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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2005
- **Citation:** 545 U.S. 844

## Text

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

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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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0005%3A32. Public record. Not legal advice.