Religion in Public School Classrooms, Hallways,
Schoolyards and Websites: From 1967 to 2017
and Beyond
Panelists:
Randall G. Bennett,
Deputy Executive Director & General Counsel
Tennessee School Boards Association
Charles C. Haynes,
Vice President
NEWSEUM INSTITUTE
Religious Freedom Center
Jay Worona
Deputy Executive Director & General Counsel
New York State School Boards Association
First Amendment Rights -Defining the Essential Terms
 The Establishment Clause of the First
Amendment to the United States Constitution
provides that Congress shall make no law
respecting an establishment of religion. (U.S.
Const. Amend. I.)
 The Free Exercise Clause of the First
Amendment to the United States Constitution
provides that Congress shall make no law. . .
prohibiting the free exercise thereof. (U.S.
Const. Amend. I.) p. 1
1
Aid to Parochial Schools
The Supreme Court has determined that it is
constitutionally permissible to provide
government benefits directly to the students
and/or their parents, but that the
Establishment Clause prohibits the direct
grant of government benefits to
the parochial school institution.
(See footnote 1 p. 2-3)
Aid to Parochial Schools
In Mitchell v. Helms, the Supreme Court, in
explicitly reversing decades of prior decisions,
ruled constitutional the use of federal block
grant monies under Chapter 2 of Title I of the
ESEA to purchase and loan to computer
hardware and software to sectarian schools.
The Court reasoned that only governmental aid
to religious schools that results in religious
indoctrination can be reasonably attributed to
governmental action. (p.3)
2
Vouchers
In Zelman v. Simmons-Harris, in a five to
four emotionally charged decision, the
United States Supreme Court ruled
constitutional Cleveland’s school voucher
program concluding that Cleveland’s
voucher plan was a program of “true private
choice” and as such was not a
governmentally supported program of
support for religion. (p.3-5)
Income Tax Credits
Winn v. Arizona Christian School Tuition Organization, By
a 5-4 vote, the United States Supreme Court upheld an
Arizona law which granted income tax credits to taxpayers
who made contributions to nonprofit organizations called
“school tuition organizations” (STOs) that, in turn, awarded
private school scholarships to children. The Court ruled that
that there was no individual standing to bring a taxpayer
action under Article III because there was no injury to the
individual taxpayers that allowed a challenge to government
taxing scheme since, there was no particular injury “by means
of the “taxing and spending power” of the government
through its treasury to a “sectarian entity.” A tax credit, in the
view of the majority, is akin to the government declining to
impose a tax. (p.5-6)
3
State Constitutional
Church/State Provisions
In a 7-2 decision, the United States Supreme
Court in Locke v. Davey, upheld a Washington
State law which specifically prohibits the use of
state scholarship funds from being provided to
individuals who wish to pursue a degree in
theology. The Court chose not to answer the
question of whether that state’s broader
constitutional prohibition of funding any
institution under the direct control of a
religious denomination was constitutional. (p.5)
The Supremes to Weigh In.
On January 15th, the U.S. Supreme Court agreed to hear the
case of Trinity Lutheran Church of Columbia, Inc. v.
Pauley, in which two lower federal courts upheld the State of
Missouri’s exclusion of a church from a state program that
provided grants to help non-profits buy rubber playground
surfaces. The Church argued that the state’s actions
discriminated against religious institutions in violation both
the Free Exercise and Equal Protection Clauses. In ruling for
the State, the lower courts relied upon the Supreme Court’s
previous decision in Locke v. Davey. The church has
countered that Locke reflected a unique historical concernstate funding for the religious training of clergy-rather than
“the identity of those who were using the money.”
4
Prayer In Public Schools
The United States Supreme Court has ruled
repeatedly that the principles of the separation
of church and state embodied in the
Establishment Clause of the First Amendment
prohibit school-sponsored prayers and
religious exercises, even when the prayer is
nondenominational and participation is
voluntary.
Prayer During Public
School Board Meetings
In Town of Greece, NY. v. Galloway, although
not a school case, the U.S. Supreme Court
rejected the argument that a town
governmental body which began its meetings
with a prayer should have ensured such prayers
were nonsectarian and include references only
to a “generic God” as well as not be identifiable
with any one religion because “government
may not seek to define permissible categories of
religious speech.” (p.17)
5
Devotional Activities in Public
Schools
Engle v. Vitale (p.7) The U.S. Supreme Court
rules unconstitutional a New York statute
calling for non-denominational prayer in
public schools prepared by the New York
State Board of Regents.
Devotional Activities in Public
Schools
Florey v. Sioux Falls (p.7), a federal
appeals court ruled the Establishment
Clause is not violated by a school's
observance of holidays which have both a
religious and a secular basis through
programs containing music, art, literature
and drama having religious themes and by
the temporary display of religious symbols.
.
6
Moments Of Silence
In Wallace v. Jaffree, the United States
Supreme Court held that an Alabama statute
which authorized a one-minute period of
silence in public schools for meditation or
voluntary prayer was unconstitutional. (p.8)
Benedictions, Invocations and
Student Led Prayer
The Supreme Court in Lee v. Weisman held
that benedictions and invocations by a
member of the clergy at a public school
graduation ceremony violated the
Establishment Clause of the First
Amendment, despite the fact that students
were not compelled to attend
graduation ceremonies. (p.7)
7
Santa Fe Independent School
District v. Doe
In Santa Fe Independent School District v. Doe,
the U.S. Supreme Court held unconstitutional, a
public school prayer policy permitting student-led
prayer at football games. The Court explicitly
rejected the school district’s argument that the policy
did not create governmentally supported religious
speech because such speech was really private
student speech which was not controlled by the
district. (p.11)
Question
After Santa Fe v. Doe, may or must school
districts control the content of student speech at
graduation ceremonies so as to avoid speech
which might be proselytizing in nature?
8
Use of School Facilities By Outside
Religious Groups
In more recent times, litigation has been
commenced by outside religious groups
who have claimed that certain school
districts unconstitutionally precluded them
from accessing district
facilities for the purpose
of holding religious
services or religious
instruction.
Religious Use of School Facilities
By Outside Groups
In Lamb’s Chapel v. Center
Moriches Union Free School District, the
Supreme Court held that a school district
could not discriminate on the basis of
viewpoint by permitting school property to
be used for the presentation of all views
concerning family issues and child rearing
except those dealing with the subject matter
from a religious standpoint. (p.22)
9
Religious Use of School Facilities
By Outside Groups
In Good News Club v. Milford Central School, the
United States Supreme Court in a 6-3
decision held that a school district violated
the constitutional rights of a Christian youth
organization when it refused to allow the
group to conduct religious instruction and
prayer in a public elementary schoolhouse
after school hours. (p.22-23)
Religious Use of School Facilities
By Outside Groups
Issue Presented after Good News Club:
Must a school district which permits its
premises to be utilized for certain nonschool-related purposes, permit its facilities
to be utilized by an outside religious group
for purposes of conducting religious
worship services?
10
Religious Use of School Facilities
By Outside Groups
In Bronx Household of Faith v. Board of Educ. of the City
of New York, the Second Circuit ruled that school districts
are not required to permit outside church groups from utilizing
school district premises on Sundays to hold religious worship
services. The court ruled that the Free Exercise Clause provide
protections but that it does not “require government to finance
a subject’s exercise of religion” and, that in this case, there
was no evidence that the regulation was motivated by hostility
toward religion. A school board that “makes a reasonable,
good faith judgment that it runs a substantial risk of incurring
a violation of the Establishment Clause by hosting and
subsidizing the conduct of religious worship services” does
not act unconstitutionally in disallowing such use. (p.23-24).

Responding to Requests for
Religious Accomdations
 Since students are not precluded from
privately engaging in religious
expression, what are a school district’s
obligations and/or entitlements in this
area?
 Are making accommodations required?
 Are making accommodations permitted?

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Responding to Requests for
Religious Accommodations
Generally, school districts must determine
whether making religious accommodations
will enable them to still fulfill their
responsibilities to provide children making
such requests with meaningful educational
opportunities consistent with state and
federal law and whether making the
accommodations comport with separation
of church-state principles.
Responding to Requests for
Religious Accommodations
School districts must also ensure that all
students seeking religious accommodations
are treated fairly and consistently.
Case law regarding religious accommodations
in school, in general, is sparse and
contradictory.
12
Requests to be Excused from
Compulsory Attendance
RARE EXCEPTIONS:
In Yoder v. Wisconsin, the U.S. Supreme Court
ruled that a state could not enforce it’s compulsory
education attendance laws to require Amish
children to attend school past the eighth grade
since the enforcement in this case would have
destroyed their ability to practice their faith.
Requests by Parents to have Textbooks
Removed from the Curriculum
Smith v. Board of School Commissioners
of Mobile County (p.13), a federal appeals
court reversed a decision of a lower court
which had ordered Alabama's public
schools to remove 44 history, social
studies and home economics textbooks
for use in Alabama's public schools
because the Court found such books to
teach the religion of "secular
humanism” (p. 20).
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Requests by Parents to have Textbooks
Removed from the Curriculum
On appeal, the Court noted that some of
the material in the contested books may
in fact be offensive to the religion of
those bringing the lawsuit, but if school
districts are precluded from including
material in books that is offensive to
any particular religious belief, "there
would be very little that could be
taught in the public schools."
Requests by Parents to have Textbooks
Removed from the Curriculum
In Mozert v. Hawkins County Board of
Education, a federal appeals court reversed
a lower court’s decision which had ordered
a school district to allow children who had
religious objections to a certain basal reading
series to be excused from, or "opt-out" of
reading class whenever any of these books
were taught. The Court reasoned that the
right to practice one's religion is not
burdened simply by mandating one to be
exposed to ideas with which one disagrees.
(p. 20)

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Curriculum Accommodations
Consider making accommodations
to the curriculum when requests
do not pertain to core parts of the
curriculum—like sex education,
and the religious celebrations of
others.
Question
What do districts do about parental complaints
relating to district curricula which teaches
students about the religion of Islam or any
other religion, for that matter?
15
Responding to Requests for
Religious Accommodations
Recently, districts have been facing a series
of religious accommodation requests from
members of the Muslim community in the
areas affecting:
o Dietary Requirements
o Clothing
o Gender Relations
o Curricular Activities
o Physical Education
o Art Class
Music Class
Sex Education
Muslim Holidays
Pilgrimage
Fasting
Daily Prayer
Responding to Requests for
Religious Accommodations
According to the U.S. State Department, Islam is
one of the fastest-growing religions in the United
States. America's Muslim population is the
country's second-largest faith following
Christianity. As the number of Muslim students
grows, the frequency of requests for religious
accommodation can be expected to rise. Case law
addressing requests by Muslim students appears
to be nonexistent.
16
Responding to Requests for
Religious Accommodations
Determining whether an accommodation is permitted
or required will often be unclear. The U.S. Supreme
Court case law relevant to granting or denying a
religious accommodation will differ depending on
what type of accommodation is sought.
Generally, however, if a district refuses to provide an
accommodation such as permitting students to wear
religious garb based upon the district’s dress code
policy, courts will determine whether the district
could have met its goal by some less onerous means.
Responding to Requests for
Religious Accommodations
Although district refusals to provide
religious accommodations may not be
illegal, such refusals may, nevertheless, be
public relations nightmares.
17
Responding to Requests for
Religious Accommodations
With respect to requested accommodations
pertaining to core curricular activities,
schools are not required to permit students
to absent themselves from those portions of
the curriculum that are contrary to their
religious teachings BUT parents might be
more likely to win if the class involves doing
something that violates the student’s religion
rather than just being exposed to ideas contrary
to the student’s religious beliefs.
Responding to Requests for
Religious Accommodations
What should districts do about religious
holidays?
May/should districts permit students
(particularly Muslims) to have a space within the
school building to pray during certain times of
the day?
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Responding to Requests for
Religious Accommodations
School districts should take proactive steps
to make sure minority religious students
are safe at school and not bullied or
harassed. Such steps might include
encouraging students to learn about each
other’s religious or philosophical views,
ensuring bullying and harassing policies
adequately address religion, and actively
enforcing such policies.
Religion in Public School Classrooms, Hallways,
Schoolyards and Websites: From 1967 to 2017
and Beyond
Panelists:
Randall G. Bennett,
Deputy Executive Director & General Counsel
Tennessee School Boards Association
Charles C. Haynes,
Vice President
NEWSEUM INSTITUTE
Religious Freedom Center
Jay Worona
Deputy Executive Director & General Counsel
New York State School Boards Association
19