Religion Guidelines for New York State Administrators

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RELIGION GUIDELINES

Religion Guidelines for New York State Administrators

Mark Carls, Kathi Gimbrone, Jennifer Kless, Kimberly Moore

St. Bonaventure University

Abstract

A thorough review of religious aspects of school law was conducted and compiled in an Administrative Guide. The purpose of this analysis was to document the appropriate usage of the Establishment Clause and the Free Exercise Clause as defined in the First Amendment of the United States Constitution in regards to religion. Numerous court cases ranging from the United States Supreme Court, the Federal Appellate Court, and the Federal District Courts as well as decisions made by the New York State Education Commissioner were documented and cited throughout the guide. Each section of the guide presents the summary, implications, and case connections in a clear and an effective manner. In addition, formal school board policies as well as administrative regulations were addressed in relation to each section. This guide will be beneficial to practicing administrators as they formulate decisions in regards to religious issues in education.

Table of Contents

Section I: Establishment Clause

Section II: Free Exercise Clause

Section III: Prayer & Moments of Silence

Section IV: Student Religious Groups

Section V: Teaching of Religion

Section VI: Religious Observations

Section VII: Religious Symbols

Section VIII: Vouchers

Section IX: Aid to Parochial Schools

Section X: Distribution of Religious Materials

Section XI: Religious Discrimination

Section XII: Pledge of Allegiance

Section XIII: Immunizations

Section XIV: Board Policies

Section XV: Administrative Regulations

Religion Guidelines for New York State Administrators

The Establishment Clause and Free Exercise Clause of the First Amendment of the United States Constitution primarily govern the role of religion in the public schools (New York State School Boards Association [NYSSBA], 2010, p. 757, School Law § 36:1). The Establishment Clause “prohibits the state from passing laws that aid a religion or show preference for one religion over another” (Essex, 2012, p. 15). The Free Exercise Clause “prohibits the state from interfering with individual religious freedoms” (Essex, 2012, p. 15). The “combined effect of these two clauses compels public schools as state agencies to maintain a neutral position in their daily operation regarding religious matters” (Essex, 2012, p. 15). This means that “the state can neither aid nor inhibit religion – it must adhere to the principle of neutrality” (Essex, 2012, p. 15).

SECTION I: ESTABLISHMENT CLAUSE

1. ESTABLISHMENT CLAUSE:

Establishment Clause states: “Congress shall make no law respecting an establishment of religion. It has been interpreted to require the separation of church and state and is applicable to the states and their subdivisions, including school districts” (NYSSBA, 2010, p. 757, School Law § 36:2). This clause “prohibits the state from passing laws that aid a religion or show preference for one religion over another” (Essex, 2012, p. 15).

United States Supreme Court:

·  Courts have ruled that the Establishment Clause “requires that government pursue a course of complete neutrality toward religion, and not promote religion or entangle itself in religious matters” (NYSSBA, 2010, p. 757, School Law § 36:2).

- McCreary Cnty. v. ACLU, 545 U.S. 844 (2005)

- BOE of the Kiryas Joel Village Sch. Dist. v. Grumet, 512 U.S. 687 (1994)

- Lee v. Weisman, 505 U.S. 577(1992)

- Wallace v. Jaffree, 472 U.S. 38(1985)

- Larson v. Valente, 456 U.S. 228(1982), rehg denied, 457 U.S. 1111 (1982)

·  However, “not all governmental conduct that confers a benefit on or gives special recognition to religion is automatically prohibited as it depends on all the circumstances surrounding the particular church-state relationship” (NYSSBA, 2010, p. 757, School Law § 36:2).

- Lynch v. Donnelly, 465 U.S. 668 (1984)

2. ESTABLISHMENT CLAUSE: STANDARDS USED TO DETERMINE

The “standard to determine whether governmental action violates the separation of church and state principles of the Establishment Clause is the Lemon test, a three-pronged test established by the United States Supreme Court and named after the lawsuit that gave rise to it” (NYSSBA, 2010, p. 758, School Law § 36:5). “To be constitutional, an action: (1) must not have a religious purpose; (2) must not have a principal or primary effect of advancing or inhibiting religion; and (3) must not foster excessive government entanglement with religion” (NYSSBA, 2010, p. 758, School Law § 36:5).

- Lemon v. Kurtzman, (403 U.S. 602 (1971), rehg denied, 404 U.S. 876 (1971), on

remand, 348 F.Supp. 300 (E.D. Pa. 1972), affd, 411 U.S. 192 (1973)

United States Supreme Court:

·  “Court has decided a number of cases without reference to the Lemon test” (NYSSBA, 2010, p. 758, School Law § 36:5).

- BOE of the Kiryas Joel Village Sch. Dist. v. Grumet, 512 U.S. 687 (1994)

- Zobrest v. Catalina Foothills Sch. Dist., 509 U.S. 1 (1993)

- Lambs Chapel v. Center Moriches UFSD, 508 U.S. 384 (1993), remanded without

op.,17 F.3d 1425 (2d Cir. 1994)

- Lee v. Weisman, 505 U.S. 577 (1992)

·  “While several justices have questioned the continued appropriateness of the Lemon test, the Supreme Court as a whole has not overruled Lemon and still makes use of its principles as necessary” (NYSSBA, 2010, p. 758, School Law § 36:5).

- McCreary Cnty. v. ACLU, 545 U.S. 844 (2005)

- Doe v. Santa Fe Indep. Sch. Dist., 530 U.S. 290 (2000)

- Agostini v. Felton, 521 U.S. 203 (1997)

·  “High court also uses an Establishment Clause analysis that focuses on global principles of neutrality not linked to a specific test” (NYSSBA, 2010, p. 758, School Law § 36:5). “Under these neutrality principles, the Establishment Clause is violated when government acts in a non-neutral manner toward religion by favoring (1) religion over non-religion, (2) non-religion over religion, or (3) a particular denomination over another (NYSSBA, 2010, p. 758, School Law § 36:5).

- Zelman v. Simmons-Harris, 536 U.S. 639 (2002)

- BOE Kiryas Joel Village Sch. Dist. Grumet, 512 U.S. 687 (1994)

- Wallace v. Jaffree, 472 U.S. 38 (1985)

- Larson v. Valente, 456 U.S. 228 (1982), rehg denied, 457 U.S. 1111 (1982)

SECTION II: FREE EXERCISE CLAUSE

1. FREE EXERCISE CLAUSE:

The Free Exercise Clause states: “Congress shall make no law prohibiting the free exercise of religion” (NYSSBA, 2010, p. 757, School Law § 36:3). It “addresses the freedom of individual belief and religious expression” (NYSSBA, 2010, p. 757, School Law § 36:3). This clause is “also applicable to the states and their political subdivisions, and prohibits government from restricting the right of an individual to believe in whatever he or she may choose” (NYSSBA, 2010, p. 757, School Law § 36:3).

United States Supreme Court:

·  According to the courts this right “may not be read to require the Government to conduct its own internal affairs in ways that comport with the religious beliefs of particular citizens” (NYSSBA, 2010, p. 757, School Law § 36:3).

- Bowen v. Roy, 476 U.S. 693 (1986)

- Lyng v. Northwest Indian Cemetery Protective Assn, 485 U.S. 439 (1988)

·  Although “government may accommodate the free exercise of religion, it may not supersede the fundamental limitations imposed by the Establishment Clause” (NYSSBA, 2010, p. 757, School Law § 36:3).

- Lee v. Weisman, 505 U.S. 577(1992)

- BOE Kiryas Joel Village Sch. Dist. v. Grumet, 512 U.S. 687 (1994)

2. FREE EXERCISE CLAUSE: STANDARDS USED TO DETERMINE

Federal Appellate Courts:

·  “Claims of violations of the Free Exercise Clause in an educational context traditionally have been measured by balancing the states interest in providing public education against the right of the parent, student, or employee to freely exercise or practice his or her religion” (NYSSBA, 2010, p. 758, School Law § 36:6). However, the “right to exercise ones religion freely is not burdened simply by mandating one to be exposed to ideas with which that person disagrees” (NYSSBA, 2010, p. 758 School Law § 36:6).

- Leebaert v. Harrington, 332 F.3d 134 (2d Cir. 2003)

- Brown v. Hot, Sexy & Safer Prods., 68 F.3d 525 (1st Cir. 1995)

- Mozert v. Hawkins Cnty. BOE, 827 F.2d 1058 (6th Cir. 1987), cert. denied, 484 U.S.

1066 (1988)

- Parker v. Hurley, 474 F.Supp.2d 261 (D. Mass. 2007), affd, 514 F.3d 87 (1st Cir. 2008)

SECTION III: PRAYERS & MOMENTS OF SILENCE

1. PRAYERS/MOMENTS OF SILENCE: SCHOOL BOARD MEETING

The issue of a school board opening its meeting with a prayer “has not yet been answered by any court with jurisdiction over the school districts in New York State” (New York State School Boards Association [NYSSBA], 2010, p. 759, School Law § 36:7).

Federal Appellate Courts (outside New York):

·  Ruled that a school district may NOT open a school board meeting with a prayer because school boards are an important part of the public school, and students in attendance might feel more "coercion" than at a graduation ceremony therefore the practice is unconstitutional (NYSSBA, 2010, p. 759, School Law § 36:7).

- Coles v. Cleveland BOE, 171 F.3d 369 (6th Cir. 1999), rehg denied, 183 F.3d 538 (6th

Cir. 1999)

Federal District Courts (outside of New York):

·  Ruled that a school board meeting may begin with a prayer as long as the board does not show a preference to any one religion (NYSSBA, 2010, p. 759, School Law § 36:7). If no preference is shown then the board would not violate the Establishment Clause (NYSSBA, 2010, p. 759, School Law § 36:7).

- Doe v. Tangipahoa Parish Sch. Bd., 631 F.Supp.2d 823 (E.D. La., 2009)

- Doe v. Indian River Sch. Dist., 685 F.Supp.2d 524 (D. Del. 2010)

2. PRAYERS/MOMENTS OF SILENCE: DAILY PRAYER IN PUBLIC SCHOOL

Regardless if prayer and/or exercises are voluntary and nondenominational, school sponsored prayer and religious exercises are unconstitutional (NYSSBA, 2010, p. 759, School Law § 36:8).

United States Supreme Court:

Cases struck down or dismissed by the United States Supreme Court because they violate the separation of church and state as defined in the First Amendment's Establishment Clause:

·  “Daily recitation of prayers, approved by the New York State Board of Regents, over a school's public address system was considered unconstitutional” (Essex, 2012, p. 21; NYSSBA, 2010, p. 759, School Law § 36:8).

- Engle v. Vitale, 370 U.S. 421 (1962)

·  Courts ruled that a policy of a Pennsylvania school requiring readings from the Bible was deemed unconstitutional, “even if students were not required to engage in such prayers” (NYSSBA, 2010, p. 759, School Law § 36:8).

- Abington School Dist. v. Schempp, 374 U.S. 203 (1963)

3. PRAYERS/MOMENTS OF SILENCE: REQUIRED OR ORGANIZED

United States Supreme Court:

·  Struck down a statute that had allowed for a daily one-minute of silence or voluntary prayer because the court found that the purpose was to allow prayer (NYSSBA, 2010, p. 760, School Law § 36:9). Therefore the statute was ruled unconstitutional (NYSSBA, 2010, p. 760, School Law § 36:9).

- Wallace v. Jaffree, 472 U.S. 38 (1985)

Federal Appellate Courts (outside New York):

·  In three appellate court cases since Jaffree in 1985, state statutes were upheld that enacted moments of silence because they were not found to be promoting prayer but rather quiet contemplation or reflection (NYSSBA, 2010, p. 760, School Law § 36:9).

- Croft v. Governor of Texas, 562 F.3d 755 (5th Cir. 2009)

- Brown v. Gilmore, 258 F.3d 265 (4th Cir. 2001)

- Bown v. Gwinnet Cnty. Sch. Dist., 112 F.3d 1464 (11th Cir. 1997)

New York State Education Law:

·  “Allows for a moment of silence in the public schools at the opening of school every school day” (NYSSBA, 2010, p. 760, School Law § 36:9; New York State [NYS] Legislature, 2011, Education Law § 3029-a). This law specifically provides: “The silent meditation authorized . . . is not intended to be, and shall not be conducted as, a religious service or exercise, but may be considered an opportunity for silent meditation on a religious theme by those who are so disposed, or a moment of silent reflection on the anticipated activities of the day” (NYSSBA, 2010, p. 760, School Law § 36:9).

4. PRAYERS/MOMENTS OF SILENCE: STUDENT LED DURING SCHOOL HOURS

United States Supreme Court:

·  No rulings by the United States Supreme Court (NYSSBA, 2010, p. 760, School Law § 36:10).

Federal Appellate Courts (outside New York):

·  “Upheld a school district policy that prohibited faculty participation in student initiated prayer in any school-sponsored setting including classes, team practices, pep rallies, team meetings, and athletic events” (NYSSBA, 2010, p. 760, School Law § 36:10).

- Borden v. School Dist. of the Township of East Brunswick, 523 F.3d 153 (3d Cir. 2008)

Federal District Courts (outside New York):

·  Courts have found this practice to violate the Establishment Clause requiring the separation between church and state (NYSSBA, 2010, p. 760, School Law § 36:10). Practices that allow student-initiated prayer are perceived as being endorsements of religion by the school district (NYSSBA, 2010, p. 760, School Law § 36:10).-

- Herdahl v. Pontotoc Cnty. Sch. Dist., 887 F.Supp. 902 (N.D. Miss. 1995)

- Ingebretsen v. Jackson Pub. Sch. Dist., 88 F.3d 274 (5th Cir. 1996), cert. denied, 117

S.Ct. 388 (1996)

Federal District Court (New York):

·  Supported a school district’s decision to stop a traditional Mohawk Indian Thanksgiving Address given at pep rallies and lacrosse games over the school intercom system (NYSSBA, 2010, p. 760, School Law § 36:10). The court found that the address contained speech that could be interpreted as religious content and as such, an endorsement by the school of that particular religion (NYSSBA, 2010, p. 760, School Law § 36:10).

- Jock v. Ransom, 2007 U.S. Dist. LEXIS 47027 (N.D.N.Y. 2007)

5. PRAYERS/MOMENTS OF SILENCE: STUDENT DELIVERED BEFORE, DURING,

OR AFTER SCHOOL SPONSORED EXTRACURRICULAR ACTIVITIES

United States Supreme Court:

·  “Ruled that a school policy that allowed student-initiated, student-delivered, nonsectarian, non-proselytizing prayer at high school football games violates the separation of church and state” (NYSSBA, 2010, p.761, School Law § 36:11). The pre-game prayer would be seen as school endorsed, and students would feel pressure to religiously “conform” in order to join in with their classmates (NYSSBA, 2010, p. 761, School Law § 36:11).