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|Religious expression can be considered protected speech under the Free Speech Clause. When protected speech is at issue, the freedom of speech will weigh heavily against a violation of the Establishment Clause.|
The Court has repeatedly shown this in its rulings regarding religious group access to school facilities. In Widmar v. Vincent, the Court ruled against a school that prohibited religious groups from using school facilities for worship or religious discussion. Determining that a school opening its facilities for student groups created a public forum, the Court then analyzed the school’s conduct under a freedom of speech analysis, determining that it was not content-neutral because it discriminated against religious speech. The Court applied the Lemon Test as well, and held that excluding religious speech was not necessary to uphold the Establishment Clause. Keeping a forum open to all groups and messages furthered the secular purpose of providing a forum for students, advancement of religion was ‘incidental’, and no surveillance would be needed.
The Court ruled this way in several very similar cases, including in Lamb’s Chapel v. Center Moriches Union Free School District. In Lamb’s Chapel, the Court specifically states that the government must meet a strict scrutiny standard in order to discriminate against religious speech. Because the law passed the lemon test, the majority reasoned that fear of violating the Establishment Clause could not be the compelling reason for the school in this case to discriminate against religious speech.
The cases allowing religious groups access to school facilities despite the Establishment Clause also have been used to justify school funding for religious student activities. In Rosenberg v. Rector and Visitors of the University of Virginia, the Court ruled against a state university’s denial of activity funding for a Christian student group which published a Christian magazine. The majority, written by Justice Kennedy, first used a freedom of speech analysis to determine that this was not a content-neutral prohibition. Next, the majority held that this did not violate the Establishment clause because the funding distribution was neutral to religion. The majority cited the decision in Widmar and Lamb’s, stating there was no difference between a school using funds to neutrally give groups access to its facilities and a school using funds for all groups neutrally for activities like printing a magazine.
Despite the cases above, the Court still has acted at other times to limit religious speech and expression at schools. In Santa Fe Independent School District v. Doe, the Court held that student-delivered prayers at school football games was unconstitutional. The Court determined that football games were not forums where students could say whatever they wanted – the school could restrict the messages. Therefore by allowing prayer before games, the school was in fact endorsing and facilitating prayer, rather than simply allowing private speech.
|Widmar v. Vincent (1981)Lamb’s chapel v. Center Moriches Union Free School Dist. (1993)|
|Attendance and Release||Important Cases|
|The first Supreme Court cases to deal with religion in public schools involved the determination of whether or not students could be allowed to leave to attend religious classes. McCollum v. Board of Education, decided in 1948, ruled that this was unconstitutional when the church used the public school to get this attendance. In McCollum, the religious classes were taught in the building by outside teachers approved by the school. The Court reasoned that this was impermissible because it used tax-supported public schools to disseminate religious doctrine. Additionally, because children were required to attend the public school by law, the religious classes were basically using the mandatory public school law to get attendance.|
However, shortly thereafter in 1952, the Court ruled the opposite in Zorach v. Clauson. In that decision the Court allowed early dismissal for religious instruction because the teaching was outside of the school. The majority stressed that the country had a history as a religious people, and that this was merely accommodating that – also, unlike McCollum, the school was not involved in the actual religious teaching.
|McCollum v. Board of Education (1948)|
|The Court has struck down government decisions regarding curriculum where the curriculum was motivated by religion. A significant amount of this litigation has arose in regards to the teaching of the theory of evolution in the classroom.|
In Epperson v. Arkansas, a state law prohibiting the teaching of evolution in state supported schools was struck down as unconstitutional. The law violated the Establishment Clause because it was motivated by a religious purpose, and the state cannot tailor its public education towards one particular religion’s beliefs. Additionally, the Court noted that the state had no legitimate interest in shielding religions from views it may find disagreeable.
In the 1987 case Edwards v. Aguillard, the Court struck down a law which required that creationism be taught alongside evolution. The Court cited Epperson, and determined that the purpose of the law was to provide “persuasive advantage” to the views of one religion that denied evolution. This advancement of a religious belief was unconstitutional.
Epperson v. Arkansas (1968)Edwards v. Aguillard (1987)
|The first decision to hold that prayer in public school was unconstitutional was in the 1962 decision Engel v. Vitale. A school policy to daily recite a non-denominational prayer, written by a State Board of Regents, was struck down as a violation of the Establishment Clause. The Court concluded that regardless of the supposed “denominational” nature of the prayer, it still clearly established religious beliefs on behalf of the Board. Justice Black’s opinion discussed that the quality of both religion and government are threatened when they two are combined. The government writing a prayer and then requiring it be recited before school clearly mixed religion and government. The opinion stressed that this was not an anti-religious ruling, because it kept prayer in the hands of the people rather than under the control of the state (like the school board writing prayers).|
Decided shortly after Vitale, Abington School District v. Schempp held that a school policy of reading from the bible and reciting the Lord’s Prayer daily in unison was also a violation of the Establishment Clause. Although the State was not composing the prayers like in Vitale, the fact that they were happening in school buildings, as part of the curriculum, under the supervision of teachers was still enough to violate the Clause. The Court stressed that this was different than reciting the Bible in a class on religion or literature – this was active religious practice.
Even moments of silence for prayer or meditation have been struck down as violating the Establishment clause. In Wallace v. Jaffree, the Court ruled an Alabama law requiring a moment of silence for prayer or meditation was unconstitutional. After examining the legislative history, the Court determined that it was clear the intent was to reintroduce prayer back into public schools. The Court could not determine any secular purpose to the statute, and struck it down.
Clergy-led prayers at high school graduations have also been ruled unconstitutional in Lee v. Weisman. The majority cited to the prior prayer-related cases, as well as noting the inherent coercion in having prayer at a graduation ceremony. Graduations are a very important day to many people, and those people would feel compelled to go. This would mean that they were being compelled and pressured into religious exposure.
Justice Scalia, joined by Chief Justice Rehnquist, and Justice’s Thomas and White, wrote a strong dissent in the case, finding nothing about a prayer during a graduation ceremony in violation of the Establishment Clause. Scalia argued that the Government should accommodate religion, which would both teach the civic virtue of respecting other’s religious beliefs, as well as uphold American traditions of prayer at official ceremonies
|Engel v. Vitale (1962)Abington School District v. Schempp (1963)|
|Aid for Elementary and Secondary Education||Important Cases|
|When determining whether or not the government can aid private religious schools, courts will first evaluate whether or not the aid is available to all students or just religious students. One of the earliest and most influential cases in this regard is Everson v. Board of Ewing Township, decided in 1947. At issue was whether New Jersey could use tax-payer funds to subsidize school busing to parochial schools. The Court answered in the affirmative, noting that the law applied to students in general, not just private school students. Additionally, the law was passed with a secular purpose – getting children to school. Everson was an extremely important case for the Establishment Clause because it for the first time incorporated the Clause through the 14th amendment so that it applied to the states as well as the federal government.|
In Committee for Public Education v. Nyquist and Sloan v. Lemon, two different state systems for reimbursing the educational costs of students going to private schools were struck down as violating the Establishment Clause. The aid only benefited private school students, and therefore had the effect of advancing religion. Additionally, the money involved in Nyquist was being given in lump sums to the school, rather than to the student. This further violated the barrier between church and state.
When tax credits or aid are available to all students, public and private, the Court has been much more likely to accept them as constitutional. In Mueller v. Allen, the Court upheld tax credits that applied to all students. The Lemon test was applied. The statute’s secular purpose of defraying the costs of education satisfied the first prong. Differentiating Mueller from Nyquist, the Court determined that the law satisfied the second prong because it advanced all students in a neutral manner rather than only private students. Lastly, since no ongoing surveillance or monitoring was necessary, the act fulfilled the last prong.
School vouchers were similarly upheld as constitutional under the Establishment Clause when they applied evenly to all students. In the 2002 decision Zelman v. Simmons-Harris, the Court upheld Ohio’s voucher program. The vote was 5-4, but the majority held that when a government aid program is neutral in respect to distribution, it does not violate the Establishment Clause if the family recipient then chooses to use it for a religious private school.
The Court will also look to see whether or not the aid is going towards teaching of secular topics or being used for religious instruction. For example, although funding busing to parochial schools was upheld in Everson, funding for parochial school trips was declared to be unconstitutional in Wolman v. Wolter because those are more likely to advance religious education. Likewise, in the government can fund standardized testing given to private school children (Committee for Public Education and Religious Liberty v. Regan) but cannot for teacher-written exams (Levitt v. Community for Public Ed.). This is because it is much more likely for a teacher-written exam at a parochial school to advance religion.
The former strict separation the Court enforced in regards to aid has become more relaxed over time, however. In Agostini v. Felton, decided in 1997, the Court overruled the 1985 decision in Aguilar v. Felton, which had held that it violated the Establishment Clause to allow the government to send in remedial education teachers to parochial schools. In 1993, the Court also ruled that sign language interpreters could be provided by the government for parochial students.
Although these may turn out to be narrow exceptions, separation has been relaxed in other areas too. For example, in the 2000 decision Mitchell v. Helms, the Court allowed the government to provide instructional equipment to parochial schools. This included lab equipment, recording equipment, projects, and printed materials. The decision in Mitchell overruled an earlier case, Meek v. Pittinger, which had said this was a violation of the Establishment Clause because the equipment could be converted to teach religion. The plurality in Mitchell, led by Justice Thomas, stated that the important factor was that the distribution of the equipment was neutral to both public and private schools. The plurality argued that it didn’t make a difference if the equipment was converted to religious use – any aid given, even if for secular use, would free up funding for the religious schools to use for religious purposes regardless.
|Everson v. Board of Education (1947)Sloan v. Lemon (1973)|
|Aid for Higher Education||Important Cases|
|The Court has treated government aid for religious colleges and universities very differently than that of lower education. In Tilton v. Richardson, the Court upheld the government funding construction of facilities at religious colleges and universities. Applying the Lemon test, the Court determined that the funding had a secular purpose: accommodating a larger number of people seeking degrees. Additionally, the Court noted that the buildings being constructed were not going to be used for religious instruction, per limitations made in the grants (the Court struck down a provision of the funding that would allow religious use after 20 years). Lastly, no monitoring or surveillance was necessary. The Court further reasoned that differences between higher education and lower education made this less of an issue – college students are less impressionable than children, and religious teaching is less emphasized in higher levels.|
Direct aid to private universities and colleges was upheld in Roemer v. Board of Public Works in 1976. The Maryland law in question provided grants at %15 of the amount it spent on public students. All religious schools aside from seminaries could accept this aid. The plurality determined it met the Lemon test – it served the purpose of promoting private higher education generally, the funds were not allowed to be used for religious activity by law, and there was no excessive entanglement. Regarding the entanglement, the plurality stated that the political divisiveness that would come with aiding a religious elementary school would not occur at a higher education level because the student body was larger and more diverse.
|Tilton v. Richardson (1971)|