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STUDENTS' RIGHTS OF FREE SPEECH
aclj.org
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Rights On Campus
The Supreme Court has consistently upheld the rights of students to express themselves on public school campuses. In 1969 the Supreme Court held that students have the right to speak and express themselves on campus. Then in 1990, in the Westside Community Board of Education v. Mergens decision, the Court held that Bible clubs and prayer groups can meet on public secondary school campuses. This case interpreted the Equal Access Act which Congress passed in 1984 to insure that high school students were not discriminated against in the public schools because of their religious beliefs. The following is a brief look at what the Supreme Court decision means to the American Christian student. The Supreme Court's decision in Mergens is a chance for students to share the Gospel with their peers. It is also a sign of the times. Changes are occurring around us daily. The Gospel cannot be stopped. This Supreme Court decision is an answer to the prayers of God's people across our nation and around our world. This 8-1 decision is a clear message to the country that the time is ripe for action. The American Center for Law and Justice receives thousands of inquiries concerning students' rights in public schools. What follows is a brief response to the most commonly asked questions:
What does a Supreme Court decision mean?
A Supreme Court decision has several meanings in our system of government. The one we are concerned with is the decision's effect on our laws as they affect our public high schools. A decision is binding on all lower courts, both federal and state. This means that they must follow the Supreme Court ruling when the facts are similar. There is no appeal from the Supreme Court. When the Supreme Court rules in a case it becomes the law of the land.
Does the Constitution actually require that the "separation of church and state" keep religion out of the public schools?
No! First, the Constitution never mentions the phrase "separation of church and state." That phrase was first used by Thomas Jefferson in an address to the Danbury Baptist Association in 1802, 13 years after the Constitution was written and accepted as the law of the United States. Neither is the phrase recorded in the notes of the Constitutional Convention. The constitution does say: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof[.]" In fact, the Court has said, on numerous occasions, that separation is impossible. Therefore, the Constitution does not demand that religion be kept out of our public schools. The Constitution only prohibits school-sponsored religious activities. Free Exercise of Religion is our right under the Constitution.
What did the Supreme Court say in the Mergens Bible Club Case?
In the Mergens Bible Club case, the Supreme Court ruled that public secondary schools that receive federal funds and allow noncurriculum related clubs to meet on campus must also allow Bible clubs (Bible clubs also includes prayer groups) to meet on campus during non-instructional time. As Justice O'Connor held speaking for the Court in Mergens, "[I]f a State refused to let religious groups use facilities open to others, then it would demonstrate not neutrality but hostility toward religion."[FN1] The way that our educational system is set up, almost all public secondary schools receive federal funds. This means that if the school has clubs that are allowed to meet on campus that are not a part of a class that is being taught, or are not directly related to a school class, then the school must allow your Bible club the same privilege. In other words, the school must give the Bible club or prayer group official recognition on campus. If the school allows service type clubs, such as Interact, Zonta, or 4-H, or clubs like a chess club, it must allow Bible clubs.
Can the Bible Club advertise on campus?
Yes! Once the Bible club is officially recognized it must be allowed to use the public address system, the school bulletin boards, the school newspaper, and take part in club fairs. Thus, the students can use any form of media available to the other clubs to get the message to the rest of the school.
Does this mean that students can now start or attend a Bible club in their public school?
Yes! The Supreme Court has opened the door for student initiated Bible clubs. The church cannot enter the school and start an outreach program. Students, however, can now begin their own Christian clubs which have any agenda the students desire. The schools must allow students the freedom to actually start or attend their own meetings on the high school campus where the student attends school.
Did the Supreme Court limit the rights of Bible clubs in any way?
No! The Supreme Court did not limit the rights of Bible clubs in any way. Bible clubs must be treated like any other club in the school with full rights and privileges. The school cannot limit the Bible club in any way. The Bible clubs must be allowed to meet either before school or after school or during a club period with any other clubs. The clubs have a right not only to meet, but also to reach other students with the message that the Bible clubs are meeting.
Are the rights of public high school students limited on campus?
The public high school's mission is to educate students so that they can become productive members of our society. When students do not disrupt the mission of the school they have the same rights as other citizens of the United States. Students even have the right to discuss religion during class time, when religion is a relevant topic. Student behavior that is not illegal or disruptive cannot be stopped by the schools simply because the particular message is offensive to school officials.
Can students bring their Bibles to school or wear a Christian shirt?
Yes! There is no law that prohibits a student from bringing a Bible on campus with him. The student is only bound by an obligation not to "materially or substantially disrupt school discipline."[FN2] If the student brings his Bible or wears his Christian shirt, the school cannot force the student to remove the shirt or the Bible. Shirts with a message are a form of free speech protected by the First Amendment. Mergens clarifies that student speech cannot be discriminated against on campus because of its content.
Can public school students share their faith on their campus?
Yes! In Mergens, the Court reinforced students' rights to evangelize on the high school campus. When we combine Mergens with Tinker v. Des Moines we find that students' rights are fully protected. Now students can express their First Amendment rights and enjoy the freedom of religion on high school campuses across the country. School officials do not have the right to control student speech just because the particular speech is religious in nature. Students have the right to pass out papers and tracts that are Christian to their peers on campus. As long as the students do not disrupt school discipline, school officials must allow them to be student evangelists. It was argued that to allow the students to meet on campus and to act as student evangelists would violate the Establishment Clause of the First Amendment. This argument was rejected by the Court in Mergens. Thus, Mergens is a great victory for Christian high school students in America. With the decision in Mergens, the Supreme Court has sent a clear message to the school systems of America. No longer will religious discrimination be tolerated under the guise of "separation of church and state."
What about the rights of junior high school students on their campuses?
This is one of our most frequently asked questions. Junior High School students have the right to pray and have religious discussions on their campus with their peers. They can distribute literature with some restrictions. (see below.) Junior High School students can wear religious t-shirts to school. In addition, junior high school students are covered by the Guidelines which were issued by the Department of Education and discussed below.
The Eighth Circuit Court of Appeals recently upheld the right of junior high school students to form religious clubs on their campuses, when other groups are also meeting. [FN3] It should be noted that clubs, such as the Boy Scouts, were permitted to meet on school property after school hours. Finding that age was not necessarily a valid reason for discrimination, the Court stated that "the age of the junior high school students does not create an Establishment Clause violation." [FN4] The Court of Appeals justified its decision by looking at the private nature of the language involved in student clubs when it stated that "[t]here is a crucial difference between government speech endorsing religion, which the Establishment Clause forbids, and private speech endorsing religion, which the Free Speech and Free Exercise Clauses protect."[FN5]
Furthermore, the Court found that "nothing in the first amendment postpones the right of religious speech until high school, or draws a line between daylight and evening hours."[FN6] In the Eighth Circuit, junior high school students have a First Amendment right to use facilities for Bible club meetings when those facilities are being used by other student groups. To our knowledge, no other court has specifically addressed the rights of junior high school students to initiate and attend Bible clubs on their campuses. The court's decision in Good News/Good Sports does, however, set out a thoughtful analysis of why junior high school students should not be discriminated against because of their religious beliefs or their age.
What rights do college students have on their campuses?
This is another frequently asked question. For the present it should suffice for us to say that all of the rights we have discussed in this booklet concerning high school and junior high school students are equally applicable to college students. In fact, the rights of college students are even greater than those of high school students. Future editions of this booklet will include an entirely separate section dealing with the rights of college students.
In a case just decided by the Supreme Court, the University of Virginia authorized payments from a Student Activities Fund for the printing costs of a variety of publications written by student groups. [FN7] The University prohibited funding of any student publication that "primarily promotes or manifests a particular belief in or about a deity or an ultimate reality." [FN8] When a Christian newspaper applied for funding, University officials denied the request because of the newspaper's religious viewpoint. School officials were troubled by the mission of the Christian newpaper, which was "to challenge Christians to live, in work and deed, according to the faith they proclaim and to encourage students to consider what a personal relationship with Jesus Christ means." [FN9]
In response to school officials' arguments that they had a shortage of available funds, the Court stated that "[t]he government cannot justify viewpoint discrimination among private speakers on the economic fact of scarcity. Had the meeting rooms in Lamb's Chapel been scarce . . . our decision would have been no different."[FN10] The Court further stated that the treatment of religion must be neutral when dealing with government programs. "We have held that the guarantee of neutrality is respected, not offended, when the government, following neutral criteria and evenhanded policies, extends benefits to recipients whose ideologies and viewpoints, including religious ones, are broad and diverse."[FN11] Ultimately, the Supreme Court reversed the decision of the Court of Appeals and allowed the funding of the Christian newspaper at the University. Thus, even in issues of indirect public funding, it is unconstitutional for government officials to discriminate solely on the basis of a student or a student group's religious beliefs. Indirect public funding would include money from the student activity fund. This means that even Christian groups must be permitted to use funds from the student activity fees, if other student groups are being permitted to use those funds.
What rights do I have on campus during the school day?
In Tinker, the Supreme Court held that "students [do not] shed their constitutional rights to freedom of speech or expression at the schoolhouse gate."[FN12] This means that students have the right to express their religious beliefs during the school day. "When [a student] is in the cafeteria, or on the playing field, or on the campus during the authorized hours, he may express his opinions." [FN13] If school officials refuse to allow you to pray on campus they are censoring your speech and denying your constitutional rights.
Tinker held that students retain their First Amendment rights when they are rightfully on a public school campus. The one limitation the Court placed on the rights of the students is simple: students must not "materially or substantially disrupt school discipline."[FN14] Thus, as long as students do not disrupt the school they have the right to pray on campus, even around the flagpole.
The nature of public schools does not justify the forfeiture of constitutional rights. In fact, the nature of public schools should enhance the constitutional rights of students and teachers. The school is to teach the student how the laws of the land apply. What better place for a real-life lesson on freedom of speech and religion?
What happens now?
Now the battle begins. The Court has given Christians the right to gather together in public schools. We must begin to use the right we have been given. If the Supreme Court allows us to meet and we fail to meet, what good comes of the right? Like a muscle, our rights must be exercised or they will disappear again. God has opened up a huge mission field. Our missionaries to this field must be our high school students. They can reach their generation for Jesus. They need your support. Pray that the Lord will send laborers to work the fields of the harvest in this hour of great need. God has opened a door. We must walk through it!
What if my local high school refuses to allow students to meet or hand out literature on their campus in spite of the Tinker and Mergens decisions?
The American Center for Law and Justice is undertaking a national campaign to protect students' freedoms of speech, religion and assembly. We are going to make sure that the Mergens decision is obeyed by local school boards. We will institute legal proceedings, when appropriate, to ensure the compliance of school boards with the Court's holding in Mergens. (Note: see Appendix I for a detailed legal briefing on students' rights.)
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Graduation And Other School Events
Can we have student-led prayer at graduation?
Yes! In Lee v. Weisman, the Supreme Court held only that it violates the Establishment Clause for school officials to invite clergy to give prayers at commencement.[FN15] Justice Kennedy made clear, for the majority, that the Court's decision was limited to the particular facts before the Court.[FN16] Thus, any change from the factual situation presented in Lee might alter the resulting opinion from the Court.
Indeed, following Lee, at least one Federal Appeals Court has ruled that "a majority of students can do what the State acting on its own cannot do to incorporate prayer in public high school graduation ceremonies." [FN17] In Jones v. Clear Creek Independent School District (Jones), a post-Lee decision, the Fifth Circuit upheld the constitutionality of a school district resolution permitting high school seniors to include a student-led invocation in their graduation ceremony if the majority of the class so votes. [FN18] Quite unlike the school-directed and school-controlled practice found unconstitutional in Lee, the Clear Creek Independent School District's resolution simply permits the students of each graduating class to decide if they do or do not wish to have an invocation as a part of their commencement. In the event that students choose to include an invocation, the resolution provides that it shall be nonsectarian and nonproselytizing and conducted only by a student volunteer.
The Jones Court recognized, as the Supreme Court has previously held, that "there is a crucial difference between government speech endorsing religion, which the Establishment Clause forbids, and private speech endorsing religion, which the Free Speech and Free Exercise Clauses protect." [FN19]
The Fifth Circuit is the only United States Court of Appeals to have addressed the rights of students to initiate prayers at graduation following the Supreme Court's decision in Lee v. Weisman. On June 7, 1993, the Supreme Court denied certiorari in Jones. In other words, the Supreme Court let stand the Fifth Circuit Court of Appeals' decision permitting student-initiated prayer at graduation. Thus, the Fifth Circuit's opinion in Jones provides school boards across the nation, both in and outside the Fifth Circuit, with a valid legal basis for choosing to uphold the rights of students to initiate prayers at graduation. [FN20]
In Harris v. Joint School District, [FN21] the Court of Appeals decided that prayer during a high school graduation ceremony violated the Establishment Clause. This decision directly conflicted with the Fifth Circuit's opinion in Jones v. Clear Creek, which upheld the right of students to conduct prayer at graduation ceremonies. In the 1994-95 term the Supreme Court granted review in Harris and vacated the Court of Appeals decision as moot--because a viable claim no longer exists. This ruling by the Supreme Court leaves Jones v. Clear Creek as the only federal appeals court decision on the issue of student-led graduation prayer.
Some may suggest that school officials should aggressively censor all student expression simply because it occurs within the jurisdiction of the school. The law regarding the First Amendment rights of students, however, is well-established. Student speech cannot be restricted because of the content of that speech.
Can valedictorians, salutatorians, or honorary student speakers give speeches on religious subjects, including reading from the Bible?
Yes! As stated previously, it is well settled that religious speech is protected by the First Amendment of the Constitution. [FN22] The Supreme Court has firmly held that school administrators can only prohibit protected speech by students when it "materially and substantially interfere[s] with the requirements of appropriate discipline in the operation of the school." [FN23]
Where students have been granted freedom to compose their own speeches (e.g., valedictorian or salutatorian addresses, etc.), or even their own commencement exercise, protected student expression should not be subjected to censorship because of its content. In fact, it is a fundamental proposition of constitutional law that a governmental body may not suppress or exclude the speech of private parties for the sole reason that the speech contains a religious perspective. [FN24] To deny this bedrock principle would be to undermine the essential guarantees of free speech and religious freedom under the First Amendment.
There is quite a difference between refusing to direct prayer or invite clergy to give prayer at graduation, and choosing to prohibit individual student expression based on its content. The First Amendment precludes any governmental effort to single out and censor - or otherwise burden - the speech of private parties solely because that speech is religious. [FN25]
A decision by a school board to respect the free speech rights of students and to refrain from censoring student speech based solely on its content is not a deliberate violation of the law. As the Supreme Court has emphasized, students' free speech rights apply even "when [a student] is in the cafeteria, or on the playing field, or on campus during authorized hours . . . ." [FN26] Students do not "shed their constitutional rights to freedom of speech or expression at the schoolhouse gate. [FN27] The same axiom is true at graduation.
Can we have Baccalaureate services?
Yes! Students, community groups and area churches are entitled to sponsor events, such as baccalaureate services. If school facilities are available to the community for use, these groups must be allowed to use school facilities also, regardless of the religious nature of their activities. A policy of equal access for religious speech conveys a message "of neutrality rather than endorsement; if a State refused to let religious groups use facilities open to others, then it would demonstrate not neutrality but hostility toward religion." [FN28] The United States District Court for the District of Wyoming recently issued a preliminary injunction which allowed a baccalaureate service in a public high school. The court relied directly on Lamb's Chapel. [FN29]
Are official "Moments of Silence" permissible under current law?
Yes! The Supreme Court reviewed the issue of official, "moments of silence" in Wallace v. Jaffree. [FN30] While it is true that the Supreme Court did find the particular "moment of silence" statute before the Court in that case unconstitutional, the Wallace Court did not declare that all "moments of silence" violate the Establishment Clause. In fact, a majority of the Wallace Court clearly recognized that moments of silence are constitutionally permissible: "I agree fully with Justice O'Connor's assertion that some moment-of-silence statutes may be constitutional, a suggestion set forth in the Court's opinion as well." [FN31] Furthermore, all parties in the Wallace case agreed that an Alabama statute mandating a "moment of silence" during class time was constitutional. [FN32] Wallace held only that the particular facts of the case made the Alabama statute calling for a moment of silence "for meditation or voluntary prayer"during class time unconstitutional. [FN33] Specifically, the Court focused on the clearly religious intent expressed by the statute's sponsors in the recorded legislative history, and the express language of the statute which called for a moment of silence "for meditation or voluntary prayer." [FN34]
After Wallace, it is clear that any official moment of silence must be motivated by a well-defined secular purpose and be neutral on its face, leaving the use of the "moment of silence" to individuals and the dictates of their own consciences.
Do students have a right to pray together at school and participate in events like the See You at the Pole National Day of Prayer?
Yes! See You at the Pole National Day of Prayer is a student-led and student-initiated event. On an annual basis, students across the nation gather with like-minded peers around the flagpole at their respective schools before the class day begins and pray for their schools, teachers, administrators and country.
As discussed in earlier sections, students retain their constitutional rights of free speech and expression, including the right to pray and share personal beliefs, while on their public school campuses. Under the Tinker standard, school officials may restrict protected student speech only if it "materially and substantially interfere[s] with appropriate discipline." [FN35] Thus, school officials may not prevent students from gathering together for prayer and religious discussion on school grounds, provided that students do so in a non-disruptive manner during non-instructional time. Non-instructional time would be immediately before and after school, at lunchtime, or any other "free" time when students are permitted to talk and mingle with peers on campus.
It should be noted that while school officials may not prevent students from engaging in protected religious expression unless it "materially and substantially interferes with school discipline," [FN36] they may impose reasonable time, place and manner restrictions. Such restrictions, however, must be content neutral, "narrowly tailored to serve a significant government interest, and leave open ample alternative channels of communication." [FN37]
Can a See You At The Pole rally be held even if it is not part of an officially recognized club on campus?
Yes! Tinker stands for students' rights to freedom of speech and expression. As long as the activity being participated in does not "materially or substantially interfere with school discipline" students have the right to gather together on campus for prayer, even if no prayer group or Bible club is officially recognized on their campus.
Prayer is a protected form of speech that cannot be banned by school officials when it is being offered in a manner such as See You At The Pole. School officials refusing students the right to pray on their campus is nothing short of censorship.
If there is an officially recognized Bible Club or Prayer Group on campus, then students in the club can advertise the Prayer Rally. Students must be allowed to use the same forms of advertisement that the other clubs are allowed to use. That includes the public address system, the school bulletin boards, and the school newspaper.
Is it constitutional to have holiday observances, in the public schools?
Yes! Students, of course, are free to express their beliefs and convictions as they apply to particular holidays, provided they do so in a non-disruptive manner. (See the discussion of students' rights and Tinker, above and in Appendix I.) For example, students have the right to distribute Christmas cards or religious tracts on the "true meaning of Christmas" to their peers during non-instructional time. Students could also wish their classmates a "Merry Christmas" or a "Happy Hanukkah." School officials could not constitutionally prohibit such activities. Further, students may express their individual beliefs during classroom discussions, as well as in the context of appropriate class assignments. For instance, an elementary student when instructed to draw a "Thanksgiving" picture may choose to draw a picture of a pilgrim praying to God. Or, when told to prepare an essay on a topic of choice, a student may select the birth of Christ, or any other religious topic the student wishes. School officials cannot discriminate against a student's work simply because of its religious nature.
Regarding official public school observance of religious holidays, an issue separate and distinct from protected student expression, the Eighth Circuit has held that religious songs and symbols can be used in the public schools if they are presented in a "prudent and objective manner and only as part of the cultural and religious heritage of the holiday." [FN38] The Florey Court also stated that the study and performance of religious songs is constitutional if the purpose is the "advancement of the students' knowledge of society's cultural and religious heritage, as well as the provision of an opportunity for students to perform a full range of music, poetry, and drama that is likely to be of interest to the students and their audience." [FN39]
The Florey decision was based largely on a United States Supreme Court opinion: School District of Abington Township v. Schempp, [FN40] In Schempp, the Supreme Court said, "It certainly may be said that the Bible is worthy of study for its literary and historic qualities. Nothing we have said here indicates that such study of the Bible or of religion, when presented objectively as part of a secular program of education, may not be effected consistently with the First Amendment." [FN41]
Can the Bible be used as part of the curriculum of the school?
Yes! In Stone v. Graham, the Supreme Court said, "the Bible may constitutionally be used in an appropriate study of history, civilization, ethics, comparative religion, or the like." [FN42] Thus, it would be constitutional for a public school teacher to have students study the biblical passages that relate to Christmas (e.g., Matthew 1:18-2:22 and Luke 2:1-20) if the purpose was to study the historical or literary significance of the passages. Of course, any student that had ideological or religious objections to reading the Bible should be excused from the assignment.
In addition, the Bible was an important book in the early history of this country. It is possible to set up a curriculum that evaluates the role of the Bible in this country and western civilization that is constitutional. The Bible is also considered to be literature from antiquity. A school board could establish a policy that allows the Bible to be discussed as part of a literature program in the school.
Can members of the community or organizations use school facilities for religious purposes?
Yes! Members of the local community also have free speech rights in the school if the district rents school facilities to outsiders during non-school hours. In other words, if the school district rents its facilities to non-school groups during non-school hours, then the school district has a constitutional duty to rent to religious speakers, such as a local church that wants to rent a facility for its annual Christmas pageant. [FN43]
The Supreme Court recently rejected an exclusion of religious speakers from public schools in Lamb's Chapel. In refusing to uphold a religious exclusion, the Lamb's Chapel Court stated that "the principle that has emerged from our cases is that the First Amendment forbids the government to regulate speech in ways that favor some viewpoints or ideas at the expense of others." [FN44] The Lamb's Chapel decision reinforces the rights of religious persons to express their views publicly.
Can Christmas vacation still be called Christmas vacation?
Yes! Finally, school districts are under no constitutional obligation to rename "Christmas vacation" as "Winter vacation" or some similar name. Any suggestion to the contrary is simply unnecessary and should be avoided. The Supreme Court itself has acknowledged with approval that Congress gives federal employees a paid holiday on December 25 and that Congress calls it, "Christmas." [FN45]
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Opting Out Of Objectionable Classes
We live in a society where the state mandates that children attend school. Most American students attend public schools. Public schools teach a curriculum that has been required by the State Board of Education and the local school board. Educational theories change from time to time. When those changes occur, there is a period of time when school officials try out new ideas in an attempt to find the best way to convey the knowledge to the students. One of the problems with this concept is that experimental ideas are often on the edge of what is acceptable to society. When they are implemented, parents often find their children being taught ideas that are objectionable to family beliefs.
In the past, parents had very few options when their children faced instruction from school officials that was out of step with what the family believed. Many of the families affected by this particular problem were religious, often Christian.
While parents may have little direct say about what ends up in public school curricula, federal law has given parents clear rights to exempt their children from experimental or values-related classes that depart from academics. The Hatch Amendment (passed in 1984) was designed to reinforce parental control of their children's education. Based on the Hatch Amendment, parents may have their child excluded from experimental programs.
The Hatch Amendment, also known as the Pupil Rights Amendment, says parents have the right to inspect all instructional material, including that used in experimental or testing programs. Unless parental consent is given, no student shall be required to submit to any kind of test designed to reveal information concerning political affiliations, potentially embarrassing psychological problems, sexual behavior and attitudes, illegal and anti-social behavior, critical appra |
