SUMMARY OF THE
STATE OF THE LAW REGARDING
SPEAKERS IN PUBLIC SCHOOLS
The first twenty-two words
of the First Amendment of the United States Constitution contain three
clauses--the Establishment Clause, the Free Exercise Clause, and the Free Speech
Clause: “Congress shall make no law respecting an establishment of
religion, or prohibiting the free exercise thereof; or abridging the
freedom of speech….” The First Amendment has been interpreted to apply not
only to Congress but also, via the Fourteenth Amendment, to States and
their political subdivisions, including public schools; and the word “law” has
been interpreted to include not only formal laws, but also government policies
With regard to religious
speech in public schools, the issue rests upon the clear principle to which the
United States Supreme Court has adhered for forty years, crystallized in
Bd. of Educ. v. Mergens, 496 U.S. 226 (1990): “[T]here is a crucial
difference between government speech endorsing religion, which the
Establishment Clause forbids, and private speech endorsing religion,
which the Free Speech and Free Exercise Clauses protect.” Id. at 250. In
this context, private speech is any speech, whether stated in private or
in public, attributable to a private individual as opposed to speech that is
attributable to the government. The distinction between government speakers and
private speakers is at the very core of the First Amendment. This same
distinction has also been articulated as: “[T]he Constitution is abridged when
the State affirmatively sponsors the particular religious practice of
prayer,” but “nothing in the Constitution…prohibits any public school student
from voluntarily praying at any time before, during, or after the schoolday.”
Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290, 313 (2000)
To elaborate: Religious speech
is attributable to the government (and, thus, affirmatively sponsored by the
government) if government officials select a religious message, Engel v.
Vitale, 370 U.S. 421 (1962), deliver a religious message, Abington Sch.
Dist. v. Schempp 374 U.S. 203 (1963), give special encouragement and
highlighting of a religious message as a favored practice, Wallace v. Jaffree,
472 U.S. 38 (1985), Treen v. Karen B., 455 U.S. 913 (1982), require,
arrange, and select a religious message to be given, Lee v. Weisman, 505
U.S. 577 (1992), or give an otherwise private speaker preferential access
to a school forum, program, audience, or facility for the purpose and intent of
having the speaker deliver a religious message, Santa Fe, 530 U.S. 290
(2000); Stone v. Graham, 449 U.S. 39 (1980). The Court has found no
exception in a school context to the rules stated in this paragraph since
Zorach v. CIauson. 343 U.S. 306 (1952).
If government has not
affirmatively sponsored the particular religious speech by one of the means just
discussed, that speech is deemed private (and voluntarily made), and
constitutionally protected. To elaborate: If a private speaker selects and
delivers his or her own message, if government employees express no opinion
about that message, if government employees have not highlighted religious
speech as a favored message, if government employees give the speaker no
preferential access to government fora, programs, audiences, or facilities, and
in general, if government employees treat the religious speaker like secular
speakers similarly situated, the religious speech is attributable to the
private speaker. This is the rule in public schools. Good News Club v.
Milford Central School, 533 U.S. 98 (2001); Lamb’s Chapel, 508 U.S.
384 (1993); Mergens, 496 U.S. 226 (1990). It is the rule in higher
education. Rosenberger v. Rector of the University of Virginia, 515 U.S.
819 (1995); Widmar v. Vincent, 454 U.S. 263 (1981). It is the rule on
other government property. Capitol Square Review and Advisory Bd. v. Pinette,
515 U.S. 753 (1995); Bd. of Airport Commissioners v. Jews for Jesus, 482
U.S. 569 (1987); Poulos v. New Hampshire, 345 U.S. 395 (1953); Fowler
v. Rhode Island, 345 U.S. 67 (1953); Niemotko v. Maryland, 340 U.S.
268 (1951). The Supreme Court has never found an exception in any context to the
rule stated in this paragraph. The Supreme Court has never held in any context,
that government may or must discriminate against a private speaker based on the
religious content of his speech.
If persons are speaking in
their private capacities, even before a school organized audience, then
government cannot discriminate against them based on the religious content of
their speech. As examples, the Court has pointed to students whose selection is
based on neutral criteria (as distinguished from students elected specifically
to pray) such as the typically elected “student body president, or even a newly
elected prom king or queen” as speakers who could use opportunities for public
speaking to say prayers without violating the Establishment Clause (Santa Fe,
530 U.S. at 304-05 n.15, 316 n.23, 321). Students are not transformed into
government speakers simply by ascending a podium.
The Establishment Clause is
not a limit on religious free speech by private speakers. The Supreme Court
has never held that the Establishment Clause limits the free speech rights of
private speakers. For recent cases rejecting such limits, see Good News Club
v. Milford Central School, 533 U.S. 98 (2001); Rosenberger, 515 U.S.
819; Pinette, 515 U.S. 753; and the string cite in Pinette, 515
U.S. at 760. Voluntary student speech that incidentally advances religion in
some sense, cannot itself violate the Establishment Clause. The Court has
consistently recognized “that a government [body] ‘normally can be held
responsible for a private decision only when it has exercised coercive power or
has provided such significant encouragement, either overt or covert, that the
choice must in law be deemed to be that of the [government].’” San Francisco
Arts & Athletics, Inc. v. United States Olympic Comm., 483 U.S. 522, 546
(1987) [quoting Blum v. Yaretsky, 457 U.S. 991, 1004 (1982)]; see also
Corp. of the Presiding Bishop v. Amos, 483 U.S. 327, 337 (1987) (holding
that “to have forbidden ‘effects’ under Lemon, it must be fair to say
that the government itself has advanced religion through its own
activities and influence”); Zelman v. Simmons-Harris, 536 U.S. 639,
653-55 (2002) (holding “we have never found a program of true private choice to
offend the Establishment Clause. We believe that the program challenged here is
a program of true private choice…neutral in all respects toward religion…. [N]o
reasonable observer would think a neutral program of private choice…carries with
it the imprimatur of government endorsement”).
By carefully distinguishing
government speech from private speech, the Supreme Court has adhered to a rule
forbidding the affirmative sponsorship of prayer by public schools. But
the common phrase to describe these cases in popular speech is simply “school
prayer.” This shorter phrase is not harmless, for it omits the critical concept
of affirmative sponsorship by the school. In Santa Fe, the most
recent prayer case, the Court equates voluntary student prayer to private
speech (“nothing in the Constitution as interpreted by this Court prohibits any
public school student from voluntarily praying at any time before,
during, or after the schoolday,” Santa Fe, 530 U.S. at 313); whereas
prayer borne out of a school’s policy that characterizes prayer as a
governmentally favored practice is implicitly deemed non-voluntary non-private
government speech. See id. In the latter case, due to the school’s own
affirmative highlighting of prayer as a favored practice, the school is deemed
to have “affirmatively sponsor[ed] the particular religious practice of prayer,”
which violates the Establishment Clause. Id.
Anti-religious school boards
having an exaggerated concern about the Establishment Clause and feeling it
their duty to cleanse public schools of religious expression offend the
Constitution every bit as much as pro-religious school boards. The First
Amendment does not convert public schools into religion free zones and into
institutions of religious apartheid, nor does it transform school officials into
prayer police or religious students into enemies of the state. Voluntary
faith-based student speech is just as constitutionally protected as voluntary
secular-based student speech: “Private religious speech, far from being a First
Amendment orphan, is as fully protected under the Free Speech Clause as secular
private expression.” Pinette, 515 U.S. 753, 760 (1995). “It can hardly
be argued that…students…shed their constitutional rights to freedom of speech or
expression at the schoolhouse gate.” Tinker v. Des Moines Indep. Community
Sch. Dist., 393 U.S. 503, 506 (1969). “[T]he First Amendment does not allow
the government to stifle prayers…neither does it permit the government to
undertake the task for itself.” Lee, 505 U.S. at 589 (1992). “Religious
expression[s] are too precious to be either proscribed or prescribed by the
State.” Id. “[N]othing in the Constitution as interpreted by this Court
prohibits any public school student from voluntarily praying at any time before,
during, or after the schoolday.” Santa Fe, 530 U.S. at 313.
As to otherwise permissible
subjects and topics, schools may not apply restrictions on the time, place, and
manner of students’ voluntary faith-based speech which exceed those placed on
students’ secular-based speech: “[S]peech discussing otherwise permissible
subjects cannot be excluded from a limited public forum on the ground that the
subject is discussed from a religious viewpoint.” Good News Club, 533
U.S. at 111-12. Excluding a “religious perspective constitutes unconstitutional
viewpoint discrimination,” not just subject matter or topic discrimination.
Id. at 107 n. 2. Even in a “non-public forum…, the government violates the
First Amendment when it denies access to a speaker solely to suppress the point
of view he espouses on an otherwise includible subject.” Cornelius v. NAACP
Legal Defense & Educational Fund, 473 U.S. 788, 806 (1985); see also
Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 46
(1983), Lamb’s Chapel, 508 U.S. at 394, Rosenberger, 515 U.S. at
“The proposition that public
schools do not endorse everything they fail to censor is not complicated.”
Mergens, 496 U.S. at 250 (1990). The duty of America’s public schools,
school boards, and school officials is to protect both religious and secular
speech and to remain neutral between the two.
2007, Texas passed the Schoolchildren’s Religious Liberties Act (also named the
Religious Viewpoints Antidiscrimination Act) which codifies the above case law.
here for full text of Texas Act.
For all other states that do not yet have specific state legislation on the
subject, school boards must, nevertheless, apply the same legal principles. To
provide schools with guidance in this legal area, the U.S. Department of
Education has published "Guidance on Constitutionally Protected Prayer in Public
Elementary and Secondary Schools" (“Prayer Guidance”) which all public schools
are required to follow and file an annual compliance certification as a
condition of receiving annual federal funds.
Click here for full
An illustrative local model policy giving effect to the Prayer Guidance (which
is the same as the model policy part of the new Texas Act) is attached.
Click here for full text.
Prior to the model policy becoming a part of the new Texas Act, a number of
school districts had already adopted a virtually identical model policy--drafted
by the same attorney who drafted the new Texas Act and model policy part of that
Act--and had a 4-6 year history of results under the model policy.
Click here for a discussion of the model policy and
School districts outside of Texas should consider adopting, as their local
policy, the model policy to bring their district in compliance with the U.S.
Department of Education Prayer Guidance.