What Board Members
Should Know
About The First
Amendment
Don Peters
Peters, Cannata & Moody
September 2015
Text of First Amendment
•  Congress shall make no law respec1ng an establishment of religion, or prohibi1ng the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to pe66on the Government for a redress of grievances. U.S. Const. amend. I Basics: The Establishment Clause
•  “Congress shall make no law respec6ng an establishment of religion….” •  “The ‘establishment of religion’ clause of the First Amendment means at least this: Neither a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another.” Everson v. Bd. of Ed. of Ewing Twp., 330 U.S. 1, 15 (1947) Basics: The Establishment Clause
•  Courts have applied the Establishment Clause more strictly in schools than in other seUngs. •  Why? Students are impressionable and they are a cap6ve audience. Basics: The Free Exercise Clause
•  “… or prohibi6ng the free exercise thereof….” •  This clause protects individuals’ right to prac6ce their faith. •  The government cannot substan6ally burden ac6ons mo6vated by an individual’s sincere religious belief unless the government has a compelling interest in doing so. Basics: Neutrality
•  “The Supreme Court has repeatedly held that the First Amendment requires public school officials to be neutral in their treatment of religion, showing neither favori6sm toward nor hos6lity against religious expression such as prayer. Accordingly, the First Amendment forbids religious ac1vity that is sponsored by the government but protects religious ac1vity that is ini1ated by private individuals….” U.S. Department of Educa6on guidelines Basics: The Free Speech Clause •  “Congress shall make no law…abridging the freedom of speech….” •  Board members, administrators, employees and students all have free speech rights. School-­‐Sponsored Prayer
•  It is uncons6tu6onal for a school district to: •  Start the day with Bible readings and the recita6on of the Lord’s Prayer. Sch. Dist. of Abington Twp., Pa. v. Schempp, 374 U.S. 203, 223 (1963). •  Have a daily period of silence for medita6on or silent prayer, for the purpose of encouraging prayer. Wallace v. Jaffree, 472 U.S. 38, 56 (1985). (But Arizona’s prac6ce is probably okay.) •  Authorize prayer before football games. Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290, 310, (2000). School-­‐Sponsored Prayer
•  Can there be an prayer organized prayer at a governing board mee6ng? •  Town of Greece v. Galloway (U.S. 2014): town board mee6ngs could begin with a prayer. •  Would the result be the same for school board mee6ngs? Private Prayer: Students
•  “[N]othing in the Cons6tu6on ... prohibits any public school student from voluntarily praying at any 6me before, during, or aeer the school day….“ Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290 (2000). •  Students may pray when not engaged in school ac6vi6es or instruc6on if the prayer isn’t disrup6ve. Private Prayer: Teachers
•  When performing their du6es as public employees, teachers may not encourage or discourage prayer, or join in praying with students. •  When the context males it clear that teachers are ac6ng as private individuals, they may par6cipate in religious ac6vi6es. Teaching About Religion
•  A study of the Bible or of religion, when presented objec6vely as part of a secular program of educa6on, does not violate the First Amendment. School Dist. of Abington Tp., Pa. v. Schempp, 374 U.S. 203, 225-­‐226 (1963) •  A class must neither promote nor disparage religion, nor should it be taught from a par6cular sectarian point of view. Wiley v. Franklin, 497 F.Supp. 390, 394 (E.D. Tenn. 1980). AccomodaDng Religion: Release Time
•  The Supreme Court has upheld a release 6me program that allowed students to pursue off-­‐campus religious instruc6on. Zorach v. Clauson, 343 U.S. 306 (1952) •  The public school did nothing more than collect permission slips from parents. AccomodaDng Religion: Religious Holidays
•  Schools can close on religious holidays if they do so for valid secular reasons—for example, to prevent excessive absenteeism. •  Students may be allowed to miss a reasonable number of school days for religious holidays. AccomodaDng Religion: Other Issues
•  Generally, schools should accommodate parents and students with par6cular religious needs. This may include: •  Providing a quiet place for Muslim students to pray. •  Excusing students from lessons that substan6ally burden their religion. (This is an issue with a number of poten6al complica6ons.) Student Religious Expression in Class
•  Students may express their beliefs about religion in the form of homework, artwork, and other wriken and oral assignments. •  Such home and classroom work should be judged by ordinary academic standards of substance and relevance, and against other legi6mate pedagogical concerns iden6fied by the school. U.S. Department of Educa6on Guidelines Student Religious Expression in Class
But… •  Students expressing religious views do not have the right to compel a cap6ve audience to listen to their views. •  Schools should draw the line when students wish to invite others to par6cipate in religious prac6ces or give a prosely6zing speech. Student Clubs and AssociaDons
•  Student clubs and associa6ons that are religious basically need to be treated like other clubs and organiza6ons. See Good News Club v. Milford Cent. Sch., 533 U.S. 98, 107 (2001). •  These issues are largely controlled by the federal Equal Access Act. Student Free Speech: What’s Not Protected
•  Some kinds of speech by students enjoy likle or no cons6tu6onal protec6on: •  Lewd, vulgar or indecent speech •  School-­‐sponsored speech, such as a student newspaper •  “True threats.” Student Free Speech
•  When speech is not threatening, vulgar or sponsored by the school, school districts can restrain or punish the speech only under limited circumstances. •  School districts generally cannot restrain students from expressing opinions or punish students for doing so unless the school district reasonably concludes that the speech will substan6ally disrupt or materially interfere with school ac6vi6es. Student Free Speech
•  Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1968): •  Several students wore black armbands to school to demonstrate their opposi6on to the Vietnam war. That violated school policy. Several students were suspended. •  Held: Unless it’s reasonable to expect that student speech will substan6ally disrupt school ac6vi6es, a school district can’t restrain or punish the speech. Student Free Speech
Armbands are “speech”? •  Some forms of conduct are sufficiently expressive to be deemed symbolic speech that enjoys cons6tu6onal protec6on. •  The individual must intend to convey a par6cularized message. •  There must be a great likelihood that the message will be understood by those who observe the conduct. •  Clothing and jewelry. Student Free Speech
•  If you allow clothing with wri6ng on it, you generally can’t prohibit clothing with poli6cal or religious messages. •  If you allow jewelry to be worn, you can’t prohibit a necklace with a star of David or a cross. •  In general, when speech is not threatening, vulgar or school-­‐
sponsored, regula6ons need to be content-­‐neutral. Employee Free Speech
•  A public employee does not relinquish First Amendment rights to comment on makers of public interest by virtue of government employment. Pickering v. Board of Ed., 391 U.S. 563 (1968). Employee Free Speech
•  When an employee speaks in the course of official du6es, the speech is not cons6tu6onally protected. •  Example: In the course of the superintendent’s report at a board mee6ng, the superintendent urges all ci6zens to vote for a par6cular candidate, or to support a par6cular religion. Employee Free Speech
•  When an employee speaks as a private ci6zen on a maker of public concern, the speech is usually protected. •  Example: During a call to the public, a teacher expresses the view that schools have come to overemphasize standardized tests. •  But the speech won’t be protected if it’s likely to disrupt the workplace or undermine authority. (That will seldom be the case.) Employee Free Speech
•  When an employee speaks as a private ci6zen on a maker of private concern, the speech is usually not protected. •  Example: During a call to the public, a teacher complains that her principal is arbitrary and plays favorites. Employee Free Speech
•  The extent of an employee’s free-­‐speech rights may depend upon the employee’s posi6on. •  A board could fire a superintendent who ac6vely took sides in an elec6on of board members. See Kinsey v. Salado Independent School District, 950 F.2d 988 (5th Cir. 1992). ElecDons
•  When off-­‐duty, employees can ac6vely campaign for candidates and ballot measures. •  In their individual capaci6es, board members can do the same. It’s advisable for the board member to make it clear that he or she is not speaking for the school district. Dealing With First Amendment Issues
•  They’re oeen complicated. •  They’re oeen vola6le. •  Consult with the district’s lawyer. Summary
•  With regard to religion, the school district must be neutral. •  The district can’t sponsor religious ac6vity. •  The district should not interfere with private religious ac6vity. •  Remember that students and employees have free speech rights that must be respected.