Amicus Curiae Brief — McCreary County v. American Civil Liberties Union of Ky.

No. 03-1693

IN THE

Supreme Court of the Gnited States

OCTOBER TERM, 2004

MCCREARY COUNTY, KENTUCKY et al., Petitioners

v.

AMERICAN CIVIL LIBERTIES UNTON OF KENTUCKY

et al., Respondent

On Writ of Certiorari to the

United States Court of Appeals for the Sixth

Circuit

BRIEF OF AMICI CURIAE

NATIONAL SCHOOL BOARDS ASSOCIATION, THE

HORACE MANN LEAGUE AND THE NATIONAL

ASSOCIATION OF SECONDARY SCHOOL

PRINCIPALS

IN SUPPORT OF NEITHER PARTY

Julie Underwood*_

N ational School Boards Association

1680 Duke Street

Alexandria, VA 22314

(703) 838-6722

*Counsel of Record

o Lae,

TABLE OF AUTHORITIES

INTEREST OF THE AMICI

SUMMARY OF THE ARGUMENT

ARGUMENT... sce

Il.

III.

TABLE OF CONTENTS

Page

iii

1

2

4

The erosion of the Lemon test has deprived public

school administrators and board members of the

clear guidance they need in Establishment Clause

CG cnccecsccncteessenenescnmenieiimiaiaamindl nvmmupeimenensnittans 4

A clear and consister t Establishment Clause

analysis is an imperative in light of the role public

schools play in our nation and in the lives of

Ee annetiiinnindetiansense iniinmenealend 15

A clear and consistent Establishment Clause

analysis is a growing imperative in light of the

increasing diversity and religious divisiveness in

the nation and particularly in the public

SRN nenermspisittinioniion aneee stigibdnacesmnuicimtptiioniuiiaisinaadll 18

This Court’s adoption of the endorsement analysis

has the potential to bring clarity to Establishment

Clause jurisprudence related to public

education .................

The neutrality and coercion tests are neither

broad enough in scope nor sensitive enough in

application to serve as a comprehensive analytical

GIST ececscvssnsssestesninennintinmniisiiintiigan

CONCLUSION

TABLE OF AUTHORITIES

Page

Cases

Agostini v. Felton,

ETT EN ne eee eee 5, 21

Aguilar v. Felton, :

ECT ae nema TENT eT passim

Altman v. Bedford Cent. Sch.Dist.,

BOD FG GO RE Gor. BOG1) ...cvcccccccccccccscccsscccccocoscccccsecosess 12

Bauchman v. West High Sch.,

132 F.3d 542 (10th Cir. 1997), cert denied,

ET a Ee E 11

Bender v. Williamsport,

TI ea ee ne aE 5, 26

Bowen v. Kendrick,

a aclciailaltliac 5, 21, 23

Committee for Pub. Educ. v. Nyquist,

EES AI ee Se CR NET 4

Committee for Pub. Educ. v. Regan,

TE ae ae EN ee 5, 12

Edwards v. Aguillard,

a em a passim

Elk Grove Unified Sch. Dist. v. Newdow,

~~ ee | Os NCTE passim

Engel v. Vitale,

Pe IED STI csirhticsioissiieetahecideianiivinneiaiiasiedictioncspuiiiioninidadiaaad 29

Fleischfresser v. Directors of Sch. Dist. 200,

Be ee I Ce iactontetensitsnscnscnessatsesemesatetmnannnt 12

Fleming v. Jefferson County Sch. Dist.

R-1, 298 F.3d 918 (10th Cir. 2002).................cccsesesseesseeees 17

Good News Club v. Milford Cent. Sch. Dist,

a se ititenscthikinasciiatusaiadinaideialimamiainiaiiss 5-6, 21, 26

Grand Rapids v. Ball, 7 |

ee es ee ictcicticscninutenintnnasatiiaiintiining 5, 15, 20, 22

Grove v. Mead Sch. Dist. No 354,

ee IN, i icncccsticctccnsericiticnsnsneciioieiieiniibiies 12

Illinois ex rel McCollum v. Board of Educ.,

| ERRNO Rpm ir Tete er OT he, Meee EP 16

Kiryas Joel Vill. School Dist. v. Grumet,

ee ahi iccrinilinteniatntcibi ites 5, 10, 26, 27

Lambs Chapel v. Center Moriches Union

Free Sch. Dist., 508 U.S. 384 (1993)............:cccceeees 5, 10, 21

Lee v. Weisman,

Se GY I conti dcicsinsibdanintiennnernmbiietismienats 5, 10, 21, 28

Lemon v. Kurtzman,

Be CE DDT cnnciceccscndniisnensenasicnmeciniinadiidanabastats passim

Levitt v. Committee for Pub. Educ.,

Se ihaskicssniisestesinptiiibisiiieliiiiettnsaet tastier aia 4

iv

Lynch v. Donnelly,

Se i icicricctccienctnncitisinicnsinctinsinennainnie 5, 17, 20, 21

Meek v. Pittenger,

a ee ee icinniiicesiciniisisinseiaiassiiisisbaipistiiiaidiamenteiiniatatiaaataniats 4

Mitchell v. Helms,

es I nsicnissnceiahedincssttieiedanenigutbininibiesiis passim

Mueller v. Allen,

a i iicctiiteccnensctaisainciendniicutinsineininiantmiigsapiniensiinis 5

New York v. Cathedral Acad.,

ek Be a iaticicctinsitesictictarcciacniniiennicantniasinieaiitiisidapiiniininasuiians 5

Peloza v. Capistrano Unified Sch. Dist.,

Fe Be Ce Re cviinstcciisnsihiniiaiasscciisuninuniiineniiiiin 12

Santa Fe Indep. Sch. Dist. v. Doe,

ee ey eT iessicciccnsintntiinniciininssicinsnicianiasiinainmliis passim

Seidman v. Paradise Valley Unified Sch.

Dist, 327 F.Supp.2d 1098 (D. Ariz. 2004)... eee 17

Sloan v. Lemon,

ey ee ee iscitensaloetncssntcstonsiniaiitiniatuiitataiintainiaiainndaiadieniadhel 4

Stone v. Graham,

RE ee ee ierntentncntssecinnssinceicisiindniaiabaiiiapiideiineiaiia 4,7

Tinker v. Des Moines Indep. Cmty Sch.

FD ek ee kitnccosececnistininscitiiinininasiniaipiipinaiiins 16

Vv

Wallace v. Jaffree,

I

Westside Cmt’y School v. Mergens,

496 U.S. 226 (1990)....................00006 ps esceeese

Wolman v. Walter,

I

Zelman v. Simmons-Harris,

BD TFB, GD Cs cccceccccccccccccccccscccccccscscseses

Zobrest v. Catalina Foothills Sch. Dist.,

I, i

Other Authorities

Dr. Joan DelFattore, Bowen Lecture in

Education Policy, GEORGE MASON

UNIVERSITY (April 27, 2004)..................ccce0

J. Hansen, 21s Century School Finance:

How is the Context Changing Education

Commission of the States (2000) at

http://ecs.org/clearinghouse/28/04/2804.htm

L. Olson, EDUCATION WEEK, September 27,

National Center for History in Schools,

NATIONAL STANDARDS FOR HISTORY at

http://www.sscnet.ucla.edu/nchs/standards/.

NATIONAL LAW JOURNAL, Justices Struggle

with a “Lemon”, (July 3, 2000) ................0000

vi

National School Board Association’s COSA

School Law Issue Page, religion news: at

tp://www. i .asp?

ID=&CID=469& DIDH=8754 ..... cece cceeeeseeeeeeeee

W. Nord & C. Haynes, Taking Religion

Seriously Across the Curriculum,

ASSOCIATION FOR SUPERVISION AND

CURRICULUM DEVELOPMENT (1988)..............00++

™~

INTEREST OF THE AMICI’

The National School Boards Association (NSBA) is

a federation of 49 state school boards associations, the

Hawai‘i State Board of Education, and the school boards

of the District of Columbia and the U.S. Virgin Islands.

NSBA represents the 95,000 school board members who-

serve America’s 15,000 public school districts and more

than 47 million public school students. NSBA is dedicated

to the improvement of public education in America.

The Horace Mann League was founded by a group

of leading educators in 1922. According to the League’s

beliefs, our public schools should be free, classless,

nonsectarian, and open to all children of all of the people.

The schools should be dominated by such purposes as will

ensure the preparation of children and youth for effective

citizenship in our democracy. -

The National Association of Secondary School

Principals (NASSP)—the preeminent organization and

the national voice for middle level and high school

principals, assistant principals and aspiring school

leaders—provides its members the professional resources

to serve as visionary leaders. NASSP promotes the

intellectual growth, academic achievement, character

development, leadership development, and physical well-

being of youth through its programs and student

leadership services. NASSP sponsors the National Honor

Society™, the National Junior Honor Society™, and the

National Association of Student Councils™.

Amici have a longstanding interest in the effective

development and implementation of local school board

' This brief is filed with consent of both parties. Letters of consent are

on file with the Clerk of this Court. No attorney for any party has

authored this brief in whole or in part, and no person or entity other

than the amici curiae and their members and counsel made any

monetary contribution to the preparation or submission of this brief.

|

policies, including those assuring compliance with the

Establishment Clause. They have participated in efforts

to find reasonable common ground regarding issues of

religion in public schools. Included in-those efforts is

submission of amici curiae briefs to this Court in 11 cases

on issues involving religion in the public schools.

For many years, Amici have supported the

constitutional principle of the separation of church and

state. On the question of the posting of the Ten

Commandments, public schools are not of one mind.

Some believe that displaying this document adds an

appropriate historical context to the study of American

law and government. Others believe that any such

posting would cross the line, introducing a clearly

religious document into the public arena. Because of this

philosophical disagreement, Amici do not take a position

on the merits of the posting of the Ten Commandments in

public buildings. Regardless of the lack of consensus on

this specific issue, Amici believe that this case provides a

prime opportunity for the Court to set forth a unified

standard of analysis in Establishment Clause cases

affecting public schools.

SUMMARY OF THE ARGUMENT

The conflict and confusion in the courts as to

which Establishment Clause analysis to apply and how to

apply it have caused great chaos and confusion for

communities, public school administrators, and board

members when questions regarding the role of religion in

public schools arise. Questions regarding the role of

religion in public schools are pervasive and frequent

across the nation. E.g., How much religious music can be

included in a school concert? How may schools recognize

religious holidays? Can students distribute religious

flyers in school? How far can teachers go in professing

their personal religious beliefs within the school? Every

2

PER TPT

day public school administrators and board members

across the nation face these questions. Every day their

decisions are challenged by interest groups who choose to

use the schools as their forum to clarify the boundaries of

religious rights and individual liberties. By setting forth a

clear and consistent analysis for use in Establishment

Clause cases, this Court would help minimize these

disputes and the ensuing litigation that plague our

nation’s schools.

Amici urge this Court to adopt the “endorsement

analysis” as the overarching framework for

Establishment Clause cases. Consistent use of the

endorsement analysis would assist public school

administrators and board members since it retains the

concepts of purpose and effect, concepts clearly derived

from the Lemon test. However, it provides some much

needed clarifications. It focuses on the actual and

perceived purpose and effect of the activity in question.

Secondly, it provides flexibility by using the “reasonable

observer” standard. Finally, it recognizes the concept that

ne individuals should feel they are not full members of

our nation due to their religious beliefs, which is critically

important to the relationship between students and the

public schools. This Court’s clear adoption of this analysis

would help public schools handle Establishment Clause

issues in a way that respects the relationship between

school and student and recognizes the “dizzying religious

heterogeneity” of our nation. Newdow, 124 S.Ct. at 2321.

Currently, the intersection of public schools and

religious faith is legally and politically fraught with peril.

Clarity and consistency are needed to guide public school

administrators’ and board members’ decision-making and

actions on the appropriate role of religion in the public

schools. Clarity and consistency are needed to provide a

clear standard against which their decisions and actions

can be measured. This would offer credibility to their

decisions and actions. Clarity and consistency from this

3 den

Court could build a consensus within the aation on the

appropriate role of religion in our public schools and

thereby reduce the disputes and ensuing litigation that

encumber our nation’s public schools.

ARGUMENT

I. The erosion of the Lemon test has deprived public

school administrators and board members of the

clear guidance they need in Establishment Clause

cases.

The Establishment Clause has been well litigated

over the 33 years since this Court handed down its seminal

decision of Lemon v. Kurtzman in 1971. Many of these

decisions have dealt with establishment of religion within

the context of elementary and secondary education.’

* Lemon v. Kurtzman, 411 U.S. 192 (1971); Sloan v. Lemon, 413 U.S.

825 (1973) (Statutes providing tuition reimbursement to parents of

students in nonpublic school violated Establishment Clause.);

Committee for Pub. Educ. v. Nyquist, 413 U.S. 756 (1973)

(Maintenance and repair grants to nonpublic schools and tax benefits

to parents with children enrolled in nonpublic schools impermissibly

advance religion.); Levitt v. Committee for Pub. Educ., 413 U.S. 472

(1973) (Statute which provided for reimbursement of nonpublic schools

for eapenses of certain tests but included no means to ensure tests

were free of religious instruction violated Establishment Clause.);

Meek v. Pittenger, 422 U.S. 1049 (1975) (Direct loan of instructional

materials and equipment to nonpublic schools and provision of certain

auxiliary services for students in nonpublic schools violate

Establishment Clause; lending textbooks to children in nonpublic

schools is constitutional; overruled in part by Mitchell v. Helms);

Wolman v. Walter, 433 U.S. 229 (1977) (Loan of textbooks to private

school students and previding standardized tests, scoring services,

speech and hearing diagnostic services in the nonpublic schools and

therapeutic services at a neutral site are constitutional; provision of

instructional materials and equipment and _ unrestricted

transportation and services for field trips are unconstitutional;

overruled in part by Mitchell v. Helms); Stone v. Graham, 449 U.S. 39

(1980) (Posting of the Ten Commandments in public school classrooms

4

violates the Establishment Clause.); New York v. Cathedral Acad., 434

U.S. 125 (1977); Committee For Pub. Educ. v. Regan, 444 U.S. 646

(1980) (Cash reimbursement to private religious schools for cost of

administering and grading of state written tests does not violate the

Establishment Clause.); Mueller v. Allen, 463 U.S. 388 (1983)

(Allowing deductions from state income tax for educational expenses

incurred by parents of elementary and secondary school students does

not violate Establishment Clause.); Lynch v. Donnelly, 465 U.S. 668

(1984\(Inclusion of créche in city’s Christmas display does not violate

Establishment Clause.); Wallace v. Jaffree, 472 U.S. 38 (1985)

(Moment of silence statute intended to bring prayer into classroom

violated Establishment Clause.); Aguilar v. Felton, 473 U.S. 402 (1985)

(Placing public school teachers in private religious schools to provide

remedial services under federal statute violates Establishment

Clause.); School Dist. of Grand Rapids v. Ball, 473 U.S. 373 (1985)

(School district violated Establishment Clause by paying private

religious school teachers to teach private school students on religious

school premises and sending public school teachers to private schools

te teach supplemental courses.); Bender v. Williamsport, 475 U.S. 534

(1986)\Individual school board member lacked standing to challenge

court order that district grant access to religious group to meet on

school grounds.); Edwards v. Aguillard, 482 U.S. 578 (1987) (State

statute requiring teaching of creation science violated Establishment

Clause.); Bowen v. Kendrick, 487 U.S. 589 (1988)Giving federal grants

to religious organizations to provide adolescent counseling does not

violate Establishment Clause.); Westside Cmt’y. School v. Mergens, 496

U.S. 226 (1990) (Equal Access Act does not violate Establishment

Clause.); Lee v. Weisman, 505 U.S. 577 (1992) (Practice of clergy led

prayer at high school graduation violates Establishment Clause.);

Lamb's Chapel v. Center Moriches Union Free School Dist., 508 U.S.

384 (1993) (Allowing religious film to be shown on school premises

after school hours does not violate Establishment Clause.); Zobrest v.

Catalina Foothills School Dist., 509 U.S. 1 (1993) (State’s provision of

sign language interpreter to student attending a parochial school does

not violate Establishment Clause.); Kiryas Joel Vill. School Dist. v.

Grumet, 512 U.S. 687 (1994) (Establishment of a school district along

religiously distinct geographic lines violates the Establishment

Clause.); Agostini v. Felton, 521 U.S. 203 (1997)Providing Title I

remedial services to students on sectarian school premises does not

violate Establishment Clause.); Santa Fe Indep. School Dist. v. Doe,

530 U.S. 290 (2000) (Prayer over the loud speakers at high school

football games violates the Establishment Clause.); Mitchell v. Helms,

530 U.S. 793 (2000) (Loan of state funded educational materials to

parochial schools does not violate Establishment Clause.); Good News

5

Consensus in these cases is rare. Of the 28 public school

cases, only two were unanimous, ten were 5 to 4 decisions,

and seven were decided by a plurality of this Court. In all,

these cases have yielded over 100 written opinions of the

Justices. Needless to say, these opinions do not offer clear

guidance to public ~school administrators and _ board

members.

The three-pronged analysis of the “Lemon test”

has been accepted as the primary mode of analysis for

Establishment Clause cases. However, courts have

struggled to apply it consistently, yielding sometimes

disparate and unpredictable results. This Court has also

found the application of the Lemon test problematic,

applying the prongs in various manners and with

inconsistent emphasis.

The primary purpose prong of Lemon has in

general not been rigorously scrutinized. In fact, this

Court has, in most cases, accepted the stated secular

purpose at face value. However, in several public

v. Milford Cent. School, 533 U.S. 98 (2001) (School policy prohibiting

religious groups from using school facilities after hours is not required

by the Establishment Clause.); Zelman v. Simmons-Harris, 536 U.S.

639 (2002) (Grant of private school vouchers, which includes tuition

vouchers for parochial schools, does not violate Establishment

Clause.); Elk Grove Unified School Dist. v. Newdow, __ U.S. _,, 124 S.

Ct. 2301 (2004) (Non-custodial parent lacks standing to bring

Establishment Clause challenge to school policy requiring recitation of

Pledge. ).

*In Lemon v. Kurtzman, 403 U.S. 602 (1971), this Court struck down a

statute providing salary supplements for teachers in private schools,

salary reimbursement for private school teachers, and instructional

materials. This Court consolidated the criteria that had been

developed in previous cases to determine whether a government

program establishes religion. The analysis that emerged considers

whether: 1) the program has a secular legislative purpose, 2) the

primary effect neither advances nor inhibits religion, and 3) the

program does not foster an excessive entanglement between

government and religion. Lemon, 411 U.S. at 612-613.

6

education cases,’ this Court has closely scrutinized the

asserted purpose of a challenged practice and found no

secular purpose for the statutes challenged. This Court

disregarded the secular purpose stated by the

governmental entity and searched for actual motives on

the part of the state. Two of the three opinions reversed

the trial court’s determination of a secular purpose.

Justice Rehnquist’s dissent in the earliest of these cases,

Stone v. Graham, took issue with the “summary rejection

of a secular purpose articulated by the legislature and

confirmed by the state court.” 449 U.S. at 43 (Rehnquist,

J., dissenting.) He argued, in essence, that the courts

should not supplant their self-determined purpose of the

legislation for the legislature’s stated purpose.

The effects prong has proved similarly problematic

in application, especially in the public school context

where the effects of a particular policy or practice are

both secular and sectarian. In such cases, the courts have

not clearly indicated how much of a sectarian effect must

be present to invalidate a provision. In every school aid

case, it is apparent that any functional assistance to

parochial education frees other dollars for use in support

of the school’s religious mission. Furthermore, any

assistance to parents, such as tax credits or tuition

vouchers, results in increased enrollment in parochial

* Stone v. Graham, 449 U.S. 39 (1980); Wallace v. Jaffree, 472 U.S. 38

(1985); Edwards v. Aguillard, 482 U.S. 578 (1987); and Santa Fe

Indep. School Dist. v. Doe, 530 U.S. 290 (2000). The Lemon test was

not at the core the decision in Santa Fe. Rather, this Court used a

number of analyses to strike the district policy. First, it was

determined that the prayer was not private speech as claimed by the

respondent. Second, the policy was held to be coercive since some

students must attend games for class credit. Third, it was determined

that the policy would lead reasonable observers to perceive that the

school endorsed the religious activity. Finally, the Court found that

the long-standing practice of public prayer at football games had an

unconstitutional religious purpose.

>

schools, thus benefiting religion to some degree. Yet such

practices have been upheld by this Court, characterizing

such aid as having an incidental, rather than a primary,

effect of promoting religion. This Court has pointed out

that where aid flowing to religious organizations results

from private individual decisions, rather than state

action, the primary effect is not the governmental

advancement of religion.

The excessive entanglement prong has also proven

difficult to apply in practice in the public school context.

The Establishment Clause requires the state to see that

public funds are not spent for religious purposes. Yet, the

type of recordkeeping or monitoring that the

Establishment Clause appears to require in K-12 settings

is just the type of surveillance that is forbidden under the

excessive entanglement prong. Furthermore, there is a

potential for excessive entanglement when religion

creates political divisiveness by making some citizens feel

they are “outsiders” because of their religious affiliation.

There are few contexts where the appropriate role of

religion in public life has engendered more divisiveness

among citizens than in the public schools, making it

virtually impossible for education officials to take any

action that is not viewed by one side or the other has

crossing the constitutional line. This a particularly

* For example, the following conflicts have been reported in the media

recently (some of the same conflicts arise in many districts across the

nation): whether an elementary student could distribute candy canes

with a religious message attached to her classmates; whether the

content of a student’s graduation speech was too religious; whether

bricks inscribed with crosses could be placed on a sidewalk as part of a

parents’ fundraiser; whether a minister could post flyers promoting

parenting seminars at his church on the school’s bulletin board;

whether schools may exclude flyers promoting activities at religious

institutions from distribution in students’ weekly communications

packets; whether a school could require a teacher’s aide to stop

wearing a necklace with a cross on it on the outside of her garments;

whether a school district is required to provide bus transportation to

8

troubling phenomenon since public schools’ very mission

involves fostering a sense of unity and commitment to

understanding and tolerance among all members of

hugely diverse communities.

The intrinsic problems in the application of Lemon

to public education as well as underlying differences in

constitutional philosophy have led to criticism by this

Court of the Lemon analysis, beginning in the 1980s. For

example, Chief Justice Rehnquist expressed his

reservations in Wallace v. Jaffree, 472 U.S. at 107-113

(Rehnquist, C.J. dissenting), outlining his interpretation

of the history of religious freedom in the United States,

students attending religious schools; whether students could sing a

hymn at graduation ceremonies without substituting the word “God”

with the word “Him” in the song; whether the district is required to

review all student graduation speeches to ensure they do not contain

prayer or proselytizing language; whether the school has to establish a

Fellowship of Christian Athletes at the high school; whether a student

may perform a song entitled “The Prayer”; whether the local school

board may begin its meeting with a prayer; whether the school district

must accept student service in the form of religious worship to fulfill

the school’s community service requirement; whether the school

district’s holiday which includes a menorah must also include a créche;

whether teachers may include the teaching of other cultures and

religious beliefs in their lessons; may schools prohibit the reading of

religious texts during student’s oral reading assignments; whether

students may distribute religious messages within the school; whether

the school must allow religious organizations use of school facilities

outside the school day; whether school districts may charge a fee for

religious organization’s use of school facilities outside the school day;

whether the state may require home schooling parents to notify the

state department of education of their curricula; whether a school

may allow a student to fulfill his senior project by conducting a Bible

study class; whether a school district can collaborate with religious

institutions to provide services to students outside the school day;

whether a school may have Halloween celebrations including the

wearing of costumes and distribution of candy during the school day;

whether a student may distribute a statement of her religious beliefs

to her classmates during the school day. Accessed from COSA School

Law Issues Page, religion, news, available at http://www.nsba.org/

site/page.asp?TRACKID=&CID=469&DID=8754

9

and arguing that this Court’s previous rulings in this

area have been based on a misinterpretation of history.

Concluding that the Establishment Clause was only

intended to prohibit a national church and prohibit

preference between denominations, he urged the

abandonment of the metaphor of the “wall of separation”

and contended that the Lemon analysis was unworkable.

Justice Scalia has often similarly criticized the Lemon

test and has repeatedly sought its abandonment.’ As

stated in response to the Court’s application of the Lemon

test in one case:

Like some ghoul in a late-night horror

movie that repeatedly sits up in its

grave and shuffles abroad, after being

repeatedly killed and buried, Lemon

stalks our’ Establishment Clause

jurisprudence once again, frightening

the little children and school attorneys

of Center Moriches Union Free School

District. Its most recent burial, only

last Term, was, to be sure, not fully six

feet under: Our decision in Lee uv.

Weisman [citations omitted] conspi-

cuously avoided using the supposed

“test” but also declined the invitation to

repudiate it. Over the years, however,

no fewer than five of the currently

sitting Justices have, in their own

opinions, personally driven pencils

through the creature’s heart (the author

of today’s opinion repeatedly), and a

sixth has joined an opinion doing so.

* E.g., Lee v. Weisman, 505 U.S. 597 (1992); Lamb’s Chapel v. Center

Moriches Union Free School Dist., 508 U.S. 384 (1993); Kiryas Joel

Vill. School Dist. v. Grumet, 512 U.S. 687 (1994).

10

Lamb’s Chapel v. Center Moriches Union Free School

District, 508 U.S. at 400 (Scalia, J. concurring).

In addition to direct criticisms of the Lemon test,

Justices have dealt with the shortcomings of Lemon by

developing additional analyses. By denigrating Lemon’s

flaws and crafting new Establishment Clause analyses,

this Court has clearly signaled its lack of confidence and

consequently caused disarray among lower courts and

confusion among public school administrators and board

members who scramble for clear guidance to inform their

decision-making and practices in this difficult area. For

example, the court in Bauchman v. West High School, 132

F.3d 542 (10th Cir. 1997), cert. denied, 524 U.S. 953

(1998), called upon to decide the constitutionality of the

use of Christian music for a high school choir’s

performance, declared Establishment Clause jurispru-

dence “muddled.” It viewed the “vigorous attack” that had

been waged against Lemon by the Justices of the

Supreme Court and commentators alike as causing

“uncertainty. . .regarding the appropriate Establishment

Clause analysis. ” Because the endorsement analysis has

gained wider acceptance among the Justices than any

other analysis, the Tenth Circuit ultimately chose to

apply the purpose and effects components of the

endorsement analysis together with the entanglement

criterion imposed by Lemon (although it doubted the

workability of the purpose prong in any of its iterations).

This Court itself had acknowledged the lack of

clarity in this line of cases many years ago in Regan when

it said: :

Establishment Clause cases are not easy;

they stir deep feelings; and we are divided

among ourselves, perhaps reflecting the

different views on this subject of the

people of this country. What is certain is

11

that our decisions have tended to avoid

categorical imperatives and absolutist

approaches at either end of the range of

possible outcomes. This course sacrifices

clarity and predictability for flexibility,

but this promises to be the case until the

continuing interaction between the courts

and the State—the former charged with

interpreting and upholding the Consti-

tution and the latter seeking to provide

education for their youth—produces a

single, more encompassing construction of

the Establishment Clause.

Regan, 444 U.S. at 662.

Without a clear framework for Establishment

Clause analysis applicable to elementary and secondary

education, schools have faced increasing litigation from __

both sides—those claiming schools are hostile to religion

and those asserting that schools are foisting state

approved religion on their students.’ As one

commentator put it: “the high court’s reluctance—or

inability, some say—to settle on a single approach to

weighing Establishment Clause violation will continue to

" As noted in Elk Grove v. Newdow, “The citizens of this Nation have

been neither timid nor unimaginative in challenging government

practices as forbidden ‘establishments’ of religion. See, e.g., Altman v.

Bedford Central School Dist., 245 F.3d 49 (C.A.2 2001) (challenging,

among other things, reading of a story of the Hindu deity Ganesha in a

fourth-grade classroom); ... Peloza v. Capistrano Unified School Dist.,

37 F.3d 517 (C.A.9 1994) (high school biology teacher’s challenge to

requirement that he teach the concept of evolution); Fleischfresser v.

Directors of School Dist. 200, 15 F.3d 680 (C.A.7 1994) (challenge to

school supplemental] reading program that included works of fantasy

involving witches, goblins, and Halloween); ... Grove v. Mead School

Dist. No. 354, 753 F.2d 1528 (C.A.9 1985) (challenge to use of The

Learning Tree, by Gordon Parks, in high school English literature

class). Elk Grove v. Newdow, 124 S.Ct. at 2324 (O’Connor, J.

concurring).

12

POT ELLE LENE LEE LEE AI

fuel already persistent and creative litigation regarding

the separation of church and state.” *

Jurists, academics, and practitioners facing new

Establishment Clause challenges are left in a quandary

when it comes to sorting through this line of cases for

guidance. This uncertainty leaves public school

administrators and board members at a disadvantage,

forcing them to navigate this complex maze when setting

policies and procedures and when making daily decisions

applying these policies to actual situations that arise.

Because there is little consistency, no clear standard

against which to measure their decisions, and no public

consensus on these issues, their decisions often lack

credibility. No matter what decisions they make, they

are regularly challenged. Public school administrators

and board members are at the mercy of advocates who

use the current legal confusion to twist and test the limits

of the Establishment Clause in creative ways.’ One

researcher who interviewed representatives of the many

litigation groups that target public schools on these

issues found that these otherwise contentious

respondents did all agree on at least one thing.” In

* Justices Struggle with a “Lemon” NATIONAL LAW JOURNAL (July 3,

2000).

°E.g., In December, 2004 the Alliance Defense Fund (ADF), an

advocacy group, sent a legal memorandum to communities, attorneys,

and school districts nationwide, setting forth their interpretation of

the Establishment Clause and justifying the observance and

celebration of Christmas within the public schools. "The phrase

separation of church and state is not in the U.S. Constitution. Yet, by

intimidation and disinformation, groups like the ACLU tried to silence

all Christians’ religious expression.” They are offering the services of

pro bono attorneys to communities who wish to pursue litigation on

the issue. Press story available at http://(www.theunion.com/article/

2004 1130?NEWS/111300040.

” Dr. Joan DelFattore, Bowen Lecture in Education Policy, George

Mason University (April 27, 2004).

13

roughly one third of the controversies over religion in

public schools, they say nothing school officials do would

stave off litigation—their only choice is which side they

want to sue them." Thus this confusion increases the

burden on schools and diverts educators’ focus from

learning to litigation.

Even Justices within this Court have recognized

the dilemma in which public school administrators and

board members are left. As stated by Justice Scalia: “Our

cases interpreting and applying the purpose test have

made such a maze of the Establishment Clause that even

the most conscientious governmental officials can only

guess what motives will be held unconstitutional.”

Edwards v. Aguillard, 482 U.S. 587, 636 (Scalia, J.,

dissenting). Although the Lemon test has been neither

formally overruled nor abandoned, its application has

become intermittent and uncertain. This Court has not

strictly applied the Lemon test. In addition to Lemon, in

public school cases this Court has used three alternative

analyses: endorsement, neutrality, and coercion; thus

calling into question Lemon’s authority and continuing

vitality. This state of affairs, while undoubtedly a boon to

the advocacy groups’ political and fundraising efforts,

comes at considerable cost to the nation’s schools, school

children, taxpayers, and the social fabric.

” For example, the following conflicts have arisen recently wherein the

school was left in a Catéh-22 when their practice is challenged from

both political sides as reported in the media: whether the school is

required to or is required not to offer a course in its history or

literature curricula on the Bible; whether the school must or may not

recognize Good Friday as a holiday; whether the school must or may

not allow the-distribution of Bibles by a local service organization;

whether a school must or may not include a disclaimer regarding

evolution as a theory, not fact, in the front of science textbooks.

Accessed from COSA School Law Issues Page, religion, news:

http://www.nsba.org/site/page.asp?T RACKID=&CID=469& DID=8754

14

a gg TRE een” oy nay Letter ~

~

Il. A clear and consistent Establishment Clause

analysis is an imperative in light of the role

public schools play in our nation and in the

lives of students.

Throughout the long history of Establishment

Clause litigation, this Court has drawn a distinction

between activities that occur within and outside the

context of K-12 education because of the role public

schools play in our nation and in the lives of students.”

As stated in Aguillard, 482 U.S. at 583-584:

This Court has been particularly vigilant in

monitoring compliance with the Establish-

ment Clause in elementary and secondary

schools. Families entrust public schools with

the education of their children, but condition

their trust on the understanding that the

classroom will not purposely be used to

advance religious views that may conflict

with the private beliefs of the student and his

or her family. Students in such institutions

are impressionable and their attendance is

involuntary. [citations omitted) The State

exerts great authority and coercive power

through mandatory attendance requirements

and because of the students’ emulation of

teachers as role models and the children’s

susceptibility to peer pressure. [citations

omitted] Furthermore, the “public school is at

once the symbol of our democracy and the

" E.g., Grand Rapids, 473 U.S. at 383 (“We have particularly relied on

Lemon in every case involving the sensitive relationship between

government and religion in the education of our children.”); Aguillard,

482 U.S. at 583 (“In this case the Court must determine whether the

Establishment Clause was violated in the special context of the public

elementary and secondary school system.”).

15

most pervasive means for promoting our

common destiny. In no activity of the State is

~ it more vital to keep out divisive forces thaa

in its schools.” Illinois ex rel. McCollum uv.

Board of Education 333 U.S. 203, 231 (1948)

(Frankfurter, J.).

In the field of public school law, this Court has

been asked to address the constitutional rights of

students in many situations. In doing so, this Court has

taken into consideration the unique role the public

schools play in the lives of students, drawing a distinction

between the state acting as government and the state

acting as an educational institution. The relationship

between government and citizen is different from the

relationship between the state as public school and

student. As stated when this distinction was first directly

addressed: “First Amendment rights, applied in light of

special characteristics of the school environment, are

a ailable to teachers and students.” Tinker v. Des Moines

Indep. School Dist., 393 U.S. 503, 506 (1969). The special

characteristics considered are the nature of the activity

being conducted in the school, i.e., education, the age and

maturity of the student involved, the need for the school

to maintain discipline, and the mission of the school to

inculcate values and teach appropriate behavior.

School officials are expected to educate, protect,

and inculcate values. It is the nature_of this relationship

that causes the heightened concern in Establishment

Clause cases. The treatment students receive within the

public school has a profound impact on their lives and

their view of our nation and its values. No child should

be left to wonder if he or she is a full citizen in our

nation’s public schools. Consistent with the dictates of the

Establishment Clause, no student should feel an outsider

16

because of his or her religious beliefs." Because it is the

role of the schools to educate students, inculcate values,

and protect them, when the school even slightly favors a

religion, or any religion, there is a great danger of

establishment of religion.

The need for clear and consistent Establishment

Clause analysis is no more apparent than in cases where

schools must balance the free speech rights of students

and faculty with their obligation to maintain separation

of church and state. Recognizing the special influence

that schools wield over the minds and lives of their

students, school policies often seek to limit religious

expression during school-sponsored activities and on

school premises, citing Establishment Clause concerns.

But such decisions are frequently challenged as violating

the free speech rights of those who wish to express the

religious message. In deciding these cases, courts have

used a jumble of the current Establishment Clause

standards to arrive at opposite conclusions in factually

similar situations."

“School sponsorship of a religious message is impermissible because

it sends the ancillary message to members of the audience who are

nonadherents ‘that they are outsiders, not full members of the political

community, and an accompanying message to adherents that they are

insiders, fav members of the political community.’ Lynch, 465 U.S.

at 688 (O’Connor, J. concurring.)” Sante Fe v. Doe, 530 U.S. at 309-

310.

“ Compare Seidman v. Paradise Valley Unified School Dist., 327

F.Supp.2d 1098 (D. Ariz. 2004) (finding parental inscriptions with

religious content on wall tiles in elementary schools would not be

perceived as endorsement of religion and that excluding such

messages would violate parents’ free speech rights) and Fleming v.

Jefferson County School Dist. R-1, 298 F.3d 918 (10th Cir. 2002)

(finding messages on wall tiles in high school would be viewed as

school-sponsored speech and therefore school could bar religious

messages based on legitimate pedagogical interest in avoiding

religious debate, although an Establishment Clause defense alone

would have been insufficient).

17

Public school administrators and board members

cannot be left without clear guidance on these daily

issues. They need a clear and consistent analysis to

guide their decision-making so they can act with a degree

of certainty and credibility.

III. A clear and consistent Establishment Clause

analysis is a growing imperative in light of

the increasing diversity and _ religious

divisiveness in the nation and particularly in

the public schools.

The need for a clear and consistent analysis is

especially important given the increasing diversity in

today’s public schools. By the year 2040 “minorities” are

projected to represent more than half of America’s K-12

student population.” This diversity encompasses not only

racial and ethnic differences but also a broad spectrum of

religious backgrounds, beliefs, and practices. Not

surprisingly, there has been a corresponding push to

increase the diversity of cultural and religious views

presented,” acknowledged, and even accommodated in

schools.

* See L. Olson, Ed. Week, Sept. 27, 2000 at 34-35; J. Hansen, 21st

Century School Finance: How is the Context Changing Education

Commission of the States (2000) at http://ecs.org/clearinghouse/

28/04/2804. htm.

* Many schools are now trying to incorporate the perspectives of many

cultures and world religions into their curricula. W. Nord & C.

Haynes, Taking Religion Seriously Across the Curriculum, Association

for Supervision and Curriculum Development (1998). This push is

coming from parents, community members, and educators. The

National Center for History in the Schools (NCHS) lists religion as a

critical element in the curriculum and recommends the study of

Christianity, Confucianism, Daoism, Brahmanism and Hinduism in

world history classes for grades 5-12 and the “study [of] religions that

are representative of the modern population in order to understand

religious diversity and its impact on American institutions and values”

in American history classes. National Center for History in the

18

This growing diversity is already reflected in the

legal questions administrators and school attorneys face.

For example: Can schools offer comparative religion

courses? Must the school honor a Jehovah Witness’s

request to be placed in the custody of another Jehovah

Witness family while on a school trip to continue his

religious education? Are schools required to excuse

Muslim students for extended Friday prayer services?

Must schools provide Muslim students with a private

place within the school to conduct Friday prayer services?

May they provide this private place for prayer for only

Muslim students? Can a Druid student be exempted

from a school uniform policy on the basis of religious

beliefs? Can a Muslim student be exempted from a school

uniform policy on the basis of religious beliefs? Must a

female Muslim student be exempted from the athletic

association’s uniform policy on the basis of religious

beliefs? Are school officials required to allow students to

opt out of classes, such as music and physical education,

based on students’ religious beliefs? How do schools

inquire as to the tenets students’ religious beliefs for the

purposes of accommodation? “

As public schools become more diverse in culture

and religion, they must accommodate individuals and

their needs and requests in a way that complies with

First Amendment principles. Without a clear and

consistent analysis to guide their decision-making, public

school administrators and board members are left to

guess at their peril as to what may or may not be

acceptable from a constitutional perspective. If there is

Schools, National Standards ffor History, accessed at

http://www.sscnet.ucla.edu/nchs/standards/.

" All of these issues have been discussed recently on a_ school

attorneys’ email group (where public schools attorneys seek the advice

of their peers on current issues arising in th.ir practice). Member

access to these archived discussions can be found at:

http://spirit.sparklist.com/cgi-bin/lyris.pl?enter=cosa.

19

no clear and consistent analysis to guide or explain their

actions, they will certainly be challenged at every turn.

Leaving them in a state of uncertainty can only result in

more litigation and less education.

IV. This Court’s adoption of the endorsement

analysis has the potential to bring clarity to

Establishment Clause jurisprudence related

to public education.

Amici urge this Court to adopt the endorsement

analysis that has emerged from Justice O’Connor’s Lynch

v. Donnelly” concurrence as the overarching framework

for Establishment Clause analysis. Consistent use of the

endorsement analysis would assist public school

administrators and board members since it retains the

concepts of purpose and effect, concepts clearly derived

from Lemon. However, it is an improvement in that it

employs some much needed clarifications. It focuses on

the actual and perceived purpose and effect of the activity

in question. Secondly, it provides flexibility by use of the

“reasonable observer” standard. Finally, it encompasses

the concept that no individual should feel they are not

full members of our nation due to their religious beliefs,

which is critically important to the relationship between

students and the public schools. This Court’s clear

adoption of this analysis would help public schools handle

Establishment Clause issues in a way that respects the

relationship between school and student and recognizes

the “dizzying religious heterogeneity” of our nation.

Newdow, 124 S.Ct. at 2321 (O’Connor, J. concurring).

“ This Court held in Lynch v. Donnelly, 465 U.S. 668 (1984), that

including a nativity scene as part of a city Christmas display was

constitutional. Using a summary treatment of the Lemon analysis,

this Court found that the créche posed no real danger of establishment

of religion because it was merely a passive symbol presented in the

context of other symbols of the season.

20

The workability of the endorsement analysis has

been demonstrated in several cases where this Court has

applied the O’Connor endorsement modification to the

elementary and secondary school context.” A majority

adopted the endorsement analysis as to the purpose

prong in Wallace v. Jaffree and Edwards v. Aguillard.

The analysis was stated as “whether the government’s

actual purpose is to endorse or disapprove of religion.”

472 US. at 56 (quoting Lynch v. Donnelly, 465 U.S. 668,

680 (O’Connor, J. concurring)); Aguillard, 482 U.S. at

578. Justice O’Connor, writing for the majority in

Agostini v. Felton,” employed a modified Lemon

analysis." Up to now, this use of the endorsement

analysis might be viewed as creating a separate line of

reasoning, while never clearly repudiating the Lemon

* Wallace v. Jaffree, 472 U.S. 38 (1985) (Stevens, J., O'Connor, J.);

Aguilar v. Felton, 473 U.S. 402 (1985) (Stevens, J., O’Connor, J.);

Grand Rapids v. Ball, 473 U.S. 373 (1985) (Stevens, J., O’Connor, J.);

Edwards v. Aguillard, 482 U.S. 578 (1987) (Stevens, J., O’Connor, J.);

Bowen v. Kendrick, 487 U.S. 589 (1988) (Brennan, J., Marshall, J.,

Blackmun, J., Stevens, J.); Westside v. Mergens, 496 U.S. 226 (1990)

(Rehnquist, C.J., O'Connor, J.); Lee v. Weisman, 505 U.S. 597 (1992)

(Stevens, J. O'Connor, J., Souter, J.); Lamb’s Chapel v. Center

Moriches, 508 U.S. 384 (1993) (Rehnquist, C.J., Stevens, J. O’Connor,

J., Souter, J.); Santa Fe v. Doe, 530 U.S. 290 (2000) (Stevens, J.,

O’Connor, J., Kennedy, J., Souter, J.. Ginsburg, J., Breyer, J.); Good

News v. Milford, 533 U.S. 98 (2001) (Scalia, J., Souter, J., Thomas, J.,

Ginsburg, J., Breyer, J.); Elk Grove v. Newdow, __ U.S. _., 124 S.Ct.

2301 (2004) (O’Connor, J concurring).

* 521 U.S. 203 (1997), overruling Aguilar v. Felton, 473 U.S. 402

(1985). This Court in Agostini did not specifically adopt the endorse-

ment analysis, nor did it specifically reject the Lemon analysis. It held

that the government program had a secular purpose and did not have

a primary effect of advancing religion, but excessive entanglement was

subsumed as a part of the primary effect analysis.

“In Mitchell this Court split on the interpretation of the analysis set

forth in Agostini. The Court upheld a government program that gave

educational materials to private (including religious) schools in a

plurality, not a majority opinion, with Justice O’Connor writing a

concurring opinion.

21

test. Clear adoption of the endorsement analysis by this

Court would help alleviate the confusion in this area of

the law.

The endorsement analysis encompasses both the

purpose and effect of the practice in question. “The

purpose of the Lemon test asks whether government’s

actual purpose is to endorse or disapprove of religion.

The effect prong asks whether, irrespective of

government’s actual purpose, the practice under review

in fact conveys a message of endorsement or disapproval.

An affirmative answer to either question should render

the challenged practice invalid.” Jd. at 690 (O’Connor, J.

concurring).

Under the endorsement analysis, the inquiry

shifts from whether there is a secular purpose to whether

government has given its stamp of approval to a

particular religious practice or belief. The endorsement

analysis allows government to consider religion in

making the law. But if by enacting a statute, the state

intends to send a message of endorsement of religion, the

statute is unconstitutional, regardless of whether it also

has a secular purpose.

Lemon’s second prong, requiring that a statute’s

effect must neither advance nor inhibit religion, is altered

under the endorsement modification to determine

whether a statute, regardless of its legislative intent, in

fact, conveys a message of endorsement. This Court

explained that an action willbe found unconstitutionally

to advance religion if “it conveys a message of

government endorsement or disapproval of religion.”

Grand Rapids, 473 U.S. at 389. If such a message is

conveyed, it would be an impermissible symbolic union of

church and state. “This effect—the symbolic union of

22

government and religion or sectarian enterprise—is an

impermissible effect under the Establishment Clause.””

By preserving the elements of purpose and effect

from Lemon,” the endorsement analysis uses a

framework familiar to school leaders and maintains the

validity of past decisions that relied on Lemon analysis to

determine the constitutionality of past practices and

policies related to public education. This will help ensure

no massive upheaval of Establishment Clause juris-

prudence that would create a legal nightmare for schools.

Secondly, in determining whether the government

is sending a message of its approval or disapproval of

religion, endorsement analysis focuses on the objective

observer. It asks whether the reasonable observer

(familiar with the history of the community and the

practice) would perceive that the particular government

conduct at issue endorsed religion.

This focus on the reasonable observer allows

courts to adjust the endorsement analysis to the various

circumstances in which Establishment Clause issues

arise in the public schools. The endorsement analysis

adopts the concept of the reasonable observer because “a

subjective approach would reduce the test to an

absurdity.” Newdow, 124 S.Ct. at 2321 (O’Connor, J.

concurring). But the reasonable observer standard should

not preclude courts from recognizing that when the

observer is a student, (e.g., when a high school choral

class is assigned exclusively gospel music), it would be

appropriate to consider the students’ impressionability,

* However this standard was rejected in Bowen v. Kendrick, 487 U.S.

at 614, where the Court found that “whatever symbolic link might in

fact be created by the AFLA’s disbursement of funds to religious

institutions is not sufficient to justify striking the statute on its face.”

* Justice O’Connor has clearly distanced herself from the

entanglement prong, stating: “I question the utility of entanglement

as a separate Establishment Clause standard in most cases.” Aguilar;

473 U.S. at 422 (O’Connor, J. dissenting.)

23

age and maturity, and the role of the school in educating

and inculcating values. When the observer in the

situation is an adult in the broader community, (e.g.,

when public funds are distributed to religious schools, or

when the local school board starts its meeting with a

prayer) the analysis should consider an adult’s per-

spective. This provides a comprehensible standard that

will help schools avoid the perception of promoting or

hindering religion and thereby prevent sending a

message that some are outsiders to the _ school

community.

Finally, the endorsement analysis draws attention

to the fundamental requirement of the Establishment

Clause that each member of the community is a full

member of the community, regardless of his or her

religious beliefs. This concept is critical in the public

school context.

[T]he “endorsement test” captures the essen-

tial command of the Establishment Clause,

namely, that government must not make a

person’s religious beliefs relevant to his or

her standing in the political community by

conveying a message that religion or—a

particular religious belief is favored or

preferred. *** I have framed my inquiry as a

specific application of the endorsement test

by examining whether the ceremony or

representation would convey a message to a

reasonable observer, familiar with its history,

origins, and context, that those who do not

adhere to its literal message are political

outsiders.

Newdow, 124 S.Ct. 2301 at 2326 (O’Connor; J.

concurring).

24

This focus on the message conveyed is particularly

appropriate given the educational function of schools to

inculcate democratic values in order to create a unified

citizenry. (See Section II, supra.) Because the role of

schools is to teach, the messages that public schools send

have added significance, particularly because of their

power to shape young minds. If the schools’ primary

purpose is to educate and inculcate values, then students

should never receive the message that the school, i.e., the

state, is endorsing a religion or any religion or, more

importantly, that the child is an “outsider”.

To remove any question as to jurisprudential

status of the endorsement test, Amici urge this Court to

give its clear and official approval to the endorsement

analysis and to set forth a clear framework for its

application.

V. The reutrality and coercion tests are neither

broad enough in scope nor sensitive enough

in application to serve as a comprehensive

analytical framework.

Neither the neutrality test nor coercion test

comprehensively addresses the Establishment Clause

issues that arise in the public school context. The

neutrality test is not sufficiently sensitive to address all

Establishment Clause issues that arise in public schools.

Further, it is not as clear or consistent as the

endorsement standard. The coercion test, al-though

useful in free exercise cases, is insufficient protection

within Establishment Clause cases.

The neutrality test has been used primarily in

government aid cases and focuses on whether the

government program at issue treats religion in a neutral

25

manner.” In Zelman v. Simmons-Harris, 536 U.S. 639

(2002), this Court upheld a tuition voucher program,

finding it a neutral means of offering parents the ability

to send their children to private (including religious)

schools. In Mitchell v. Helms, 530 U.S. 739 (2000), a

plurality of this Court declared that religiously neutral

government conduct that did not favor nor disfavor

religion would not violate the Establishment Clause.

Justice Thomas’s plurality opinion” asserted that the

presence of private choice ensures neutrality by

eliminating the possibility of attributing religious

indoctrination to the state.”

If the religious, irreligious, and areligious are

all alike eligible for governmental aid, no one

would conclude that any indoctrination that

any particular recipient conducts has been

done at the behest of the government. For

* Good News Club v. Milford Cent. School, 533 U.S. 98 (2001)

(Thomas,); Bender v. Williamsport, 475 U.S. 534 (1986) (Burger);

Mitchell v. Helms, 530 U.S. 793 (2000) (Thomas).

“Justice O’Connor in her concurrence in Mitchell clearly disagreed

with Thomas’s neutrality test: “I write separately because, in my view,

the plurality announces a rule of unprecedented breadth for the

evaluation of Establishment Clause challenges to government school-

aid programs. Reduced to its essentials, the plurality’s rule states

that government aid to religious schools does not have the effect of

advancing religion so long as the aid is offered on a neutral basis and

the aid is secular in content. The plurality also rejects the distinction

between direct and indirect aid, and holds that the actual diversion of

secular aid by a religious school to the advancement of its religious

mission is permissible.” Jd. at 837 (O’Connor, J. concurring.)

However, Justice O’Connor in Kiryas Joel urged that Aguilar be

reconsidered “in order to bring our Establishment Clause

jurisprudence back to what I think is the proper track—government

impartiality, not animosity towards religion.” 512 U.S. at 717-718.

* This same concept was referred to as a “circuit breaker” in Santa Fe

v. Doe. In that case this Court found the students’ vote was insufficient

to overcome the appearance of school sponsorship of regular prayer at

high school football games.

26

“3 a a

M0 epee or meg +

= ay >

attribution of indoctrination is a relative

question. If the government is offering

assistance to recipients who~provide, so to

speak, a broad range of indoctrination, the

government itself is not thought responsible

for any particular indoctrination. To put the

point differently, if the government, seeking

to further some legitimate secular purpose,

offers aid on the same terms, without regard

to religion, to all who adequately further that

purpose, then it is fair to say that any aid

going to a religious recipient only has the

effect of furthering that secular purpose.

Mitchell v. Helms, 530 U.S. at 809.

Justice Souter’s dissent in Mitchell v. Helms

pointed out the problems with making neutrality the only

constitutional test to evaluate government programs that

aid religion.” “The Court’s decisions demonstrate its

repeated attempts to isolate considerations relevant to

classifying particular benefits as between those that do

not discernibly support or threaten support of a school’s

religious mission and those that cross or threaten to cross

the line into support for religion.” 120 S. Ct. at 2578

(Souter, J., dissenting). Justice Souter identified three

main inquiries that should “complement evenhanded

neutrality.” First, the type of aid recipients should be ©

” However, Justice Souter referred to a neutrality standard in his

majority opinion in Kiryas Joel in which the Court found that a

distinctly separate school for the Satmar Hasidic secviolated the

Establishment Clause. The law’s fatal flaw was that it disregarded

the mandate of neutrality toward religion required by the

Establishment Clause. “Chapter 748 ... departs from this

constitutional command by delegating the State’s discretionary

authority over public schools to a group defined by its character as a

religious community, in a legal and historical context that gives no

assurance that government power has been or will be exercised

neutrally.” 512 U.S. at 696.

27

examined; heightened Establishment Clause concern is

required when the recipients are pervasively religious

primary and secondary schools. Second, the distribution

method for the aid must be scrutinized to determine

whether it is direct or indirect and whether genuinely

independent choice determines the path of the aid.

Finally, the characteristics of the aid must be examined

in detail.

While an _ underlying principle of the

Establishment Clause, neutrality as a test affords neither

clarity nor consistency. Constitutional analyses have

been, within our nation’s jurisprudence, enduring

conceptual principles used to interpret and apply the

constitutional mandates, but they must be sufficiently

precise to enable consideration of the complexity of daily

decisions and issues to which they are applied. The

neutrality test may in part suffice to analyze the

constitutionality of government aid to religious

institution, but it lacks the necessary jurisprudential

sensitivity needed to address the many other

Establishment Clause issues that arise in public schools.

The other alternative test employed at times is the

coercion test. Under this test, a court evaluates whether

the government has coerced individuals into the support

of religion. The coercion test provides that “at a mini-

mum...government may not coerce anyone to support or

participate in religion or its exercise, or otherwise act in a

way which ‘establishes a [state] religion or religious faith,

or tends to do so.” Lee, 505 U.S. at 586. Under this

analysis, government accommodation of religion in civic

life does not violate the Establishment Clause absent

some form of government coercion.

While voluntariness is a factor appropriately

considered when violations of free exercise rights are

asserted, it should not be used as the sole test in

Establishment Clause analysis, merely to permit

“accommodation” of the Nation’s religious heritage. As

28

stated in Engel v. Vitale, 370 U.S. 421, 430 (1962), “The

Establishment Clause, unlike the Free Exercise Clause,

does not depend upon any showing of direct governmental

compulsion and is violated by the enactment of laws

which establish an official religion whether those laws

operate directly to coerce nonobserving individuals or

not.” Coercion may be an appropriate analysis in Free

Exercise Clause cases, but it is not in Establishment

Clause cases.

Maintaining the distinction between Estab-

lishment Clause and Free Exercise Clause analysis is

especially important, given that the religious heritage of

this country is extraordinarily diverse and becoming more

so. The use of a coercion standard as the sole Establish-

ment Clause analysis would mean no religious activity in

public schools would offend the Establishment Clause

unless students were coerced into participating in it. It

would not matter how extensive the religious activities

became or how offensive the activity might be to

nonadherents, as long as no one was forced to actually

participate. No inquiry into the religious practice itself or

its effect on students would be necessary, the only

consideration being whether the government coerced

participation. For example, such a test could arguably

permit a school to conduct a communion service at

graduation, provided no one is compelled to participate in

the service. Under no other Establishment Clause

analysis would such a practice be constitutionally

acceptable.

CONCLUSION

For 33 years, application of the Lemon test has

produced analytical difficulties for this Court and those

trying to implement its analysis on a daily basis. To

compound this problem, this Court has wavered time and

again from its application. If Establishment Clause

oO

precedent continues to drift into uncertainty, schools will oo ee Sa WR OS Seah ie ie eee a Se

face the very kind of religious divisiveness against which sat “ge SR IS Pees f 1g RES RTE ah a NI

the First Amendment is intended to guard.” EN OES ATES soa au 8 Sle MRP clara a cea a ey

Amici have a strong interest in this Court framing Sa saa ROR care

an analytic test that will minimize the confusion that

currently exists in Establishment Clause jurisprudence.

Clarity and consistency will help guide public school

administrators’ and board members’ decision-making and

actions on the appropriate role of religion in the public

schools. Granted, even a clear and consistent analysis is

no guarantee against differences of interpretation,

violations, and conflict, but public school officials would

be less likely to improperly endorse religion or to

inadvertently inhibit appropriate recognition of religion

in public schools. This is especially important as the

ethnic and religious diversity that characterizes our

society fills our schools, increasing the number and

complexity of these questions.

For these reasons, Amici urge this Court to clearly

adopt an endorsement analysis for Establishment Clause

cases involving public schools.

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Alexandria, VA 22314

703-838-6722

Counsel of Record

* See Lemon, 403 U.S. at 622. In Zelman the dissenting Justices

pointed out that entanglement between government and religion

would give rise to social divisions based along religious lines that

violated the Establishment Clause. 536 U.S. at 683 (Stevens, J.

dissenting); 536 U.S. at 685 (Souter, J. joined by Stevens, Ginsburg,

and Breyer, JJ., dissenting); 536 U.S. at 716 (Breyer, J. dissenting).

30