# Amicus Curiae Brief — Good News Club v. Milford Central School > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0383%3A17 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 2001 - **Citation:** 533 U.S. 98 ## Text No. 99-2036 | IN THE SUPREME COURT OF THE UNITED STATES J THE GOOD NEWS CLUB, ET AL., Petitioners, Vv. MILFORD CENTRAL SCHOOL + On Writ of Certiorari to the United States Court of Appeals for the Second Circuit . BRIEF FOR THE STATES OF ALABAMA, IOWA, LOUISIANA, MISSISSIPPI, NEBRASKA, OHIO, SOUTH CAROLINA, TENNESSEE, TEXAS, UTAH, AND VIRGINIA, AS AMICI CURIAE, IN SUPPORT OF PETITIONERS BILL PRYOR Attorney General of Alabama MARGARET L. FLEMING JOHN J. PARK, JR. CHARLES B. CAMPBELL’ Assistant Attorneys General Counsel of Record" OFFICE OF THE ATTORNEY GENERAL STATE OF ALABAMA 11 South Union Street Montgomery, Alabama 36130-0152 (334) 242-7300 Counsel for Amicus Curiae, The State of Alabama (Additional Counsel listed on Inside Front Cover) Additional Counsel for Amici Curiae THOMAS J. MILLER Attorney General of lowa Hoover State Office Building Des Moines, lowa 50319 (515) 281-5164 RICHARD P. IEYOUB Attorney General of Louisiana State Capitol, 22nd Floor Baton Rouge, Louisiana 70804-9005 (225) 342-7013 MIKE MOORE Attorney General of Mississippi P.O. Box 220 Jackson, Mississippi 39205 (601) 359-3796 DON STENBERG Attorney General of Nebraska Department of Justice 2115 State Capitol Lincoln, Nebraska 68509 (402) 471-2682 BETTY D. MONTGOMERY Attorney General of Ohio 30 East Broad Street 17th Floor Columbus, Ohio 43215 (614) 466-4940 CHARLES M. CONDON Attorney General of South Carolina P.O. Box 11549 Columbia, South Carolina 29211 (803) 734-3970 PAUL G. SUMMERS Attorney General of Tennessee 425 Fifth Avenue North Nashville, Tennessee 37243-0485 (615) 741-3491 JOHN CORNYN Attorney General of Texas P.O. Box 12548 Austin, Texas 78711-2548 (512) 463-2100 JAN GRAHAM Attorney General of Utah P.O. Box 140854 Salt Lake City, Utah 84114-0854 (801) 366-0180 MARK L. EARLEY Attorney General of Virginia 900 East Main Street Richmond, Virginia 23219 (804) 786-2071 QUESTIONS PRESENTED 1. Whether a public school that permits speakers to use its facilities after school hours to instruct “in any branch of education, learning or the arts,” to “benefit the welfare of the community,” and to “promote the morals of children,” but forbids speakers whose speech it deems to be too religious from using its facilities, engages in viewpoint discrimination in violation of the Free Speech Clause of the United States Constitution. 2. Whether a governmental official's determination whether speech is “a discussion of morals from a religious viewpoint” (which is deemed to be permissible speech) or is “religious instruction” (which is deemed to be impermissible speech) unconstitutionally entangles the state with religion in violation of the Establishment Clause of the United States Constitution. il TABLE OF CONTENTS Page iach sisninisaiieniininniaiindestiisienindeeieiiabiaciaaatadpadeelad i pL me Ee Te EP il pg fT tee eee ae eR Re Ny ee Se iv Brief for the States of Alabama, Louisiana, Mississippi, Nebraska, Ohio, South Carolina, Tennessee, Texas, Utah, and Virginia, as Amici Curiae, in Support of Petitioners ......... Silidianmeaililiainiesementialee Interest of Amici Curiae..............0....0000. SEEN Sano ieee l Summary of Argument.......................065. . lena ESLER Ae SET Ee shah a idecola |. The Decision of the Second Circuit Conflicts With This Court’s Precedent and Sanctions Governmental Suppression of Speech from a EE ee 5 A. This Court Has Consistently Required Viewpoint Neutrality Toward Religious Speakers in Limaved Public Fora Created by Public Schools and Universities. ..............0....0........6 B. The Decision of ‘the Court of Appeals Conflicts With This Court's Precedent and Censors Religious Speech. ..............0......... 10 Il. Requiring Public Officials To Discriminate Between Protected Religious “Speech” And Allegedly Unprotected “Worship” or “Religious Instruction” !s Unworkable and Unconsti- EEE wATP eee wml Ty LED 16 ili TABLE OF CONTENTS — Continued Page Ill. Censorship of Petitioners’ Religious Views Was Not Necessary To Obey the Establishment Clause and Displayed Governmental Hostility TT a cinirninitceciennnieisitenilintiaiaiieimeniiiniieanaiensieniaeitl 18 A. Censorship of Petitioners’ Viewpoint Was Not Necessary to Obey the Establishment B. Censoring Petitioners’ Religious Viewpoint Suggests Governmental Hostility Toward STII cst iether tte iteaeatendinsliasiadl 21 IV. Public Officials Need Clear Guidance And Workable Rules To Uphold Governmental Neutrality Toward Religion............................... ipiiledied 22 ETT TONE IE a A sedesaatenaia Appendix A Office of the Attorney General, State of Alabama, Guidelines for Religious Activities in IY BETAS GED occesiccccnstellierecetibsithientimitesseescoseses la Appendix B Board of Eduwc., Commonwealth of Virgnia, Guidelines Concerning Religious Activities in the Public Schools (June 22, 1995)................. seakabanilie 8a Office of the Attorney General, Commonwealth of Virginia, Memorandum of Legal Principles Animating Guidelines (Jan. 9, 1995)........................ 37a Appendix C U.S. Dep't of Educ., Religious Expression in Public Schools (Rev. ed. May 1998).......................... 58a IV TABLE OF AUTHORITIES Page(s) Supreme Court Cases: Agostini v. Felton, EE te a a NE 22 Board of Education of Westside Community Schools (District 66) v. Mergens, 496 U.S. 226 ITT nbeelincnemntieshalbieaetiadinenaiesmmnaiiaaes 7, 9, 19, 21, 26 City Council of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789 (1984) ..0000.........ccccecccceeeeeeeeeeeeeees s Cornelius v. NAACP Legal Defense & Education PME, GE... SE UB. TED CIGD. onccrcccccccccssccvevceccescceneses 8 Edwards v. Aguillard, ERE ee Se 21-22 Everson v. Board of Educ. of Ewing, i stilling 21 Lamb's Chapel v. Center Moriches Union Free School District, 508 U.S. 384 (1993).................... passim Lynch v. Donnelly, I sessed 22 Rosenberger v. Rector & Visitors of the University of Virginia, 515 U.S. 819 (1995)..........0.......0000000 passim Santa Fe Independent School District v. Doe, I 2,6 School Dist. of Grand Rapids v. Ball, 473 U.S. 373 (1985), overruled, Agostini v. Felton, 521 U.S. 203 (1997).................0.... 22 Whitney v. California, a LT EE te ae TN 21 Vv TABLE OF AUTHORITIES — Continued Page(s) Widmar v. Vincent. A Ea EN RR passim Court of Appeals Cases: Bronx Household of Faith v. Community Sch. Dist. No. 10, 127 F.3d 207 (2d Cir. 1997), cert. denied, 523 U.S. 1074 (1998)......0...0..... EER 12, 16 Good News Club v. Milford Central School, 202 F.3d 502 (2d Cir. 2000), affg 21 F. Supp. 2d 127 (N.D.N.Y. 1998) ............ passim Good News/Good Sports Club v. School District of Ladue, 28 F.3d 1501 (8th Cir. 1994), cert. denied, 515 U.S. 1173 (1995)...................0..00ceeeeee 20-21 Lamb's Chapel v. Center Moriches Union Free School District, 959 F.2d 381 (2d Cir. 1992), I I, ST i iccncccvccccccincocedaceccccnccdcccoccces 6 O'Hair v. Andrus, ee CIE. Ci, BGI ovvccccccvccccccccccccccccccccsceces. 14 District Court Cases: Full Gospel Tabernacle vy. Community Sch. Dist. 27, 979 F. Supp. 214 (N.D.N.Y. 1997), aff'd per curiam, 164 F.3d 829 (2d Cir. 1999). cert. denied, 527 U.S. 1086 (1999)..................ccccceeeeeeeeeeeeees 13 Herdahi v. Pontotoc County Sch. Dist., 933 F. Supp. 582 (N.D. Miss. 1996)............................ 20 Vi TABLE OF AUTHORITIES — Continued Page(s) Statutes and Rules: N.Y. Educ. Law § 414 (McKinney 1988 & Supp. 2000)... Se III I coc ccunaeees cousenenshdanawacekedion piienenl | Other authorities: Lawrence Tribe, American Constitutional Law § 14-6 (1978)........... 14 Board of Educ., Commonwealth of Virginia, Guidelines Concerning Religious Activities in the Public Schools (June 22, 1995)................. . 2, 24-25 Office of the Attorney General, State of Alabama, Guidelines for Religious Activities in Schools (July 29, 1999) . 2, 23-24 Office of the Attorney General, Commonwealth of Virginia. Memorandum of Legal Principles Animating Guidelines (Jan. 9, 1995) ........................... 2 James Madison. Memorial and Remonstrance Against Religious Assessments (1785)....................... 21 U.S. Dep't of Educ., Religious Expression in Public Schools (Rev. ed. May 1998) .................0000000000e. 2, 25-26 ————_— or l BRIEF FOR THE STATES OF ALABAMA, IOWA, LOUISIANA, MISSISSIPPI, NEBRASKA, OHIO, SOUTH CAROLINA, TENNESSEE, TEXAS, UTAH, AND VIRGINIA, AS AMICI CURIAE, IN SUPPORT OF PETITIONERS The States of Alabama, lowa, Louisiana, Mississippi, Nebraska, Ohio, South Carolina, Tennessee, Texas, Utah, and Virginia respectfully submit this brief as amici curiae pursuant to Supreme Court Rule 37.4. The amici States submit this brief in support of Petitioners The Good News Club, Andrea Fournier, and Darleen Fournier. . INTEREST OF AMICI CURIAE The amici States have a_ profound interest in protecting the free-speech mghts and religious liberties of their citizens, and in ensuring that their public school officials have clear and reliable guidance when they face questions concerning the use of public property by religious organizations. The decision of the Second Circuit in this case, Good News Club v. Milford Central School, 202 F.3d 502 (2d Cir. 2000), affg 21 F. Supp. 2d 127 (N.D.N-Y. 1998), subjects religious speech to unconstitutional viewpoint-based discrimination § and muddies the water in an important area of First Amendment law that this Court has previously made clear. State and local school officials in the amici States have long relied on this Court’s guidance in cases such as Widmar v. Vincent, 454 U.S. 263 (1981), Lamb's Chapel v. Center Moriches Union Free School District, 508 U.S. 384 (1993), and Rosenberger v. Rector & Visitors of the University of Virginia, 515 U.S. 819 (1995), in adopting neutral policies governing the use of public school 2 facilities. See, e.g., Office of the Attorney General, State of Alabama, Guidelines for Religious Activities in Schools (July 21, 2600) (reproduced in Appendix A);' Board of Educ., Commonwealth of Virginia, Guidelines Concerning Religious Activities in the Public Schools (June 22, 1995) and Office of the Attorney General, Commonwealth of Virginia, Memorandum of Legal Principles Animating Guidelines (Jan. 9, 1995) (reproduced in Appendix B); see also U.S. Dep’t of Educ., Religious Expression in Public Schools (Rev. ed. May 1998) (reproduced in Appendix C). In following the course of neutrality, state and local officials have been assured by this Court’s decisions that they could safely navigate between the Scylla of violating the Free Speech Clause and the Charybdis of violating the Establishment Clause when facing requests for use of public school facilities by religious clubs and organiza- tions. The decision below in this case casts doubt on the Court's interpretation of neutrality, however. This doubt leaves public officials in the amici States in the unenviable position of attempting to discern whether the previously certain course set by the principle of neutrality remains good law in all cases, or if it must be modified. This uncertainty leaves public officials open to lawsuits no matter what they decide when a religious club or organization requests to use school facilities. Finally, this case is of particular importance because Good News Clubs operate in all of the amici States. The amici States thus have an abiding interest in the resolution of this case. ' The Attorney General of Alabama issued updated guidelines after the Court's decision in Santa Fe Independent School District v. Doe, 120 S. Ct. 2266 (2000). 3 ° SUMMARY OF ARGUMENT At the heart of this case lies the neutrality commanded of the States by the Free Speech and Religion Clauses of the First Amendment. It is axiomatic that a State may not discriminate against speech based upon the viewpoint it espouses — even in a limited public forum. Over the past two decades, the Court has repeatedly held that this rule of neutrality applies with equal force to religious speakers, and the Establishment Clause does not justify governmental discrimination against them. Respondent in this case permits non-school-sponsored clubs such as the Boy Scouts, Girl Scouts, and 4-H Club to use its facilities after school hours “to promote the moral and character development of children.” Brief for Defendant-Appellee Milford Central School at 9, Good News Club v. Milford Central Sch., 202 F.3d 502 (2d Cir. 2000) (No. 98-9494). Petitioners, however, view morality and character development as “senseless without Christ.” J.A. at P25 (Dep. of Steven Fournier), quoted in 202 F.3d at 509. Thus, the Good News Club and its speakers attempt to “promote the moral and character development of children” through Bible lessons, songs, prayer, and proselytizing. Respondent refused to allow the Good News Club to use its facilities precisely because of the Club’s religious views on morality and character development and the Club's views on the best means of promoting those civic virtues. This would appear to be a classic form of viewpoint discrimination, but the Court of Appeals ruled that the Club’s religious activities — Bible stories, songs, prayer, etc. — changed the subject of the Petitioners’ speech from “morality and character development” to “religious instruction” or “worship.” This Court has at 4 least twice rejected such a distinction between “religious” speech and speech “about” religion. A rule such as that adopted by the Court of Appeals is unworkable. In an age of religious pluralism, it could well prove impossible to determine what words or acts might constitute worship in a given religious tradition. The very attempt to decide that question, moreover, would unconstitutionally entangle the State with religion. Censorship was not necessary to obey’ the Establishment Clause in this case. Petitioners’ meetings were held after school, were not sponsored by the school, and were open to any child as part of a program in which many clubs met on school property. Given these facts, there was little potential that members of the community would perceive an endorsement of religion by Respondent. If Respondent remained concerned about the possibility of any confusion, it could have explained its neutrality to the school’s parents and required the continued use of parental permission slips. If Milford was concerned about children being confused about the school’s neutrality, it could take that as an opportunity for a first civics lesson, explaining its position in age-appropriate terms. Even young children understand the neutral role of umpires and referees in sports and playground games, and Respondent could have described its role in similar terms. The solution to Respondent’s concern about = an appearance of endorsement in this case was “more speech” with reasonable, viewpoint-neutral measures — not censorship. Finally, public officials need clear guidance and workable rules to uphold the principle of governmental neutrality toward religion. Officials in the State and Federal governments have been attempting to provide clear, concise guidelines to assist public school officials in 5 discharging their constitutional duties. A key part of this guidance has been the explaining the fundamental principle of governmental neutrality toward religion. Neutrality is a principle that governmental officials can understand and apply. It is a principle governmental lawyers can explain. A rule such as that adopted by the Court of Appeals frustrates efforts to underscore the importance of neutrality, sowing unnecessary confusion by requiring government to treat religious organizations less favorably than others. The decision of the Court of Appeals represents a substantial and troubling departure from the principle of governmental neutrality embodied in this Court’s precedents concerning the rights of religious speakers in limited public fora created by public schools and universities. As such, the decision of the Court of Appeals must be reversed. . ARGUMENT I. THE DECISION OF THE SECOND CIRCUIT CONFLICTS WITH THIS COURT'S PRECEDENT AND SANCTIONS GOVERNMENTAL SUPPRES- SION OF SPEECH FROM A RELIGIOUS VIEW- POINT. This case is strikingly similar to Lamb's Chapel v. Center Moriches Union Free School District, 508 U.S. 384 (1993). Both cases involve the same state statute, N.Y. Educ. Law § 414 (McKinney 1988 & Supp. 2000). The school board policy creating the limited public forum in this case bears a remarkable resemblance to the policy at issue in Lamb’s Chapel. Compare 508 U.S. at 387 6 (describing Center Moriches policy) with Pet. App. D1—D3 (Milford policy).2 . Without even mentioning Lamb’s Chapel, however, the panel majority of the Court of Appeals held that Respondent’s exclusion of the Good News Club from Milford’s limited public forum for non- school-sponsored, after-school clubs was a_ permissible form of content discrimination, rather than unconstitu- tional viewpoint discrimination. See 202 F.3d at 509-11. One judge dissented, observing that he could not “square the majority analysis in this case with Lamb's Chapel.” Id. at 513 (Jacobs, J., dissenting). With its ruling, the Second Circuit — speaking through the author of the decision reversed in Lamb's Chapel — attempted to revive reasoning rejected by this Court in that case and in Widmar and Rosenberger. In so doing, “(t]he neutrality commanded of the State by the separate Clauses of the First Amendment was compro- mised ....” Rosenberger, 515 U.S. at 845. A. This Court Has Consistently Required View- point Neutrality Toward Religious Speakers in Limited Public Fora Created by Public Schools and Universities. In Widmar v. Vincent, this Court addressed the use of public university facilities by student religious organiza- °The parties agreed and the courts below held that Respondent had created a limited public forum through its community use policy. 202 F.3d at 509; 21 F. Supp. 2d at 153. This Court's decision last term in Santa Fe Independent School District v. Doe is thus inapposite here because the Court held that no public forum had been created in that case. 1208S. Ct. at 2275 & nn.12-13. 3See 202 F.3d at 504 (showing Judge Miner as author of opinion); Lamb's Chapel v. Center Moriches Union Free Sch. Dist., 959 F.2d 381, 383 (2d Cir. 1992) (same), rev'd, 508 U.S. 384 (1993). 7 tions. In Widmar, a State university refused to allow a religious student organization to use university facilities for “religious worship and discussion” even though the facilities were otherwise open to all registered student organizations. 454 U.S. at 269. The Court held that “religious worship and discussion” in a limited public forum “are forms of speech and association protected by the First Amendment,” thus rejecting the dissent’s suggestion “that ‘religious worship’ is not speech generally protected by the ‘free speech’ guarantee of the_ First Amendment and the ‘equal protection’ guarantee of the Fourteenth Amendment.” /d. at 269 & n.6 (discussing id. at 283-86 (White, J., dissenting)). — Accordingly, the university's exclusion of private religious speech from its limited public forum could be justified only if it was “necessary to serve a compelling state interest and .. . narrowly drawn to achieve that end.” /d. at 270. The university argued that allowing religious organizations to use its facilities would violate the Establishment Clause. Jd. at 270-71. The Court rejected that argument, however, holding that an “equal access” policy does not violate the Establishment Clause. Id. at 271-75; see also Board of Educ. of Westside Community Schs. (Dist. 66) v. Mergens, 496 U.S. 226, 235 (1990) (Widmar “held that an ‘equal access’ policy would not violate the Establishment Clause”). In Lamb's Chapel v. Center Moriches Union Free School District, the Court held that a school district engaged in unconstitutional viewpoint discrimination against a local church that had applied to show a film series on school property after hours. 508 U.S. at 390-97. The school district allowed community groups to use its facilities for “social, civic, or recreational uses.” Jd. at 387. It forbade, however, use of school facilities “ ‘by any 8 group for religious purposes.’” /d. (quoting policy). When a local church applied to use school property to show a film series addressing family, child-rearing, and cultural issues from a Christian perspective, the school district refused. Jd. at 387-89. The Court held that the exhibition of the religious film series in Lamb's Chapel “was denied solely because the series dealt with the subject from a religious standpoint.” Id. at 394. The Court held that “denial on that basis was plainly invalid under our holding in Cornelius |v. NAACP Legal Defense & Educ. Fund, Inc., 473 U.S. 788, 806 (1985)] ....” 508 U.S. at 394. The Court reiterated that “‘the First Amendment forbids the government to regulate speech in ways that favor some viewpoints or ideas at the expense of others.’” Jd. (quoting City Council of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 804 (1984)). The Court thus held “that discriminating against religious speech was discriminating on the’ basis of viewpoint.” Rosenberger, 515 U.S. at 832 (discussing Lamb's Chapel). Relying on Widmar, the Court in Lamb's Chapel also dismissed the school board’s argument that permitting its property to be used for the film series would violate the Establishment Clause. 508 U.S. at 394— 95. In Rosenberger v. Rectors & Visitors of the University of Virginia, the Court again held that a public university could not discriminate against a_ religious organization based upon the views it wished to express in a limited public forum created by the university. The “forum” in Rosenberger was a student activities fund that paid the printing costs of “‘student news, information, opinion, entertainment, or academic communications media groups. ” Jd. at 824 (quoting fund’s Guidelines). The university refused, however, to pay the printing costs of a 9 student publication called “Wide Awake: A Christian Perspective at the University of Virginia.” Jd. at 826-27. The university denied the request because it considered Wide Awake a “religious activity,” id. at 827, which was excluded by the fund’s Guidelines, id. at 825. The Court concluded that the university's denial of third-party payments to the Christian publication was “based upon viewpoint discrimination not unlike the discrimination the school district relied upon in Lamb's Chapel and that we found invalid.” /d. at 832. The Court noted that “the University does not exclude religion as a subject matter but selects for disfavored treatment those student journalistic efforts with religious editorial viewpoints.” Jd. at 831. The Court rejected the assertion that the university's discrimination was not viewpoint- based simply because it attempted to exclude all religious views. Id. at 831-32. Finally, the Court rejected the assertion that the Establishment Clause required the university to exclude the Christian publication from its forum. J/d. at 837-45. The Court noted that “[a] central lesson of our decisions is that a significant factor in upholding governmental programs in the face of Establishment Clause attack is their neutrality toward religion,” id. at 839, and held that the university's student activities fund was in fact “neutral toward religion,” id. at 840. The Court emphasized that “[mjore than once have we rejected the position that the Establishment Clause even justifies, much less requires, a refusal to extend free speech rights to religious speakers who participate in broad-reaching government programs neutral in design.” /d. at 839 (citing Lamb's Chapel, 508 U.S. at 393-94; Mergens, 496 U.S. at 248,252; Widmar, 454 U.S. at 274-75). 10 B. The Decision of the Court of Appeals Conflicts with Widmar, Lamb’s Chapel, and Rosenberger and Censors Religious Speech. The decision of the Second Circuit in this case conflicts with Widmar, Lamb's Chapel, and Rosenberger. It authorizes governmental officials to censor private speech to filter out views that are “too” religious. In the name of prohibiting “religious instruction” and “worship,” the Court of Appeals empowered governmental officials to root out those views that do not “meet some baseline standard of secular orthodoxy.” Rosenberger, 515 U.S. at 844. Much like the Center Moriches policy in Lamb's Chapel, Respondent's policy allows district residents to use school facilities after hours for holding social, civic and recreational meetings and entertainment events and other uses pertaining to the welfare of the community, provided that such uses shall be nonexclusive and shall be open to the general public. Pet. App. at D1 (Milford “Community Use of School Facilities” Policy 4 3).4 * The Center Moriches policy in Lamb's Chapel similarly permitted district residents to use school facilities after hours for social, civic, or recreational uses (Rule 10) and use by political organizations if secured in compliance with §414 (Rule 8). Rule 7, however, consistent with the judicial interpretation of state law, provides that “|t}he school premises shall not be used by any group for religious purposes.” Lamb's Chapel, 508 U.S. at 387 (citing and quoting Pet. App. at 57a). 11 Milford admits that it allows the Boy Scouts, Girl Scouts, and 4-H Club to use school property “to promote the moral and character development of children.” Brief for Defendant-Appellee Milford Central School at 9, Good News Club v. Milford Central Sch., 202 F.3d 502 (2d Cir. 2000) (No. 98-9494). Respondent’s admission on this point is certainly correct — as far as it goes. The 4-H Club states that one of the goals of its programs is “addressing youth and societal issues.” Lodging at AA5. The 4-H Club's purpose “is to enable youth to develop knowledge, skills, abilities, attitudes, and behaviors to be competent, caring adults.” Id. Respondent fails, however, to acknowledge adequately the religious aspects of the clubs it allows to use its facilities. For example, part of the Girl Scouts’ promise is “Itlo serve God.” Lodging at Z2. At the Boy Scouts meetings, each member similarly pledges “[t}o do my duty _to God.” Lodging at Y9 (emphasis added). The Boy Scout Law states: “A Scout is reverent toward God. He is faithful in his religious duties. He respects the beliefs of others.” Id. The Boy Scouts “endeavor[] to develop American citizens who . .. have personal values based on religious concepts ....” Id. at Y7 (emphasis added). The Cub Scouts (a part of Boy Scouts) state that one of their purposes is to “[i]nfluence a boy’s character development and spiritual growth.” Id. at Y3 (emphasis added). Petitioners have asserted that “because we are teaching morals from a Christian perspective, we would present that perspective, which is that these morals or these values are senseless without Christ....” J.A. at P25 (Dep. of Steven Fournier). Thus, the Good News Club encourages the “moral and character development of children” through Bible lessons, games, songs, prayer, and proselytizing. In the opinion of the Court of Appeals, 12 this avowedly religious perspective distinguished the Good News Club from the Girl Scouts and Boy Scouts, although the Scouts also promote religious devotion. The Court of Appeals thought that the Good News Club's approach to morality, with its emphasis on Christian faith and devotion, was simply “too” religious to be allowed in Milford’s facilities. Under Lamb's Chapel, the “critical question” in this case should have been “whether it discriminates on the basis of viewpoint to permit school property to be used [by non-school-sponsored student clubs] for the presentation of all views about [the moral and character development of children] except those dealing with the subject matter from a religious standpoint.” 508 U.S. at 393 (modified as indicated to reflect the facts of this case). Because Milford was already allowing the Scouts to address these topics “from a religious standpoint,” however, the question really should have been whether it discriminates on the basis of viewpoint to exclude certain groups that address the subject matter of morality and character development from a standpoint that is “more” religious than that of other groups that are allowed to present their religiously- based views. Instead of following Lamb's Chapel the Second Circuit followed its earlier decision in Bronx Household of Faith v. Community Sch. Dist. No. 10, 127 F.3d 207 (2d Cir. 1997), cert. denied, 523 U.S. 1074 (1998), which stated that “it ‘is not difficult for school authorities to make’ the distinction between the discussion of secular subjects from a religious viewpoint and the discussion of religious material through religious instruction and prayer.” 202 F.3d at 510 (quoting Bronx Household, 127 F.3d at 215). The Court of Appeals concluded that the Good News Club’s activities were “something other than simply 13 teaching moral values,” that they did “not involve merely a religious perspective on the secular subject of morality,” and that the Club went “far beyond merely stating its viewpoint.” Jd. at 510. According to the Court of Appeals, the Club’s activities were not materially different from “religious worship.” Jd. (quoting Full Gospel Tabernacle v. Community Sch. Dist. 27, 979 F. Supp. 214, 217 (N.D.N.Y. 1997), affd per curiam, 164 F.3d 829 (2d Cir. 1999), cert. denied, 527 U.S. 1036 (1999)). The Court of Appeals thus held “that the Club’s activities fall outside the bounds of pure ‘moral and character development.’ ” Id. at 511. This classification of the Good News Club's activities as unprotected “religious instruction” or “worship” was precisely the approach rejected by this Court in Widmar, 454 U.S. at 269-70 n.6, 272 n.11, and Rosenberger, 515 U.S. at 844-45. In Widmar, the dissent “argue[d] that ‘religious worship’ is not speech generally protected by the ‘free speech’ guarantee of the First Amendment and the ‘equal protection’ guarantee of the Fourteenth Amendment.” /d. at 269 n.6 (citing id. at 284 (White, J., dissenting)). The Court rejected this attempt to “distinguish between the kinds of religious speech explicitly protected by our cases and a new class of religious ‘speech act|s]’ constituting ‘worship.’” Jd. at 269 n.6 (quoting id. at 285 (White, J., dissenting). The Court cited “at least three difficulties” with attempting to distinguish between religious “speech” and religious “worship” for purposes of First Amendment protection: First, the dissent fails to establish that the distinction has intelligible content. There is no indication when “singing hymns, reading scripture, and teaching biblical principles,” cease to be 14 “singing, teaching, and reading” — all apparently forms of “speech,” despite their religious subject matter — and become unprotected “worship.” Second, even if the distinction drew an arguably principled line, it is highly doubtful that it would lie within the judicial competence to administer. Merely to draw the distinction would require the university — and ultimately the courts — to inquire into the significance of words and ' practices to different religious faiths, and in varying circumstances by the same faith. Such inquiries would tend inevitably to entangle the State with religion in a manner forbidden by our cases. Finally, the dissent fails to establish the relevance of the distinction on which it seeks to rely. ... {I]t gives no reason why the Establishment Clause, or any other provision of the Coristitution, would require’ different treatment for religious speech designed to win religious converts than for religious worship by persons already converted. .. . Id. at 269-70 n.6 (citations omitted) (quoting id. at 283 (White, J., dissenting)). In underscoring the risk of excessive entanglement of government with religion, the Court went on to observe that just “to determine which words and activities fall within ‘religious worship and religious teaching’ ... could prove ‘an impossible task in an age where many and various beliefs meet the constitutional definition of religion.” Jd. at 272 n.11 (quoting O’Hair v. Andrus, 613 F.2d 931, 936 (D.C. Cir. 1979) (footnote omitted), and citing Lawrence Tribe, American Constitutional Law § 14—6 (1978)). 15 The Court reiterated these concerns in Rosenberger, quoting from Widmar at length. 515 U.S. at 845 (quoting 454 U.S. at 269-70 n.6). There, however, the argument was slightly different from that made by the dissent in Widmar. The dissent in Widmar argued that: “religious worship” was not generally protected by the Free Speech Clause. 454 U.S. at 269 n.6. In Rosenberger, however, the university argued that the exclusion of the student publication due to its religious nature was legitimately based on the paper's content, not its viewpoint. 515 U.S. at 830. The Court rejected this argument. /d. at 831-32. The Court later discussed the perils inherent in requiring government to discriminate between “religious” speech and speech “about” religion: Were the dissent’s view to become law, it would require the University, in order to avoid a constitutional violation, to scrutinize the content of student speech, lest the expression in question — speech otherwise protected by the Constitution — contain too great a religious content. The dissent, in fact, anticipates such censorship as “crucial” in distinguishing between “works characterized by the evangelism of Wide Awake and writing that merely happens to express views that a given religion might approve.” That eventuality raises the specter of governmental censorship, to ensure that all student writings and publications meet some baseline standard of secular orthodoxy. To impose that standard on student speech at a university is to imperil the very sources of free speech and expression. As we recognized in Widmar, official censorship would be far more inconsistent with the Establishment Clause’s 16 dictates than would governmental provision of secular printing services on a religion-blind basis. Id. at 844-45 (quoting id. at 896-97 (Souter, J., dissenting)). The Court held that such censorship of student speech and thought “was a denial of the right of free speech and would risk fostering a pervasive bias or hostility to religion, which could undermine the very neutrality the Establishment Clause requires.” /d. at 845-46. The Second Circuit essentially followed the dissents in Widmar and Rosenberger, not the opinions of the Court, cf. Widmar, 454 U.S. at 283-86 (White, J., dissenting); Rosenberger, 515 U.S. at 896—99 (Souter, J., dissenting). The result was precisely the “specter” the Court feared in Rosenberger: Governmental officials scanned the Good News Club's materials, found that they did not meet the government's “baseline standard of secular orthodoxy,” 515 U.S. at 844, and censored the Club’s views on morality and character development. Il. REQUIRING PUBLIC OFFICIALS TO DISCRIM- INATE BETWEEN PROTECTED RELIGIOUS “SPEECH” AND ALLEGEDLY UNPROTECTED “WORSHIP” OR “RELIGIOUS INSTRUCTION” IS UNWORKABLE AND UNCONSTITUTIONAL. The Court of Appeals based its decision in this case on the premise that “it ‘is not difficult for school authorities to make’ the distinction between the discussion of secular subjects from a religious viewpoint and the discussion of religious material through religious instruction and prayer.” 202 F.3d at 510 (quoting Bronx Household, 127 F.3d at 215). This conclusion, too, is inconsistent with the decisions in both Widmar and Rosenberger. 17 As the Court indicated in Widmar and Rosenberger, the distinction between “religious” speech and speech “about” religion lacks “intelligible content.” See Rosenberger, 515 U.S. at 845 (quoting Widmar, 454 US. at 269 n.6). “There is no indication when ‘singing hymns, reading scripture, and teaching biblical principles’ cease to be ‘singing, teaching, and reading’ ... and become unprotected ‘worship.’” Widmar, 454 U.S. at 269 n.6 (citation omitted), quoted in Rosenberger, 515 U.S. at 845. Because there is no principled basis for determining when “singing, teaching, and reading” become allegedly unprotected “worship” rather than protected “speech,” the task of public officials across the Nation in implementing a rule such as that adopted by the Second Circuit would be exceedingly subjective and arbitrary. Rather than simply determining whether a religious organization's request to use public facilities was consistent with the purposes for which those facilities could be used, public officials would have to determine if the _ religious organization’s activities would be “too” religious. One can imagine the kinds of questions public officials would find themselves asking: Will the members of this group sing religious songs? Will they pray? Will they read the Bible, Qur'an, Book of Mormon, or other scripture? Will they proselytize? If they sing and pray, but do not read scripture or proselytize, must they be excluded? What if they only sing? What if they only pray? Does the answer change based on the significance of each activity in the group’s religious traditions? Finally, if public officials got the answer “wrong,” they would be subject to suit and a court would then have to ask the same questions. This Court acknowledged in Widmar that it could prove “impossible” “to determine which words and activities fall within ‘religious worship and religious 18 teaching, ~ in an age of religious pluralism. 454 U.S. at 272 n.11. More importantly, the Court held that “[s]uch inquiries would tend inevitably to entangle the State with religion in a manner forbidden by our cases.” /d. at 270 n.6, quoted in Rosenberger, 515 U.S. at 845. The amici States submit that, as this Court stated in Widmar, the kinds of inquiry necessitated by the decision of the Second Circuit will impermissibly entangle the State with religion. These inquiries would further lead to official hostility toward private religious expression. This hostility is inconsistent with the First Amendment. IIl.CENSORSHIP OF PETITIONERS’ RELIGIOUS VIEWS WAS NOT NECESSARY TO OBEY THE ESTABLISHMENT CLAUSE AND DISPLAYED GOVERNMENTAL HOSTILITY TOWARD RE- LIGION. Respondent has maintained throughout this case that its discriminatory treatment of the Good News Club was necessary to obey the Establishment Clause. See Brief for Defendant-Appellee Milford Central School at 23-25, Good News Club v. Milford Central Sch., 202 F.3d 502 (2d Cir. 2000) (No. 98-9494). This position fails to distinguish adequately between government speech and private speech about religion. Respondent's concerns about an appearance of governmental endorsement of the Good News Club’s views could have been addressed through reasonable, viewpoint-neutral means that would not require censorship. By censoring Petitioners’ views in a forum open to more secular clubs addressing the same subject matter, Respondent communicated governmental hostility, rather than neutrality toward religion. Such a message of hostility toward religion violates the First Amendment. 19 A. Censorship of Petitioners’ Viewpoint Was Not Necessary to Obey the Establishment Clause. In Rosenberger, the Court noted that “[mJore than once have we rejected the position that the Establishment Clause even justifies, much less requires, a refusal to extend free speech rights to religious speakers who participate in broad-reaching government programs neutral in design.” 515 U.S. at 839 (citing Lamb's Chapel, 508 U.S. at 393-94; Mergens, 496 U.S. at 248, 252; Widmar, 454 U.S. at 274-75). As in Rosenberger, Respondent and the courts below failed adequately to distinguish “‘between government speech endorsing religion, which the Establishment Clause forbids, and private speech endorsing religion, which the Free Speech and Free Exercise Clauses protect.” 515 U.S. at 841 (quoting Mergens, 496 U.S. at 250 (plurality opinion) (emphasis in Mergens)). By refusing to allow the Good News Club .o address the “moral and _ character development of children” from its admittedly religious perspective, school officials censored the Club’s private speech and silenced its viewpoint on moral development. Such censorship was not necessary to obey the Establishment Clause. Respondent's concerns about an appearance of governmental endorsement of _ religion, while an important consideration, are overstated. As in Lamb's Chapel, the Good News Club’s meetings “would not have been during school hours, would not have been sponsored by the school, and would have been open to” any child, not just Christian children or Club members. 505 U.S. at 395. As in Lamb’s Chapel, Milford’s “property had repeatedly been used by a wide variety of private organizations.” Jd. Given these facts, “there would have 20 been no realistic danger that the community would think that the district was endorsing religion or any particular creed, and any benefit to religion or to the church would have been no more than incidental.” /d. Any concern that children might misunderstand Milford’s neutrality could be addressed using reasonable, viewpoint-neutral means. For example, Milford already required students to have parental permission to attend the Good News Club’s meetings. See Lodging at X2. Such parental consent places “elementary children ... on an equal footing with secondary school students” by incorporating parental maturity and decision-making in the process and by creating an opt-in program that reduces any appearance of endorsement to nonparticipants. Herdahl v. Pontotoc County Sch. Dist., 933 F. Supp. 582, 590 (N.D. Miss. 1996); see also Good News/Sports Club v. School Dist. of City of Ladue, 28 F.3d 1501, 1509 n.17 (8th Cir. 1994) (noting use of parental permission slips), cert. denied, 515 U.S. 1173 (1995). In addition, Milford could have prohibited teachers attending Club meetings, so that there would be no association between the Club and authority figures employed by the school. If Respondent was worried that parents or other adults might misunderstand the school’s constitutionally mandated neutrality toward religion, it could explain its position to them. If the school were concerned that younger children still might be confused, it could use the opportunity as a first civics lesson and explain to them, in age-appropriate terms, its neutral position. Even young children understand the concept of neutrality from the role of referees and umpires in sports and playground games, and Respondent could describe its role in similar terms. See also Good News/ Sports Club, 28 F.3d at 1509 21 (distinction between public speech and private speech “not a difficult concept”). In short, the constitutionally preferred remedy in this situation is “more speech”® with reasonable, viewpoint-neutral measures — _ not censorship. B. Censoring Petitioners’ Religious Viewpoint Suggests Governmental Hostility Toward Religion. In Mergens, a plurality of the Court observed that “if a State refused to let religious groups use facilities open to others, then it would demonstrate not neutrality but hostility toward religion.” 496 U.S. at 248.6 Respondent's discrimination against the Good News Club presents just such a situation and communicates the same message — hostility toward religion. Even school-aged children cannot be expected to ignore this hostility and discrimination. Indeed, the message of hostility toward religion is all the more troubling due to the age of the children involved. This Court has cited the impressionability of young children as supporting the need to safeguard against the appearance of governmental sponsorship of religious activity. See, e.g., Edwards v. Aguillard, 482 U.S. 578, 5Whitney v. California, 274 U.S. 357, 377 (1927) (Brandeis, J., concurring). ‘Cf. James Madison, Memorial and Remonstrance Against Religious Assessments 4 4 (1785) (“the Bill violates equality by subjecting some to peculiar burdens”), reprinted in Everson v. Board of Educ. of Ewing, 330 U.S. 1, 66 (1947) (appendix to dissent of Rutledge, J.); id. 4 9 (“It degrades from the equal rank of Citizens all those whose opinions in Religion do not bend to those of the Legislative authority.”), reprinted in Everson, 330 U.S. at 69 (appendix to dissent of Rutledge, J.). 22 584 (1987); School Dist. of Grand Rapids v. Ball, 473 U.S. 373, 385 (1985), overruled, Agostini v. Felton, 521 U.S. 203, 236 (1997). When the government's message is one of hostility toward religion, however, impressionable children are equally harmed. The Constitution “forbids hostility toward any” religion. Lynch v. Donnelly, 465 U.S. 668, 673 (1984). By excluding the Good News Club from facilities available to the Boy Scouts, Girl Scouts, and 4-H Club, Milford demonstrated unconstitutional hostility toward religion. A message of _ hostility toward religion harms impressionable young children who may be led to believe that their government does not like religion or that their government thinks religion is bad for them. Such a message can be avoided through a policy of neutrality and even-handed treatment. IV. PUBLIC OFFICIALS NEED CLEAR GUIDANCE AND WORKABLE RULES TO UPHOLD GOVERNMENTAL NEUTRALITY TOWARD RELIG-ION. ) Public school officials and other governmental officers who oversee public facilities routinely handle requests from a_ variety of groups, including _ religious organizations, to use government facilities. These officials, most of whom are not lawyers, need clear channel markers if they are to navigate between the Free Speech Clause on one hand, and the Establishment Clause on the other. In Widmar, Lamb’s Chapel, and Rosenberger, this Court set out those markers, placing certain inquiries beyond the authority of governmental officers. In so doing, the Court clarified (and simplified) the duties of public officials faced with requests from religious 23 organizations to use public facilities. These officials were required to review the purposes for which their facilities could be used, determine if the religious organization wished to use the facility for one of those purposes, and then treat the religious organization just like any other group. The officials were not given the Sisyphean task of distinguishing between religious “speech” and religious “worship.” Widmar, 454 U.S. at 269-70 & n.6, 272 n.11. They were not to evaluate the organization's materials to see if they were sufficiently secular. Cf. Rosenberger, 515 U.S. at 845-46. There was to be no endorsement of religion, but neither was there to be any discrimination against religion. Hoping to promote better understanding of this Court’s Establishment Clause jurisprudence, particularly in the context of religious activities in public schools, various organizations and governments have issued guidelines to assist public officials in understanding their obligations. For example, beginning in 1997, the Attorney General of Alabama issued Guidelines for Religious Activities in Schools to public school officials in Alabama. Recently revised after the decision in Santa Fe Independent School District v. Doe, these Guidelines address, inter alia, the use of public school facilities by private religious organizations. The Alabama Guidelines state: Private citizens and student groups must be allowed access to school facilities for meetings of a religious nature, subject to the same limitations placed on non-religious meetings. App. A, infra, at 5a (emphasis added). With respect to private baccalaureate services, the Guidelines similarly provide: 24 If a school by policy and practice rents out its facilities to private groups, it must rent them out on the same terms and conditions, and on a first- come first-served basis, to organizers of privately sponsored religious baccalaureate services. Id. at 6a (emphasis added). The Alabama Guidelines stress the requirement of governmental neutrality toward religion: Teachers and _ school administrators must demonstrate and observe neutrality with regard to private baccalaureate services and school officials may neither encourage nor discourage student attendance at such events. Id. (emphasis added). The Department of Education of the Commonwealth of Virginia issued Guidelines Concerning Religious Activity in the Public Schools in 1995. The Virginia Guidelines contain advice similar to the Alabama Guidelines: 60. Once the school district opens its facilities for use by students or community groups during non-school hours, the Free Speech clause of the First Amendment generally requires that the school district not discriminate based on the point of view of groups seeking equal access to those facilities. The denial of access to religious groups can constitute viewpoint discrimination in violation of the Free Speech Clause of the First Amendment. 61.Use of school facilities by religious community groups after school hours should be granted on the same basis as other nonreligious 25 community groups. A group may not be denied use of meeting space solely because its speech, purpose or identity is religious. App. B, infra, at 34a-35a (citations and footnotes omitted). The United States Department of Education was among the first to issue such guidelines, entitled Religious Expression in Public Schools, and has distributed them to every public school in the nation. These federal guidelines contain similar advice regarding the use of public school facilities after hours by private religious groups: If a school generally opens its facilities to private groups, it must make its facilities available on the same terms to organizers of privately sponsored religious baccalaureate services. A school may not extend preferential treatment to baccalaureate ceremonies and may in some instances be obliged to disclaim official endorsement of such ceremo- nies. App. C, infra, at 66a. The federal guidelines similarly underscore the importance of official neutrality in religious matters: Official neutrality regarding religious activity: Teachers and school administrators, when acting in those capacities, are representatives of the state and are prohibited by the establishment clause from soliciting or encouraging religious activity, and from participating in such activity with students. Teachers and administrators also are prohibited from discouraging activity because of its religious content, and from _ soliciting § or encouraging antireligious activity. 26 Id. These guidelines evidence the substantial efforts public officials are making to explain and uphold this Court’s Establishment Clause jurisprudence. In particular, public officials in State and Federal govern- ment are attempting to explain and promote govern- mental neutrality in the context of free speech and religious activities. Unfortunately, the decision of the Second Circuit undermines these efforts. This Court has repeatedly “rejected the position that the Establishment Clause even justifies, much less requires, a refusal to extend free speech rights to religious speakers who participate in broad-reaching government programs neutral in design.” Rosenberger, 515 U.S. 839 (citing Lamb’s Chapel, 508 U.S. at 393-94; Mergens, 496 U.S. at 248, 252; Widmar, 454 U.S. at 274-75). The Court has similarly rejected the suggestion that public officials should exclude religious organizations simply because their mode of expressing their views and beliefs may take the form of singing religious songs, prayer, reading scripture, or proselytization. See Widmar, 454 U.S. at 269-70 n.6; Rosenberger, 515 U.S. at 844-45. A common theme throughout this line of cases, both in the Court’s Free Speech Clause analysis and in its Establishment Clause analysis, has been governmental neutrality — neutrality toward varying viewpoints and neutrality toward varying religions and religious traditions. Neutrality is a concept governmental officials can understand. It is a concept governmental lawyers can explain. Of course, that is not to say that applying the principle of neutrality is always easy given the innumerable factual situations governmental officials face every day. The appropriate course of governmental action is not always obvious, but a clear rule of neutrality goes a 27 long way toward pointing public officials in the right direction. In this case, the amici States urge the Court once again to underscore the principle of governmental neutrality that lies at the heart of its decisions in Widmar, Lamb’s Chapel, and Rosenberger. e CONCLUSION The judgment of the United States Court of Appeals for the Second Circuit should be reversed. Respectfully submitted, BILL PRYOR Attorney General of Alabama MARGARET L. FLEMING JOHN J. PARK, JR. CHARLES B. CAMPBELL* Assistant Attorneys General Counsel of Record * OFFICE OF THE ATTORNEY GENERAL STATE OF ALABAMA 11 South Union Street Montgomery, Alabama 36130-0152 (334) 242-7300 (Additional Counsel listed on Inside Front Cover) eee ee la APPENDIX A [Seal] State of Alabama OFFICE OF THE ATTORNEY GENERAL Bill Pryor Alabama State House Attorney General 11 South Union Street Montgomery, Alabama 36130 (334) 242-7300 WWW.AGO.STATE.AL.US July 21, 2000 MEMORANDUM TO: All City and County Superintendents of Education FROM: | Bill Pryor, Attorney General Michael R. White, General Counsel, State Department of Education RE: Updated Guidelines for Religious Activities in Schools A joint memorandum to all superintendents regarding permissible religious activities in public school settings was sent to you on December 8, 1997. On April 13, 1998, you received Guidelines for Graduation Exercises and Baccalaureate Services. On July 29, 1999, after the decision by the United States Court of Appeals in Chandler v. James, we wrote a joint memorandum to update the Guidelines based upon the decisions of the United States Supreme Court and the Eleventh Circuit Court of Appeals. We now write again to update the Guidelines based upon the Supreme Court’s recent 2a decision in the case of Santa Fe Independent School District v. Doe. In Santa Fe Independent School District v. Doe, the Supreme Court ruled that a Texas school district could not organize a student election to select a student to give an invocation before high school football games. Our Guidelines already indicated that “[o]rganization or direction of a prayer by a school official would not be appropriate,” so this new decision has not required a change to the Guidelines. We have merely added statements to explain that the _ prohibition § on “organization or direction of a prayer” means school officials should not hold a student election for the purpose of selecting a student to give a prayer at school-sponsored sporting events. We advise that this same rule should apply to school-sponsored activities generally, including commencement/graduation exercises. This does not, however, prohibit regularly scheduled student speakers, such as a valedictorian or class president, from praying, reading scripture, or making religious comments in the course of their speeches. As the Eleventh Circuit Court of Appeals held in Chandler v. James, such “genuinely student-initiated religious speech” is protected by the First Amendment. As you may remember from our July 29, 1999, Memorandum, the Permanent Injunction issued by Judge DeMent against the DeKalb County school system in the Chandler v. James case was vacated and remanded by the Eleventh Circuit Court of Appeals. The Court found that “genuinely student-initiated religious speech” may not be suppressed nor restrictions applied “on the time, place, and manner of that speech which exceed those placed on students’ secular speech.” The Supreme Court has vacated that decision and ordered the Eleventh Circuit to 3a reconsider the case in the light of its new decision in the Santa Fe case. We believe the Eleventh Circuit’s decision is consistent with the outcome in Santa Fe, and that the Court’s opinion will not be significantly modified. In any event, we will inform you as soon as the Eleventh Circuit rules. As before, we believe these Guidelines should enable you to ensure that students can fully exercise their First Amendment rights in an environment that does not conflict with the Establishment Clause. 4a GUIDELINES FOR RELIGIOUS ACTIVITIES IN SCHOOLS Introduction The following guidelines are issued to provide assistance to public school administrators and teachers. These guidelines are based on the rules reiterated by the Eleventh Circuit Court of Appeals in Chandler v. James and in opinions of the United States Supreme Court. These guidelines are intended to be instructive and not all-inclusive. Permissible Activities in General e Students may voluntarily engage in individual or group prayer during non-instructional time or at school-sponsored events. This includes individual or group prayer before or after athletic events. School officials (e.g. coaches) should neither encourage nor discourage individual or group prayer. Organization or direction of a prayer by a school official would not be appropriate; this also means that school officials should not hold a student election for the purpose of choosing a student to give a prayer at a_ school- sponsored event. e Students may voluntarily engage in_ religious discussions during non-instructional time or at school- sponsored events. Students may speak to and attempt to persuade their peers about religious topics just as they do with regard to political or other topics. e Students may express religious beliefs in reports, homework, artwork, and other written and oral assignments, which should be judged by ordinary academic standards of substance and relevance. 5a Private citizens (including students) may distribute religious literature in accordance with all applicable time, place and manner restrictions applicable to the distribution of literature that is unrelated to school curriculum activities. Students may display religious messages or symbols on items of clothing (e.g., cross, menorah, Star of David, etc.) to the extent that they may display comparable non-religious messages or symbols on items of clothing. Students also may wear particular attire (e.g., yarmulkes, head scarves, etc.) during the school day or at school-sponsored events as part of the students’ religious practices consistent with board policies and State law. Private citizens and student groups must be allowed access to school facilities for meetings of a religious nature, subject to the same limitations placed on non- religious meetings. Students in_ secondary’ schools may have announcements of meetings of a religious nature conveyed in the same manner that announcements are made for meetings of other non-religious groups (e.g. public address system, school newspaper, etc.). Teachers may teach about religion, including the Bible and other scripture, provided that such teaching concerns the history of religion, comparative religions, the Bible (or other scripture) as literature, and/or the role of religion in the history of the United States. The use of religious symbols (e.g., cross, menorah, symbols of Native American religions) is permitted as a teaching aid or resource provided such symbols are displayed as an example of the cultural and religious subject being taught. 6a A fixture or symbol that is traditionally associated with a particular religion (e.g., nativity scene, menorah, etc.) may be included as a “prop” in a school holiday production to the same degree that non- religious props are used in school productions, provided such symbols are displayed as an example of the cultural and religious heritage of the holiday. Traditional holiday music may be included in school productions (e.g., choral events, band activities, etc.) in keeping with the cultural or religious heritage of the holiday. Special Considerations for Commencement/Graduation Baccalaureate Services If a school by policy and practice rents out its facilities to private groups, it must rent them out on the same terms and conditions, and on a first-come first-served basis, to organizers of privately sponsored religious baccalaureate services. Teachers and school administrators must demonstrate and observe neutrality with regard to private baccalaureate services and school officials may neither encourage nor discourage student attendance at such events. Teachers and school administrators may attend such functions in their individual capacities. Baccalaureate services are to be announced or advertised in the same manner as other non-religious meetings, such as notices in the school newspaper or use of the public address system and bulletin boards. Ta Commencement Exercises e Student-initiated religious speech is _ permitted; however, school officials are not to encourage, organize, or direct such speech. This also means that school officials should not hold a student election to choose a student to give a prayer at school-sponsored commencement exercises. e Regularly scheduled student speakers (e.g., valedictorian, salutatorian, class president) may make religious comments during their speeches. School officials are not to encourage or direct such speech. e Religious persons and/or organizations are entitled to advertise in school commencement programs/ directories on the same terms as other persons or community organizations. The intent of these Guidelines is to outline a course of study, conduct, and related activities that does not prescribe directly or indirectly a single religion, belief, or observance and that is consistent with the prevailing decisions by the United States Supreme Court and the Eleventh Circuit Court of Appeals. Any questions regarding the above Guidelines or conduct that is not specifically detailed above should be directed _to the Office of the Attorney General, Bill Pryor, or the General Counsel for the Department of Education, Mike White. 8a APPENDIX B [Seal] Board of Education’s Guidelines Concerning Religious Activity In The Public Schools WHEREAS, the 1994 General Assembly enacted Va. Code § 22.1-280.3 requiring the Board of Education, in consultation with the Office of the Attorney General, to develop Guidelines on _ constitutional rights and restrictions relating to religious expression in our public schools; and WHEREAS, such Guidelines are not intended to be regulations displacing local discretion and determination, but as technical assistance outlining relevant constitutional and statutory principles for consideration by local school authority; and WHEREAS, in accordance with Va. Code § 22.1-280.3, the Board of Education provided broad-based opportunity for input from the general public, teachers and local school boards, before establishing Guidelines. NOW, THEREFORE, BE IT RESOLVED that the Board of Education hereby adopts the attached Guidelines and directs that they be disseminated to the public schools of this Commonwealth and made available for public distribution. Adopted this 22nd day of June, 1995. s/_»ames P. Jones s/_William C. Bosher, Jr. James P. Jones William C. Bosher, Jr. President, Board of Education Superintendent of Public Instruction 9a Board of Education’s Guidelines Concerning Religious Activity In The Public Schools Introduction 1. These Guidelines are not intended as regulations or state policies displacing local discretion. These Guidelines are designed instead as technical assistance for consideration by local school officials, administrators and teachers in formulating their local policies and decisions. They have been adopted following public hearings throughout the Commonwealth and after opportunity for comment and input from the general public, teachers, school administrators and school boards, parents and students, and interested organizations. 2. These Guidelines do not purport to provide definitive answers to all of the possible issues and the varied circumstances as may exist in the public schools. Indeed, the United States Supreme Court has cautioned that decisions in this area are particularly fact-sensitive. In that regard, local school consideration should also take into account the attached memorandum prepared by the Office of the Attorney General, dated January 9, 1995. That memorandum sets forth the conceptual framework in the law generally applicable and governing in most situations. Guidelines 3. One can imagine a number of situations in which private individuals might engage in religious expression or practices. They might pray before school, during school, or during extracurricular activities; they might wear religious attire or clothing with a religious message. They might carry the Bible or other sacred texts with them in school; they might attempt to evangelize or 10a proselytize other students. The religious beliefs of some students may cause their parents to request that they be excused from holiday celebrations, holiday pageants, physical education or a curriculum which violate sincerely held religious convictions. 4. The public schools should troughtfully consider any religious objection to its practices or policies made by parents or students. School authorities should determine whether exemptions or exceptions to their policies and practices can be provided in the interest of reasonably accommodating sincerely held religious beliefs. Curriculum 5. Students should be excused from school to attend religious services or observe religious holidays. Manifestly, any requested absence must be in conformity with local school procedures, including parental or guardian approval as necessary. 6. The public schools are not required to conform their curriculum to every religious tenet or objection. On the other hand, while the curriculum must not be designed to promote religious belief or non-belief, it need not be sanitized of all religious references or themes which may appear in educational materials. While the precise contours of their rights have not been judicially defined, parents and students also have constitutional rights — at least in some circumstances — to exemption from assignments, materials or programs that substantially burden their religious tenets. Thus, public school authorities should thoughtfully consider whether suitable alternatives are available that would allow students to opt-out of any program in which participation would substantially burden their religious tenets. Where such a burden occurs and public school authorities cannot lla show a compelling interest in requiring attendance, the student must be allowed to opt-out.! 7. As provided by state law, local school boards must excuse from school attendance “any pupil who, together with his parents, by reason of bona fide religious training or belief, is conscientiously opposed to attendance at school.” Virginia law provides however that “bona fide religious training or belief does not include essentially political, sociological or philosophical views or a merely personal moral code.” See Va. Code § 22.1-257. Also, Virginia law authorizes home instruction as an alternative to public schooling under certain conditions. See Va. Code § 22.1-254.1. When the requirements of home instruction have been met, instruction of children ! These rights of parents and students are granted in the Free Exercise and Free Speech Clauses of the First and Fourteenth Amendments. The Religious Freedom Restoration Act may also provide similar protection. Opt-out or excusal as an accommodation to free exercise concerns has been looked upon favorably by the courts. West Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 642 (1943); Grove v. Mead Sch. Dist., 753 F.2d 1528, 1533 (9th Cir. 1985) (Despite finding of a [sic] free exercise burdens inherent in making child read textbooks which espoused views contrary to her family’s faith, no constitutional violation as student was excused from reading offensive book and assigned an alternative book); Smith v. Board of Sch. Comm'rs, 827 F.2d 684 (11th Cir. 1987) (parents of school children successfully challenged the mandatory use of textbooks which contained religiously objectionable references); Mozett v. Hawkins County Bd. of Educ., 827 F.2d 1058 (6th Cir. 1987) (requiring students to be simply exposed to objectionable ideas in standard curriculum did not impose substantial burden on religion without proof that the student was required to conform or take some action contrary to their religious belief); Fleischfresser v. Directors of Sch. Dist. 200, 15 F.3d 680 (7th Cir. 1994) (dismissing challenge to supplemental reading program which contained offensive references to “witches, giants and sorcerers” and arguably suggested pagan themes). 12a by their parents in their home is an acceptable form of education under the policy of the Commonwealth of Virginia. 8. School personnel, including teachers, shall not lead their classrooms in devotional exercises whether directly in class or over a public address system.? A school official or teacher also shall not ask or designate a student volunteer to lead the class in a devotional exercise.* 9. Our United States Supreme Court has however aptly recognized that public education may not be complete without a study of our religious heritage or an objective comparison of our religious pluralism. School Dist. v. Schempp, 374 U.S. 203 (1963). When presented objectively as part of a secular program of education, the public schools may offer courses in comparative religion, study the history of various religions and their relationship to civilization, as well as the historic and literary qualities of religious materials. Religious music may also be included in music classes, religious art may be included in art and humanities classes, the Bible and other religious texts may be studied in literature classes, and literature dealing with religious themes may be used in language arts development. School and classroom libraries may also include books with religious themes.* * School Dist. v. Schempp, 374 U.S. 203 (1963); Engel v. Vitale, 370 U.S. 421 (1962). 5B. vu. Treen, 653 F.2d 897 (5th Cir. 1981), affd, 455 U.S. 913 (1982). ‘ In Roberts v. Madigan, 702 F. Supp. 1505 (D. Colo. 1989), a federal court, in refusing to remove a Bible from a public school library stated: “In this age of enlightenment, it is inconceivable that the Bible should be excluded from a school library. The Bible is regarded by many to be a major work of literature, history, ethics, theology and 13a If the school offers a course specifically studying the Bible or other religious texts as literature, the course should be taught like other courses offered at the same grade level. The material must be balanced and objectively taught without attempt to indoctrinate religious belief or non- belief. Teachers of the course should be assigned using objective standards without any religious test.® Discussion of religious topics or materials should be relevant to the curriculum and should not occupy a disproportionate amount of classwork. Course work should not include participation in a religious ceremony of any kind during or outside of class. Schools should also be mindful of their students’ diversity of religious beliefs. 10. Religious symbols or religious texts, such as the Ten Commandments, may not be posted in the public schools when the purpose or primary effect is to advance religion, but may be posted on a temporary basis as part of an academic lesson or curriculum. The public schools, however, may properly teach students important values, ethics and morality, but not through religious indoctrination. The Ten Commandments, the Bible, as well as other religious materials may be studied for bona fide educational purposes. philosophy.... To deprive a public school library's collection of the Bible would, in the language of Justice Robert Jackson, render the educational process ‘eccentric’ and incomplete.” Jd. at 1513. 5 Crockert v. Sorenson, 568 F. Supp. 1422 (W.D. Va. 1983); Vaughn v. Reed, 313 F. Supp. 431 (W.D. Va. 1970). 6 Malnak v. Yogi, 592 F.2d 197 (3rd Cir. 1979), finding that student participation in transcendental meditation (“TM”) exercise constituted an establishment or religion in violation of the First Amendment. l4a Free Time 11. During most of the school day, the attention of students is properly directed toward activities forming part of the school curriculum or co-curriculum. There are, however, other periods of the school day when students are generally free to read on their own, or to gather together and/or talk among themselves about subjects of their own choosing. While such non-instructional periods may vary from school to school, they typically include, but are not necessarily limited to (i) riding to and from the school on the school bus, (ii) a period each morning between the time students are permitted on school grounds and the time they are required to be present in their seats, (iii) lunch time, (iv) recess in the lower grades, and (v) in the upper grades, brief periods between classes. 12. During such free time, students should be free to read religious literature of their own choosing, and to discuss religious themes with other willing students on the same basis as they might discuss secular interests and subjects. 13. Student-initiated and non-disruptive devotional activities during free time, such as “meet me at the pole” events prior to school, should be permitted. Teachers and school officials must not encourage or discourage participation by students in such events. The public schools however have the right and responsibility to protect public property and preserve order and determine the school facilities and permissible locations authorized for such activity. Such decisions should be made and applied evenly without favoring or discriminating against the activity solely because of its religious nature. 14. Similarly, if a school conducts a study period or provides other times in which students are allowed to 15a read materials other than those prescribed by the school curriculum, the students must be free to read religious material, not just secular material. Student Dress 15. Students will sometimes express their religious convictions on their clothing or personal effects. For example, a Christian girl may wear a necklace bearing a cross, while a Jewish girl may wear a necklace displaying a Star of David. Students may also wear T-shirts bearing religious messages. 16. In the absence of disruption to school activities, obscenity or lewdness, these and other expressions of belief will generally constitute protected speech. Public school personnel may not discipline students because they disagree with the underlying message, but may take reasonable action needed to promote order and address any disruptive effects of such student speech. A school may adopt a content-neutral dress code that uniformly prohibits certain kinds of clothing altogether; provided, a dress code does not single out or discriminate against religious expression. For example, schools may determine that T-shirts are not appropriate attire and apply the policy evenhandedly to all such apparel. Schools should attempt, however, to accommodate student’s religious attire as well as religiously based modesty concerns (e.g. in physical education classes). Student Assignments 17. Student art projects often center around seasonal themes. Where the season has both secular and religious connotations, some students may prefer to depict a secular aspect of the season, while others may prefer to depict a religious aspect. 16a 18.So long as the expression is germane to the assignment, teachers should not discriminate against students who prefer a religious theme or viewpoint over a secular one (or vice versa). Example: Where different students depict a manger scene, a menorah and “Frosty the Snowman,” the teacher may display them all on an equal basis, or on the basis of their artistic merit, but may not discriminate in favor or against any of them on the basis of the religiosity or secularity of their themes. Students have a right to express their religious values and viewpoints in their classwork, assignments and work products to the same degree that students may express secular viewpoints. A student's grade or evaluation must never be affected by his or her creed or religious belief or non-belief. Distributions of Religious Literature 19.Students should be permitted to distribute religious material during school on the same or equal basis as non-religious material. Rivera v. East Otero Sch. Dist., 721 F. Supp. 1189 (Colo. 1989) (peaceful student distributions of religious literature at school protected by the First Amendment). The schools may however reasonably regulate the time, place and manner of such distribution. Hedges v. Wauconda Comm. Sch. Dist., 9 F.3d 1295 (7th Cir. 1993). (Merely permitting an eighth grader to distribute religious literature to peers before class without disruption did not raise Establishment Clause concerns). 20. Schools should not grant community groups or individuals from outside the school special access to the students during the school day for purposes of proselytizing or distributing proselytizing literature to students. See, e.g., Berger v. Rensselaer Cent. Sch. Corp., 982 F.2d 1160 (7th Cir.), cert. denied, 113 S. Ct. 2344, 124 17a L. Ed. 2d 254 (1993). A long line of Supreme Court precedents establish that it is impermissible for school officials to allow the machinery of the state to be used to provide an audience for religious exercises or instruction by outside groups. See Illinois ex rel. McCollum v. Board of Educ., 333 U.S. 203 (1948); Engel v. Vitale, 370 USS. 421 (1962). In disapproving access to students by religious organizations, the Court, in McCollum, stated that: Here not only are the state’s tax-supported public school buildings used for the dissemination of religious doctrines. The State also affords sectarian groups an invaluable aid in that it helps to provide pupils for their religious classes through use of the state’s compulsory public school machinery. 333 U.S. at 212. 21.Community groups have no right to enter the school grounds to distribute materials to students during the school day. Where the school elects to allow such distribution by some community groups for nonsectarian purposes, the law is still developing with regard to affording equal access to community groups to distribute religious materials in the public schools. Policy in this area should consider the manner, time and location of the distribution and whether there is risk that impressionable children will perceive official school endorsement of the material.’ 7 See Good News/Good Sports Club v. School Dist., 28 F.3d 1501 (8th Cir. 1994), petition for cert. filed, No. 94-1299, 63 USLW 3583 (January 26, 1995) (school district engaged in viewpoint discrimination by denying access to a religious community group 18a Holidays 22. Public Schools have traditionally acknowledged a wide variety of holidays, some with religious origins and significance. Teachers and students typically prepare displays, study the origin of holidays and participate in plays or concerts. Administrators and teachers should fundamentally be sensitive to “inclusion” not “exclusion” of students holding diverse religious viewpoints. 23. A public school may recognize holidays also having religious significance to some (e.g., Christmas and Easter). While these holidays have religious origins and retain a religious significance, they have also become part of our national culture and heritage. The religious significance should not, however, be promoted or sponsored. Case law suggesis that context can be important to assure fair balance and sensitivity to all students. A musical program consisting solely of religious music, for example, is more problematic than a program that combines religious and secular music. See R.J.2J. v. Shineman, 658 S.W.2d 910, 913 (Mo. Ct. App. 1983) (winter holiday concert constitutional where seasonal numbers such as “Jingle Bells” performed along with Christmas carols). See also County of Allegheny v. ACLU, meeting with students after school, while permitting an allegedly nonreligious community group to meet with students on the same topics); Sherman v. Community Consol. Sch. Dist. 21, 8 F.3d 1160 (7th Cir. 1993) (no establishment clause violation when school division allowed the Boy Scouts, which requires all members to affirm belief in God, to use elementary school facilities for meetings and to distribute flyers and posters through the school); Schanou v. Lancaster County Sch. Dist., 863 F. Supp. 1048 (D. Neb. 1994) (Gideons permitted to distribute Bibles after school to students on sidewalks on school property where other groups also allowed to distribute their literature). 19a 492 U.S. 573 (1989) (display of menorah next to Christmas tree acceptable whereas display of creche alone unacceptable); Lynch v. Donnelly, 465 U.S. 668, at 680 (1984) (context of creche display critical). Moreover, public school personnel should be animated by secular motives or goals — not by a desire to subtly indoctrinate. 24. A school may also teach its students objectively about religious holidays, including their religious significance, without offending the Establishment Clause when presented as part of a secular education program. Florey v. Sioux Falls Sch. Dist., 619 F.2d 1311 (8th Cir.), cert. denied, 449 U.S. 987 (1980). In Florey, the court upheld a school’s holiday policy, noting that it is censtitutionally permissible for a school to “advance the students’ knowledge and appreciation of the role that our religious heritage has played in the social, cultural and historical development of civilization.” Jd. at 1314 (quoting policy). See also Clever v. Cherry Hill Township Bd. of Educ., 838 F. Supp. 929 (D.N.J. 1993) which considered the constitutionality of a school board’s policy regarding “the use of cultural, ethnic, or religious themes in our educational program.” Id. at 932. The court upheld the policy for a variety of reasons, observing that “the use of appropriate classroom and central displays is clearly a recognized and legitimate educational technique.” Id. at 939. 25. Any student should always be permitted to opt out of holiday-related events and programs because of strongly held religious sentiments. 26. Devotional or strictly religious exercises must be avoided. 27. Whenever feasible, schools should strive to avoid scheduling exams and special events on days when it is 20a foreseeable that some students will be absent to celebrate religious holidays. Similarly, if a school gives awards for perfect attendance, it should not withhold’ such recognition from students whose only absence is necessitated by holidays where observance is prescribed by the student’s faith. The Equal Access Act (The Equal Access Act) means that the school will have the same regulations for a-religious club as for any 6ther club, no more, no less. Senator Mark Hatfield 28. School officials should be familiar with the federal Equal Access Act (20 U.S.C.S. §4071, et seqg.). The Act guarantees, under certain’ circumstances, student religious and Bible study groups equal access and opportunity to conduct meetings in the secondary public schools on the same basis as other noncurriculum related student groups. See Attorney General’s attached memo- randum. Congress’ primary purpose in passing the Act, according to the Supreme Court, was to end “perceived widespread discrimination against religious speech in public schools.” Mergens, 496 U.S. 226, 239 (1990). While Congress recognized the constitutional prohibition on governmental promotion of religion, it also believed that nonschool-sponsored student speech, including religious speech, should not be excised from the school environ- ment. 29. There are three basic Guidelines under the Equal Access Act: 30. The first is nondiscrimination. If a_ public secondary school permits student groups to meet for student-initiated activities not directly related to the school curriculum (such as chess club, ski club, scuba 2la club, etc.), it is required to provide equal access on the same basis to religious groups. The school cannot discriminate against any students conducting such meetings on the basis of the religious, political, philosophical, or other content of the speech at such meetings. Religious speech and expression are to receive equal treatment. 31. The second basic concept is protection of student- initiated and student-led meetings. Student-initiated means that the students themselves, without influence or promotion by school personnel, seek to meet and that the students will direct and control the religious discussion without governmental participation. 32. The third basic concept is local control. The public schools may apply content-neutral disciplinary rules to avoid disruption, or reasonably regulate the time, place and manner of such meetings. For instance, a school may establish a reasonable time period for meetings on any one school day, a combination of days or all school days. It may assign rooms, and enforce student discipline codes. 33. To comply with constitutional and statutory law, the public schools must allow religious student groups equal access to meeting room facilities and other locations at school as made available to noncurriculum student groups. Similarly, religious student groups should have equal access to facilities made available to noncurriculum student groups to announce their meetings. These may include, for example, the student newspaper, bulletin boards, the public address system and club fairs. Where a religious group is the first noncurriculum group to apply for such access, the school may allow such group access provided that it adopts a policy that would also allow non- religious noncurriculum groups equal access. The right of a lawful, orderly student group to meet, however, cannot 22a depend on the approval of other students and cannot be denied because other students object to their access. A student group should not be denied equal access merely because its views are unpopular. 34. Public school authority may also not retaliate against any student or teacher because of his or her association with a religious organization. Teacher Expression of Religion 35. As public employees, and agents of the public schools, the speech rights of teachers are not absolute and must be balanced against the school’s legitimate right and duty to maintain order, perform its obligations to the population served, and avoid government sponsorship of religion. Teachers must be cognizant of their great influence in shaping student values and their overarching duty not to use their position to indoctrinate students into their religious beliefs or lack thereof. 36. As a general matter, neither the Free Exercise nor Free Speech clauses provide teachers an unqualified right to engage in religious expression with students at school. Because teachers play a central role in setting values for our children, they must also bear responsibility for their actions which impermissibly create a danger of establishing religion in the public schools, including misapprehension by pupils that the public schools sponsor the teacher's viewpoint. Teachers should not lead students in devotional activities during class or school- sponsored activity, or encourage students to participate with the teacher in religious activity before or after school. A teacher who wishes to participate in voluntary student, religious activity during free time should be careful that his or her participation is not misinterpreted by students as official sponsorship of religious belief. The 23a circumstances of each case, including the maturity of the students and the context and duration of the event must be professionally considered. 37. A teacher may respond honestly, in a noncoercive, and nonindoctrinating manner, to student-initiated inquiries about religion, just as a teacher may respond in an appropriate manner to student inquiries about political, philosophical or other secular _ interests. Balance, degree and (ffairness are important considerations, and the specific question may best be answered by referring the student to his parents. 38. Teachers should be able to meet with other teachers for private religious speech, including prayer, meditation and reading of religious materials, during their free time, such as immediately before or after class or during breaks or lunch. As professionals, teachers need to be careful however that their actions are not misinterpreted by students. Moments of Silence 39. The Code of Virginia (§ 22.1-203) authorizes the school board of each school division to establish the daily observance of one minute of silence in each classroom of the division. In establishing policy, the school board must be careful that its policy is animated by secular justifications, not merely as a pretense to encourage prayer. Public schools may provide students, for * Cf. Wallace v. Jaffree, 472 U.S. 38 (1985); Walter v. West Virginia Bd. of Educ., 610 F. Supp. 1169 (S.D. W. Va. 1985). In Jaffree, Alabama's moment of silence statute was invalidated by the U.S. Supreme Court, partly because legislative record evidenced primarily religious, rather than secular purpose. Virginia's statute can be defended as promoting lawful goals, and not simply to endorse religion. Care must be taken that it is administered neutrally. 24a example, with a minute of silence to collect themselves and put their upcoming tasks in meaningful perspective for the individual student. A brief minute of silence may also fulfill other secular objectives, including maintenance of discipline. 40. The teacher must ensure that all pupils remain seated and silent and make no distracting display to the end that each pupil in the exercise of his or her individual choice and consistent with freedom of conscience, may engage in any silent activity (including prayer) which does not interfere with, distract, or impede other pupils in the like exercise of individual choice. The teacher may say the following, for example, before stipulating a minute of silence: “We will now observe a minute of silence. You may, in the exercise of your individual choice, meditate, pray or engage in any other silent activity which does not interfere with, distract or impede other pupils. You must remain seated and silent.”? 41. The teacher may not indicate his or her views on whether students should use the time to pray or not to pray. The teacher should also not use the time to pray aloud in front of other students, nor permit any other student, or group of students to pray aloud. Graduation Prayer School Initiated Prayer, Class Initiated Prayer 42.It is firmly settled in the law that the Establishment Clause forbids school-sponsored prayer or religious indoctrination, as well as any school initiative designed to endorse prayer generally or sponsor a * This language is drawn from § 22.1-203 of the Code of Virginia. 25a particular religious viewpoint. In 1992, the United States Supreme Court held in Lee v. Weisman, 112 S. Ct. 2649, 120 L. Ed. 2d 467 (1992), that school sponsored prayer, even nonsectarian and nonproselytizing prayer, at graduation ceremonies violated the Establishment Clause. 43. In Weisman, the participation and involvement of school personnel was pervasive in deciding whether there would be a religious invocation, selecting the speaker and even dictating the contents of the invocation through a pamphlet setting forth guidelines for “nonsectarian” prayer. In deciding that such pervasive involvement by school personnel was unconstitutional, a divided Court (5- 4) remarked: These dominant facts mark and control the confines of our decision: State officials direct the performance of a formal religious exercise at promotional and _ graduation ceremonies for secondary schools. Even for those students who object to the religious exercise, their attendance and participation in the state-sponsored religious activity are in a fair and real sense obligatory. 112 S. Ct. at 3655, 120 L. Ed. 2d at 480. 44.The Court was concerned not only with the pervasive degree of school participation in _ religious matters, but also with the resulting subtle coercive pressures that accompany any official religious observance as part of a school-sponsored event. The argument that the ceremony was “voluntary” was rejected by the majority over the objections of the dissenting Justices. Even though objecting students were not required to attend graduation to receive their diplomas, 26a such attendance was “in a fair and real sense obligatory.” Id. at 2655, 120 L. Ed. 2d at 480. As the Court observed: Everyone knows that in our society and in our culture high school graduation is one of life’s most significant occasions ... Attendance may not be required by official decree, yet it is apparent that a student is not free to absent herself from the graduation exercise in any real sense of the word “voluntary,” for absence would require forfeiture of those intangible benefits which have motivated the student through youth and all her high school years. Id. at 2659, 120 L. Ed. 2d at 486. 45. Nothing in Weisman would prohibit students from themselves organizing a privately sponsored baccalaureate service before or following the graduation ceremony off the school grounds. See 112 S. Ct. at 2677, 120 L. Ed. 2d at 508. 46. Devotional exercises at school sponsored events do not become constitutional simply by excusing objecting students from attendance. 47. The decision in Weisman has produced a split in the lower courts over the constitutionality of class- initiated, student led prayer at graduation ceremonies. This issue will necessarily be uncertain in the law until resolved by the United State Supreme Court. For example, a federal appeals court in Texas approved a school board’s policy allowing graduation prayer where a majority of the graduating class voted for “neutral” prayer by a student volunteer. Jones v. Clear Creek Indep. Sch. Dist., 977 F. 2d 963 (5th Cir. 1992), cert. denied, 113 S. Ct. 2950, 124 L. Ed. 2d 697 (1993). In Jones, unlike Weisman, school personnel neither made the decision to 27a include a religious invocation or to supervise the delivery and preparation. They merely abided by the collective decision of the senior class, as expressed through a vote. The Fifth Circuit reasoned that the Establishment Clause is a restraint on government and not when prayer is “the result of student, not government choice.” Jd. at 968. Other lower courts have used reasoning similar to the Fifth Circuit’s..°. However, there is also a substantial body of case authority to the contrary, including a decision by the Ninth Circuit that rejected the rationale in Jones and reached the opposite result, holding that when school officials “delegate” a decision on prayer to a vote of the senior class, the resulting election in favor of prayer is still state-action. Harris v. Joint Sch. Dist. No. 241, 41 F. 3d 447 (9th Cir. Nov. 18, 1994). A similar result was reached by a federal district court enjoining the Loudoun County public schools from permitting student led and initiated prayer at graduation ceremonies. See Gearon v. Loudoun County Sch. Bd., 844 F. Supp. 1097 (E.D. Va. 1993) (declaring that organized prayer at a high school graduation is inherently divisive and unconstitutional no matter who inspires and delivers 1 Stein v. Plainwell Community Schs., 822 F.2d 1406 (6th Cir. 1987) (validating nonsectarian student led and initiated invocation); Adler v. Duvall Co. Sch. Bd., 851 F. Supp. 446 (M.D. Fla. 1994) argued orally, #94-2638 (11th Cir., March 7, 1995); Albright v. Board of Educ. of Granite Sch. Dist., 765 F. Supp. 682 (D. Utah 1991) (finding that religious invocation was ceremonial in nature without evidence of coercion); and Grossberg v. Deuschio, 380 F. Supp. 285 (E.D. Va. 1974) (holding that brief nonsectarian prayer did not substantially burden religious liberty). 28a the invocation).'' Only the Loudoun County public schools are bound by Gearon.'? 48.The Supreme Court has not decided a case presenting the specific question whether religious invocations may be permitted when they result solely ‘| See also ACLU v. Blackhorse Pike Regional Bd. of Educ., No. 93-5368 (3d Cir. June 25, 1993) (unpublished opinion); Friedmann v. Sheldon Community Sch. Dist., No. 93-4052 (N.D. lowa May 28, 1993), reversed on standing grounds, 995 F.2d 802 (8th Cir. 1993). The reasoning in these cases follows decisions in other analogous contexts. In Collins v. Chandler Unified Sch. Dist., 644 F.2d 759 (9th Cir.), cert. denied, 454 U.S. 863 (1981), the Ninth Circuit Court of Appeals held that student-initiated and led prayer at school assemblies was unconstitutional; in B. v. Treen, 635 F.2d 897 (5th Cir. 1981), affd, 455 U.S. 913 (1982), the Court held that student volunteers could not lead classmates in prayer even though objecting students could be excused; and in Doe v. Duncanville Indep. Sch. Dist., 994 F.2d 160 (5th Cir. 1993), the Court invalidated the practice of offering prayers before a high school basketball game. In Doe, the Fifth Circuit stated that Weisman “is merely the most recent in a long line of cases carving out of the Establishment Clause what essentially amounts to a per se rule prohibiting public-school-related or-initiated religious expression or indoctrination.” Jd. at 165. ‘2 Injunctive orders bind only the litigating parties, their agents and privies. See Fed. R. Civ. P. 65(d). While other Federal judges in Virginia would undoubtedly consider Gearon before ruling in a similar case, they are free to reach a different result. The principle that a decision by one federal district judge does not bind other judges — even in the same district — is amply demonstrated by a comparison of Vaughn v. Reed, 313 F. Supp. 431 (W.D. Va. 1970), and Crockett v. Sorenson, 568 F. Supp. 1422 (W.D. Va. 1983). Judge Dalton held in Vaughn that an objectively-taught, mandatory, religious education program in public school would be consistent with the First Amendment. Judge Kiser, in refusing to follow the opinion of Judge Dalton, found Judge Dalton’s opinion unpersuasive on that point and held that such programs must be optional. Crockett, 568 F. Supp. at 1431. 29a from a decision by the senior class through some electoral mechanism.'’ School divisions considering such policy should review existing case authority with legal counsel. Consideration includes: (1) the degree of governmental participation and oversight locally desired, (2) whether the activity results in any coercive pressure from teachers or peers on objecting students to participate at the expense of forfeiting benefits, (3) whether the activity is animated primarily by secular purposes,’ and (4) whether the circumstances wil) suggest appearances of a school imprimatur, such as, for example, promotional statements in official publications or announcements. The test may very well be whether the activity, in practical effect, creates an impermissible appearance to a reasonable person that the public schools are supporting a religious perspective or viewpoint. Even in Jones, the court hastened to acknowledge that “we understand government to unconstitutionally endorse religion when a reasonable person would view the challenged government action as a disapproval of her contrary religious choices.” Jones, 977 F.2d at 968. ‘8 The recent Harris case may furnish the Supreme Court an opportunity to resolve this issue. At the time of the adoption of the Guidelines, a petition for a Writ of Certiorari is pending. ‘4 There is case authority concluding that any governmental promotion of prayer during school-sponsored event [sic] is necessarily motivated by impermissible religious reasons. There is also authority to the contrary where the evidence is credible proving secular motives. For example, in Adler the Court was persuaded on the evidence of legitimate secular motives; namely, a desire to solemnize or set a serious note for the ceremony and to respect the choices and freedom of speech of students. 30a Individually Initiated Prayer by a Student Speaker 49. It is often the case that one or more students from the Senior Class are selected to speak at graduation, such as the Senior Class President, Valedictorian and Salutatorian. (While discussed in terms of a high school graduation, these same considerations would apply to a graduation or promotional ceremony from middle school.) Depending on local practice, the Senior Class may also elect one or more students to speak. Unlike the case of organizing and permitting collective prayer at graduation, school personnel may not censor a_ student who voluntarily chooses, on his or her own initiative, to include religious themes or references, including prayer, in a graduation address. If a student speaker elects on his own to use a portion of his allotted time delivering a prayer, or otherwise reflecting on the event of graduation from a religious perspective, it is not a violation of the Establishment Clause for the school to permit him to do so. Indeed, for the school to prohibit the speaker from doing so could violate his or her rights under the First Amendment.!5 50. If the student speakers are selected by school officials (rather than by students), they should be selected on wholly secular criteria (e.g., class officers, class rank or other achievement), not based on what school officials '5 While these conclusions seem plainly mandated by well- established constitutional principles, at least one federal district court appears to have reached the opposite result. See Gearon, 844 F. Supp. at 1100, wherein Judge J. Bryan banned all graduation prayers in the Loudoun County public schools. Due to financial constraints the local school board did not appeal this case. Therefore, Gearon is binding on the Loudoun County public schools. 3la perceive as the likelihood that the speakers chosen would (or would not) pray. 51. School officials should neither encourage nor discourage them [sic] students from including a religious reference or offering prayer. For the problems associated with school and class decisions about whether to have prayer, see previous section. 52. If a student speaker advises school officials of his or her intention to offer a prayer or include a religious reference, school officials may not prohibit the speaker from doing so; but, neither should they print up in their official graduation program that a prayer or religious reference is expected or will occur. 53. School officials are probably entitled to review a student speaker's prepared remarks to insure that they are germane to the event of graduation. If no prayer or religious reference is found, the school officials should not ask the speaker to include one; if one is found, school officials should not require the speaker to excise it. Baccalaureates 54.The United States Supreme Court has never explicitly ruled on _ the’ constitutionality of a baccalaureate, but the same constitutional considerations discussed in these Guidelines apply. At least two lower federal courts have found baccalaureate services involving minimal involvement of school officials to be constitutional. !® ‘6 Verbena United Methodist Church v. Chilton County Bd. of Educ., 765 F. Supp. 704 (M.D. Ala. 1991), found constitutional a baccalaureate service in the high school auditorium which had been designated “public forum,” and where there was no evidence that 32a 55. The public school itself may not sponsor or arrange private baccalaureates. - Such religious services may always be arranged by students, parents and community groups off the school premises. If any group seeks to conduct a baccalaureate on premises and after hours, they can be granted use of school facilities on the same basis as may be afforded other student or community groups. The administration of the event must, however, be careful to avoid circumstances reasonably suggesting sponsorship by the public schools. 56.In order to accommodate students wh: may be interested in hearing about a baccalaureate service, the school may permit scheduling notices to be included on bulletin boards and over public address systems on the same basis as other scheduling notices; but care should be taken to make sure that there is no appearance of school sponsorship or official encouragement of participation. The use of disclaimers is recommended. Teachers and school administrators who choose to attend should not suggest or encourage their students to attend. 57. Teachers and school administrators may attend the baccalaureate in their capacity as private citizens, but should not plan, direct, control or supervise the ceremony. school authorities created appearances of school sponsorship. — In Randall v. Pegan, 765 F. Supp. 793 (W.D.N.Y. 1991), a district court upheld a_ school’s’ decision to lease its auditorium to a nondenominational group for a baccalaureate service. Under the Lemon test, the Court found that the open access policy furthered a secular purpose; ?) the school’s disclaimers disassociated it sufficiently so as not to advance religion; and 3) administrative oversight of the event did not foster excessive entanglement with religion. 33a Release Time Programs 58. Release time programs that permit students to attend religious instruction off the school premises have been constitutionally upheld as accommodations of the spiritual needs of our people. Zorach v. Clauson, 343 U.S. 306, 314 (1952). (Such programs “respect[] the religious nature of our people and accommodate{] the public service to their spiritual needs.”) The mere release of students during school hours to attend religious courses is not per se unconstitutional. The administration of the program must be carefully managed to avoid excessive entanglement with religion. Lanner v. Wimmer, 662 F.2d 1349 (10th Cir. 1981) (registration and record keeping of students permissible). However, the public schools should not arrange, sponsor or pay for such programs, nor seek to influence or pressure students to participate in such programs. Moreover, in /llinois ex re!. McCollum v. Board of Educ., 333 U.S. 203 (1948), the Supreme Court held that it was unconstitutional for a public school to permit voluntary religious instruction on school premises during release-time periods. School authority should not supervise the off-campus religious instruction. Agents of the religious institution should not be permitted at school during school time to recruit students to participate in their religious exercises. Public school teachers should also not recruit students for the religious instruction program. In order to avoid excessive entanglement with religion, as a general rule no academic credit should be conferred for religious instruction. But see Lanner uv. Wimmer, 662 F.2d 1349 (10th Cir. 1981). 59. The logistics of a constitutional release time program require carefui planning, knowledge of the case law in this area and attention to detail. School boards who wish to release students to attend off-school 34a programs may do so but should consult with their local counsel regarding registration, class location, attendance policies and class scheduling. See, for example, Doe v. Shenandoah County Sch. Bd., 737 F. Supp. 913, 917, (W.D. Va. 1990); Smith v. Smith, 523 F.2d 121, 122 (4th Cir. 1975), cert. denied, 423 U.S. 1073 (1976). Equal Access By Community Groups 60. Once the school district opens its facilities for use by students or community groups during non-school hours, the Free Speech clause of the First Amendment generally requires that the _ school district not discriminate based on the point of view of groups seeking equal access to those facilities. See Cornelius v. NAACP Legal Defense & Educ. Fund, Inc., 473 U.S. 788, 800 (1985); Perry Educ. Ass'n v. Perry Local Educators’ Ass'n, 460 U.S. 37, 46 (1983). The denial of access to reiigious groups can constitute viewpoint discrimination in violation of the Free Speech clause of the First Amendment. Lamb’s Chapel v. Center Moriches Union Free Sch. Dist., 113 S. Ct. 2141, 124 L. Ed. 2d 352 (1993). 61. Use of school facilities by religious community groups after school hours should be granted on the same basis as other nonreligious community groups.'’? A group 17 Fairfax Covenant Church v. Fairfax County Sch. Bd., 17 F.3d 703 (4th Cir.), cert. denied, 114 S. Ct. 2166, 128 L. Ed. 2d 888 (1994). Good News Sports Club v. School Dist., 28 F.3d 1501 (8th Cir. 1994) (parent-led religious group has right to meet immediately after school at jurior high school when Boy Scout programs are permitted to meet); Youth Opportunities Unlimited, Inc. v. Board of Pub. Educ. of Sch. Dist., 769 F. Supp. 1346 (W.D. Pa. 1991). 35a may not be denied use of meeting space solely because its speech, purpose or identity is religious.'* 62. School districts may not charge religious groups a higher rental fee than nonreligious groups.'® No rental fee may be charged religious groups if none is charged nonreligious groups. Conclusion 63. Necessarily, all of the foregoing still requires thoughtful consideration of the pertinent circumstances. The United States Supreme Court has invariably emphasized “the importance of detailed analysis of the facts.” Illinois ex rel. McCollum v. Board of Educ., 333 U.S. 203, 226 (1948). And, while the judicial tests may vary depending upon the particular context, public school authorities should be familiar with the general concerns of the law and the dangers sought to be avoided. It is therefore important that the attached memorandum from the Office of the Attorney General be considered. It is fundamentally important that school authorities understand their constitutional duties to reasonably accommodate the religious heritage and pluralism of our people, to avoid an establishment of religion and, at the same time, not to adopt the impermissible view that any 1 Lamb's Chapel v. Center Moriches Union Free Sch. Dist., 113 S. Ct. 2141, 124 L. Ed. 2d 352 (1993). ‘9 Fairfax Covenant Church v. Fairfax County Sch. Bd., 17 F.3d 703 (4th Cir.), cert denied, 114 S. Ct. 2166, 128 L. Ed. 2d 888 (1994). 36a and all religious expression must be banished from the public school. 37a MEMORANDUM TO: ALL CONCERNED FROM: THE OFFICE OF THE ATTORNEY GENERAL DATE: January 9, 1995 RE: Memorandum of Legal Principles Animating Guidelines These Guidelines and accompanying memorandum are not intended as regulatory displacements of local discretion, but rather as guidance to _ school administrators, teachers, parents and students on the relevant constitutional and statutory principles and considerations. ' These Guidelines and accompanying memorandum also do not purport to provide definitive answers to all of the possible issues and varied fact scenarios as may exist in our public schools. Indeed, the United States Supreme Court has invariably cautioned that decisions in this area of law are keenly fact-sensitive. Our public school officials, administrators and teachers must, however, have a working knowledge of the laws and principles. In so doing, government responsibly promotes the cherished freedoms underlying both our federal and state constitutions. And, in so doing, lawful decision-making is promoted, minimizing public school 'This memorandum, which expiains the salient legal principles governing religious expression in publ« schools, should be reviewed and considered by local school authorities ana their counsel as background material integral to an informed understanding of specific applications in cases contained in the Guidelines. 38a resources being diverted to litigation defense. Such contests are not simply interesting debates on principle. Violations of protected rights may result in substantial damage awards and prevailing plaintiffs are entitled, under federal law, to reimbursement of their reasonable attorney fees. See 42 U.S.C. § 1988. I. Controlling Constitutional and Statutory Provisions A. United States Constitution The First Amendment to the United States Constitution provides, in pertinent part, that: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble ...” The foregoing embodies fundamental restraints on the power of government. Under the 14th Amendment, these restraints apply not only to the “laws of Congress,” but also to the policies, practices and decisions of state and local government, including public school officials, administrators and teachers entrusted with our public school system. Cantwell v. Connecticut, 310 U.S. 296 (1940); Engel v. Vitale, 370 U.S. 421 (1962). B. Constitution of Virginia (1971) The Commonwealth of Virginia, through its own constitution, also guarantees the free exercise of religion and a corresponding prohibition on state and local government from becoming entangled in religious affairs: Art. I, § 16. Free exercise of religion; no establishment of religion. — That religion or the duty which we owe to our Creator, and the manner of discharging it, can be directed only by 39a reason and conviction, not by force or violence; and, therefore, all men are equally entitled to the free exercise of religion .... No man shall be compelled to frequent or support any religious worship, place, or ministry whatsoever ... nor shall otherwise suffer on account of his religious opinions or belief; but all men shall be free to profess and by argument to maintain their opinions in matters of religion .... And the General Assembly shall not prescribe any religious test whatever, or confer any peculiar privileges or advantages on any sect or denomination, or pass any law requiring or authorizing any religious society, or the people of any district within this Commonwealth, to levy on themselves or others, any tax for the erection or repair of any house of public worship, or for the support of any church or ministry”, but it shall be left free to every person to select his religious instructor, and to make for his support such private contract as he shall please. (Emphasis added.) C. Federal Statutory Provisions The United States Congress has enacted two pertinent federal statutes: the Equal Access Act and the Religious Freedom Restoration Act. 2Virginia’s Constitution prohibits appropriations of public funds to religious organizations and sectarian schools. See Va. Const. art. IV, § 16 and art. VIII, § 10, and Almond v. Day, 197 Va. 419, 89 S.E.2d 851 (1955); Miller v. Ayres, 213 Va. 251, 191 S.E.2d 261 (1972); Phan v. Virginia, 806 F.2d 516 (4th Cir. 1986). 40a 4la 1. Equal Access Act, 20 U.S.C.S. § 4071, et seq. | (3) employees or agents of the school or government are present at religious meetings The Equal Access Act basically guarantees student only in a nonparticipatory capacity; religious and Bible stud ups ual access ; i opportunity to conduct mentiane te the public ood om oa — ey oe schools on the same basis as any noncurriculum-related substantiany poorer — = Seneany eaneuet student group.’ The key text of the statute provides: of educational activities within the school; and (5) nonschool persons may not direct, conduct, (a) It shall be unlawful for any public secondary control, or regularly attend activities or school which receives Federal financial assistance student groups.‘ ore my limited open forum to deny equal 2. Religious Freedom Restoration Act, 42 7 opportunity to, or discriminate U.S.C.S. § 2000bb-1 against, any students who wish to conduct a sci meeting within that limited open forum on the The Religious Freedom Restoration Act (“RFRA”) basis of the religious, political, philosophical, or basically prohibits government, including the public other content of the speech at such meetings. schools, from substantially burdening religion. An (b) A public secondary school has a limited open forum whenever such school grants an offering to or opportunity for one or more noncurriculum related student groups to meet on school premises during Nothing in this title [20 USCS §§ 4071 et seq.] shall be noninstructional time. construed to authorize the United States or any State or (c) Schools shall be deemed to off political subdivision thereof — er a fair opportunity (1) to influence the form or content of any prayer or other ‘Congress has further provided in subsection (D) that: to students w ‘thi “se er ga ser ho = to conduct a meeting within religious activity; imited open forum if such school uniformly (2) to require any person to participate in prayer or any provides that: other religious activity; to expend public funds beyond the incidental cost of providing the space for student-initiated meetings; (4) to compel any school agent or employee to attend a (1) the meeting is voluntary and student-initiated: (3) (2) there is no sponsorship of the meeting by the school, the government, or its agents or school meeting if the content of the speech at the employees; meeting is contrary to the beliefs of the agent or employee; fie (5) to sanction meetings that are otherwise unlawful; “t Congress has not defined “noncurriculum-related” student group. (6) to limit the rights of groups of students which are not The United State Supreme Court has indicated that the term of a specified numerical size; or encompasses student groups meeting for purposes not directly related (7) to abridge the constitutional rights of any person... . to the official curriculum; such as political clubs, chess and stamp clubs, as opposed to a French club for example. Board of Educ. of Westside Community Schs. v. Mergens, 496 U.S. 226 (1990). ‘While any discussion of religious expression in the public schools would be incomplete without mention of this Act, it should also be noted that the Act represents an attempt by Congress to correct what 42a important exception is provided where “compelling” governmental interests are at stake and a “least restrictive” means is employed to further those ends. In more common parlance, public school authority must be prepared to show that its substantial burdens on religious liberty are justified by very important goals and that the means chosen is “least restrictive,” that is, there being no less-intrusive alternative which would achieve or safeguard the governmental purposes at stake. In pertinent part, the Religious Freedom Restoration Act provides: (a) Government shall not substantially burden a person's exercise of religion even if the burden results from a rule of general applicability, except as provided in subsection (b). (b) Government may substantially burden a person's exercise of religion only if it demonstrates that application of the burden to the person — (1)is in_ furtherance of a_ compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest. . . . 42 U.S.C.S. § 2000bb-1. D. Virginia Statutory Provisions. Virginia’s General Assembly has also enacted the following: (1) § 22.1-203. Daily observance of one minute of silence. — In order that the right of eve [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0383%3A17. Public record. Not legal advice.