An Update on Religion and
Public Schools
Ohio Council of School board Attorneys
School Law Workshop
Columbus, Ohio
November 10, 2015
2.00-3.15 PM
Charles J. Russo, J.D., Ed.D.
Panzer Chair in Education
Adjunct Professor of Law
University of Dayton
(937) 229-3722 (ph)
[email protected]
Outline
I.
Generally
II.
State Aid to Religiously Affiliated Non-Public
Schools
III.
Prayer and Religious Activity in Public Schools
IV.
Emerging issues
V.
Conclusion
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I. Religion-Generally
First Amendment, 1791
“Congress shall make no law respecting an
establishment of religion, or prohibiting the free
exercise thereof.”
I. Religion-Generally
Appeals to history over the original intent of the
Establishment Clause fail to provide clear answers,
stemming largely from the close ties between religion
and government that began during the colonial period.
I. Religion-Generally
In fact, up until the Revolutionary War, there “. . . were
established churches in at least eight of the thirteen
former colonies and established religions in at least four
of the other five.” Engel v. Vitale, 370 U.S. 421, 428 n.
5 (1962).
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I. Religion-Generally
Accommodationists v. Separationists
Child Benefit Test
I. Religion Generally
Pierce v. Society of Sisters, 268 U.S. 510 (1925)
A “Magna Carta” for non-public schools, the Supreme
Court recognized the power of the state “reasonably to
regulate all schools, to inspect, supervise, and examine
them, their teachers and pupils ... (p. 534),” but focused
on the schools’ Fourteenth Amendment property rights.
I. Religion Generally
The Court grounded its judgment on the realization that
the schools sought protection from unreasonable
interference with their students and the destruction of
their business and property.
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I. Religion Generally
The Court added that while states may oversee such key
features as health, safety, and teacher qualifications
relating to the operation of non-public schools, they
could not do so to an extent greater than they did for
public schools.
I. Religion Generally
“The child is not the mere creature of the state; those
who nurture him and direct his destiny have the right,
coupled with the high duty, to recognize and prepare
him for additional obligations.”
Id. at 535.
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II. State Aid
1. Student Transportation
Everson v. Board of Educ. (1947)
cf. Child Benefit Test
Wolman v. Walter (1977)
II. State Aid
2. Text Books and Instructional Materials
Cochran v. Louisiana State Board of Education (1930)
cf. Abington v. Schempp, Murray v. Curlett (1963)
Board of Education v. Allen (1968)
Meek v. Pittenger (1975)
Wolman v. Walter (1977)
Mitchell v. Helms (2000)
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II. State Aid
3. Tax Status, Tuition, and the Use of Public Funds
Walz v. Tax Commission of City of N.Y. (1970)
cf. Abington v. Schempp, Murray v. Curlett (1963)
Lemon v. Kurtzman (1971)
Mueller v. Allen (1983)
Zelman v. Simmons-Harris (2002)
III. State Aid
THE Lemon Test
“Every analysis in this area must begin with
consideration of the cumulative criteria developed by
the Court over many years. Three such tests may be
gleaned from our cases. . . .
III. State Aid
First, the statute must have a secular legislative purpose;
second, its principal or primary effect must be one that
neither advances nor inhibits religion;
finally, the statute must not foster ‘an excessive
government entanglement with religion (pp. 612-13).’”
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II. State Aid
In addressing entanglement and state aid to religiously
affiliated institutions, the Court noted that three
additional factors:
II. State Aid
“we must examine the character and purposes of the
institutions that are benefitted,
the nature of the aid that the State provides,
and the resulting relationship between the government
and religious authority (p. 615).”
II. State Aid
4. Student Services/ Secular Instruction
Meek v. Pittenger (1975)
Wolman v. Walter (1977)
Aguillar v. Felton (1985) cf. Grand Rapids v. Ball (1985)
Zobrest v. Catalina Foothills School District (1993)
Grument v. Kyrias Joel (1994)
Agostini v. Felton (1997)
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III. Religious Activity
When dealing with prayer and religious activity, courts
sometimes move beyond the lemon test to the
Endorsement Test (Lynch v. Donnelly, 1984)
Psychological Coercion Test (Lee v. Weisman, 1992)
III. Religious Activity
1. Religious Instruction in Public Schools
Illinois ex rel. McCollum v. Board of Educ. (1948)
Zorach v. Clauson (1952)
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III. Religious Activity
2. Prayer in Public Schools
Engel v. Vitale (1962)
Abington v. Schempp, Murray v. Curlett (1963)
Lee v. Weisman (1992)
cf. Jones v. Clear Creek (cert. denied) (5th Cir. 1993)
Doe v. Sante Fe Independent School District (2000)
III. Religious Activity
3. Moments of Silence
Wallace v. Jaffree (1985)
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III. Religious Activity
4. Student Sponsored Religious Activity in Schools
Westside Community Schools v. Mergens (1990)
Cf. Christian Legal Society v. Martinez (2010)
III. Religious Activity
5. Religion and the Public School Curriculum
Epperson v. Arkansas (1968)
Edwards v. Aguillard (1987)
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III. Religious Activity
6. Religious Symbols in Schools/ on Public Property
Stone v. Graham (1980)
cf. Lynch v. Donnelly (1985), Allegheny County v.
ACLU, Greater Pittsburgh (1989)
Elk Grove School District v. Newdow (2004)
cf. McCreary County, Ky. v. ACLU, Van Orden v.
Perry (2005)
III. Religious Activity
7. Use of School Facilities by Religious Groups
Lamb’s Chapel v. Center Moriches (1993)
Good News Club v. Milford (2001)
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IV. Emerging Issues
Ministerial Exception
See Hosanna–Tabor Evangelical Lutheran Church
and School v. Equal Employment Opportunities
Commission (2011)
Same-Sex Unions
See
Obergefell v. Hodges (2015)
V. Conclusion
One cannot step into the same river twice.
Heraclitis
Thank you for listening
and participating
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