By: Brooke R. Whitted & Malcolm C. Rich


The first words of the First Amendment to the United State Constitution set forth the guarantee of religious liberty known as the Establishment Clause:

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

According to the United States Supreme Court, the Establishment Clause can be described in the following way:

“Neither a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another…No person can be punished for entertaining or professing religious beliefs or disbeliefs, for church attendance or non-attendance…In the words of Jefferson, the clause against establishment of religion by law was intented to erect a “wall of separation between Church and State.” (citing Reynolds v. United States, 98 U.S. 145 (1878)). Everson v. the Board of Education of Ewing, 330 U.S. 1, 15-16 (1947).

The Court in Everson went on to say that the Constitution forbids State practices that “aid one religion…or prefer one religion over another.”

To implement the Establishment Clause, the Federal courts since 1971 have been utilizing the “Lemon Test” set forth in the case of Lemon v. Kurtzman, 403 U.S. 602 (1971). Under this test, a court must inquire (1) whether the government’s action has a secular or religious purpose; (2) whether the primary effect of the government’s action is to advance or endorse religion; and (3) whether government’s policy or practice fosters an excessive entanglement between government and religion.

There have been numerous Federal and State actions relating to the Establishment Clause in schools. This includes federal and state litigation. Balanced against the tenets of the Establishment Clause, however, are the requirements of the Free Exercise Clause of the First Amendment. The Free Exercise Clause establishes that government actions that burden an individual’s free exercise of religion can be sustained only if they are narrowly tailored to a compelling state interest. Many issues relating to religion in schools involve balancing the Establishment and Free Exercise Clauses of the First Amendment.

This memorandum will include a discussion of prayers within the graduation ceremony, student-initiated prayers, including proposed Illinois legislation; the recent 9th Circuit Court of Appeals decision regarding the Pledge of Allegiance; distributing Bibles in public schools; equal access to school facilities; Muslim civil rights in the schools; public school observance of religious holidays; and, finally, recent cases and events relating to religion in public schools.

Graduation Prayers

The United State Supreme Court has long held that the Establishment Clause forbids school-sponsored prayer. Nearly 40 years ago, the court struck down classroom prayers and scripture readings even when they were voluntary and students had the option of being excused. School District of Abington Township v. Schempp, 374 U.S. 203 (1963). In the 1980’s, the Supreme Court held that a school district may not require that the students observe a “moment of silence” at the beginning of the school day if the purpose of this requirement is that the students use the time for prayer. Wallace v. Jaffree, 472 U.S. 38 (1985).

In 1992, the Supreme Court held in Lee v. Weisman, 505 U.S. 577, 112 S.Ct. 2649 (1992), that prayer at public school graduation ceremonies violates the Establishment Clause of the U.S. Constitution. The court found that such actions inevitably have a coercive effect on students and because they convey a message of government endorsement of religion. It is important to know that the court held in this way, even though the school district did not require students to attend graduation in order to receive their diplomas. The court found that student participation in these kinds of events was “unfair and obligatory.” The court explained:

“The question is not the good faith of the school in attempting to make the prayeracceptable to most person, but the legitimacy of it undertaking that enterprise at all when the object was to produce a prayer to be used in a formal religious exercise whichstudents, for all practical purposes, are obliged to attend.” Id. at 2656.

In his concurrence, Mr. Justice Souter noted that it is 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 religious beliefs and practices are permitted only when they remove government-imposed burdens on the free exercise of religion.

Student-Initiated Prayers

In 1992 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 Independent School District, 977 F.2d 963 (5th Cir. 1992), cert. denied, 113 S.Ct. 2950 (1993). However, most other federal courts have disagreed with the 5th Circuit. Following the Supreme Court’s denial of certiorari in Jones, the Court of Appeals for the 3rd Circuit held that student-initiated graduation prayers violate the separation of church and state requirement of the Establishment Clause. 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.

According to these kinds of decisions, even when a majority of students ask a school district to allow a prayer at graduation, the requirements of the Establishment Clause are not changed. The purpose of the Establishment Clause is to prevent a majoritarian government from imposing particular religious beliefs on individuals in our society who do not share those beliefs. It’s that simple.

In the 2000 case of Santa Fe Independent School District v. Doe, 530 U.S. 290 (2000), the United States Supreme Court held that student-led prayer at football games violated the Establishment Clause. The students had voted to have a prayer, and then as to which student would lead the prayer. The chosen student wrote the prayer without interference by school authority. The court pointed out, however, that the “the whole theory of viewpoint neutrality is that minority views are treated with the same respect as our majority views.”

Despite the Supreme Court decision in Santa Fe Independent School District, the Illinois legislature in 2002 passed the “Silent Reflection Act,” which allows students in the public schools to “voluntarily engage” in student-initiated prayer. The bill provides that:

“Students may voluntarily engage in individually-initiated, non-disruptive prayer that is not sponsored, promoted, or endorsed in any manner by the school or any school employee.”

It then provides that the allowance of prayer be consistent with the Free Exercise and Establishment Clauses of the United States and Illinois Constitution. The Governor approved the bill in September 2002.

9th Circuit Court of Appeals Decision Regarding the Pledge of Allegiance

In June 2002, the 9th Circuit Court of Appeals issued a ruling in Newdow v. U.S. Congress, 292 F.3d 597, 2002 U.S. APP. LEXIS 12576. The case involved a plaintiff parent who had appealed from judgment of the United Stares District Court for the Eastern District of California, that dismissed his action challenging the Constitutionality of the words “under God” in the Pledge of Allegiance (Pledge). The court found that the parent had proper standing to challenge the use of “under God” on freedom of religion grounds, and then held that within the Pledge, that statement that the United States is one nation under God was an endorsement of religion, specifically, a belief in monotheism. The court then held that the school district’s practice of teacher-led recitation of the Pledge aimed to inculcate in students respect for the ideals set forth in the Pledge, which amounted to state endorsement of those ideals. The 9th Circuit found that the policy of the school district failed the effects prong of the “Lemon Test” for evaluating alleged violations of the prohibition against government establishment of religion.

In effect, the 9th Circuit applied an endorsement test for evaluating Establishment Clause violations. Under this test, the government conduct in question must have a secular purpose and must have a principal or primary effect that neither advances nor inhibits religion. The court found that the Pledge, including the words “under God,” is a government endorsement of religion. According to the court, endorsement sends a message to non-adherents that they are outsiders and, not full members of the political community. It also sends an “accompanying message to adherents that they are insiders, favored members of the political community.” The 9th Circuit ruled on these grounds that the Pledge does not pass muster under the Lemon Test, and therefore violates the Establishment Clause of the First Amendment. THIS HOLDING IS NOT INCONSISTENT WITH PREVAILING LAW, HOWEVER IT SPARKED SUBSTANTIAL CONTROVERSY.

In speaking to the press, Judge Godwin, who authored the majority opinion, said that the justices were “simply following U.S. Supreme Court precedents in handing down a finding consist with long-standing First Amendment law.”

Distributing Bibles in Public Schools

In 1993, the United States Court of Appeals for the 7th Circuit (or jurisdiction) ruled that an Indiana school district’s policy permitting representatives of Gideon International to distribute bibles in public schools during school hours violated the Establishment Clause. Berger v. Rensselaer Central School Corporation, 98 F.2d 1160 (7th Cir.), cert. denied, 113 S.Ct. 2344 (1993). In this case, the father of two public school children challenged the school district’s long-standing practice of allowing distribution of bibles to 5th grade students during school hours. Teachers did not participate in handing out the bibles and the bibles were not used for pedagogical purposes. However, the 7th Circuit held that the activity was “a far more glaring offense to First Amendment principles” then the non-sectarian graduation prayer at issue in Lee. The 7th Circuit relied on a long line of U.S. Supreme Court cases establishing that is impermissible for school officials to allow the state to be used to gather an audience for religious exercises or instruction. For example, in Illinois ex rel. McCollum v. Board of Education, 333 U.S. 203 (1948), the U.S. Supreme Court struck down a program allowing religious instructors to come into the public schools to teach sectarian classes during school hours. The action was said to violate one of the Establishment Clause’s most fundamental principle – that is, to turn government power over to a religious organization.

The 7th Circuit in Berger found that the school’s participation in bible distribution was impermissible and the district argued that the program is a valid part of a legally required education. According to the 7th Circuit, the practice carried the unmistakable message that religion is the norm and that non-adherents are something less than full members of the school community.

The 7th Circuit also dealt with the school district’s argument that barring the Gideons from distributing bibles in public schools would violate their First Amendment free speech rights. The 7th Circuit found that the free speech rights of individuals and religious groups to engage in religious expression is subservient to Establishment Clause concerns where those individuals or groups seek to observe their religion in a manner that unduly involves the government.

Equal Access to School Facilities

Federal case law has established that the Establishment Clause does not prohibit opening a public school’s facilities to religious groups, provided “no elements of school sponsorship or endorsement are present.” In fact, once a 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. One example is Cornelius v. NAACP Legal Defense in Education Fund, Inc., 473 U.S. 788 (1985).

In 1993 the United State Supreme Court held in Lamb’s Chapel v. Center Moriches Union Free School District, 508 U.S. 389, 113 S.Ct. 2141 (1993), that a school district violated First Amendment rights of a church by refusing to permit the church to exhibit on school property, during non-school, hours a film series dealing with family values, etc. from a religious perspective, even though the same facilities were open to other groups in the community desiring to address the same subjects from other perspectives.

Muslim Civil Rights in Schools

The Establishment Clause of the First Amendment must be carefully balanced against the Free Exercise Clause of the First Amendment, which provides that government actions directed at religion whaich burden the individual free exercise of religion can only be sustained if they are narrowly tailored to a compelling state interest. Even before September 11th, conflicts between religious practices of Muslims and school policies have been the subject of many complaints. Examples include the following:

(1) A Teacher asks a school district to allow her to take time off for a Muslim holiday. The school district denies the request, stating that this particular holiday was not on its school calendar.

(2) A father of three children complained that his children were forced to take music lessons despite the families’ religious objections.

(3) A graduating Muslim senior complains about his track and field coach, who told him that he would not be allowed on the track team with his beard, despite the student’s statement that the beard was for “religious purposes.”

(4) A father being denied a request that his son be allowed to leave school after the fourth period on Fridays for Friday prayers in the local Mosque.

(5) A ninth grader stating that it would violate her faith to exercise with boys in gym class, a request not heeded by the school district.

(6) Teachers requiring students to remove their headscarves despite the fact that they were told that the scarves were present for “religious purposes.”

While these examples involve the Muslim faith, the court’s balancing between the Establishment and Free Exercise Clauses has been at the heart of numerous complaints involving religion. One recent example comes from a 2000 case in Lafayette, Louisiana. Based on a lawsuit filed by the ACLU, the school board voted to enroll 8 children from one family who practice the Rastafarian belief. Under this belief system, children must wear head coverings and keep their dreadlocks, as allegedly required by Old Testament scripture. The school board agreed to the requests of the family under the First Amendment’s Free Exercise Clause, which produced a position of accommodation. Government actions specifically directed at religion must be tailored to a compelling state interest, while at the same time schools cannot use state machinery for the advancement of religion. At the heart of the case in Louisiana was the fact that the family did not seek to use any school related facilities or activities to promote their faith.

In September 2002, in a case involving the workplace, American Airlines agreed to pay $60,000.00 to a woman who was denied a uniformed job because she wanted to wear Islamic religious head covering while on duty. This case was brought by the Equal Employment Opportunity Commission and involved an incident that occurred in early 1998. It is important to note that in 1999, American Airlines enacted a Religious Accommodation Policy, which permits the wearing of hijabs, crucifixes, yamulkes, and other religious attire and jewelry by uniformed customer contact employees. The policy also establishes employee “prayer rooms” at American locations, allowed time away from duty for certain prayer obligations, and recognizes the prayer obligation needs of customers while on board American Airlines aircraft.

Public School Observances of Religious

Holidays Based on Supreme Court cases, the Constitution does not forbid the mere mention of religion in public schools, but public schools may not observe religious holidays in a manner that has an effect of promoting or endorsing of religious themes associated with religious holidays. In Florey v. Sioux Falls School District, 619 F.2d 1311 (8th Cir. 1980), cert. denied, 449 U.S. 987 (1980). The Court of Appeals for the 8th Circuit ruled that public schools may sponsor holiday observances, such as Christmas programs, so long as the programs deal with the “secular or cultural basis or heritage of the holidays.” Id. at 1317. Religious symbols “may be used only as a teaching aid or resources and only if they are displayed as part of the cultural and religious heritage of the holiday and are temporary in nature.” Id. at 1317. According to Florey, public school observances of religious holidays may address the religious aspects of the holiday as part of a “secular program of education.” In other words, religion can be part and parcel of the legitimate school curriculum. However, the curriculum cannot be used as a vehicle to promote a particular point of view, such as Christianity.

Current Events in Schools and Religion

In May 2002, the ACLU and Americans United for Separation of Church and State filed a lawsuit against school board officials in Kanawha Valley in West Virginia, claiming that a policy allowing school-sponsored prayer at graduation ceremonies violated the Establishment Clause of the First Amendment. In response to the suit, the school board rescinded the policy, thereby following U.S. Supreme Court precedent in this issue.

In December 2001, the 5th Circuit Court of Appeals ruled that a Louisiana law authorizing “spoken prayer” at public school-sponsored events, including in the classroom, was unconstitutional. Doe v. School Board, 274 F. 3d 289 (5th Cir. 2001).

In May 2001, a Federal district court in Illinois blocked school sanctioned prayers at a graduation ceremony at Washington Community High School. The prayers at the graduation ceremony were described by Washington school officials as student-led. The prayers were to be given by students who volunteered for the assignment and those delivering the invocation and benediction were also required to submit his or her draft remarks to a facility member, who was to review and approve the material before presentation at the graduation ceremony.