Education Law Insights

It’s Beginning to Look a Lot Like a Lawsuit: The Acceptable Role of Religion in Public School Winter Musical Programs and Toy Drives

Posted by Jackie Wernz on November 26, 2013

Thanksgiving is not yet here, but school districts across the country already are grappling with an important question regarding later, religious holidays like Christmas. The question:  Can religious content be included in winter programming in public schools?

The inclusion of religion-themed content in musical programs and charity drives has been a hot button issue for schools this year. For example, a New Jersey school district recently came under fire for banning all Christian music from its elementary schools’ winter concerts. After pressure from a pro-religion organization, Alliance Defending Freedom, the school district reversed course and said it would allow Christmas songs in the concerts, after all. Similarly, a Colorado school district reportedly broke ties with a Christian organization that collects boxes of toys from students to send to impoverished children overseas. A secular-rights group, the American Humanist Association, fueled the change in policy by challenging the practice through a letter to the school district.

The organizations that either support or challenge the inclusion of religious content in school programming often portray the issue as simple. For instance, the Alliance Defending Freedom recently sent a letter to 13,000 school districts across the country suggesting that the right to include religious content in school musical programs and toy drives is nearly absolute. But as with most constitutional issues in public schools, the reality is that decisions must be made on a case-by-case basis with critical attention to the rights on both sides.

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Jesus Painting in Ohio Middle School: The Right Choice?

Posted by Jackie Wernz on March 20, 2013

A portrait of Jesus Christ that has been hanging in an Ohio public middle school since the 1940s is once again garnering national headlines. The school district reportedly moved the portrait earlier this week from the middle school to a local high school.

A lawsuit filed early this year against the school district by three anonymous students alleges that the portrait of Jesus was a gift to the school by a Christian student club and is therefore the school’s speech. Because it is religious in nature and there is no secular purpose for hanging the picture, the lawsuit argues that hanging it in the school violates the First Amendment’s prohibition against establishment of religion. In February, the school board voted to allow the picture to remain despite the lawsuit, saying that the portrait is not owned by the school but rather belongs to a Christian student club. The recent move of the portrait to a new school purportedly was a decision of the student club, not the school. The school suggested that removing the portrait would violate the First Amendment rights of the students in the Christian club. Which side is right?

There is not an easy answer, as is often the case with religious school speech questions. A first important consideration will be the context in which the portrait is hung. As the ACLU’s initial letter to the Ohio school district explained, courts are generally skeptical of religious displays, including religious works of art, that appear to be government sponsored unless there is a clear secular purpose behind the display. Examples of secular displays might include a display that includes art work from a number of different religions in an effort to teach students about the impact of religion on art or a display in which students are allowed to hang photographs of their choice and a student submits a religious photograph for the display. In contrast, courts have held particular works of art to violate the Establishment Clause where they are relatively isolated from other government-sponsored displays. The ACLU’s letter alleged that the Jesus portrait at issue here was not in a larger display of “world-renowned historical or religious figures,” and rather was hung in the middle school near portraits of alumni of the school. If those facts are true, and if the move to the high school did not remedy the problem, a court would be much more likely to find the portrait to be unconstitutional.

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Update: Texas Cheerleaders’ Religious Football Banners

Posted by Jackie Wernz on October 25, 2012

In follow up to my previous blog entry, Texas School Bans Cheerleaders’ Religious Football Banners: The Right Choice?, the Texas state court issued its ruling last week. The court ruled that the Kountze cheerleaders could continue to display religious-themed banners at football games. The court agreed with the cheerleaders, their parents, and the Texas Attorney General that the speech was individual speech by the students that could not be stifled by the school. As you may recall, that is not the conclusion I reached in my previous blog post. And I’m not the only source that thinks the ruling is legally questionable. This story is far from over, as the school district may appeal the trial court’s decision to a higher court and, even if it does not, a trial will be held in June on as to whether the school district will be permanently enjoined from prohibiting the banners. For that reason, those who have not read the prior post may still find my legal analysis interesting for learning more about the legal issues underlying this case. Read the post here.

Texas School Bans Cheerleaders’ Religious Football Banners: The Right Choice?

Posted by Jackie Wernz on October 12, 2012

Next week a Texas state court will address a lawsuit filed by Kountze High School cheerleaders on some of the hottest issues in Texas: religion, schools, and football. The cheerleaders allege that their school superintendent prohibited them from writing religious messages on banners at football games, in violation of the First Amendment. The case wades into the murky legal waters regarding student-initiated prayer at school events. Was the school district’s decision the right choice? Here is this school lawyer’s take.

The Facts

The Kountze High School cheerleaders, dressed in uniform, hold 30’ x 10’ banners for their football team to run through at the beginning of football games. Cheerleaders use such banners across the country, typically with sayings like “Beat the Bulldogs” or “Trounce the Tigers,” and the cheerleaders are typically allowed to choose what is on the banners. But these Texas cheerleaders chose sayings from the Bible for their signs. An example of the language used is: “But thanks be to God, which gives us Victory through our Lord Jesus Christ. 1 Cor. 15:57.”

Based on a letter from the Freedom From Religion Foundation (FRFF), which advocates for the separation of church and state, the school district superintendent prohibited the cheerleaders from unfurling further religious banners. The story since has gone viral, with recent coverage by the New York Times, the Wall Street Journalthe Washington Post and the Los Angeles Times. Last week, a Texas state court judge refused to grant the cheerleaders a temporary injunction, but reportedly did agree to extend a temporary restraining order until the parties could meet in court to address the cheerleaders’ request for a permanent injunction. The parties will face off in court next week.

Tenuous Confidence

Both sides appear quite confident in their legal arguments, but there is no court case that directly addresses the issue before the Texas court. In its written response to the lawsuit, the school district relied on a 2000 United States Supreme Court case, Santa Fe v. Doe, in which the Court struck down a school district policy allowing student-led prayer over a loud speaker before football games. The FRFF also relied on that decision in a brief in support of the school district. (more…)

Back-to-School Brush Up on Student Groups

Posted by Jackie Wernz on August 29, 2012

Back to school often brings a flood of requests from students, including requests to meet as student groups on school grounds. From gay-straight alliance to religious student groups, stories about requests for student groups seem to always be in the news. So there’s no better time to freshen up on the sometimes confusing rules about the rights of students to assemble as student groups. Although there are exceptions, the general rule is that all student groups should be granted similar rights as other groups, regardless of the particular viewpoint (e.g., religious, social, etc.) of the group.

Here’s a scenario that comes up frequently:

Q: A student has asked to start a Bible study student group at school. I’m nervous that parents will think the school is supporting Christian beliefs in violation of the separation of church and state. Can I deny the student’s request?

A: The answer depends on a number of factors, such as the type of group, when it wishes to meet and the proposed role for school district employees. One thing is for certain – religious groups are quick to hire lawyers and even file lawsuits when such requests are denied. At the same time, the improper support of religious messages in school is equally dangerous for school districts. So it’s prudent to review all religious student group requests with the school district’s legal counsel.

A few general principles will likely apply:

  • The mere fact that students wish to have a student group with a religious purpose does not in itself violate any principles of separation of church and state. In fact, if the group meets during a time when other student groups are allowed to meet (e.g., before and after school), a school’s refusal to allow students to meet will likely violate the students’ First Amendment rights to free speech and assembly.
  • If students expect to have an actively participating teacher or staff sponsor, that may change the equation. Allowing an employee sponsor to participate in any meaningful way could lead to an unjustified entanglement between the school and the religious student group, violating the Establishment Clause of the Federal Constitution. Although schools can – and should – require an adult sponsor to ensure proper student behavior during meetings, employees should not be active participants in any religious club. But don’t use a request for an active sponsor to deny a student group’s application for recognition outright. Instead, simply limit the activities that the sponsor can undertake with the group.
  • Schools do have discretion to limit the time, place, and manner of student group meetings, including religious student groups, as long as such limitations are applied equally to religious and non-religious student groups alike. For example, the Sixth Circuit Court of Appeals (the federal appeals court with jurisdiction over Kentucky, Michigan, Ohio and Tennessee) suggested in a recent case, Whitson v. Knox County Bd. of Educ., that prohibiting elementary-school aged children from holding a Bible study during recess (which has the goal of physical activity) would not necessarily violate the student’s First Amendment rights. Robyn Hagan Cain provides a good summary of the issues on the FindLaw 6th Circuit News and Information blog.