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
choice.
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
student.
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
immodest.
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.
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* Copies may be obtained from any of the undersigned organizations.
_____________________________________________________________________
Appendix
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
301/229-3759
American Humanist Association
Frederick Edwords, Executive Director
800/743-6646
American Jewish Committee
Richard Foltin, Legislative Director/Counsel
202/785-4200
American Jewish Congress
Marc D. Stern, Co-Director, Commission on
Law and Social Action
212/360-1545
American Muslim Council
Abdurahman M. Alamoudi, Executive Director
202/789-2262
Americans for Religious Liberty
Edd Doerr, Executive Director
301/598-2447
Americans United for Seperation of Church and State
Steve Green, Legal Director
202/466-3234
Anti-Defamation League
Michael Lieberman, Associate Director/Counsel,
Washington Office
202/452-8320
Baptist Joint Committee
J. Brent Walker, General Counsel
202/544-4226
B'nai B'rith
Reva Price, Director, Political Action Network
202/857-6645
Christian Legal Society
Steven T. McFarland, Director,
Center for Law and Religious Freedom
703/642-1070
Christian Science Church
Philip G. Davis, Federal Representative
202/857-0427
Church of the Brethren, Washington Office
Timothy A. McElwee, Director
202/546-3202
Church of Scientology International
Susan L. Taylor, Public Affairs Director, Washington Office
202/667-6404
Evangelical Lutheran Church in America,
Lutheran Office for Governmental Affairs
Kay S. Dowhower, Director
202/783-7507
Federation of Reconstructionist Congregations and Havurot
Rabbi Mordechai Liebling, Executive Director
215/887-1988
Friends Committee on National Legislation
Ruth Flower, Legislative Secretary/Legislative
Education Secretary
202/547-6000
General Conference of Seventh-day Adventists
Gary M. Ross, Congressional Liaison
301/680-6688
Guru Gobind Singh Foundation
Rajwant Singh, Secretary
301/294-7886
Interfaith Alliance
Jill Hanauer, Executive Director
202/639-6370
Interfaith Impact for Justice and Peace
James M. Bell, Executive Director
202/543-2800
National Association of Evangelicals
Forest Montgomery, Counsel, Office of Public Affairs
202/789-1011
National Council of Churches
Oliver S. Thomas, Special Counsel for
Religious and Civil Liberties
615/977-9046
National Council of Jewish Women
Deena Margolis, Legislative Assistant
202/296-2588
National Jewish Community Relations Advisory Council (NJCRAC)
Jerome Chanes, Director, Domestic Concerns
212/684-6950
National Ministries, American Baptist Churches, USA
Rene Ladue, Program Assistant,
Office of Government Relations
202/544-3400
National Sikh Center
Chatter Saini, President
703/734-1760
North American Council for Muslim Women
Sharifa Alkhateeh, Vice-President
703/759-7339
People for the American Way
Elliot Mincberg, Legal Director
202/467-4999
Presbyterian Church (USA)
Eleonora Giddings Ivory, Director, Washington Office
202/543-1126
Reorganized Church of Jesus Christ of Latter Day Saints
W. Grant McMurray, First Presidency
816/521-3002
Union of American Hebrew Congregations
Rabbi David Saperstein, Director, Religious Action Center
202/387-2800
Unitarian Universalist Association of Congregations
Robert Alpern, Director, Washington Office
202/547-0254
United Church of Christ, Office for Church in Society
Patrick Conover, Acting Head of Office, Washington Office
202/543-1517