Americans United for Separation of Church and State
WINSTON-SALEM CHAPTER
June 4, 2014
North Carolina General Assembly
Legislative Building
16 West Jones Street
Raleigh, NC 27603
Re: Oppose SB 370 Establishing Respect for Public School Prayer and Religious
Activities
Dear Member:
On behalf of its North Carolina chapter and members, Americans United for Separation
of Church and State urges you to oppose SB 370. This bill would grant students the right
to engage in religious expression at all times in the public school classroom and at
school-sponsored events. Americans United strongly supports the right of students to
engage in free speech activities, but this legislation provides religious speech with
special treatment that is both inappropriate and unnecessary.
Although public-school students do not “shed their constitutional rights to freedom of
speech or expression at the schoolhouse gate,” 1 this right is not without limit. Schools must
allow students’ private, voluntary, personal expression. And the U.S. Constitution clearly
protects students’ rights to voluntarily pray and express religious viewpoints. However,
schools may maintain control of student expression in curricular activities, 2 and indeed, are
constitutionally required to prohibit certain types of religious expression. 3
This Bill Is Unnecessary
SB 370 purports to do nothing more than merely clarify what types of behaviors are allowed
under the U.S. Constitution and under federal and state law. Indeed, students already have
the right to engage in voluntary, student-initiated prayer that is not coercive and does not
disrupt the school’s educational mission and activities. 4 And, the right of students to engage
in voluntary prayer at public schools is already established in North Carolina statutory law.
The law currently states: “No local board of education shall have a policy of denying, or that
Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 506 (1969).
Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 271–73 (1988).
3 Walz v. Egg Harbor Twp. Bd. of Educ,. 342 F.3d 271, 279–81 (3d Cir. 2003); see also Busch v. Marple Newtown Sch.
Dist., 567 F.3d 89, 99 (3d Cir. 2009); Lassonde v. Pleasanton Unified Sch. Dist., 320 F.3d 979, 983–85 (9th Cir. 2003);
Cole v. Oroville Union High Sch. Dist., 228 F.3d 1092, 1101–04 (9th Cir. 2000).
4 See Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290, 302 (2000); Wallace v. Jaffree, 472 U.S. 38, 59 (1985).
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NATIONAL OFFICE
1301 K Street NW, Suite 850E—Washington, DC 20005
phone: (202) 466-3234 / fax: (202) 466-2587 / [email protected]
WINSTON-SALEM CHAPTER
P.O. BOX 24893– WINSTON-SALEM, NC 27114
PHONE: (336) 722-6723/ [email protected]
effectively prevents participation in, prayer in public schools by individuals on a voluntary
basis . . . or encourage or require any person to participate in prayer or influence the form or
content of any prayer in public schools.” 5
Moreover, religious student groups are also guaranteed the same access to campus as
any other group. The U.S. Supreme Court has held that religious groups have the right to
meet on school campuses during noninstructional time if other similar, non-curricular
groups do. 6 Additionally, under the federal Equal Access Act, 7 religious student groups
must be given the same access to school facilities as all other non-curriculum related
student groups. 8 In Westside Community Schools v. Mergens, 9 the U.S. Supreme Court
upheld the Equal Access Act as constitutional because it covered all forms of “religious,
political, philosophical, or other content of speech.” 10 Yet, unlike the Equal Access Act,
SB 370 seeks only to clarify that students engaging in religious speech have the same
rights as students engaging in nonreligious speech. Because current law already sets out
the rights of students to engage in student-led, voluntary prayer and establishes that
religious student groups may gather in the same manner as any other noncurricular
students group, this bill is unnecessary.
This Bill Encourages Religious Activity Prohibited by the Establishment Clause
Perhaps even more important, this bill should be rejected because its description of
students’ rights to gather to pray and to engage in religious activities in public schools
does not accurately reflect constitutional jurisprudence. Instead, it permits teachers and
staff—government officials—to participate in student prayer, which violates the
Constitution. The bill also encourages religious speech in public school classrooms, in
homework assignments or class projects, and in noncurricular student gatherings, as
well as allowing for the distribution of religious literature on school campuses. If North
Carolina is going to adopt a law clarifying the rights of students to engage in prayer and
religious activities, it should do just that – and not substantively expand the rights of
students beyond is constitutionally permissible. Nor should the legislature pass a bill
that will likely invite constitutional abuses and costly litigation.
N.C. GEN. STAT. §115C-47(29b)(2012).
Good News Club v. Milford Central School, 533 U.S. 98 (2001); Lamb’s Chapel v. Center Moriches Union Free School
District, 508 U.S. 384 (1993).
7 20 U.S.C. §4071 (1984).
8 The Equal Access Act states:
It shall be unlawful for any public secondary school which receives Federal financial assistance and which
has a limited open forum to deny equal access or a fair opportunity to, or discriminate against, any students
who wish to conduct a meeting within that limited open forum on the basis of religious, political,
philosophical, or other content of speech at such meetings.
9 496 U.S. 226 (1990).
10 Id. at 228.
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This Bill Encourages Religious Expression in the Classroom
Although students have the right to engage in voluntary, student-initiated prayer that is not
coercive and does not disrupt the school’s educational mission and activities, they may not
utilize the classroom to proselytize their fellow students. Because “[f]amilies entrust public
schools with the education of their children, but condition their trust on the understanding
that the classroom will not purposely be used to advance religious views that may conflict
with the private beliefs of the student and his or her family,” courts are “particularly vigilant
in monitoring” whether religious beliefs are taught in public schools. 11 This bill, however,
does not clearly differentiate between student expression that relates to personal
observance of religion and student expression that constitutes “outward promotion” of
religion or “proselytizes a particular view.” 12 The Constitution, at a minimum, guarantees
that the government may not coerce anyone to support or participate in religion or its
exercise, 13 but this bill fails to recognize this limitation.
“[P]ublic school officials entrusted with the education of youngsters can never give up
total control over the content of what transpires in classrooms, not least because the
children are a captive audience. . . . , they are most assuredly not free to get up and
leave.” 14 Yet, this bill fails to provide guidance to teachers and administrators about the
requirements to curtail certain constitutionally prohibited student religious expression.
The bill states that religious expression would have to be treated the same as
nonreligious expression in all instances. Even if a student’s work satisfies the confines of
the assignment, however, there is a constitutionally significant difference between one
student making a persuasive speech about his or her views on global warming and the
need to conserve energy and another student making a persuasive speech stating that all
students must accept Jesus Christ in order to achieve salvation. Yet, the bill would treat
both situations the same. In addition, SB 370 would have the effect of making students
who believe in minority faiths and who are non-believers feel like outsiders in their own
public schools, which is one of the very harms the First Amendment exists to prevent.
The Bill Allows Employees to Participate in the Prayers with Students
Although the language of SB 370 indicates that employees may not participate in a
manner that would violate the state or U.S. Constitution, in actuality, this bill would
authorize behavior that does just that. SB 370 states that school employees may not
only attend student-led prayer activities, but if present, “shall not be disrespectful . . . and
may adopt a respectful posture.” Moreover, the bill states that the local school board
may not prohibit school employees from participating in either student-led religious
activity during noninstructional time, or in any “other constitutionally permissible
religious activities on school grounds.”
Edwards v. Aguillard, 482 U.S. 578, 584 (1987).
Id. at 278.
13 Santa Fe, 530 U.S. at 302 (quoting Lee v. Weisman, 505 U.S. 577, 587 (1992)).
14 Berger v. Rensselaer Cent. Sch. Corp., 982 F.2d 1160, 1167 (7th Cir. 1993).
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Merely because a student-led activity is permissible, does not mean that the employees’
involvement also is. The cardinal rule of the Establishment Clause is that governmental
entities cannot take any action that “has the purpose or effect of ‘endorsing’ religion’”; 15
they must remain neutral. 16 The federal Equal Access Act, 17 recognizes this thin
boundary, and states that if a student group is meeting for any religious purpose, the
role of the faculty present must be a non-participatory role only, in order to prevent the
perception of government endorsement of the practice. 18 Yet, this bill explicitly allows
for school employees’ active participation. And the bill’s failure to define the terms
“adopt a respectful posture” and “shall not be disrespectful” means that employees have
little direction as to what type of behavior is permitted. It conceivably allows employees
to engage in a broad range of behaviors– from simply remaining silent, to bowing their
head, to actively engaging in the prayer – in almost any circumstance where religious
activity is taking place, solely because they deem it to be appropriate.
The Constitution forbids school officials from “lend[ing] the aura of school sponsorship
to [a] private religious enterprise.” 19 The bill, however, allows school employees to
actively engage in student-led prayer and religious expression on school campuses
would certainly create an aura of school sponsorship in a manner that would
unconstitutionally promote religion in the public school system.
Distribution of Religious Materials at School Can Lead to Constitutional Challenges
This bill also allows for students to “possess and distribute religious literature” in the
same manner as they may distribute non-religious literature, so long as it is “subject to
reasonable time, place, and manner restrictions.” Because students are already allowed
to distribute materials in school subject to these neutral restrictions, this bill does no
more than reiterate current law. 20
Yet, even though this bill is an unnecessary recitation of current law, it is worth noting
that opening the school doors to the distribution of outside and non-curricular literature
may pose challenges for school systems. School systems often fail to practice such
policies with neutrality. As an example, North Carolina’s Buncombe County School
System recently approved a policy that allowed for the Gideon International
organization to distribute Bibles at a local elementary school, while prohibiting pagan
Cnty. of Allegheny v. ACLU, 492 U.S. 573, 592 (1989).
McCreary Cnty. v. ACLU of Kentucky, 545 U.S. 844, 860 (2005).
17 20 U.S.C. §4071 (1984).
18 Westside Community Schools v. Mergens, 496 U.S. 226, 259 (1990)(citing 20 U.S.C. §4071(c)(3))).
19 Chandler v. James, 985 F. Supp. 1068, 1087 (M.D. Ala. 1997).
20 See, e.g., Peck v. Upshur Cty. Bd. of Educ., 155 F.3d 274 (4th Cir. 1998); Walker-Serrano, 325 F.3d at 419; Walz, 342
F.3d at 275.
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literature to be distributed at the same school. 21 This practice, of course, violates
neutrality and, thus, violates the Constitution. And, as Justice O’Connor has noted, even
a neutral policy may transform into government sponsorship of religion where “‘a
private religious group may so dominate a public forum that a formal policy of equal
access is transformed into a demonstration of approval . . . .’” 22
In addition, once the government opens a forum for private speech, it must treat all
viewpoints—religious and secular, popular and unpopular—equally. 23 This can open
the door to a huge influx in student materials allowed in public schools, given that every
type of viewpoint will want – and will rightly deserve – inclusion. Although the bill’s
reiteration of an all-inclusive policy is unnecessary, it is also problematic, given the
challenges likely to follow from its implementation.
This Bill Does Not Distinguish Between Elementary and Secondary School Policy
A further problem with this bill is its failure to distinguish between policies for religious
expression in secondary and elementary schools. Courts applying the Establishment Clause
have explained: “In elementary schools, the concerns animating the coercion principle are at
their strongest because of the impressionability of young elementary-age children.” 24
Elementary school students in particular have difficulty distinguishing “the line between
school-endorsed speech and merely allowable speech” because they are so “young” and
“impressionable.” 25 And, because of this, elementary schools are an especially
inappropriate forum for any advancement of religious views. 26
Courts have also held that the free speech rights of elementary school students are limited
as compared to secondary school students. Because elementary school students inherently
have a lower level of emotional maturity than older students, it is appropriate for school
officials to maintain a tighter control of the type of expression allowed within the
classroom. 27 Accordingly, teachers taking into account the age and maturity of their
students, may necessarily limit certain forms of expression, without running afoul of the
Romando Dixson, Woman Not Allowed to Drop off Pagan Books at Asheville Area School, CITIZEN-TIMES (Jan. 4, 2012)
available at http://www.citizen-times.com/article/20120105/NEWS/301050020/School-blocks-Pagan-bookgiveaway?odyssey=mod%7Cnewswell%7Ctext%7CFrontpage%7Cs.
22 Peck, 155 F.3d at 285 (quoting Capitol Square Review and Advisory Board v. Pinette, 515 U.S. 753 (O’Connor, J.,
concurring in part and concurring in the judgment)).
23 See Good News Club, 533 U.S. at 106; Lamb’s Chapel, 508 U.S. at 392-94 (1993).
24 Peck v. Upshur County Bd. of Educ., 155 F.3d 274, 287 n.* (4th Cir. 1998); see also Busch, 567 F.3d at 95–96, 99;
Berger v. Rensselaer Cent. Sch. Corp., 982 F.2d 1160, 1170 (7th Cir. 1993).
25 Walz v. Egg Harbor Twp. Bd. of Educ,., 277 (3d Cir. 2003).
26 Id.; see also Edwards v. Aguillard, 482 U.S. 578, 596 (1987)
27 See, e.g., Tinker v. Des Moines Indep. Sch. Dist. 393 U.S. 503 (1969); Walker-Serrano, 325 F.3d at 417 (finding that age
is crucial factor in the court’s analysis of students’ First Amendment rights, and that the younger the student, the
greater degree of control over student expression that is allowed).
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First Amendment. 28 Thus, a teacher in an elementary school classroom may necessarily
restrict the types of items that students bring in for show and tell, or may prohibit students
from expressing blatantly religious messages in the classroom. 29 Whereas high school
students have a greater understanding of the diversity of religious beliefs, this bill as applied
to elementary school children, would be an even more potent message of school-sponsored
religion.
Conclusion
Neither the state legislature nor the public school system should be in the business of
promoting speech that violates the First Amendment, nor should they seek to promote
policies that would coerce school children to listen to, participate in religious speech at
their public school. As the U.S. Supreme Court noted, “[w]hat to most believers may
seem nothing more than a reasonable request that the nonbeliever respect their
religious practices, in a school context may appear . . . to be an attempt to employ the
machinery of the State to enforce a religious orthodoxy.” 30 The legislature should not
encourage schools to create policies which will lead to unconstitutional state promotion
of religion.
For the reasons enumerated above, we strongly urge to you oppose SB 370.
Sincerely,
Charles Francis Wilson
President, Winston-Salem Chapter
Anne Griffis Wilson
Member, Winston-Salem Chapter
Walker-Serrano, 325 F.3d at 419 (“There can be no constitutional right, if any, to circulate a petition in an
elementary school in class during a quiet reading period or on an icy playground.”)
29 See Walz, 342 F.3d at 275.
30 Santa Fe, 530 U.S. 290, 312 (2000) (quoting Lee, 505 U.S. 577, 592).
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