The First Amendment to the United States Constitution includes two guarantees about religion:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.
The phrase shall make no law respecting an establishment of religion prohibits Congress from enacting any laws that have the effect of creating an official religion or committing the government’s resources to supporting or promoting any particular faith. But the Constitution also says that Congress shall make no law. prohibiting the free exercise of religion. This provision protects the individual’s right to follow his or her conscience, both in determining what to believe and in deciding what those beliefs require the individual to do.
Sometimes these two guarantees collide when people feel a need to practice their faiths in public settings. In the United States, the venue where the conflicts are greatest and most controversial is the public school.
I. History of the First Amendment as Applied to Public Schools
II. Controversial Impact on Public Schools
IV. U.S. Supreme Court Cases Involving the First Amendment in Public Schools
History of the First Amendment as Applied to Public Schools
When the Constitution was first adopted, it had no explicit guarantee of religious freedom, other than a prohibition on using any “religious test” as a prerequisite for public office. The framers assumed that civil liberties would be protected by the states and that the Constitution did nothing to infringe them. But some Americans were concerned that, without clearer provisions in the new federal Constitution, the national government might act to undermine their rights. So, 12 amendments were proposed by the first Congress to address this worry. Of these, 10 were ratified by the states, including the First Amendment.
The First Amendment is directed at the federal government: “Congress shall make no law . . .” Public schools in the United States are run by the states or by the local governments created by the states, which are not mentioned in the First Amendment. (At the time the First Amendment was adopted, some states had established churches, a practice that persisted into the early 19th century.) After the Civil War, Congress proposed, and the states ratified, the Fourteenth Amendment, which includes a provision forbidding any state to “deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” The United States Supreme Court interpreted this provision to apply to religious freedom, declaring that the Fourteenth Amendment incorporates the First Amendment and religious freedom as part of the liberty that states must not infringe.
Since the middle of the 20th century, the Supreme Court has decided a steady stream of cases dealing with the First Amendment in public schools. Although there has been substantial confusion among the general public about what these cases mean, they can be summarized as follows:
- The constitutional ban on laws respecting an establishment of religion (the establishment clause) prohibits national, state, and local governments from offering any kind of support to any religious faith, whether it be in the form of money, facilities, or endorsement.
- The constitutional guarantee of religious liberty (the free exercise clause) allows citizens to practice their religious faith without interference from the government, unless there is a compelling issue of public safety or welfare. Even in the rare cases in which governments can restrict religious practice, the regulation has to be the least restrictive possible to achieve the compelling public purpose.
- In cases where a government agency has created a forum for public expression, it cannot restrict access to that forum based on the content of what is being expressed. In particular, it may not bar religious groups from using the forum because of the religious content of their speech or other activities.
Controversial Impact on Public Schools
Some of the uproar about religion in the public schools is based on misperceptions. It is not true, for example, that prayer is banned in public schools. Students and staff may pray privately at any time. Students can also pray publicly in settings where they initiate the prayer themselves, and employees of the school do not exercise control over what is said. Students can also express their religious views at any time they choose, subject to the normal rules schools can impose to keep order and protect the educational environment.
Students may not force captive audiences to participate or observe. Nor may they interfere with class discipline or disrupt the normal operations of the school. Otherwise, students are free to pray, study the scriptures, worship, and share their faith on school grounds to the same extent as any other kind of student activity and expression.
Employees, on the other hand, are restricted in some of the ways they might express their religious faith. Employees are free to practice their faith on their own time, or even with colleagues in settings that are entirely voluntary—after school hours in the faculty lounge, for example. But when students are involved, the Supreme Court has ruled that the employee’s free exercise rights are limited by the students’ right not to be subjected to a de facto established religion. So, while employees can be present to preserve safety and proper order even when students have organized themselves for prayer or scripture study, the employees cannot participate in the religious aspects of the activity or reward or punish students for their participation.
Setting aside the conflicts that arise from misunderstanding of the law—by parents as well as school staff and administrators—there is still controversy among religious leaders and lay people about the current interpretation of the Constitution as applied to public schools. Some religious groups have essentially accepted the current rules about prayer and other religious activities in public schools. The conservative Christian group Focus on the Family offers resources describing current law and suggestions for how to help students organize prayer meetings and share their faith on campus within the law. Moderate to conservative Christian attorneys pursue similar ends through organizations such as the American Center for Law and Justice and the Christian Legal Society’s Center for Law and Religious Freedom.
But others feel that the Constitution should be interpreted to permit more freewheeling religious expression on public school campuses by students, community members, and employees alike. Most of the arguments fall into one of five categories:
- The Christian nation argument: The United States was founded as a Christian nation, and the Constitution should be interpreted in light of this. The ban on establishing a religion was not meant to exclude public expressions of Christianity by government officials, including teachers in schools.
- The majoritarian argument: In a democracy, when a community is in overwhelming agreement about what should happen in its schools, it should be able to implement that consensus.
- The educational benefits argument: There are positive educational benefits available to students from various religious activities.
- The religious community argument: All the major religions include a strong community emphasis, calling adherents to worship, study, or act jointly with others in public life, including school. True freedom of religion requires freedom to practice one’s faith in this kind of community setting.
- The religious accommodation argument: Some of the private, individualized duties in many faiths have to be carried out in public or at times of the day that bring them into the school setting. Schools need to find ways to accommodate these practices or they will be prohibiting the free exercise of religion.
The first two lines of argument are most often made by Protestant Christians, naturally, since most of the framers of the Constitution were Protestants, and Protestants are by far the group most likely to constitute a dominant majority in school districts in the United States. They are both essentially arguments from the basis of political theory, saying public religious activity is appropriate because of the kind of nation the United States is, either by definition in its founding documents or by the political will of the current majority.
Other believers, however, including many Christians, object to the elevation of any specific faith to a privileged position in public institutions. For one thing, even in the most homogeneous communities in the United States, there are strong differences among citizens about matters of religious doctrine. Sometimes the differences are major, involving fundamental issues about the existence of God (or gods). Other times the disputes are about issues that seem minor to outsiders but are crucial to those who disagree, including issues ranging from the roles of men and women to matters of ethics or lifestyle. Those who framed the Constitution had similar disagreements among themselves.
Whatever the differences, to assemble a majority involves one of three choices, all of which are unacceptable: forcing some people to accept or participate in expressions of faith that violate their consciences; compromising on important issues in ways that will put everyone in uncomfortable positions; or finding a way to gloss over the differences. The result, according to these critics, is a bland civil religion that masks living faith and even distracts people from a true encounter with God.
Whatever the merits of the Christian nation or majoritarian arguments, they are clearly unpersuasive in the courts on establishment of religion grounds. There does not appear to be any realistic possibility that either approach will become the basis for U.S. law in the foreseeable future.
The educational benefits argument shifts focus to the educational purposes of schools. If we hope for our schools to educate the entire person, then we should encourage students to reflect on their moral and spiritual duties by exposing them to stories of faith and the basic teachings of religion. This line of reasoning is subtle and profound and has several layers of appeal.
On the surface, the argument for religious expression in school addresses prosaic concerns like discouraging disruptive behavior or encouraging scholarly virtues like discipline and hard work. If students are given a few moments at the beginning of the day to pray, to think about their duties to those around them, and to consider their deepest goals for their lives, there may be immediate and visible benefits in how well they do at their studies and how smoothly the school operates. This has been a persuasive line of reasoning in the courts, which have accepted such measures of moments of silence to start the day as long as school staff do not encourage (or discourage) students to use the time to pray or do other religious actions.
But the educational benefits of open religious practice or study in school might include more than just improving the educational atmosphere. If religion is an important factor in modern life, and if modern communications and transportation make it likely that students will encounter many faiths different than their own, then it might be valuable for students to learn about each other’s faith in school. Study of religion and watching other faiths’ practices would be good cross-cultural learning.
And there is an even deeper possible educational benefit. Because so much of students’ time is spent in school, and because the public has a clear interest in developing virtuous citizens, then helping students to internalize solid values like honesty and caring for others is a public interest. Religion has traditionally promoted these kinds of values, a function that could be enhanced if religion and religious instruction were given freer rein in the public schools.
Focusing on the educational benefits of exposure to religion in this way does not ask schools to favor one faith over another. In fact, schools would be encouraged to make space for encounters with as many religions as possible—at least all those represented among the student population in the school. Courts have been open to this practice in schools, although they are still watchful, worried that activities that appear on the surface to be neutral toward various faiths might be mere covers for the advancement of one faith. For example, attempts by various states to provide for moments of silence before school have had mixed success in the courts. They have sometimes been rejected because people sponsoring the moments of silence went on record saying their goal was to encourage students to pray in school.
But the educational benefits argument is not always popular with parents, students, or even teachers. People worry that students may be converted to disfavored religions, either as a natural result of learning more about them or because they have been recruited to a new religious faith by people abusing the freedom to practice their faith at school. The final two arguments (the religious community and religious accommodation arguments) have had more success in changing school practices. These focus on the believer’s attempt to live faithfully to his or her religion. Here, the religious freedom side of the First Amendment comes into full focus, and the concerns about establishing a religion are least prominent. The claim here is that schools need to be flexible in their operation to allow students and employees to participate fully in the schools without forcing them into a position of having to violate the commandments of their faith.
Courts generally have been willing to accept, and in some cases even to require, attempts by public schools to make changes in their operations or programs to accommodate those who find the standard school experience to be contrary to their understanding of God’s will. For example, schools have had to reschedule athletic events to permit students to participate without violating religious Sabbath-day requirements. Schools have altered menus to accommodate religious diets; created space in the school, and time in the day to allow Muslims to conduct required prayers; allowed students to opt out of dancing classes or other activities that violate their religious teachings; and many other forms of accommodation.
Courts in the United States developed their current interpretation of the First Amendment in a series of decisions since the mid-20th century. The boundary lines between what is and what is not permitted in the public schools are not yet settled firmly. But some areas of permissible activity have been clearly recognized, especially those involving voluntary nondisruptive activities organized by students. When students organize the events and do not seek special privileges not offered to other student groups, they can pray, study the scriptures, support each other, and even share their faith gently with other students who consent to hear their message.
U.S. Supreme Court Cases Involving the First Amendment in Public Schools
- Everson v. Board of Education of Ewing Township, 330 U.S. 1 (1947): Court applies First Amendment ban on establishing religion to the states.
- Engel v. Vitale, 370 U.S. 421 (1962): Public schools may not sponsor or mandate a short nondenominational prayer.
- Abington School District v. Schempp, 374 U.S. 203 (1963): Public schools may not sponsor or mandate the reading of the Lord’s Prayer or other Bible verses.
- Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969): Public schools may not ban specific kinds of nonobscene speech but may enforce content-neutral regulations for the purpose of maintaining order and a good learning environment.
- Lemon v. Kurtzman, 403 U.S. 602 (1971): Public money may not be allocated directly to parochial schools, because doing so violates at least one part of a three-part test: (1) whether the government action has a secular purpose; (2) whether the primary effect of the government action advances or inhibits religion; or (3) whether the action brings government into excessive entanglement with religion, such as resolving doctrinal issues or the like.
- Widmar v. Vincent, 454 U.S. 263 (1981): Public universities may not deny use of university facilities for worship if they are available for other student or community groups. Wallace v. Jaffree, 472 U.S. 38 (1985): Public schools cannot set aside a minute of silence expressly for meditation or voluntary prayer.
- Board of Education of the Westside Community Schools v. Mergens, 496 U.S. 226 (1990): The federal Equal Access Act of 1984 is constitutional, requiring public schools to allow students to organize religious groups if the school allows students to form similar groups for nonreligious purposes.
- Lee v. Weisman, 505 U.S. 577 (1992): Public schools cannot sponsor prayers of invocation or benediction at graduation ceremonies.
- Rosenberger v. The Rector and Visitors of the University of Virginia, 515 U.S. 819 (1995): If other student-initiated groups are given student activities funds, a public university may not deny those funds to student-initiated religious groups.
- Santa Fe Independent School District v. Doe, 530 U.S. 790 (2000): Public schools cannot sponsor prayers of invocation or benediction at athletic events.
- Good News Club v. Milford Central School, 533 U.S. 98 (2001): Public schools may not deny access to religious groups to use their facilities after school if they have allowed access to other community groups.
- American Center for Law and Justice, http://aclj.org/
- American Civil Liberties Union, Religion & Belief, https://www.aclu.org/religion-belief
- Americans United for Separation of Church and State, https://www.au.org/
- Center for Law and Religious Freedom, http://www.clsnet.org/
- Dawson Institute for Church-State Studies (Baylor University), http://www.baylor.edu/church_state/
- Dierenfield, Bruce J., The Battle over School Prayer: How Engle v. Vitale Changed America. Lawrence: University Press of Kansas, 2007.
- First Freedom Center, http://www.firstfreedom.org/
- Fisher, Louis and David G. Adler, American Constitutional Law. Vol. 2, Constitutional Rights: Civil Rights and Civil Liberties, 7th ed. Durham, NC: Carolina Academic Press, 2007.
- O’Brien, David M., Constitutional Law and Politics. Vol. 2, Civil Rights and Civil Liberties. New York: W. W. Norton, 2005 (especially chapter 6).
- People for the American Way, http://www.pfaw.org/
- The Rutherford Institute, https://www.rutherford.org/
- Solomon, Stephen, Ellery’s Protest: How One Young Man Defied Tradition and Sparked the Battle over School Prayer. Ann Arbor: University of Michigan Press, 2007.