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Religion in the Public Schools: A Joint Statement of Current Law

The Joint Statement of Current Law is a collaborative document undersigned by over 30 religious and civil rights groups that outlines the religious rights of students in the public schools. Most of these organizations are separationist in philosophy and practice, some of them (eg., ACLU, Americans United for Separation of Church and State) agressively so.

The document lays to rest the myth that prayer and other types of religious expression are banned in the public schools. On the contrary, religious expression generally enjoys the same protection as other forms of speech. This document forms the basis of President Clinton's guidlines for religious expression in the public schools. A copy of these guidelines were sent to all public school districts in the United States in September of 1995.

                Religion In The Public Schools:

                A Joint Statement Of Current Law

     The Constitution permits much private religious activity in and

about the public schools.  Unfortunately, this aspect of constitutional

law is not as well known as it should be.  Some say that the Supreme

Court has declared the public schools "religion-free zones" or that the

law is so murky that school officials cannot know what is legally

permissible.  The former claim is simply wrong.  And as to the latter,

while there are some difficult issues, much has been settled.  It is also

unfortunately true that public school officials, due to their busy

schedules, may not be as fully aware of this body of law as they could

be.  As a result, in some school districts some of these rights are not

being observed.

     The organizations whose names appear below span the

ideological, religious and political spectrum. They nevertheless share a

commitment both to the freedom of religious practice and to the

separation of church and state such freedom requires.  In that spirit, we

offer this statement of consensus on current law as an aid to parents,

educators and students.

     Many of the organizations listed below are actively involved in

litigation about religion in the schools.  On some of the issues

discussed in this summary, some of the organizations have urged the

courts to reach positions different than they did.  Though there are

signatories on both sides which have and will press for different

constitutional treatments of some of the topics discussed below,  they

all agree that the following  is an accurate statement of what the law

currently is.

                    Student Prayers

1.   Students have the right to pray individually or in groups or to

     discuss their religious views with their peers so long as they are

     not disruptive.  Because the Establishment Clause does not

     apply to purely private speech, students enjoy the right to read

     their Bibles or other scriptures, say grace before meals, pray

     before tests, and discuss religion with other willing student

     listeners.  In the classroom students have the right to pray

     quietly except when required to be actively engaged in school

     activities (e.g., students may not decide to pray just as a teacher

     calls on them).  In informal settings, such as the cafeteria or in

     the halls, students may pray either audibly or silently, subject to

     the same rules of order as apply to other speech in these

     locations. However, the right to engage in voluntary prayer does

     not include, for example, the right to have a captive audience

     listen or to compel other students to participate.

               Graduation Prayer and Baccalaureates

2.   School officials may not mandate or organize prayer at

     graduation, nor may they organize a religious baccalaureate

     ceremony.  If the school generally rents out its facilities to private

     groups, it must rent them out on the same terms, and on a first-

     come first-served basis, to organizers of privately sponsored

     religious baccalaureate services, provided that the school does

     not extend preferential treatment to the baccalaureate ceremony

     and the school disclaims official endorsement of the program.

3.   The courts have reached conflicting conclusions under the

     federal Constitution on student-initiated prayer at graduation.

     Until the issue is authoritatively resolved, schools should ask

     their lawyers what rules apply in their area.

             Official Participation or Encouragement

                      of Religious Activity

4.   Teachers and school administrators, when acting in those

     capacities, are  representatives of the state, and, in those

     capacities, are themselves prohibited  from encouraging or

     soliciting student religious or anti-religious activity.   Similarly,

     when acting in their official capacities, teachers may not engage

     in religious activities with their students.  However, teachers may

     engage in private religious activity in faculty lounges.

                     Teaching About Religion

5.   Students may be taught about religion, but public schools may

     not teach religion.  As the U.S. Supreme Court has repeatedly

     said, "[i]t might well be said that one's education is not complete

     without a study of comparative religion, or the history of religion

     and its relationship to the advancement of civilization."  It would

     be difficult to teach art, music, literature and most social studies

     without considering religious influences.

     The history of religion, comparative religion, the Bible (or other

     scripture)-as-literature (either as a separate course or within

     some other existing course), are all permissible public school

     subjects.  It is both permissible and desirable to teach objectively

     about the role of religion in the history of the United States and

     other countries.  One can teach that the Pilgrims came to this

     country with  a particular religious vision, that Catholics and

     others have been subject to persecution or that many of those

     participating in the abolitionist, women's suffrage and civil rights

     movements had religious motivations.

6.   These same rules apply to the recurring controversy surrounding

     theories of evolution.  Schools may teach about explanations of

     life on earth, including religious ones (such as "creationism"), in

     comparative religion or social studies classes.  In science class,

     however, they may present only genuinely scientific critiques of,

     or evidence for, any explanation of life on earth, but not religious

     critiques (beliefs unverifiable by scientific methodology). Schools

     may not refuse to teach evolutionary theory in order to avoid

     giving offense to religion nor may they circumvent these rules by

     labeling as science an article of religious faith.  Public schools

     must not teach as scientific fact or theory any religious doctrine,

     including "creationism," although any genuinely scientific

     evidence for or against any explanation of life may be taught.

     Just as they may neither advance nor inhibit any religious

     doctrine, teachers should not ridicule, for example, a student's

     religious explanation for life on earth.

                 Student Assignments and Religion

7.   Students may express their religious beliefs in the form of

     reports, homework and artwork, and such expressions are

     constitutionally protected.  Teachers may not reject or correct

     such submissions simply because they include a religious

     symbol or address religious themes. Likewise, teachers may not

     require students to modify, include or excise religious views in

     their assignments, if germane.  These assignments should be

     judged by ordinary academic standards of substance, relevance,

     appearance and grammar.

8.   Somewhat more problematic from a legal point of view are other

     public expressions of religious views in the classroom.

     Unfortunately for school officials, there are traps on either side of

     this issue, and it is possible that litigation will result no matter

     what course is taken.  It is easier to describe the settled cases

     than to state clear rules of law. Schools must carefully steer

     between the claims of student speakers who assert a right to

     express themselves on religious subjects and the asserted rights

     of student listeners to be free of unwelcome religious persuasion

     in a public school classroom.

     a.   Religious or anti-religious remarks made in the ordinary

          course of classroom discussion or student presentations

          are permissible and constitute a protected right.  If in a

          sex education class a student remarks that abortion

          should be illegal because God has prohibited it, a teacher

          should not silence the remark, ridicule it, rule it out of

          bounds or endorse it, any more than a teacher may

          silence a student's religiously-based comment in favor of


     b.   If a class assignment calls for an oral presentation on a

          subject of the student's choosing, and, for example, the

          student responds by conducting a religious service, the

          school has the right -- as well as the duty -- to prevent

          itself from being used as a church.  Other students are not

          voluntarily in attendance and cannot be forced to become

          an unwilling congregation.

     c.   Teachers may rule out-of-order religious remarks that are

          irrelevant to the subject at hand.  In a discussion of

          Hamlet's sanity, for example, a student may not interject

          views on creationism.

                   Distribution of Religious Literature

9.   Students have the right to distribute religious literature to their

     schoolmates, subject to those reasonable time, place, and

     manner or other constitutionally- acceptable restrictions imposed

     on the distribution of all non-school literature.  Thus, a school

     may confine distribution of all literature to a particular table at

     particular times.  It may not single out religious literature for

     burdensome regulation.

10.  Outsiders may not be given access to the classroom to distribute

     religious or anti-religious literature.  No court has yet considered

     whether, if all other community groups are permitted to distribute

     literature in common areas of public schools, religious groups

     must be allowed to do so on equal terms subject to reasonable

     time, place and manner restrictions.

                           "See You at the Pole"

11.    Student participation in before- or after-school events, such as

       "see you at the pole,"  is permissible.  School officials, acting in

       an official capacity, may neither discourage nor encourage

       participation in such an event.

                Religious Persuasion Versus Religious Harassment

12.    Students have the right to speak to, and attempt to persuade,

       their peers about religious topics just as they do with regard to

       political topics.  But school officials should intercede to stop

       student religious speech if it turns into religious harassment

       aimed at a student or a small group of students.  While it is

       constitutionally permissible for a student to approach another and

       issue an invitation to attend church, repeated invitations in the

       face of a request to stop constitute harassment.  Where this line

       is to be drawn in particular cases will depend on the age of the

       students and other circumstances.

                             Equal Access Act

13.  Student religious clubs in secondary schools must be permitted

     to meet and to have equal access to campus media to announce

     their meetings, if a school receives federal funds and permits any

     student non-curricular club to meet during non-instructional time.

     This is the command of the Equal Access Act.  A non-curricular

     club is any club not related directly to a subject taught or

     soon-to-be taught in the school.  Although schools have the right

     to ban all non-curriculum clubs, they may not dodge the law's

     requirement by the expedient of declaring all clubs

     curriculum-related.  On the other hand, teachers may not actively

     participate in club activities and "non-school persons" may not

     control or regularly attend club meeting.

     The Act's constitutionality has been upheld  by the Supreme

     Court, rejecting claims that the Act violates the Establishment

     Clause.  The Act's requirements are described in more detail in

     The Equal Access Act and the Public Schools: Questions and

     Answers on the Equal Access Act*, a pamphlet published by a

     broad spectrum of religious and civil liberties groups.

                          Religious Holidays

14.  Generally, public schools may teach about religious holidays,

     and may celebrate the secular aspects of the holiday and

     objectively teach about their religious aspects.  They may not

     observe the holidays as religious events.  Schools should

     generally excuse students who do not wish to participate in

     holiday events.  Those interested in further details should see

     Religious Holidays in the Public Schools: Questions and

     Answers*, a pamphlet published by a broad spectrum of religious

     and civil liberties groups.

             Excusal From Religiously-Objectionable Lessons

15.  Schools enjoy substantial discretion to excuse individual students

     from lessons which are objectionable to that student or to his or

     her parent on the basis of  religion.  Schools can exercise that

     authority in ways which would defuse many conflicts over

     curriculum content.  If it is proved that particular lessons

     substantially burden a student's free exercise of religion and if

     the school cannot prove a compelling interest in requiring

     attendance the school would be legally required to excuse the


                           Teaching Values

16.  Schools may teach civic virtues, including honesty, good

     citizenship, sportsmanship, courage,  respect for the rights and

     freedoms of others, respect for persons and their property,

     civility,  the dual virtues of moral conviction and tolerance and

     hard work.  Subject to whatever rights of excusal exist (see #15

     above) under the federal Constitution and state law, schools may

     teach sexual abstinence and contraception; whether and how

     schools teach these sensitive subjects is a matter of educational

     policy.  However, these may not be taught as religious tenets.

     The mere fact that most, if not all, religions also teach these

     values does not make it unlawful to teach them.

                             Student Garb

17.  Religious messages on T-shirts and the like may not be singled

     out for  suppression.  Students may wear religious attire, such as

     yarmulkes and head scarves, and they may not be forced to

     wear gym clothes that they regard, on religious grounds, as


                             Released Time

18.  Schools have the discretion to dismiss students to off-premises

     religious  instruction, provided that schools do not encourage or

     discourage participation or penalize those who do not attend.=20

     Schools may not allow  religious instruction by outsiders on

     premises during the school day.


*  Copies may be obtained from any of the undersigned organizations.




              Organizational Contacts for

            "Religion in the Public Schools:

           A Joint Statement of Current Law"

American Civil Liberties Union

     Beth Orsoff, William J. Brennan Fellow

     202/544-1681 (x306)

American Ethical Union

     Herbert Blinder, Director, Washington Ethical Action Office


American Humanist Association

     Frederick Edwords, Executive Director


American Jewish Committee

     Richard Foltin, Legislative Director/Counsel


American Jewish Congress

     Marc D. Stern, Co-Director, Commission on

     Law and Social Action


American Muslim Council

     Abdurahman M. Alamoudi, Executive Director


Americans for Religious Liberty

     Edd Doerr, Executive Director


Americans United for Seperation of Church and State

     Steve Green, Legal Director


Anti-Defamation League

     Michael Lieberman, Associate Director/Counsel,

     Washington Office


Baptist Joint Committee

     J. Brent Walker, General Counsel


B'nai B'rith

     Reva Price, Director, Political Action Network


Christian Legal Society

     Steven T. McFarland, Director,

     Center for Law and Religious Freedom


Christian Science Church

     Philip G. Davis, Federal Representative


Church of the Brethren, Washington Office

     Timothy A. McElwee, Director


Church of Scientology International

     Susan L. Taylor, Public Affairs Director, Washington Office


Evangelical Lutheran Church in America,

Lutheran Office for Governmental Affairs

     Kay S. Dowhower, Director


Federation of Reconstructionist Congregations and Havurot

     Rabbi Mordechai Liebling, Executive Director


Friends Committee on National Legislation

     Ruth Flower, Legislative Secretary/Legislative

     Education Secretary


General Conference of Seventh-day Adventists

     Gary M. Ross, Congressional Liaison


Guru Gobind Singh Foundation

     Rajwant Singh, Secretary


Interfaith Alliance

     Jill Hanauer, Executive Director


Interfaith Impact for Justice and Peace

     James M. Bell, Executive Director


National Association of Evangelicals

     Forest Montgomery, Counsel, Office of Public Affairs


National Council of Churches

     Oliver S. Thomas, Special Counsel for

     Religious and Civil Liberties


National Council of Jewish Women

     Deena Margolis, Legislative Assistant


National Jewish Community Relations Advisory Council (NJCRAC)

     Jerome Chanes, Director, Domestic Concerns


National Ministries, American Baptist Churches, USA

     Rene Ladue, Program Assistant,

     Office of Government Relations


National Sikh Center

     Chatter Saini, President


North American Council for Muslim Women

     Sharifa Alkhateeh, Vice-President


People for the American Way

     Elliot Mincberg, Legal Director


Presbyterian Church (USA)

     Eleonora Giddings Ivory, Director, Washington Office


Reorganized Church of Jesus Christ of Latter Day Saints

     W. Grant McMurray, First Presidency


Union of American Hebrew Congregations 

     Rabbi David Saperstein, Director, Religious Action Center


Unitarian Universalist Association of Congregations

     Robert Alpern, Director, Washington Office


United Church of Christ, Office for Church in Society

     Patrick Conover, Acting Head of Office,  Washington Office


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