Episode Four: Religion and Schools: Part One

In this episode, Miriam and Lisa tackle a sometimes-thorny issue: students’ religious rights and how the First Amendment sometimes collides with school policies and practice. Learn about the law and enjoy a plethora of fascinating cases from all around the country! Can a district require students to cut their hair? Is student-led prayer before football games allowed? What about at graduation? What if a child writes an essay about her faith?

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Miriam: Welcome to Education Law Update, the podcast that entertains and informs. I’m Miriam.

Lisa: I’m Lisa.

Miriam: We are Ohio attorneys with Walter | Haverfield. We practice school law. Every so often, we get together. We chat about legal developments affecting school districts, board members and just administrators, anybody who works with the districts. If you’ve missed our previous podcast, we talked about controversial issues. We talked a little bit about special education. We also talked about transgender. Today, we’ll be talking about religion.

Lisa: Religion is definitely an important issue to many Americans as is education. There’s times when thee collide. We are going to dive into what are some of those conflicts, what are some questions about how much involvement school districts need to have. We’re going to cover a few of the background legal components that you need to understand like the First Amendment, what it means in a school context. Then talk about some key scenarios that school districts face and we hear about on a pretty regular basis and just some issues to keep in mind such as prayer, afterschool activities, curriculum issues, religious displays, those things.

Miriam: Frequently asked questions. We’ll talk about some of the questions we often get from school districts.

Lisa: Right. Miriam, can you get start off on some of the legal backgrounds that our listeners need to understand?

Miriam: I’m sure most of the First Amendment has several religion clauses. First of all, there is the establishment clause and then the free exercise clause. A government entity including school districts cannot establish a religion. That means there’s no official religion. Also, the school district or any government entity cannot favor one faith over another or cannot favor faith over non-faith like atheism or agnosticism.

Lisa: Basically, they need to just stay neutral as far as a religious viewpoint.

Miriam: Exactly. It’s very difficult because just like you said, there’s a lot of conflicts. Religion is important. Education is important. It often blends together. The question is how much is okay? When we talk about the establishment clause not favoring one faith over another, the main question seems to be whether what the school district is doing implies endorsement, whether a reasonable person who’s looking at, whether it’s prayer at graduation or some afterschool religious clubs, whether the district allowing this can be seen as establishing a religion, as the district saying, “We like this faith. This is what it’s got to be.”If it’s not like that or cannot be seen like that at all. As we’ll talk about students, really the courts tend to look especially with all of this, anything in the First Amendment, this is what I always say, anything that has to do with the First Amendment is very, very fact-specific, the court is going to look at the small nitty-gritty details of what happened. It also, as part of that, it looks at the students in question, looks at their age and it looks at whether what they’re attending is mandatory, even if it’s mandatory socially. Let’s say you have an elementary school kid, elementary school children are considered more impressionable and if it’s something that they are expected to attend, let’s say a Christmas performance, a holiday event, that may be considered significant by the courts. That’s the establishment clause.

Lisa: Then we have the free exercise clause as well that comes into play.

Miriam: Exactly. In the free exercise clause, the government cannot limit individual’s beliefs or practice. You are entitled to believe whatever you want and practice your religion as you see fit. Of course, there have to be certain exceptions to that. For example, the government is allowed to enact neutral laws that apply to everybody. If religious individuals, if believers are negatively affected, that’s okay. That’s still okay because the law is neutral and applies to everybody. Just a little example, if your religious service includes narcotics, the government is allowed to say, “Sorry, we’re going to limit that because we have general drug laws that apply to everybody and they’re going to apply to your religious group as well. Interestingly, the courts really take, like I said, a specific look at whatever law you’re talking about, whatever regulation that the school or the city, how that developed. There was an interesting case in Florida in the ’90s, it’s got a great name, the Church of Lukumi Babalu Aye. In this case, a city in Florida, a little town actually, received an influx of immigrants. These immigrants practiced the religion where they sacrificed animals in their backyards so sheep and goats, chickens, cows, really anything. You can imagine the towns, people were pretty displeased, they were appalled. The town started passing all these laws. The laws were presented as neutral health and safety regulations. You can’t kill animals in your backyard. You can’t sacrifice animals. This group filed a lawsuit. They said, “You’re discriminating against our religious beliefs.” It went all the way up to the Supreme Court. The Supreme Court agreed with the religious group. The Supreme Court said, “These laws are presented as neutral laws, but you only started implementing them and talking about them after this religious group came in and started doing all this stuff.” It wasn’t–

Lisa: So they saw through this a little bit..

Miriam: Yes, exactly. They said, “Not really so neutral.”

Lisa: When it’s not neutral, how does the court look at that?

Miriam: If there’s a compelling government interest not achievable in any other way, then the courts will sometimes allow it. A vaccination is a good example. Sometimes individuals will say, “Look, our state requires us to vaccinate our children before they’re allowed to have access to the public schools. This violates our religious beliefs.” The courts very often say, “Okay, you have this religious belief, but at the same time, the government has an important interest, a compelling interest in making sure its children are vaccinated. That’s it. You’re just going to have to comply. You know what’s interesting, Lisa, is that often these rights conflict. There was a great quote by one of the justices and one of these Supreme Court cases that said, “If you take the establishment clause and the free exercise clause and you kind of expand them to their natural limit, they’re going to conflict, they’re going to collide with each other.” I think it’s true. We see it practically. Here’s an example, let’s say you have a valedictorian in a school district and she wants to praise God on her speech so that’s her free exercise to do that, but at the same time, it’s going to look like a government endorsement.The school will say, “Okay, well, if we let her practice or free exercise, we might get in trouble. Somebody else might sue us because it looks like we are endorsing this religious speech.

Lisa: That’s a good example where the specific facts really come into play because– Say she was saying this just on an everyday basis, it wouldn’t matter, it would not go to the level of endorsement of the school district, but since this is a school run function at graduation and as valedictorian kind of representing the school and the school district, it arises to another level that the court has to look at, “Okay, maybe now it does look like endorsement.”

Miriam: Yes. Another example is a coach. Let’s say you have a coach who wants to participate in student-led prayer. The students are initiating this prayer before a sports game and the coach wants to participate and that’s really his free exercise. That’s his belief. That’s his practice. He wants to do this, but at the same time, a parent can come and sue and say, “Well, because the coach is an employee of this school district, it looks like–” Let’s say the coach wants to pray to Jesus. The school district, maybe that looks like it’s endorsing Christianity.

Lisa: You can see how this quickly become great areas looking at what the perspective is of onlookers at what the district is doing.

Miriam: Exactly. There’s always a freedom of speech clause. The First Amendment also bars school districts from limiting students’ freedom of speech to some extent. A school district, a school building is not just a free for all. You can’t come in and talk about anything. School districts are not allowed to limit speech based on content. If you’re going to allow students to speak about one thing, you have to let them talk on that topic if they’re presenting a different viewpoint.

Lisa: This isn’t always going to be a completely open forum, right?

Miriam: Yes.

Lisa: There’s a specific legal analysis that goes into that too looking at when it happens, what the situation is.

Miriam: Right, exactly. With everything, it’s very specific. Districts can limit the time and the place and the manner of speech, but those limits have to be related to education. You can imagine free speech often gets conflated or is intertwined in these lawsuits. I think it’s a good time now to take a look at some of those specific examples, specific frequently asked questions.

Lisa: Yes, definitely. I know one thing that comes up a lot for us is looking at individuals versus small groups and how you can pray in those different types of situations and how that analysis is a little bit different.

Miriam: Prayer is analyzed by the courts differently if it’s individuals, small group or a large scale event. Small group prayer is usually allowed if it’s completely student initiated. Grace before meals, grace after meals, praying before tests. Talking about religion with other students, so again, if you’re an eighth grader or whatever, you’re talking in the cafeteria, you want to have a little religious debate with your friends, that is protected, that’s allowed. Of course, it’s subject to reasonable time, place and restrictions. If you want to debate religion with your fellow classmates, you’re not going to be allowed to do that in the middle of math class.

Lisa: This all just reminds me of that quote, “as long as there’s test in school, there’s always going to be prayer in school.”

Miriam: Exactly. That’s funny.

Lisa: How about then since we’ve touched on it’s okay in the individual small group settings, what about these larger events like graduation or athletic events? I know we hear those come up, especially towards the end of the school year. Those are hot topics.

Miriam: Those are considered more problematic because many students feel obligated to attend. The court says, okay, even if the district is not going to punish you for not attending graduation, you’re still going to get your diploma. If you don’t show up at graduation, you still graduate, you’re still going to get your diploma, but students feel obligated to attend. Graduation is what students work for their entire career and they’re expected to attend, or an athletic event, many, many places, everybody is expected to show up.

Lisa: It doesn’t matter what the district’s role is in it. If they’re really encouraging it or supervising it.

Miriam: I think it even applies in some cases where it’s student led. Let’s say the students are initiating this. First of all, definitely, if a school employee is starting this, it’s typically not allowed. Even if students are initiating this, the courts will take a good look at the very specific facts. Is this prayer on campus? Is it supervised or encouraged by the school district?

Lisa: What does that look like? If it’s student-led, I’m thinking, well, that should be fine because as a district employee, what action could I do that’s going to be construed as encouraging it or supervising it?

Miriam: There was a case out of New Mexico, the Santa Fe case went to the Supreme Court. In that situation, the school district, first of all, they had a policy encouraging prayer. That was probably, problematic red flag right there. Then, the students use the school’s public address system. It was a long-standing practice. In another case, I’m just thinking of another case. There was a situation where a rabbi was starting a prayer, but the principal was the one who gave the rabbi a pamphlet about how to create a non-denominational prayer. In both of those situations, the court found that this was a potential violation of the establishment clause. You can’t do that. You can’t do that.

Lisa: Let’s talk about some other activities. How about after school activities? I know those come up a lot too.

Mariam: After school activities, districts are really required and this is different. Districts are not just allow but they are required to permit religious clubs equal access to space, and giving out publications. If they allow any other extracurricular activities, any other extracurricular clubs. So in other words, let’s say your district, you have a chess club, you have math club, you have creative writing club, and then you have a club that wants to talk about the Bible, Bible study club, you have to allow that Bible study club, the same access. Otherwise, you’re discriminating against that religious faith. Other than the First Amendment here, we have a Federal law called Equal Access Act, which emphasizes this, which requires school districts to provide that equal access. Sometimes these things, like I said, there’s just conflicts. If you have LGBT club, and other students don’t want that, parents don’t want that, or, , other religious groups are not interested in that, there can be some conflicts about that. Generally, LGBT clubs are also included in that rule. You have to allow those clubs to meet if you are allowing any other extracurricular activities.

Lisa: To ensure that equal access.

Miriam: To ensure the equal access.

Lisa: Here’s another balancing act districts have to play because on one hand, you’re saying you have to provide access for all these groups, but on the other hand, we’re also saying but you can’t endorse them. You got to keep it clear cut it as far as the district’s involvement when those groups are meeting.

Miriam: Exactly. There’s a few cases which highlight that districts are permitted to protect themselves. They have to allow these clubs, but they are still allowed to protect themselves from Establishment Clause claims. For example, there’s a few cases involving the Good News Club, which I guess, from what I learned, the Good News Club is a religious Christian organization, and they study Bible with children after school. The religious perspective is that this is good news. That’s where the name comes from, the Good News Club. In one situation, one case I found interesting, the good news club wanted to meet immediately after school, school’s over at 2:30. They’re like, okay, we’re going to meet at 2:45. The school district said, no, you guys need to come back at 6:30 to meet because we don’t want it to look like it’s just an extension of the school day. The good news club was unhappy, the Good News Club said, okay, we’re just going to lose everybody because they’re all going to go home, they’re going to be eating and doing homework. Nobody’s going to want to come back for the Good News Club. The court said, this is the district’s way of protecting itself and it’s not obligated to give you immediate after school access.

Lisa: So they still had equal access to the building, but just with some qualifiers, so that we could create a barrier between what the district was endorsing versus just giving that access.

Miriam: It doesn’t want to look like it’s endorsing so definitely, it can protect itself. what, in Ohio, I don’t know how many people know this. A few years ago in 2014, a law was passed about release time, and release time is when students go off campus during the day sometimes to study religion. Ohio districts are allowed, they’re not required, they are permitted to allow two units of credit for attendance at religious instruction off the school grounds, but during the school day.

Lisa: Now, there’s some qualifiers for this though, it’s not just open access.

Miriam: Exactly. You can’t drive these kids. The school district’s not allowed to provide transportation, or to pay the religious teachers, obviously.

Lisa: They can’t really use their public funds for these purposes.

Miriam: They cannot use any public funds. Then when you’re looking at the credits to evaluate the credits, you have to look at secular criteria, so how experienced is the teacher, how well did the student do objectively, you have to basically use secular criteria to evaluate if that child is going to get those credits. What’s interesting is that this doesn’t really happen in the urban locations, but in rural communities in Ohio, I think this is a big deal. I’ve definitely heard about school districts who do implement this kind of policy. They develop this policy and it happens. It’s really something that takes place which I found that was new to me, I learned that.

Lisa: I imagine some of the communities are pretty behind that as well to putting on where you’re located.

Miriam: Definitely.

Lisa: Since we’re talking about credits, school work comes up a lot too as far as what can students express in their work and what the district’s can allow and not allow.

Miriam: In homework. That comes up a lot. Here’s the question, what happens when a student, let’s say, a high school students asked to write an essay, she writes an essay about the life of Jesus. Instead of like writing about it as a historical figure, she’s writes about her personal relationship with her Savior.

Lisa: Is the assignment going to play into that? I can imagine that that could be a couple different scenarios. I could see when that would be totally fine and when there’d be some limits to how that plays out.

Miriam: This was an actual case. The student received an F, she wrote about a religious figure she received an F. She filed a lawsuit against the school district and the teacher. The court said, “Although students may generally express their beliefs in reports, in homework and any assignments, those assignments should be judged by ordinary academic standards.” Actually, in several different cases, the court emphasized, the curriculum is set by the board and the teachers implement that curriculum and they are the ones who evaluate students and assess them. It’s not up to the individual students, or their parents to decide what they want to write about, it’s up to the teacher. The courts really refrain from removing that authority from the school district, which is encouraging. I like that.

Lisa: To clarify, though, in that case, I think that’s what I was referencing that grade of an “F” had to do with how she approached the topic, not just because that she wrote about Jesus Christ, it was because of what that topic and assignment was looking for her to do with that information and she didn’t develop it.

Miriam: Exactly. In that assignment, she was supposed to write about a historical figure, and she was supposed to show her ability to research. She had to go online or use various different sources, citations and she just wrote about her faith. She just took her biblical faith and put it on paper.

Lisa: Right. To simplify that, it’s looking at like writing a persuasive paper versus writing something that’s supposed to be historic.

Miriam: Yes, and she didn’t follow the criteria, basically laid out by her instructors. Here’s another case that I remember about this. This was a second-grade student, second-grade students, there’s Show and Tell, remember that in second grade? Show and Tell? This little girl wants to bring in a video. She brings in a video of her singing in a church choir and she’s singing religious songs and she wants to teach her to play that video. The teacher says “no”. He just says, “no”, because specifically because the teacher is concerned about a First Amendment Violation and the child’s parents file in court and they say, look, our, this was a violation of our religious rights. The court says, “No,” it would be a violation had the teacher, in fact, played that video because you have a little captive audience there. You have all these second graders, they can’t leave. They have to sit here and listen to this church music. That could be seen as the district establishing a religion, especially because these kids are so young, they’re young and impressionable.

Lisa: It sounds like had the teacher shown that the teacher would be making an active decision to show something religious versus just the student talking about their experience or something like that.

Miriam: Exactly. Another topic, this is a good segue here is about curriculum. Some students, for example, just want to opt-out of that curriculum. There was an interesting case where the parents said, okay, so our kids are in fourth or fifth grade, whatever, and they have a basal reader. They have this reader with stories that they go around and they read. Some of these stories have mentioned evolution or mentioned magic, and that’s against our faith. We don’t want the district teaching that. We want a different curriculum. Again, the court said, “You’re not deciding the curriculum, mom and dad, the curriculum is set by the Board of Education and you don’t have a right to dictate the curriculum based on your faith.”

Lisa: They’re not able to opt-out of certain portions of it.

Miriam: They are not able to opt-out. I think what also influenced the court here is that the school and the teachers were really flexible. They said, “Okay you guys, you don’t have to read this if you don’t want to. When we’re doing the Round Robin Reading, you don’t have to read out loud. We can grade you differently. We can give you different stories to read, and the parents were just filing a claim about this specific curriculum. I think the court really took that into consideration, and they said it’s not up to you. Moms and dads don’t get to decide curriculum issues.

Lisa: Then how does that change in a situation where an issue might be like the Pledge of Allegiance or a flag ceremony?

Miriam: This is the other side of it. Districts are not allowed to compel students to affirm anything that their religion does not allow. If a child comes and says, I can’t really participate in the Pledge of Allegiance. I can’t participate in a flag ceremony. The districts really have to respect and honor that. It’s not considered a curriculum, it’s just considered a patriotic observance. There’s a whole slew of cases like this. Even in some schools, the teachers said, okay, you don’t have to recite this. You don’t have to recite the pledge or stand up, but you just need to leave the classroom, just for that short amount of time. The school district agreed with the teacher, but the court did not. The court said you’re affecting the student by having him leave. You can’t do that. Really that’s an important distinction from the curriculum line of cases.

Lisa: There’s some clear distinctions too when we talk about religious displays too, aren’t there?

Miriam: Yes. Religious displays as well. Sometimes school districts have these ornate displays in their hallways. Sometimes we’ve seen, we’ve had cases where there’s just a very large painting of a religious meal or a religious figure like Jesus on the cross in the middle of their hallway. Students are allowed to challenge those if they are put up by the school district, school employees. If it’s just other students, a student draws a picture of herself going to church, then the schools are allowed to put that up on their bulletin board and then the students are not going to be able to challenge that. It’s something that the kids, that another child did. That’s an important distinction.

Lisa: Really our kid distinction here is going to be what is school employees doing, saying, portraying versus what’s coming from the students?

Miriam: Exactly. That’s just because of the whole endorsement appearance, if a school employee is doing something, you don’t want– It might appear that this has the school’s stamp of approval. The school approves this because this is their employee doing it. You don’t want it to look like that. Here’s another thing I just wanted to briefly bring up is literature distribution. Sometimes schools distribute pamphlets or flyers about bake sales, book sales, scholastic book sales or whatever. And kids want to distribute religious literature. What happens in that situation is that students should be allowed to distribute religious literature subject to the same rules as other kinds of literature, non-school literature. Then districts are not permitted to impose an extra burden. Let’s say during lunch kids, pass out, like I said, here’s our big sale. Here’s this, here’s that. We’re having a book club. We’re having an afterschool chess club. Here’s something that’s happening at the YMCA on the weekend. Other children have to be permitted to pass out things about their churches, so our church is having bingo, our church is having relay races on the weekends, please come. Students are permitted to distribute that literature and schools cannot impose an extra burden. Now, some courts, they caution you if young kids are involved, but generally, this is allowed. There was another case where elementary school kids, if you remember, have cubbies. Elementary school kids have cubbies and in this school there was just a lot of flyers passed out in those cubbies for the second-grade kids. What happened that one of the flyers was about a church event. One of the parents complained and said, okay, this is coming home. The school district is endorsing this church event, and the court said, , no, because the second graders, these elementary school kids are really not the ones sitting here reading these flyers. If the elementary school kids were the ones, little kids were the ones who were bombarded with this then maybe, by these are the parents and a reasonable parent sees all these different flyers they’re not going to think that this one flyer about a church event indicates that the school district approves of this particular faith. That’s just not reasonable. But as you can see in this, Lisa, it’s just really a case by case analysis specific facts here.

Lisa: What would the general interpretation of a reasonable person generally be?

Miriam: A reasonable person, yes.

Lisa: Clothing seems to be a hot issue too.

Miriam: Yes. One of the last things I wanted to talk about was clothing. Some students wear clothing with religious messages and you can’t single them out assuming that you allow messages on other clothing. Obviously, standard is always health and safety, reasonable bounds of health and safety. Something that comes up sometimes with the gym is that students, girls, , typically this is girls, they don’t want to wear pants because it’s considered immodest so they ask to wear skirts. The courts usually say that, yes, they should be allowed to wear those skirts as long as it’s not a health and safety issue. An interesting case I remember reading about was Native Americans– I didn’t know this, but Native Americans, at least some groups believe that your strength and your vitality and your spirituality is contained in your hair, so even boys, even men grow their hair long. In this one school district, I think it was in Texas, the school district said, what, just cut your hair. You can’t come to school with long hair. The court said, “No”.The court said, “You’re violating their religious rights, you’re violating their belief.” And it’s really not for any health or safety reasons. You can just put it back in a pony or whatever. There’s no compelling government interest in having students cut their hair like that, especially if they have a strong religious faith in it. Those are just some interesting scenarios that we see with students.

Lisa: A lot of these we talked about are kind of what the district and district employees can and can’t do, but we didn’t really touch on– I don’t know if you have any insight on this as far as like, are there certain things districts are obligated to do? For example, if you have a student who needs to pray at a certain time during the day, is the district obligated to provide a place for that?

Miriam: That’s an interesting question. I like that. I would say, again, it’s a very specific question. Definitely talk it over with your legal counsel. I think that school districts should try to be accommodating, but again, this kind of would go back to the individual and small group situation. It’s subject to a reasonable time and place and manner, so if you have a room, you don’t mind it’s just for a few minutes a day, then you should probably consider accommodating that student.

Lisa: For example, like for morning prayer, you might need to provide some space for an individual to practice that.

Miriam: Yes, I’m not sure that I would say need, I’m not sure that the district would be required to do that. I think I would say that it would be a balance of whether or not it’s a reasonable accommodation, whether or not it’s something that would look like endorsement. On the other hand, you don’t want it to look like this is endorsing this faith or this practice, so it’s definitely something to talk over with your legal counsel but let’s say somebody came with that. I would take a look at all the facts, but I think my general perspective would be how disruptive is this to the school day? Is it really going to affect everybody else’s education? If not maybe you just want to not rock the boat. Just go ahead and go along with it especially if it doesn’t look like you are endorsing if it doesn’t look like this has the stamp of approval. Now, obviously, if you have an employee who wants to participate in that, with that child or that group of kids, that already gets much more complicated because of the way.

Lisa: Absolutely, yes. I think we’ll do a whole episode looking at those employee rights and employee issues.

Miriam: Yes, so I kind of touched upon that, but next time, we will really take a closer look at employee rights. What if you have a teacher or a coach or an administrator who wants to pray or who has certain religious obligations that they would like you to accommodate. Other than the First Amendment when it comes to employees, you also have a whole slew of employee laws that employers have to follow.

Lisa: Absolutely.

Miriam: We’ll take a look at that next time we meet and I hope you really enjoyed this presentation.


Lisa: Yes, and you can see from all these scenarios that there’s just so many different avenues religious components can come through and become an issue for school districts. It’s really important just to be apprised of what’s expected at this point and the fine lines to draw and the balancing that needs to be done and just keep that in mind as these issues arise in your districts.

Lisa: If you enjoyed this podcast, which I really hope you did. If you enjoyed this podcast, please rate us on iTunes or Stitcher wherever you get your podcasts. We look forward to seeing you next time.

Miriam: Yes, and we’d love to hear too if you have any feedback or some other issues and topics you’d like to hear in the future.

Lisa: The content of this podcast is provided for general information purposes only. The podcast is not legal advice, does not create an attorney-client relationship and should not be relied upon in making legal decisions. Actions on legal matters should be taken only upon advice of legal counsel. Walter | Haverfield does not guarantee the accuracy of information contained in this podcast.