Ithaca Teachers Prevent 6th Grader from Reading Bible During Lunch

Just received the following in an email from a member of the school board here in Ithaca, NY, liberal haven and home of Cornell University.

"A sixth grader recently took a Bible to [middle school] and was reading it in the library and at lunch. Two different teachers told the child that having and reading a Bible at public school is illegal and improper and that the Bible would have to be put away out of sight.

"That teachers can still think it illegal to carry and read a Bible or other religious writing at school surprises me. Is there any statement a teachers' manual about such things? Is it covered in any kind of orientation or whatever?"

Students' Rights in the Public Schools: Section 2

Specific Activities Involving
Students' Rights and Religion in the Public Schools

Among the thousands of inquiries received by the American Center for Law and Justice each month are several recurring questions regarding specific activities in the public schools. A brief response to each of these is set out below.

May Students Distribute Literature and Engage in Personal Evangelism on School Grounds?

YES! Students’ First Amendment rights include the right to distribute Gospel tracts during non-instructional time, the right to wear shirts with overtly Christian messages and symbols, and the right to pray and discuss matters of religion with others. Further, schools may not prevent students from bringing their Bibles to school. In fact, school officials must allow students to read their Bibles during free time, even if that free time occurs during class. The standard that must be applied by the school is: Does the activity “materially or substantially disrupt school discipline?” Unless a student is participating in activities that are disruptive, the school must allow them to continue.

As a preliminary matter, it is a constitutional axiom that the distribution of free religious literature is a form of expression protected by the First Amendment. Religious and political speech are protected by the First Amendment. Lovell v. City of Griffin, 303 U.S. 444 (1938); Widmar v. Vincent, 454 U.S. 263, 269 (1981). Furthermore, “[a]dvocacy and persuasive speech are included within the First Amendment guarantee if the speech is otherwise protected.” Rivera v. East Otero School District R-1, 721 F.Supp. 1189, 1194 (D.Colo. 1989).

The United States Supreme Court’s consistent jurisprudence, for fifty years, recognizes the free distribution of literature as a form of expression protected by the United States Constitution. Lovell, 303 U.S. 444; Heffron v. International Society for Krishna Consciousness, 452 U.S. 640 (1981). In Lovell, the United States Supreme Court put the case for constitutional protection of leaflets and pamphlets quite clearly:

The liberty of the press is not confined to newspapers and periodicals. It necessarily embraces pamphlets and leaflets. These indeed have been historic weapons in the defense of liberty, as the pamphlets of Thomas Paine and others in our history abundantly attest. The press in its historic connotation comprehends every sort of publication which affords a vehicle of information and opinion. What we have had recent occasion to say with respect to the vital importance of protecting this essential liberty from every sort of infringement need not be repeated.

Lovell, 303 U.S. at 452 (emphasis added).

Of course, the constitutional value of leaflets and pamphlets is not lessened by the fact that they address matters of religion. The materials at issue in Lovell were “a pamphlet and magazine in the nature of religious tracts. . . .” 303 U.S. at 448. Just five years after Lovell, in Murdock v. Pennsylvania, 319 U.S. 105 (1942), the United States Supreme Court said:

The hand distribution of religious tracts is an age-old form of missionary evangelism -- as old as the history of printing presses. It has been a potent force in various religious movements down through the years. . . . It is more than preaching; it is more than distribution of religious literature. It is a combination of both. Its purpose is as evangelical as the revival meeting. This form of religious activity occupies the same high estate under the First Amendment as do worship in the churches and preaching from the pulpits.

Murdock, 319 U.S. at 108-09 (1943) (footnotes omitted).

School officials may not lump a student’s right to distribute free literature together with more disruptive forms of expression, such as solicitation. In a recent decision, a plurality of the Supreme Court noted the experience of thousands of “residents of metropolitan areas [who] know from daily experience [that] confrontation by a person asking for money disrupts passage and is more intrusive and intimidating than an encounter with a person giving out information.” United States v. Kokinda, 497 U.S. 720, 734 (1990) (plurality). In fact, distribution of literature is, inherently, even less disruptive than spoken expression. As the Supreme Court stated, “[o]ne need not ponder the contents of a leaflet or pamphlet in order mechanically to take it out of someone’s hand, but one must listen, comprehend, decide and act in order to respond to a solicitation” Id. Accord ISKCON v. Lee, 112 S.Ct. 2711, 2317 (1992).

The applicable standard -- material and substantial disruption -- is not met by an undifferentiated fear or apprehension of disruption. In other words, it is not enough for school officials to fear that allowing religious speech will offend some members of the community. As the Supreme Court said, “in our system, undifferentiated fear or apprehension of disturbance is not enough to overcome the right to freedom of expression.” Tinker, 393 U.S. at 508. Where a student wishes to peacefully distribute free literature on school grounds during non-instructional time, there simply is nothing which “might reasonably [lead] school authorities to forecast substantial disruption of or material interference with school activities. . . .” Tinker, 393 U.S. at 514.

In fact, several courts have held that the distribution of religious literature by high school students is protected speech under the First Amendment and Fourteenth Amendment. See Rivera v. East Otero School District R-1, 721 F.Supp. 1189 (D.Colo. 1989); Thompson v. Waynesboro Area School District, 673 F.Supp. 1379 (M.D.Pa. 1987); Nelson v. Moline School District No. 40, 725 F.Supp. 965 (C.D.Ill. 1989). Hemry v. School Board of Colorado Springs School District 11, 760 F.Supp. 856 (D.Colo. 1991). Note that in Hemry, school officials ultimately conceded that students had the right to distribute the religious material on campus both inside and outside the building. Hemry v. School Board of Colorado Springs, No. 90-S-2188, Stipulation for Dismissal (D.Colo. Nov. 12, 1991)(unpublished). Accord Harden v. School Board of Pinellas County, No. 90-1544-CIV-T-15A, Consent Decree and Order (M.D.Fla. 1991)(students permitted to distribute religious newspaper on campus).

As the Supreme Court clearly held in Tinker:

In our system, state-operated schools may not be enclaves for totalitarianism. School officials do not possess absolute authority over their students. Students in school as well as out of school are “persons” under our Constitution. They are possessed of fundamental rights which the State must respect, just as they themselves must respect their obligations to the State. In our system, students may not be regarded as closed-circuit recipients of only that which the State chooses to communicate. They may not be confined to the expressions of those sentiments that are officially approved.

Tinker, 393 U.S. at 511.

While school officials may seek to distinguish Tinker as inapplicable by arguing that a public school is not a traditional public forum, such assertions are unavailing because “[t]he holding in Tinker did not depend upon a finding that the school was a public forum.” Rivera, 721 F.Supp. at 1193. As the Tinker Court noted, when a student “is in the cafeteria, or on the playing field, or on the campus during the authorized hours, he may express his opinions. . . .” Tinker, 393 U.S. at 512-13.

Further, as the Rivera court noted, “whether or not a school campus is available as a public forum to others, it is clear that the students, who of course are required to be in school, have the protection of the First Amendment while they are lawfully in attendance.” Id. at 1197. The Tinker Court also recognized that “personal intercommunication among the students” in high schools is an activity to which schools are dedicated. See Tinker 393 U.S. at 512 (and accompanying footnote). (FN1)

Certainly, it is necessary to acknowledge that school officials have “important, delicate and highly discretionary functions” to perform. West Virginia v. Barnette, 319 U.S. 624, 637 (1943). These functions, however, must be performed “within the limits of the Bill of Rights.” Id. at 637. “The vigilant protection of constitutional freedoms is nowhere more vital than in the community of American schools.” Shelton v. Tucker, 364 U.S. 479, 487 (1967).

Schools officials need not fear that distribution activities of students may be imputed to them, and that the Establishment Clause would thereby be violated. This very argument has been reviewed and rejected by the United States Supreme Court. In Mergens, the Supreme Court stated, as a general proposition, that the activities of student evangelists in a public school do not present any Establishment Clause problem:

Petitioner’s principal contention is that the Act has the primary effect of advancing religion. Specifically, petitioners urge that, because the student religious meetings are held under school aegis, and because the state’s compulsory attendance laws bring the students together (and thereby provide a ready-made audience for student evangelists), an objective observer in the position of a secondary school student will perceive official school support for such religious meetings. . . . We disagree.

Mergens at 249-50 (citation omitted) (emphasis added).

Of course, Mergens merely reflects the Establishment Clause’s intended limitation -- not on the rights of individual students -- but on the poser of governments (including school officials). As the Mergens Court stated, “there is a crucial difference between government speech endorsing religion, which the Establishment Clause forbids, and private speech endorsing religion, which the Free Speech and Free Exercise Clauses protect.” 496 U.S. at 250.

Can We Have Student Led Prayer at Graduation?

In light of the recent Supreme Court ruling in Santa Fe Ind. School District v. Doe; the issue of graduation prayer is currently being reviewed by our legal staff. This page will be updated as soon as we complete our review.

Can Valedictorians, Salutatorians, or Honorary Student Speakers Give Speeches on Religious Subjects, Including Reading From the Bible?

YES! As stated previously, it is well-settled that religious speech is protected by the First Amendment of the Constitution. Widmar v. Vincent, 454 U.S. 263, 269 (1981) (citing Heffron v. International Society for Krishna Consciousness, Inc., 452 U.S. 640 (1981); Niemotko v. Maryland, 340 U.S. 268 (1951); Saia v. New York, 334 U.S. 558 (1948)). The Supreme Court has firmly held that school administrators can only prohibit protected speech by students when it “materially and substantially interfere[s] with the requirements of appropriate discipline in the operation of the school.” Tinker v. Des Moines Independent School District, 393 U.S. 503, 509 (1969).

Where students have been granted freedom to compose their own speeches (e.g. valedictorian or salutatorian addresses), or even their own commencement exercise, protected student expression should not be subjected to censorship because of its content. In fact, it is a fundamental proposition of constitutional law that a governmental body may not suppress or exclude the speech of private parties for the sole reason that the speech contains a religious perspective. Widmar v. Vincent, 454 U.S. 263 (1981). To deny this bedrock principle would be to undermine the essential guarantees of free speech and religious freedom under the First Amendment.

There is quite a difference between refusing to direct prayer or invite clergy to give prayer at graduation, and choosing to prohibit individual student expression based on its content. The First Amendment precludes any governmental effort to single out and censor -- or otherwise burden -- the speech of private parties, solely because that speech is religious. See Lamb’s Chapel v. Center Moriches Union Free School District, 61 U.S.L.W. 4549 (June 7, 1993).

A decision by a school board to respect the free speech rights of students and to refrain from censoring student speech based solely on its content is not a deliberate violation of the law. As the Supreme Court has emphasized, students’ free speech rights apply even “when [a student] is in the cafeteria, or on the playing field, or on campus during the authorized hours. . . .” Tinker v. Des Moines Independent School District, 393 U.S. 503, 512-13 (1969). Students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” Id., at 506. The same axiom is true at graduation.

Can We Have Baccalaureate Services?

YES! Students, community groups and area churches are entitled to sponsor events, such as baccalaureate services. If school facilities are available to the community for use, these groups must be allowed to use school facilities also, regardless of the religious nature of their activities. A policy of equal access for religious speech conveys a message “of neutrality rather than endorsement; if a State refused to let religious groups use facilities open to others, then it would demonstrate not neutrality but hostility toward religion.” Mergens, 496 U.S. at 248. Accord Lamb’s Chapel v. Center Moriches Union Free School District, 61 U.S.L.W. 4549 (June 7, 1993); Grace Bible Fellowship, Inc. v. Maine School Admin. Dist. #5, 941 F.2d 45 (1st Cir. 1991); Gregoire v. Centennial School Dist.., 907 F.2d 1366 (3d Cir.), cert. denied, 111 S.Ct 253 (1990); Concerned Women for America v. Lafayette County, 883 F.2d 32 (5th Cir. 1989). The United States District Court for the District of Wyoming recently issued a preliminary injunction which allowed a baccalaureate service in a public high school. The court relied directly on Lamb’s Chapel. Shumway v. Albany Co. School Dist. No. 1, No. 93-CV-0153J (D. Wyo. filed June 9, 1993).

Are Official “Moments of Silence” Permissible under Current Law?

YES! The Supreme Court reviewed the issue of official “moments of silence” in Wallace v. Jaffree, 472 U.S. 38 (1985). While it is true that the Supreme Court did find the particular “moment of silence” statute before the Court in that case unconstitutional, the Wallace Court did not declare that all “moments of silence” violate the Establishment Clause. In fact, a majority of the Wallace Court clearly recognized that moments of silence are constitutionally permissible: “I agree fully with Justice O’Connor’s assertion that some moment-of-silence statutes may be constitutional, a suggestions set forth in the Court’s opinion as well.” Id., at 62 (Powell, J., concurring) (citation and footnote omitted). Furthermore, all parties in the Wallace case agreed that an Alabama statute mandating a “moment of silence” during classtime was constitutional. Id., at 40 n.1. Wallace held only that the particular facts of the case made a second Alabama statute calling for a moment of silence for meditation “or voluntary prayer” during classtime unconstitutional. Id. at 59-61. Specifically, the Court focused on the clearly religious intent expressed by the statute’s sponsors in the recorded legislative history, and the express language of the statute which called for a moment of silence for meditation “or voluntary prayer.” Id.

After Wallace, it is clear that any official moment of silence must be motivated by a well-defined secular purpose and be neutral on its face, leaving the use of the “moment of silence” to individuals and the dictates of their own consciences.

Do Students have a Right to Pray Together at School and Participate in Events Like the See You at the Pole National Day of Prayer?

YES! See You at the Pole National Day of Prayer is a student-led and student-initiated event. On an annual basis, students across the nation gather with like-minded peers around the flagpole at their respective schools before the class day begins and pray for their school, teachers, administrators and country.

As discussed in earlier sections, students retain their constitutional rights of free speech and expression, including the right to pray and share personal beliefs, while on their public school campuses. Under the Tinker standard, school officials may restrict protected student speech only if it “materially and substantially interfere[s] with . . . appropriate discipline.” Tinker, 393 U.S. at 513 quoting Burnside at 749. Thus, school officials may not prevent students from gathering together for prayer and religious discussion on school grounds, provided that students do so in a non-disruptive manner during non-instructional time. Non-instructional time would be immediately before and after school, at lunchtime, or any other “free” time when students are permitted to talk and mingle with peers on campus.

It should be noted that while school officials may not prevent students from engaging in protected religious expression unless it “materially and substantially interfere[s] with . . . discipline,” Id., they may impose reasonable time, place and manner restrictions. Such restrictions, however, must be content neutral, “narrowly tailored to serve a significant government interest, and leave open ample alternative channels of communication.” Perry Educ. Assoc. v. Perry Local Educators’ Assoc., 460 U.S. 37, 45 (1983).

Is It Constitutional to Have Holiday Observances in the Public Schools?

YES! Students, of course, are free to express their beliefs and convictions as they apply to particular holidays, provided they do so in a non-disruptive manner. See, discussion of student’s First Amendment rights and Tinker, above. For example, students have the right to distribute Christmas cards or religious tracts on the “true meaning of Christmas” to their peers during non-instructional time. Students could also wish their classmates a “Merry Christmas” or a “Happy Hanukkah.” School officials could not constitutionally prohibit such activities. Further, students may express their individual beliefs during classroom discussions, as well as in the context of appropriate class assignments. For instance, an elementary student when instructed to draw a “Thanksgiving” picture may choose to draw a picture of a pilgrim praying to God. Or, when told to prepare an essay on a topic of choice, a student may select the birth of Christ, or any other religious topic the student wishes. School officials cannot discriminate against a student’s work simply because of its religious nature.

Regarding official public school observance of religious holidays, an issue separate and distinct from protected student expression, the Eighth Circuit has held that religious songs and symbols can be used in the public schools if they are “presented in a prudent and objective manner and only as part of the cultural and religious heritage of the holiday. . . .” Florey v. Sioux Falls School Dist. 49-5, 619 F.2d 1311, 1317 (8th Cir. 1980). The Florey Court also stated that the study and performance of religious songs is constitutional if the purpose is the “advancement of the students’ knowledge of society’s cultural and religious heritage, as well as the provision of an opportunity for students to perform a full range of music, poetry and drama that is likely to be of interest to the students and their audience.” Id. at 1314.

The Florey decision was based largely on a United States Supreme Court opinion: School District of Abington Township v. Schempp, 374 U.S. 203 (1963). In Schempp, the Supreme Court said, “It certainly may be said that the Bible is worthy of study for its literary and historic qualities. Nothing we have said here indicates that such study of the Bible or of religion, when presented objectively as part of a secular program of education, may not be effected consistently with the First Amendment.” 374 U.S. at 225.

Can the Bible be Used as Part of the Curriculum of the School?

YES! In Stone v. Graham, 449 U.S. 39 (1980), the Supreme Court said, “the Bible may constitutionally be used in an appropriate study of history, civilization, ethics, comparative religion, or the like.” Id. at 42. Thus, it would be constitutional for a public school teacher to have students study the Biblical passages that relate to Christmas (e.g. Matthew 1:18 - 2:22 and Luke 2:1-20) if the purpose was to study the historical or literary significance of the passages. Of course, any student that had ideological or religious objections to reading the Bible should be excused from the assignment.

In addition, the Bible was an important book in the early history of this country. It is possible to set up a curriculum that evaluates the role of the Bible in this country and Western Civilization that is constitutional. The Bible is also considered to be literature from antiquity. A school board could establish a policy that allows the Bible to be discussed as part of a literature program in the school.

Can Members of the Community or Organizations Use School Facilities for Religious Purposes?

YES! Members of the local community also have free speech rights in the school if the district rents school facilities during non-school hours. In other words, if the school district rents its facilities to non-school groups during non-school hours, then the school district has a constitutional duty to rent to religious speakers, such as a local church that wants to rent a facility for its annual Christmas pageant. Lamb’s Chapel v. Center Moriches Union Free School District, 61 U.S.L.W. 4549 (June 7, 1993).

The Supreme Court recently rejected an exclusion of religious speakers form public schools in Lamb’s Chapel v. Center Moriches School Dist. In refusing to uphold a religious exclusion the Lamb’s Chapel Court state that “the principle that has emerged from our cases ‘is that the First Amendment forbids the government to regulate speech in ways that favor some viewpoints or ideas at the expense of others.’” Id., at 4552. The Lamb’s Chapel decision reinforces the rights of religious persons to express their views publicly.

Can Christmas Vacation Still Be Called Christmas Vacation?

YES! Finally, school districts are under no constitutional obligation to rename “Christmas vacation” as “Winter vacation” or some similar name. Any suggestion to the contrary is simply unnecessary and should be avoided. The Supreme Court itself has acknowledged with approval that Congress recognizes a National Holiday on December 25 and that Congress calls it, “Christmas.” See Lynch v. Donnelly, 465 U.S. 668, 675, 680 (1984).

Conclusion

This booklet is intended to provide general guidance and information on the issue of students’ rights and religion in the public schools. The American Center for Law and Justice is available to answer any specific questions you may have on these and other issues. Please, feel free to contact us at:

The American Center for Law and Justice
P.O. Box 64429
Virginia Beach, Virginia, USA 23467

ENDNOTES

1. Hemry does not contravene this proposition. The Hemry court clearly stated that the facts of the case before it were distinguishable from the facts in Rivera. Hemry at 859. Because the school in Hemry did not ban literature, but only enforced reasonable time, place, and manner restrictions, the court did apply a forum analysis. Nonetheless, Tinker and Rivera still stand for the proposition that literature distribution cannot be banned in public schools, regardless of what type of forum they constitute. As noted above, the final disposition of Hemry resulted in a Stipulation for Dismissal which allowed unregulated personal distribution of literature and mass distribution subject only to reasonable time, place, and manner restrictions. Stipulation for Dismissal (D.Colo. Nov. 12, 1991)(unpublished).

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