More than 55 years after the Supreme Court issued its landmark ruling striking down school-sponsored prayer, Americans continue to fight over the place of religion in public schools. Questions about religion in the classroom no longer make quite as many headlines as they once did, but the issue remains an important battleground in the broader conflict over religion’s role in public life.
Some Americans are troubled by what they see as an effort on the part of federal courts and civil liberties advocates to exclude God and religious sentiment from public schools. Such an effort, these Americans believe, infringes on the First Amendment right to free exercise of religion.
Many civil libertarians and others, meanwhile, voice concern that conservative Christians and others are trying to impose their values on students. Federal courts, they point out, consistently have interpreted the First Amendment’s prohibition on the establishment of religion to forbid state sponsorship of prayer and most other religious activities in public schools.
This debate centers on public schools; very few people are arguing that religious doctrine cannot be taught at private schools or that teachers at such schools cannot lead students in prayer. And even in public institutions, there is little debate about the right of individual students, teachers and other school employees to practice their religion – by, say, praying before lunch or wearing religious clothing or symbols.
Moreover, as a 2019 survey of American teens shows some forms of religious expression are relatively common in public schools. For instance, about four-in-ten public school students say they routinely see other students praying before sporting events, according to the survey. And about half of U.S. teens in public schools (53%) say they often or sometimes see other students wearing jewelry or clothing with religious symbols.
About this report
This analysis, updated on Oct. 3, 2019, was originally published in 2007 as part of a larger series that explored different aspects of the complex and fluid relationship between government and religion. This report includes sections on school prayer, the pledge of allegiance, religion in school curricula, and the religious liberty rights of students and teachers.
The report does not address questions of government funding for religious schools (that is, school vouchers and tax credits) because the schools in question are largely private, not public. For a discussion of vouchers and similar issues, see “Shifting Boundaries: The Establishment Clause and Government Funding of Religious Schools and Other Faith-Based Organizations.” Because that analysis was published in 2009 and has not been updated, it does not include a discussion of more recent Supreme Court voucher rulings or upcoming cases.
Conflicts over religion in school are hardly new. In the 19th century, Protestants and Catholics frequently fought over Bible reading and prayer in public schools. The disputes then were over which Bible and which prayers were appropriate to use in the classroom. Some Catholics were troubled that the schools’ reading materials included the King James version of the Bible, which was favored by Protestants. In 1844, fighting broke out between Protestants and Catholics in Philadelphia; a number of people died in the violence and several Catholic churches were burned. Similar conflicts erupted during the 1850s in Boston and other parts of New England. In the early 20th century, liberal Protestants and their secular allies battled religious conservatives over whether students in biology classes should be taught Charles Darwin’s theory of evolution.
The Supreme Court stepped into those controversies when it ruled, in Cantwell v. Connecticut (1940) and Everson v. Board of Education of Ewing Township (1947), that the First Amendment’s Establishment Clause and Free Exercise Clause applied to the states. The two clauses say, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” Before those two court decisions, courts had applied the religion clauses only to actions of the federal government.
Soon after the Everson decision, the Supreme Court began specifically applying the religion clauses to activities in public schools. In its first such case, McCollum v. Board of Education (1948), the high court invalidated the practice of having religious instructors from different denominations enter public schools to offer religious lessons during the school day to students whose parents requested them. A key factor in the court’s decision was that the lessons took place in the schools. Four years later, in Zorach v. Clauson, the court upheld an arrangement by which public schools excused students during the school day so they could attend religious classes away from school property. (The new Pew Research Center survey finds that one-in-ten religiously affiliated teens in public school leave the school for religious activities.)
Beginning in the 1960s, the court handed religious conservatives a series of major defeats. It began with the landmark 1962 ruling, Engel v. Vitale, that school-sponsored prayer – even nonsectarian prayer – violated the Establishment Clause. Since then, the Supreme Court has pushed forward, from banning organized Bible reading for religious and moral instruction in 1963 to prohibiting school-sponsored prayers at high school football games in 2000. (The new survey finds that 8% of teens in public school have ever seen a teacher lead the class in prayer, and the same share have ever had a teacher read to the class from the Bible as an example of literature.)
In these and other decisions, the court has repeatedly stressed that the Constitution prohibits public schools from indoctrinating children in religion. But it is not always easy to determine exactly what constitutes indoctrination or school sponsorship of religious activities. For example, can a class on the Bible as literature be taught without a bias for or against the idea that the Bible is religious truth? Can students be compelled to participate in a Christmas-themed music program? Sometimes students themselves, rather than teachers, administrators or coaches, bring faith into school activities. For instance, when a student invokes gratitude to God in a valedictory address, or a high school football player offers a prayer in a huddle, is the school legally responsible for their religious expression?
The issues are complicated by other constitutional guarantees. For instance, the First Amendment also protects freedom of speech and freedom of association. Religious groups have cited those guarantees in support of student religious speech and in efforts to obtain school sponsorship and resources for student religious clubs.
The right of a student or student club to engage in religious speech or activities on school property may, however, conflict with other protections, such as the right of students to avoid harassment. In one case, for example, a federal appeals court approved a high school’s decision to prohibit a student from wearing a T-shirt containing a biblical passage condemning homosexuality. Because the student had graduated by the time the Supreme Court granted his appeal, the Supreme Court ordered the lower court to vacate its ruling and dismiss the case.
In another instance of conflict, some student religious groups want the right to exclude students who do not share the groups’ beliefs, specifically on questions of sexuality. For example, the Christian Legal Society (CLS), which has chapters in many law schools, requires those who serve in leadership positions to agree to a statement that renounces “unbiblical behaviors,” such as engaging in sexual relationships outside of heterosexual marriage. CLS sued a number of law schools after they denied the group official recognition because this leadership policy violated the schools’ nondiscrimination policies. In one of these cases, the Supreme Court ruled against CLS, stating that these nondiscrimination policies were constitutional so long as they were viewpoint neutral and fairly applied to all groups seeking recognition on campus.
As these more recent controversies show, public schools remain a battlefield where the religious interests of parents, students, administrators and teachers often clash. The conflicts affect many aspects of public education, including classroom curricula, high school football games, student clubs, graduation ceremonies.
Prayer and the Pledge
The most enduring and controversial issue related to school-sponsored religious activities is classroom prayer. In Engel v. Vitale (1962), the Supreme Court held that the Establishment Clause prohibited the recitation of a school-sponsored prayer in public schools. Engel involved a simple and seemingly nonsectarian prayer composed especially for use in New York’s public schools. In banning the prayer exercise entirely, the court did not rest its opinion on the grounds that unwilling students were coerced to pray; that would come much later. Rather, the court emphasized what it saw as the wrongs of having the government create and sponsor a religious activity.
The following year, the high court extended the principle outlined in Engel to a program of daily Bible reading. In Abington School District v. Schempp, the court ruled broadly that school sponsorship of religious exercises violates the Constitution. Schempp became the source of the enduring constitutional doctrine that all government action must have a predominantly secular purpose – a requirement that, according to the court, the Bible-reading exercise clearly could not satisfy. By insisting that religious expression be excluded from the formal curriculum, the Supreme Court was assuring parents that public schools would be officially secular and would not compete with parents in their children’s religious upbringing.
With Engel and Schempp, the court outlined the constitutional standard for prohibiting school-sponsored religious expression, a doctrine the court has firmly maintained. In Stone v. Graham (1980), for instance, it found unconstitutional a Kentucky law requiring all public schools to post a copy of the Ten Commandments. And in Wallace v. Jaffree (1985), it overturned an Alabama law requiring public schools to set aside a moment each day for silent prayer or meditation. However, in a concurrent opinion in Wallace, Justice Sandra Day O’Connor suggested that a moment of silence requirement might pass constitutional muster if it had a “secular purpose.” And in a subsequent 2009 case, Croft v. Perry, the U.S. Court of Appeals for the 5th Circuit upheld a Texas law mandating a moment of silence because it determined that, in passing the law, the state legislature had sufficiently articulated a secular purpose.
But while courts have given states some latitude in crafting moment of silence statutes, they have shown much less deference to laws or policies that involve actual prayer. In 2000, for instance, the Supreme Court ruled in Santa Fe Independent School District v. Doe that schools may not sponsor student-recited prayer at high school football games.
More sweeping in its consequences is Lee v. Weisman (1992), which invalidated a school-sponsored prayer led by an invited clergyman at a public school commencement in Providence, Rhode Island. The court’s 5-4 decision rested explicitly on the argument that graduating students were being forced to participate in a religious ceremony. The case effectively outlawed a practice that was customary in many communities across the country, thus fueling the conservative critique that the Supreme Court was inhospitable to public expressions of faith.
So far, lower appellate courts have not extended the principles of the school prayer decisions to university commencements (Chaudhuri v. Tennessee, 6th U.S. Circuit Court of Appeals, 1997; Tanford v. Brand, 7th Circuit, 1997). The 4th Circuit, however, found unconstitutional the practice of daily prayer at supper at the Virginia Military Institute. In that case, Mellen v. Bunting (2003), the appellate court reasoned that VMI’s military-like environment tended to coerce participation by cadets. The decision was similar to an earlier ruling by the U.S. Circuit Court of Appeals for the District of Columbia, which found unconstitutional a policy of the U.S. service academies that all cadets and midshipmen attend Protestant, Catholic or Jewish chapel services on Sunday (Anderson v. Laird, 1972). For the court, the key element was the service academies’ coercion of students to attend the religious activity.
Most recently, in 2019, the Supreme Court declined to review a 9th Circuit Court of Appeals decision upholding the firing of a football coach at a public high school for praying on the field with his players after games. However, in a statement accompanying the denial of review, Justice Samuel A. Alito Jr. (joined by fellow conservative justices Clarence Thomas, Neil Gorsuch and Brett Kavanaugh) indicated the high court would be open to reviewing other cases involving similar issues. Alito wrote that the court denied review in this case due to “important unresolved factual questions,” and that “the 9th Circuit’s understanding of free speech rights of public school teachers is troubling and may justify review in the future.”
The Pledge of Allegiance
In 1954, Congress revised the Pledge of Allegiance to refer to the nation as “under God,” a phrase that has since been recited by generations of schoolchildren. In 2000, Michael Newdow filed suit challenging the phrase on behalf of his daughter, a public school student in California. Newdow argued that the words “under God” violated the Establishment Clause because they transformed the pledge into a religious exercise.
The case, Elk Grove Unified School District v. Newdow, reached the Supreme Court in 2004, but the justices did not ultimately decide whether the phrase was acceptable. Instead, the court ruled that Newdow lacked standing to bring the suit because he did not have legal custody of his daughter. In concurring opinions, however, four justices expressed the view that the Constitution permitted recitation of the pledge – with the phrase “under God” – in public schools.
While the issue never reached the Supreme Court again, it continued to be litigated in the lower courts. In Myers v. Loudoun County Public Schools (2005), the 4th U.S. Circuit Court of Appeals upheld recitation of the pledge in Virginia, but a U.S. district court in California ruled the other way in another suit involving Michael Newdow and other parents. However, the 9th U.S. Circuit Court of Appeals in 2010 reversed the district court decision, ruling that the recitation of the pledge did not constitute an establishment of religion.
School officials and student speech
The courts have drawn a sharp distinction between officially sponsored religious speech, such as a benediction by an invited clergyman at a commencement ceremony, and private religious speech by students. The Supreme Court made clear in Lee v. Weisman (1992) that a clergyman’s benediction at a public school event would violate the separation of church and state. Judges usually reach that same conclusion when school officials cooperate with students to produce student-delivered religious messages. But federal courts are more divided in cases involving students acting on their own to include a religious sentiment or prayer at a school commencement or a similar activity.
Some courts, particularly in the South, have upheld the constitutionality of student-initiated religious speech, emphasizing the private origins of this kind of religious expression. As long as school officials did not encourage or explicitly approve the contents, those courts have upheld religious content in student commencement speeches.
In Adler v. Duval County School Board (1996), for example, the 11th U.S. Circuit Court of Appeals approved a system at a Florida high school in which the senior class, acting independently of school officials, selected a class member to deliver a commencement address. School officials neither influenced the choice of speaker nor screened the speech. Under those circumstances, the appeals court ruled that the school was not responsible for the religious content of the address.
Other courts, however, have invalidated school policies that permit student speakers to include religious sentiments in graduation addresses. One leading case is ACLU v. Black Horse Pike Regional Board of Education (1996), in which the senior class of a New Jersey public high school selected the student speaker by a vote without knowing in advance the contents of the student’s remarks. The 3rd U.S. Circuit Court of Appeals nevertheless ruled that the high school could not permit religious content in the commencement speech. The court reasoned that students attending the graduation ceremony were as coerced to acquiesce in a student-led prayer as they would be if the prayer were offered by a member of the clergy, the practice forbidden by Weisman in 1992. (Supreme Court Justice Samuel A. Alito Jr., who was then a member of the appeals court, joined a dissenting opinion in the case, arguing that the graduating students’ rights to religious and expressive freedom should prevail over the Establishment Clause concerns.)
Similarly, in Bannon v. School District of Palm Beach County (2004), the 11th U.S. Circuit Court of Appeals ruled that Florida school officials were right to order the removal of student-created religious messages and symbols from a school beautification project. The court reasoned that the project was not intended as a forum for the expression of students’ private views but rather as a school activity for which school officials would be held responsible.
Religion in the curriculum
The Supreme Court’s decisions about officially sponsored religious expression in schools consistently draw a distinction between religious activities such as worship or Bible reading, which are designed to inculcate religious sentiments and values, and “teaching about religion,” which is both constitutionally permissible and educationally appropriate. On several occasions, members of the court have suggested that public schools may teach “the Bible as literature,” include lessons about the role of religion and religious institutions in history or offer courses on comparative religion.
Creationism and evolution
Courts have long grappled with attempts by school boards and other official bodies to change the curriculum in ways that directly promote or denigrate a particular religious tradition. Best known among these curriculum disputes are those involving the conflict between proponents and opponents of Darwin’s theory of evolution, which explains the origin of species through evolution by means of natural selection. Opponents favor teaching some form of creationism, the idea that life came about as described in the biblical book of Genesis or evolved under the guidance of a supreme being. A recent alternative to Darwinism, intelligent design, asserts that life is too complex to have arisen without divine intervention.
The Supreme Court entered the evolution debate in 1968, when it ruled, in Epperson v. Arkansas, that Arkansas could not eliminate from the high school biology curriculum the teaching of “the theory that mankind descended from a lower order of animals.” Arkansas’ exclusion of that aspect of evolutionary theory, the court reasoned, was based on a preference for the account of creation in the book of Genesis and thus violated the state’s constitutional obligation of religious neutrality.
Almost 20 years later, in Edwards v. Aguillard (1987), the Supreme Court struck down a Louisiana law that required “balanced treatment” of evolution science and “creation science,” so that any biology teacher who taught one also had to teach the other. The court said the law’s purpose was to single out a particular religious belief – in this case, biblical creationism – and promote it as an alternative to accepted scientific theory. The court also pointed to evidence that the legislation’s sponsor hoped that the balanced treatment requirement would lead science teachers to abandon the teaching of evolution.
Lower courts consistently have followed the lead of Epperson and Edwards. As a result, school boards have lost virtually every fight over curriculum changes designed to challenge evolution, including disclaimers in biology textbooks. One of the most recent and notable of these cases, Kitzmiller v. Dover Area School District (2005), involved a challenge to a Pennsylvania school district’s policy of informing high school science students about intelligent design as an alternative to evolution. After lengthy testimony from both proponents and opponents of intelligent design, a federal district court in Pennsylvania concluded that the policy violates the Establishment Clause because intelligent design is a religious, rather than scientific, theory.
Kitzmiller may have been the last major evolution case to make national headlines, but the debate over how to teach about the origins and development of life in public schools has continued in state legislatures, boards of education and other public bodies. In 2019, for instance, policies that could affect the way evolution is taught in public school (often by limiting discussion of “controversial issues”) were introduced and in some cases debated in several states, including Arizona, Florida, Maine, Oklahoma, South Dakota and Virginia.
Study of the Bible
Courts have also expended substantial time and energy considering public school programs that involve Bible study. Although the Supreme Court has occasionally referred to the permissibility of teaching the Bible as literature, some school districts have instituted Bible study programs that courts have found unconstitutional. Frequently, judges have concluded that these courses are thinly disguised efforts to teach a particular understanding of the New Testament.
In a number of these cases, school districts have brought in outside groups to run the Bible study program. The groups, in turn, hired their own teachers, in some cases Bible college students or members of the clergy who did not meet state accreditation standards.
Such Bible study programs have generally been held unconstitutional because, the courts conclude, they teach the Bible as religious truth or are designed to inculcate particular religious sentiments. For a public school class to study the Bible without violating constitutional limits, the class would have to include critical rather than devotional readings and allow open inquiry into the history and content of biblical passages.
Christmas-themed music programs also have raised constitutional concerns. For a holiday music program to be constitutionally sound, the courts maintain, school officials must ensure the predominance of secular considerations, such as the program’s educational value or the musical qualities of the pieces. The schools also must be sensitive to the possibility that some students will feel coerced to participate in the program (Bauchman v. West High School, 10th U.S. Circuit Court of Appeals, 1997; Doe v. Duncanville Independent School District, 5th Circuit, 1995). Moreover, the courts have said, no student should be forced to sing or play music that offends their religious sensibilities. Therefore, schools must allow students the option not to participate.
Not all the cases involving religion in the curriculum concern the promotion of the beliefs of the majority. Indeed, challenges have come from Christian groups arguing that school policies discriminate against Christianity by promoting cultural pluralism.
In one example, the 2nd U.S. Circuit Court of Appeals considered a New York City Department of Education policy regulating the types of symbols displayed during the holiday seasons of various religions. The department allows the display of a menorah as a symbol for Hanukkah and a star and crescent to evoke Ramadan but permits the display of only secular symbols of Christmas, such as a Christmas tree; it explicitly forbids the display of a Christmas nativity scene in public schools.
Upholding the city’s policy, the Court of Appeals reasoned in Skoros v. Klein (2006) that city officials intended to promote cultural pluralism in the highly diverse setting of the New York City public schools. The court concluded that a “reasonable observer” would understand that the star and crescent combination and the menorah had secular as well as religious meanings. The judicial panel ruled that the policy, therefore, did not promote Judaism or Islam and did not denigrate Christianity.
In another high-profile case, Citizens for a Responsible Curriculum v. Montgomery County Public Schools (2005), a Maryland citizens’ group successfully challenged a health education curriculum that included discussion of sexual orientation. Ordinarily, opponents of homosexuality could not confidently cite the Establishment Clause as the basis for a complaint, because the curriculum typically would not advance a particular religious perspective. However, the Montgomery County curriculum included materials in teacher guides that disparaged some religious teachings on homosexuality as theologically flawed and contrasted those teachings with what the guide portrayed as the more acceptable and tolerant views of some other faiths. The district court concluded that the curriculum had both the purpose and effect of advancing certain faiths while denigrating the beliefs of others. The county rewrote these materials to exclude any reference to the views of particular faiths, making them more difficult to challenge successfully in court because the lessons did not condemn or praise any faith tradition.
Rights in and out of the classroom
At the time of its school prayer decisions in the early 1960s, the Supreme Court had never ruled on whether students have the right of free speech inside public schools. By the end of that decade, however, the court began to consider the question. And the results have made the rules for religious expression far more complex.
Rights of students
The leading Supreme Court decision on freedom of student speech is Tinker v. Des Moines School District (1969), , which upheld the right of students to wear armbands protesting the Vietnam War. The court ruled that school authorities may not suppress expression by students unless the expression significantly disrupts school discipline or invades the rights of others.
This endorsement of students’ freedom of speech did not entirely clarify things for school officials trying to determine students’ rights. Tinker supported student expression, but it did not attempt to reconcile that right of expression with the Supreme Court’s earlier decisions forbidding student participation in school-sponsored prayer and Bible reading. Some school officials responded to the mix of student liberties and restraints by forbidding certain forms of student-initiated religious expression such as the saying of grace before lunch in the school cafeteria, student-sponsored gatherings for prayer at designated spots on school property, or student proselytizing aimed at other students.
After years of uncertainty about these matters, several interest groups devoted to religious freedom and civil liberties drafted a set of guidelines, “Religious Expression in Public Schools,” which the U.S. Department of Education sent to every public school superintendent in 1995. The department revised the guidelines in 2003, placing somewhat greater emphasis on the rights of students to speak or associate for religious purposes. The guidelines highlight these four general principles:
- Students, acting on their own, have the same right to engage in religious activity and discussion as they do to engage in comparable secular activities.
- Students may offer a prayer or blessing before meals in school or assemble on school grounds for religious purposes to the same extent as other students who wish to express their personal views or assemble with others. (The new survey finds that 26% of religiously affiliated teens in public school say they often or sometimes pray before eating lunch.)
- Students may not engage in religious harassment of others or compel other students to participate in religious expression, and schools may control aggressive and unwanted proselytizing.
- Schools may neither favor nor disfavor students or groups on the basis of their religious identities.
A case decided by the 9th U.S. Circuit Court of Appeals underscores the difficulties that school officials still can face when students exercise their right to religious expression on school property. In this case, gay and lesbian students in a California high school organized a Day of Silence, in which students promoting tolerance of differences in sexual orientation refrained from speaking in school. The following day, Tyler Harper, a student at the school, wore a T-shirt that on the front read, “Be Ashamed, Our School Has Embraced What God Has Condemned,” and on the back, “Homosexuality Is Shameful, Romans 1:27.” School officials asked him to remove the shirt and took him out of class while they attempted to persuade him to do so.
The Court of Appeals, in Harper v. Poway Unified School District (2006), rejected Harper’s claim that the school officials violated his First Amendment rights. Judge Stephen Reinhardt, writing for a 2- 1 majority and citing Tinker, argued that students’ constitutional rights may be limited to prevent harming the rights of other students. He concluded that the T-shirt could be seen as violating school policies against harassment based on sexual orientation.
Writing in dissent, Judge Alex Kozinski asserted that the school’s sexual harassment policy was far too vague and sweeping to support a restriction on all anti-gay speech. He also argued that the school district had unlawfully discriminated against Harper’s freedom of speech. By permitting the Gay and Lesbian Alliance to conduct the Day of Silence, Kozinski said, the district was choosing sides on a controversial social issue and stifling religiously motivated speech on one side of the issue.
Harper petitioned the Supreme Court to review the appeals court decision. But Harper graduated from high school, and the case took a different turn. The Supreme Court, in early 2007, ordered the lower court to vacate its ruling and dismiss the case on the grounds that it had become moot.
Harper highlighted a tension – one that may yet recur – between the rights of students to engage in religious expression and the rights of other students to be educated in a non-hostile environment. The Supreme Court eventually may clarify school officials’ power to suppress speech as a means of protecting the rights of other students. For now, cases like Harper illustrate the difficulties for school officials in regulating student expression.
Rights of parents
Parents sometimes complain that secular practices at school inhibit their right to direct the religious upbringing of their children. These complaints typically rest on both the Free Exercise Clause of the First Amendment and the 14th Amendment’s Due Process Clause, which forbids the state to deprive any person of “life, liberty or property without due process of law.” The Supreme Court has interpreted them as protecting the right of parents to shape and control the education of their children. When they object to certain school practices, the parents often seek permission for their children to skip the offending lesson or class – to opt out – rather than try to end the practice schoolwide.
The first decision by the Supreme Court on parents’ rights to control their children’s education came in Pierce v. Society of Sisters (1925), which guarantees to parents the right to enroll their children in private rather than public schools, whether the private schools are religious or secular. In West Virginia State Board of Education v. Barnette (1943), the court upheld the right of public school students who were Jehovah’s Witnesses to refuse to salute the American flag. The students said the flag represented a graven image and that their religion forbade them from recognizing it. The court’s decision rested on the right of all students, not just those who are religiously motivated, to resist compulsory recitation of official orthodoxy, political or otherwise.
Of all the Supreme Court rulings supporting religious opt-outs, perhaps the most significant came in Wisconsin v. Yoder (1972), which upheld the right of members of the Old Order Amish to withdraw their children from formal education at the age of 14. The court determined that a state law requiring children to attend school until the age of 16 burdened the free exercise of their families’ religion. The Amish community had a well-established record as hardworking and law-abiding, the court noted, and Amish teens would receive home-based training. The worldly influences present in the school experience of teenagers, the court said, would undercut the continuity of agrarian life in the Amish community.
In later decisions, lower courts recognized religious opt-outs in other relatively narrow circumstances. Parents successfully cited religious grounds to win the right to remove their children from otherwise compulsory military training (Spence v. Bailey, 1972) and from a coeducational physical education class in which students had to dress in “immodest apparel” (Moody v. Cronin, 1979). In Menora v. Illinois High School Association (1982), the 7th U.S. Circuit Court of Appeals ruled that the Illinois High School Association was constitutionally obliged to accommodate Orthodox Jewish basketball players who wanted to wear a head covering, despite an association rule forbidding headgear. The Menora case involves a narrow exception from the dress code, rather than a broader right to opt out of a curriculum requirement.
A great many school districts, meanwhile, have recognized the force of parents’ religious or moral concerns on issues of sexuality and reproduction and have voluntarily provided opt-outs from classes devoted to those topics. Under these opt-out programs, parents do not have to explain their objection, religious or otherwise, to participation by their children. On other occasions, however, parental claims that the Constitution entitles them to remove their children from part or all of a public school curriculum have fared rather poorly.
The issue of home schooling is a good example. Before state legislatures passed laws allowing home schooling, parents seeking to educate their children at home were often unsuccessful in the courts. Many judges distinguished these home schooling cases from Yoder on the grounds that Yoder involved teenagers rather than young children. The judges also noted that Yoder was concerned with the survival of an entire religious community – the Old Order Amish – rather than the impact of education on a single family. Indeed, in virtually all the cases decided over the past 25 years, courts have found that the challenged curriculum requirement did not unconstitutionally burden parents’ religious choices.
The most famous of the cases is Mozert v. Hawkins County Board of Education (1987), in which a group of Tennessee parents complained that references to mental telepathy, evolution, secular humanism, feminism, pacifism and magic in a series of books in the reading curriculum offended the families’ Christian beliefs. The school board originally allowed children to choose alternative reading materials but then eliminated that option.
The 6th U.S. Circuit Court of Appeals ruled in the county’s favor on the grounds that students were not being asked to do anything in conflict with their religious obligations. Furthermore, the court said, the school board had a strong interest in exposing children to a variety of ideas and images and in using a uniform series of books for all children. Because the books did not explicitly adopt or denigrate particular religious beliefs, the court concluded, the parents could insist neither on the removal of the books from the schools nor on their children opting out.
The 1st U.S. Circuit Court of Appeals reached a similar conclusion in a case involving a public high school in Massachusetts that held a mandatory assembly devoted to AIDS and sex education. In that case, Brown v. Hot, Sexy, and Safer Productions (1995), the court rejected a complaint brought by parents who alleged that exposure to sexually explicit material infringed on their rights to religious freedom and control of the upbringing of their children. The court concluded that this one-time exposure to the material would not substantially burden the parents’ freedom to rear their children and that the school authorities had strong reasons to inform high school students about “safe sex.”
More recently, parents and students have, on religious liberty and other grounds, sued school districts that accommodate transgender students by allowing them to use bathroom and locker facilities that match their current gender identity rather than their sex at birth. Some parents and students argue that the new arrangements violate their religious liberty rights because the school policy forces them to accommodate a set of moral and religious beliefs they disagree with.
So far, however, federal courts have sided with school districts that have accommodated transgender students. For instance, in Parents for Privacy v. Dallas School District No. 2, a federal district court dismissed a suit against Oregon’s Dallas school district, stating that accommodating transgender students does not impinge on the religious rights of other students or their parents. And in 2019, the Supreme Court declined to review Doe v. Boyertown Area School District, letting stand a 3rd U.S. Circuit Court of Appeals ruling upholding a Pennsylvania school district’s policy to accommodate transgender students.
Rights of teachers and administrators
Without question, public school employees retain their rights to free exercise of religion. When off duty, school employees are free to engage in worship, proselytizing or any other lawful faith-based activity. When they are acting as representatives of a public school system, however, courts have said their rights are constrained by the Establishment Clause.
This limitation on religious expression raises difficult questions. The first is what limits school systems may impose on the ordinary and incidental expression of religious identity by teachers in the classroom. Most school systems permit teachers to wear religious clothing or jewelry. Similarly, teachers may disclose their religious identity; for instance, they need not refuse to answer when a student asks, “Do you celebrate Christmas or Hanukkah?” or “Did I see you at the Islamic center yesterday morning?”
At times, however, teachers act in an uninvited and overtly religious manner toward students and are asked by school administrators to refrain. When those requests have led to litigation, administrators invariably have prevailed on the grounds that they are obliged (for constitutional and pedagogical reasons) to be sensitive to a teacher’s coercive potential.
In Bishop v. Aronov (1991), for example, the 11th U.S. Circuit Court of Appeals upheld a set of restrictions imposed by the University of Alabama on a professor of exercise physiology. Professor Phillip Bishop had been speaking regularly to his class about the role of his Christian beliefs in his work and had scheduled an optional class in which he offered a “Christian perspective” on human physiology. The court recognized the university’s general authority to control the way in which instruction took place, noting that Bishop’s academic freedom was not jeopardized since he retained the right to express his religious views in his published writing and elsewhere.
In Roberts v. Madigan (1990), a federal district court similarly upheld the authority of a public school principal in Colorado to order a fifth-grade teacher to take down a religious poster from the classroom wall and to remove books titled “The Bible in Pictures” and “The Life of Jesus” from the classroom library. The court also backed the principal’s order that the teacher remove the Bible from his desktop and refrain from silently reading the Bible during instructional time. The court emphasized that school principals need such authority to prevent potential violations of the Establishment Clause and to protect students against a religiously coercive atmosphere.
That much is clear. What is less clear is how public school systems should draw the line between teachers’ official duties and their own time. That was the key question in Wigg v. Sioux Falls School District (8th U.S. Circuit Court of Appeals, 2004), in which a teacher sued the South Dakota school district for refusing to allow her to serve as an instructor in the Good News Club (an evangelical Christian group) that met after school hours at various public elementary schools in the district.
A federal district court ruled that the teacher, Barbara Wigg, should be free to participate in the club but said the school district could insist that the teacher not participate at the school where she was employed. The appellate court affirmed the decision but went further in protecting the teacher’s rights, concluding that the school district could not exclude her from the program at her own school. The court reasoned that once the school day ended, Wigg became a private citizen, leaving her free to be a Good News Club instructor at any school, including the one where she worked. The court ruled that no reasonable observer would perceive Wigg’s after-school role as being carried out on behalf of the school district, even though the club met on school property.
In general, then, the courts have ruled that public schools have substantial discretion to regulate the religious expression of teachers during instructional hours, especially when students are required to be present. The courts have also ruled, however, that attempts by schools to extend that control into non-instructional hours constitute an overly broad intrusion on the teachers’ religious freedom.
Religious activities and the principle of equal access
Over the past 20 years, evangelical Christians and others have advanced the rights of religious organizations to have equal access to meeting space and other forms of recognition provided by public schools to students. These organizations have consistently succeeded in securing the same privileges provided by public schools to secular groups.
Their victories have not been based on a claim that religious groups have a right to official recognition simply because they want to practice or preach their religion; instead, these cases have been won on free-speech grounds.
Whenever public schools recognize student extracurricular activities (for example, a student Republican club or an animal rights group), the schools are deemed to have created a forum for student expression. The constitutional rules governing the forum concept are complicated, but one consistent theme is that the state may not discriminate against a person or group seeking access to the forum based on that person’s or group’s viewpoint. In a now-lengthy line of decisions, the Supreme Court has ruled consistently that religious groups represent a particular viewpoint on the subjects they address and that officials may not exclude that viewpoint from a government-created forum for expression or association.
The first major decision in this area was Widmar v. Vincent (1981), , in which the Supreme Court ruled that the University of Missouri could not exclude from campus facilities a student group that wanted to use the school’s buildings for worship and Bible study. The university had refused the group access, asserting that the Establishment Clause forbade the use of a public university’s facilities for worship. The court rejected this defense, ruling that the university had allowed other student groups to use university property and that the complaining group could not be excluded on the basis of its religious viewpoint.
The Supreme Court later extended Widmar’s notion of equal access to nonstudent groups. They, too, should have access to public space, the court said. Despite the decision in Widmar, however, some public high schools continued to refuse access to student religious groups. Those schools took the view that prayer and Bible reading in public schools were constitutionally impermissible, even if wholly student initiated. At least one court of appeals has upheld that argument.
Congress responded by passing the Equal Access Act of 1984. As a condition for receiving federal financial aid, the law required that public secondary schools not discriminate on the basis of religion or political viewpoint in recognizing and supporting extracurricular activities. This law has benefited a variety of student organizations, from gay and lesbian groups to evangelical Christian clubs.
In 1985, a year after Congress passed the equal access law, school officials in Omaha, Nebraska, refused a student request for permission to form a Christian club at a public high school. The club’s activities included reading and discussing the Bible and engaging in prayer. The students filed suit under the Equal Access Act, and the school officials responded that allowing such a club in a public school would violate the Establishment Clause.
In the court case, Board of Education v. Mergens (1990), the Supreme Court upheld the Equal Access Act. The 8-1 majority reasoned that high schools were indistinguishable from universities for purposes of equal access to public facilities. Because there were many student groups devoted to different and frequently opposing causes, the court determined that no reasonable observer would see the school’s recognition of a religious group as an official endorsement of the group’s religious views.
The limits of Widmar and Mergens were later put to the test in Rosenberger v. University of Virginia (1995) and Good News Club v. Milford Central School District (2001). In Rosenberger, the Supreme Court held 5-4 that the Free Speech Clause of the First Amendment required a state university to grant the same printing subsidy to an evangelical journal that it made available to all other student journals. The dissenters argued, unsuccessfully, that state financial support for a proselytizing journal violated the Establishment Clause. In Good News Club, a 6-3 majority held that the Free Speech Clause prohibited an elementary school from excluding an evangelical Christian program for children from the list of accepted after-school activities.
These equal access decisions have led to new controversies in the lower courts. In Child Evangelism Fellowship of Maryland v. Montgomery County Public Schools (2006), for instance, a federal appellate court extended the equal access principle to fliers that schools distributed to students to take home for the purpose of informing parents about after-school activities. For years the county had distributed fliers for children’s sports leagues and activities like the Boy Scouts. But it refused to distribute fliers for the after-school programs of the Child Evangelism Fellowship of Maryland, which are not held on school property. The 4th U.S. Circuit Court of Appeals held that the county’s flier distribution policy was unconstitutionally discriminatory.
The presence of student religious groups in public schools has raised one additional issue. At times these groups insist that their officers make specific religious commitments, such as accepting Jesus Christ as savior and maintaining sexual abstinence outside of heterosexual marriage. As a result, some students are excluded from joining the group or from its leadership ranks. In Hsu v. Roslyn Union Free School District No. 3 (1996), the 2nd U.S. Circuit Court of Appeals held that the federal Equal Access Act gave students in an evangelical Christian group the right to maintain religious criteria for office. The court said the school’s policy against religious discrimination by student groups was unenforceable in this instance.
The issue arrived at the Supreme Court in 2010 in a case involving a public law school’s decision to deny official recognition to the Christian Legal Society (CLS), a nationwide, nondenominational organization of Christian lawyers, judges and law students. Although the case, Christian Legal Society v. Martinez, involved just one law school (the University of California, Hastings College of Law), other law schools around the country also had been sued by the organization for similar reasons. By the time the Supreme Court agreed to hear Martinez, lower federal courts in different cases had ruled both for and against the organization.
The case centered on Hastings’ policies toward student organizations. Student groups that are officially recognized by Hastings enjoy certain privileges, including access to school facilities and funding. But CLS membership requirements effectively bar non-Christians from becoming voting members and non-celibate gays and lesbians from assuming leadership positions, which conflicts with the law school’s stated policy of requiring registered student groups to accept any students as members. After Hastings refused to exempt CLS from the policy – known as the “all-comers” policy – the group sued, claiming the policy violated its First and 14th Amendment rights to free speech, expressive association and freedom of religious expression. A federal district court and the Court of Appeals for the 9th Circuit sided with Hastings, and CLS appealed to the Supreme Court.
The case was widely viewed as a contest between the right of free association and nondiscrimination policies. In its ruling, however, the court did not resolve any broad questions raised by this conflict. Instead, the 5-4 majority handed down a narrowly tailored decision that upheld the specific policy of Hastings Law School – the “all-comers” policy – as long as it is applied in an evenhanded manner.
Writing for the high court’s majority, Justice Ruth Bader Ginsburg said that Hastings’ policy requiring officially registered student groups to allow anyone to join does not unconstitutionally discriminate against groups with particular viewpoints or missions. Quite the contrary, she wrote, the policy is completely neutral since it requires all organizations to open their membership and leadership to all students. Ginsburg argued that it is CLS that wants an exemption from the policy and thus threatens its neutrality. Moreover, she wrote, an “all-comers” policy is reasonable for an educational institution because it encourages all groups to accept and interact with students who hold diverse views. Finally, Ginsburg noted that even though the Christian Legal Society has been denied official recognition by the law school, the group can, and still does, freely operate on campus and is even allowed to use school facilities to hold meetings.
Writing for the dissent, Justice Samuel A. Alito Jr. argued that by affirming Hastings’ policy, the majority sacrificed core First Amendment principles in favor of political correctness and armed “public educational institutions with a handy weapon for suppressing the speech of unpopular groups.” In addition, Alito asserted, the majority overlooked certain evidence demonstrating that Hastings had singled out CLS because of its beliefs. Prior to the lawsuit, he said, many officially recognized groups on the Hastings campus – not just CLS – had membership requirements written into their bylaws that were discriminatory. Justice Alito also disputed the majority’s contention that CLS, even without official recognition, can still effectively operate on campus, noting that the administration has ignored requests by the group to secure rooms for meetings and tables at campus events.
This report was written by Ira C. Lupu, F. Elwood and Eleanor Davis Professor Emeritus of Law at George Washington University Law School; David Masci, Senior Writer/Editor at Pew Research Center; and Robert W. Tuttle, David R. and Sherry Kirschner Berz Research Professor of Law & Religion at George Washington University Law School.