what it regarded as a clearly unconstitutional practice:
a responsive discourse between teacher and students about the importance
of the birth of Jesus. See id. at 1317 -18.
Florey holds that public school observances of religious holidays
may address the religious aspects of the holiday only as part of a
"secular program of education." Id. at 1317. This requirement is
consistent with Supreme Court decisions stating that academic study of
religion, or religious texts, is not forbidden in the public schools so
long as religious topics are "presented objectively as part of a secular
program of education." Abington Township, 374 U.S. at 225; accord Stone,
449 U.S. at 41 (noting that the Bible may constitutionally be used as
part of the secular study of history or comparative religion).
While it is clear that the Constitution does not forbid the mere
mention of religion in the public schools, it is also clear from the
Supreme Court's Establishment Clause decisions that the public schools may
not observe religious holidays in a manner that has the effect of
promoting or endorsing the religious themes associated with those
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