Rights Watch

January 2005

Courts Tackle Thorny Church-State Issues

Can teachers lead prayers, distribute religious take-home fliers, or participate in student religious clubs? The answers might surprise you.

Many school officials mistakenly believe that schools have to be "religion-free zones."  That's not so, and six recent federal court rulings provide much-needed guidance on several delicate questions involving religion in the schools.

The hottest issue by far is whether schools have to allow religious and evangelical groups to distribute promotional fliers through student backpacks. The unanimous answer of three federal circuit courts is "yes," but only if the school allows a wide array of other community groups to do so.

Last June, for example, the Fourth Circuit Court of Appeals ruled that the Montgomery County (Maryland) Public Schools (MCPS) violated the free speech rights of the Child Evangelism Fellowship by refusing to disseminate notices about after-school meetings of student religious clubs sponsored by the group.

The court didn't buy the school's argument that requiring elementary teachers to distribute the fliers to their students, who were then expected to deliver the notices home to their parents, constitutes an endorsement of religion prohibited by the Establishment Clause. Emphasizing that students received some 415 fliers from more than 225 organizations over an 18-month period, the court ruled that MCPS couldn't deny access to the school's backpack distribution system simply because a group wanted to promote religious activities.

Last August, the Sixth Circuit Court of Appeals reached the same conclusion, upholding an Ohio school district's practice of using students to take home fliers from community organizations, including notices from local churches advertising religious activities. 

And in December 2003, the Ninth Circuit Court of Appeals ruled that an Arizona school district violated the First Amendment by refusing to distribute promotional brochures for a religious summer camp. The Court cautioned, however, that schools still can refuse to distribute "literature that itself contains proselytizing language," which the court distinguished from fliers inviting students to join in activities or meetings sponsored by religious groups.

The battle in Montgomery County is far from over. A few weeks after the Fourth Circuit's decision, the school board voted to greatly reduce the use of its take-home flier service by limiting access only to the school district, government agencies, PTAs, day care centers, and sports leagues. Under the new policy, the Child Evangelism Fellowship, the Boy Scouts of America, and other outside groups will be denied access. Several of such groups have threatened another legal challenge.

On the school prayer front, recent decisions reaffirm that neither teachers nor administrators can promote prayer in school, although students continue to enjoy the right to pray individually or in groups while at school.

In Arkansas, for example, teacher Steve Warnock sued his superintendent and the Devalls Bluff School District, challenging the superintendent's practice of conducting prayers at mandatory teacher meetings and in-service training sessions. Last August, the Eighth Circuit Court of Appeals ruled that such prayers violate the Establishment Clause.

And last May, the Eleventh Circuit Court of Appeals held that an Alabama teacher stepped over the line at the beginning of each class by inviting her students to offer "prayer requests" and by announcing "let us pray," pausing for a moment of silence, and then saying "Amen."  The court also ruled that the same teacher violated the free speech rights of one of her students by punishing him for silently raising his fist during the daily recitation of the Pledge of Allegiance.

Finally, a South Dakota teacher sued the Sioux Falls School District after she was denied permission to participate in after-school meetings of a student religious club at the elementary school where she taught. Emphasizing that she was "off the clock" and attending the club meeting not as a teacher but as a private citizen, the Eighth Circuit ruled in September that the restriction violated her free speech rights.

— Michael D. Simpson
NEA Office of General Counsel

Religion and Public Schools: There's A Consensus

NEA and a broad coalition of religious and education-related organizations, ranging from the Christian Educators Association International to the National School Boards Association, have endorsed three statements on the proper relationship between religion and public schools:  "The Bible & Public Schools," "A Teacher's Guide to Religion in the Public Schools," and  "Religious Liberty, Public Education, and the Future of American Democracy—A Statement of Principles." These statements are available at: www.firstamendmentcenter.org/PDF/bibleguide.PDF; www.firstamendmentcenter.org/PDF/teachersguide.PDF; and www.firstamendmentcenter.org/PDF/statementofprinciples.PDF