Although it has been more than a half century since the U.S. Supreme Court struck down school-sponsored prayer, controversies concerning religion in the public schools continue to plague school districts across the country.

The landmark court decision Engel v. Vitale was handed down in 1962, and since then, courts have repeatedly opined that the U.S. Constitution prohibits public schools from proselytizing religion to children.

However, it is often difficult for school districts to determine precisely what constitutes proselytization or school sponsorship of religious activities.

The discussion of legal issues concerning religion in the public schools must begin with the constitutional framework within which school districts must conduct themselves. Specifically, the First Amendment to the U.S. Constitution contains three pertinent provisions, the Establishment, Free Exercise and Free Speech Clauses. While the Establishment Clause prohibits schools from establishing religion by acting with a religious purpose or effect or by entangling themselves with religion or endorsing religion, the Free Exercise Clause requires that public schools do not impinge upon the free exercise of any particular student’s religious beliefs or expression. And, the Free Speech Clause prohibits “state actors” such as public school districts, from “abridging the freedom of speech.” The tension between constitutionally guaranteed religious freedom and the prohibition of endorsing religion causes schools great difficulty.

To determine whether a public school violates the Establishment Clause, the courts apply a three-part test developed by the Supreme Court in a 1971 case, Lemon v. Kurtzman. The Lemon test provides that an activity of a governmental entity will pass constitutional muster only if it complies with the following three pronged test:

1. There is a legitimate, secular, non-religious purpose for an activity;

2. The primary effect of the activity neither advances nor hinders religious belief or practice; and

3. The activity does not foster excessive entanglement between the governmental entity and religious concerns.

Holiday Displays and Programs

Although decades old, the Lemon test continues to be the standard our courts use in assessing Establishment Clause cases. For example, take the cases involving holiday displays and religious music programs at public schools. In the earliest of these cases, the U.S. Supreme Court upheld a policy statement and rules adopted by a public school board which permitted observance of holidays having both a religious and secular basis. The court encouraged tolerance of diverse religious views and recognized that advancing “students’ knowledge and appreciation of the role religion has played in the social, cultural and historical development of civilization” as an educational goal of the district.

Applying Lemon to its analysis of the school district’s policy and rules, the court concluded that they were not promulgated to serve a religious purpose, but rather they were adopted with educational motives. The court further found no violation of the Free Exercise Clause and noted that the school did not need to remove all materials from the curriculum that could offend any religious sensibilities nor could it compel participation in religious activities. Decades later in 1993, the Cherry Hill School District policy governing the use of cultural, ethnic and religious themes in the educational program was challenged. The purpose of the policy was to foster mutual understanding and respect for the rights of all regarding their beliefs, values, and customs. The policy permitted three types of displays including religious symbols used as part of a planned program of instruction, displays of calendars in each elementary and junior high classroom and in one central location in each building and displays dealing with cultural, ethnic, or religious customs and traditions during the appropriate season. If a religious symbol was displayed, it had to be accompanied by at least one other religious and cultural or ethnic symbol.

The District Court applied Lemon to the Establishment Clause claims and found no constitutional violation, noting that the purpose of the policy was the advancement of a secular program of education, not religion. That court emphasized that the displays were temporary and did not force children to participate in any religious event and also opined that the absence of any display could indicate hostility toward religion.

The hostility toward religion argument was made years later in a Pennsylvania case by parents who complained about the lack of Christian symbols displayed at a winter holiday elementary school program. The display included several items associated with various religious celebrations and the Christmas program included songs from several religions. In that case, the court found no violation of the Establishment Clause because considering the display and musical performance as a whole, the school district’s purpose was to celebrate diversity and the freedom to choose one’s own beliefs. The court held that a reasonable observer could not conclude one particular faith was preferred at the expense of others. Similar cases in other jurisdictions have also concluded that so long as a variety of religions are represented within the school’s programs, no Establishment or Free Exercise Clause violations are likely to be found.

The Pledge of Allegiance

Another controversial issue related to religion in public schools involves prayer and the Pledge of Allegiance. In the 1962 Engel decision, the U.S. Supreme Court ruled that the Establishment Clause prohibited the recitation of school-sponsored prayer in public schools. One year later, the Supreme Court struck down a school’s daily bible reading exercise due to its inability to satisfy the predominantly secular purpose standard.

More recently, the phrase “under God” in the Pledge of Allegiance came under attack. New Jersey law requires that all public school students salute the United States flag daily. However, that same statute permits those students who “have conscientious scruples against such pledge or salute, or are children of accredited representatives of foreign governments to whom the United States government extends diplomatic immunity” from having to recite the pledge. Those students are required to be respectful during the pledge by standing at attention and if male, removing headdresses. The opportunity to remain respectful and not recite the pledge was apparently not enough to appease the family of an atheist student in the Matawan-Aberdeen Regional School District.

The family, represented by the American Humanist Association claimed that the practice of acknowledging God in the Pledge of Allegiance discriminates against atheists, in violation of the state’s constitution. The family sought to have “under God” removed from the Pledge of Allegiance – a request that would be more appropriately addressed to the Legislature. The lawsuit alleged that the daily recitation of the pledge in the school district “publicly disparages plaintiffs’ religious beliefs, calls plaintiffs’ patriotism into question, portrays plaintiffs as outsiders and second-class citizens, and forces (the child) to choose between nonparticipation in a patriotic exercise or participation in a patriotic exercise that is invidious to him and his religious class.” The court dismissed the suit and found that the reference to God in the pledge was more of a declaration of patriotism than it was of a religious belief and that the phrase does not have to be removed.

Prayer During the School Day

Rights of students to pray during the school day also carries with it legal implications. The leading Supreme Court decision relative to this issue tells us that students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” In fact, “nothing in the Constitution … prohibits any public school student from voluntarily praying at any time before, during, or after the school day.” Students are also allowed to pray with fellow students during the school day on the same terms and conditions that they may engage in other conversation or speech. Schools even have the discretion to dismiss students to off-premises religious instruction so long as school officials do not encourage or discourage participation in such activity or penalize students for participating. The same is true for dismissing students from class to satisfy religious tenets which require prayer throughout the day so long as it is not disruptive or burdensome to other students.

Notwithstanding a student’s free speech rights, schools may restrict student speech if it “materially and substantially interfere[s] with classroom activities or the school environment.” Schools are not required to wait for the disruption to occur before they can restrict speech, but they must demonstrate that their actions are based upon a reasonable prediction that disruption will take place. Similarly, public schools maintain substantial discretion to impose rules of conduct and pedagogical restrictions (ie. no lewd or vulgar language) on student activities but in doing so, they must not discriminate against student prayer or religious speech. When students engage in prayer during the school day or make remarks of a religious nature, the content is not attributable to the school district merely because the expression takes place in the school setting.

Regardless of the particular issue at stake, questions regarding religion are among the most challenging for public school districts. This is due to the inherent conflict between the Free Speech, Free Exercise and Establishment Clauses. School officials often find themselves perplexed as to how to permit religious liberty without endorsing religion.

What the cases tell us is that schools are precluded from targeting religion through policymaking but may develop and enforce religion-neutral rules even if they have a tangential effect on religion. Public schools must permit student religious expression unless it substantially disrupts or interferes with the school environment or is offensive, lewd or indecent. These basic legal principles have been reiterated and expounded upon by our courts throughout the past several decades but issues continue to arise in the public school context. To avoid the potential of infringing upon students’ constitutional rights, the facts underlying each issue should be carefully evaluated in conjunction with longstanding legal precedent.