Religion in Schools

Chapter 2: Schools and the State

I. Compulsory Attendance Every state has some form of compulsory education law. These laws generally provide that children between certain ages must attend public, private, home, or some form of online school, and failure to comply may be a criminal violation. Central to legal disputes pertaining to compulsory attendance laws is the balancing of the state’s interest in ensuring that students receive an appropriate education and the rights of parents to decide when and where their child attends school.

A. Public Schools’ Sole Role Challenged

Pierce v. Society of Sisters, a landmark United States Supreme Court decision, affirmed the doctrine of compulsory school attendance. It also established the legal role of other types of schools such as private (both secular and sectarian), homeschooling, and more recently online schools in satisfying the state’s demand that children receive schooling.

Pierce v. Society of Sisters, a landmark United States Supreme Court decision, affirmed the doctrine of compulsory school attendance. It also established the legal role of other types of schools such as private (both secular and sectarian), homeschooling, and more recently online schools in satisfying the state’s demand that children receive schooling.

Pierce v. Society of Sisters

Supreme Court of the United States, 1925 268 U.S. 510

MR. JUSTICE McREYNOLDS delivered the opinion of the Court.

These appeals are from decrees, based upon undenied allegations, which granted preliminary orders restraining appellants from threatening or attempting to enforce the Compulsory Education Act adopted November 7, 1922, under the initiative provision of her Constitution by the voters of Oregon.* * *

The challenged Act, effective September 1, 1926, requires every parent, guardian or other person having control or charge or custody of a child between eight and sixteen years to send him “to a public school for the period of time a public school shall be held during the current year” in the district where the child resides; and failure to do so is declared a misdemeanor. * * * The manifest purpose is to compel general attendance at public schools by normal children, between eight and sixteen, who have not completed

the eighth grade. And without doubt enforcement of the statute would seriously impair, perhaps destroy, the profitable features of appellees’ business and greatly diminish the value of their property.

Appellee, the Society of Sisters, is an Oregon corporation, organized in 1880, with power to care for orphans, educate and instruct the youth, establish and maintain academies or schools, and acquire necessary real and personal property. It has long devoted its property and effort to the secular and religious education and care of children, and has acquired the valuable good will of many parents and guardians. It conducts interdependent primary and high schools and junior colleges, and maintains orphanages for the custody and control of children between eight and sixteen. In its primary schools many children between those ages are taught the subjects usually pursued in Oregon public schools during the first eight years. Systematic religious instruction and moral training according to the tenets of the Roman Catholic Church are also regularly provided. All courses of study, both temporal and religious, contemplate continuity of training under the appellee’s charge; the primary schools are essential to the system and the most profitable. It owns valuable buildings, especially constructed and equipped for school purposes. The business is remunerative—the annual income from primary schools exceeds thirty thousand dollars—and the successful conduct of this requires long-time contracts with teachers and parents. The Compulsory Education Act of 1922 has already caused the withdrawal from its schools of children who would otherwise continue, and their income has steadily declined. The appellants, public officers, have proclaimed their purpose strictly to enforce the statute.

After setting out the above facts the Society’s bill alleges that the enactment conflicts with the right of parents to choose schools where their children will receive appropriate mental and religious training, the right of the child to influence the parents’ choice of a school, the right of schools and teachers therein to engage in a useful business or profession, and is accordingly repugnant to the Constitution and void. And, further, that unless enforcement of the measure is enjoined, the corporation’s business and property will suffer irreparable injury.

Appellee, Hill Military Academy, is a private corporation organized in 1908 under the laws of Oregon, engaged in owning, operating and conducting for profit an elementary, college preparatory and military training school for boys between the ages of five and twenty-one years. * * * It owns considerable real and personal property, some useful only for school purposes. The business and incident good will are very valuable. In order to conduct its affairs long time contracts must be made for supplies, equipment, teachers and pupils. Appellants, law officers of the State and County, have publicly announced that the Act of November 7, 1922, is valid and have declared their intention

to enforce it. By reason of the statute and threat of enforcement appellee’s business is being destroyed and its property depreciated; parents and guardians are refusing to make contracts for the future instruction of their sons, and some are being withdrawn.

The Academy’s bill states the foregoing facts and then alleges that the challenged Act contravenes the corporation’s rights guaranteed by the Fourteenth Amendment and that unless appellants are restrained from proclaiming its validity and threatening to enforce it irreparable injury will result. The prayer is for an appropriate injunction.

No answer was interposed in either cause, and after proper notices they were heard by three judges * * * on motions for preliminary injunctions upon the specifically alleged facts. The court ruled that the Fourteenth Amendment guaranteed appellees against the deprivation of their property without due process of law consequent upon the unlawful interference by appellants with the free choice of patrons, present and prospective. It declared the right to conduct schools was property and that parents and guardians, as part of their liberty, might direct the education of children by selecting reputable teachers and places. Also, that these schools were not unfit or harmful to the public, and that enforcement of the challenged statute would unlawfully deprive them of patronage and thereby destroy their owners’ business and property. Finally, that the threats to enforce the Act would continue to cause irreparable injury; and the suits were not premature.

No question is raised concerning the power of the State reasonably to regulate all schools, to inspect, supervise and examine them, their teachers and pupils; to require that all children of proper age attend some school, that teachers shall be of good moral character and patriotic disposition, that certain studies plainly essential to good citizenship must be taught, and that nothing be taught which is manifestly inimical to the public welfare.

The inevitable practical result of enforcing the Act under consideration would be destruction of appellees’ primary schools, and perhaps all other private primary schools for normal children within the State of Oregon. These parties are engaged in a kind of undertaking not inherently harmful, but long regarded as useful and meritorious. Certainly there is nothing in the present records to indicate that they have failed to discharge their obligations to patrons, students or the State. * * *

* * * [We] think it entirely plain that the Act of 1922 unreasonably interferes with the liberty of parents and guardians to direct the upbringing and education of children under their control. As often heretofore pointed out, rights guaranteed by the Constitution may not be abridged by legislation which has no reasonable relation to some purpose within the competency of the State. The fundamental theory of liberty upon which all governments in this Union repose excludes any general power of the State to

standardize its children by forcing them to accept instruction from public teachers only. The child is not the mere creature of the State; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations.

* * *

Generally it is entirely true, as urged by counsel, that no person in any business has such an interest in possible customers as to enable him to restrain exercise of proper power of the State upon the ground that he will be deprived of patronage. But the injunctions here sought are not against the exercise of any proper power. Plaintiffs asked protection against arbitrary, unreasonable and unlawful interference with their patrons and the consequent distribution of their business and property. Their interest is clear and immediate. * * *

The suits were not premature. The injury to appellees was present and very real, not a mere possibility in the remote future. If no relief had been possible prior to the effective date of the Act, the injury would have become irreparable. Prevention of impending injury by unlawful action is a well-recognized function of courts of equity.

The decrees below are

Affirmed.

Notes and Questions

Pierce, one of the original defendants in this case, was the Governor of Oregon.

Does the Court’s decision in Pierce reveal a bias in favor of the individual parent to have access to a pluralistic educational system by not allowing the state to have a monopoly over education?

The challenged Oregon law in Pierce had been promoted primarily by members of the Ku Klux Klan and Oregon’s Scottish Rite Masons. Their actions were evidence of a xenophobic response on the part of some Americans after World War I to ensure that children would be properly socialized in the tenets of Americanism. The strong feelings against many foreigners and Catholics in particular at that time prompted a leading klansman to state: “Somehow these mongrel hordes must be Americanized; failing that, deportation is the only remedy.” An attempt was made to picture Catholics as members of an organization that conducted its worship services in a foreign language, was controlled by a foreigner called a Pope, and practiced secret rituals.

The Supreme Court decision in Pierce had immediate applicability only to the contested Oregon Compulsory Education Act and the issues arising from its attempted implementation. It did not automatically affect similar laws in other states. Individual state legislative action would be necessary to revoke similar laws in those states, and the absence of such legislative action would require a lawsuit to gain compliance with the Pierce rationale. Given the Pierce precedent, such a suit would undoubtedly be successful.

An Amish group contested Wisconsin’s compulsory attendance law, which required attendance at a public or private school until age sixteen. The Amish did not want their children to attend either a public or private high school after the eighth grade because they considered such schools to be “worldly.” A Supreme Court decision upheld the Amish position on several grounds. The Court contended that enforcing the state law would gravely endanger, if not destroy, the free exercise of Amish religious beliefs. Additionally, the Court’s decision was influenced not only by the group’s nearly three hundred years of existence but also by the perception that, although perhaps unconventional, the Amish had evidenced a highly successful social unit characterized by members who were productive, law abiding, and unwilling to accept welfare in any of its usual modern forms. See Wisconsin v. Yoder, 406 U.S. 205 (1972). Would the Court’s rationale prevail if the group contesting a compulsory attendance law were the Ku Klux Klan or an extremist Muslim sect rather than the Amish? Should students have a voice in this issue? Justice Douglas’s opinion in Yoder, in which he dissents in part, suggests that students should have such a voice.

What are the provisions of the compulsory attendance law in your state?

B. Regulation of Private Schools

Once Pierce established the doctrine that private school attendance could satisfy a state’s compulsory attendance requirements, the question arose as to the extent to which a state could regulate private schools within its jurisdiction. The United States Supreme Court addressed this issue, one year after its Pierce decision, in Farrington v. Tokushige, 273 U.S. 284 (1926).

Farrington resulted from a state effort to Americanize students, in this case, Hawaii’s attempt to regulate the predominantly Japanese foreign language schools on the islands. The contested regulations required teachers in these schools to possess “ideals of democracy,” knowledge of American history, and fluency in English. Additionally, they restricted hours of operation, established entrance requirements, and prescribed textbooks. These regulations, the Court held, served no demonstrable public interest,

but instead amounted to a deliberate plan of strict governmental control, infringing on the rights of both parents and school owners.

Both Pierce and Farrington reflect a philosophy that parents should have freedom of choice in the education of their children. Moreover, in sanctioning what many people at the time feared was subversive, these decisions affirm a faith in the sustaining power of American tolerance for diversity among its citizenry.

In 2008, the National Center for Education Statistics reported that 6.1 million students representing 10.8 percent of elementary/secondary students attended private schools. Approximately two-thirds of private school students attended religiously affiliated schools, and almost half the students enrolled in sectarian schools attended Roman Catholic schools. Although private school attendance is considered a permissible alternative to attending public school in all states, regulation of private schools varies considerably among the states. These regulations may include requirements pertaining to accreditation or curriculum approval (approximately half the states have such requirements), teacher certification or other qualifications, attendance information, length of school year/days, record keeping and reports, and mandatory testing. Some states have required that the quality of education provided by private schools be essentially equivalent to that provided in the public schools. Other states merely have regulations dealing primarily with health, safety, and sanitation.*

Several states provide exemptions to their regulations for religious private schools. Attempts to regulate sectarian private schools have received court attention in those states not having requirement exemptions for religiously affiliated private schools. In these suits, private schools frequently allege that their First Amendment religious freedom is being restricted. Courts have tended to reject challenges to minimal instructional programs and requirements that teachers have baccalaureate degrees. In New Life Baptist Church Academy v. Town of East Long Meadow, 885 F.2d 940 (1st Cir. 1989), cert. denied, 494 U.S.1066 (1990), the court interpreted a Massachusetts law requiring a local school committee to “approve” a private school for attendance at the private school to satisfy that state’s compulsory attendance law. Although the private school believed it was a sin to submit its educational enterprise to a secular authority for approval, the court upheld school committee procedures such as gathering written information, reviewing the academic credentials of teachers, and visiting the school to observe the quality of the teaching. The private school preferred voluntary standardized pupil testing. The court contended that the state’s interest in making certain that its children receive an adequate secular education was “compelling” and did not violate the Free Exercise or Establishment Clauses of the First Amendment.

What is the status of private school regulation in your state? In addition to reviewing court decisions, you may wish to consult your state constitution, statutes, state school board policies, and attorney general opinions.

C. Home and Online Instruction

Although most children were homeschooled prior to the introduction of public education in the middle of the nineteenth century, modern homeschooling began in the 1960s. The movement was promoted by liberal educational reformers as an alternative to what they then considered rigid and conformist public schools. In time, however, homeschooling was embraced primarily by evangelical Christians who were concerned about the public schools’ perceived lack of discipline, antireligious bias, poor learning environment, and inadequate curriculum. Although homeschooling had been illegal in many states, the well-organized efforts of evangelical Christians in the 1980s and 1990s were successful, resulting in states adopting laws allowing homeschooling. Increasingly, home instruction has also been embraced by those more dissatisfied with the effectiveness of the public schools than merely for religious reasons. A 2008 National Center for Education Statistics (NCES) study revealed four major reasons for parents to homeschool their children: a concern about the public-school environment (88%), a desire to provide religious or moral instruction (83%), dissatisfaction with the academic instruction available at other schools (73%), and the desire for a nontraditional approach to a child’s education (65%).

In the last two decades, such dissatisfaction with both public and private schools has resulted in a dramatic increase in the number of homeschooled students. The same NCES study estimated that in 2007 there were 1.5 million students being homeschooled representing c2.9 percent of students nationwide. In 2010, it was estimated that there were 2 million children, or c4 percent of the school-age population being homeschooled. Although the practice is authorized in every state, statutory provisions vary greatly among the states. Those states having regulatory homeschooling statutes may require (1) the home program to be essentially “equivalent” to that offered in the public schools; (2) student participation, and possible minimum requirements, in standardized testing or other forms of evaluation; (3) a minimum number of yearly hours for instruction, submission of lesson plans, submission of attendance records, and adherence to a minimum curriculum; and (4) minimum academic requirements for parents. State regulation of homeschoolers is generally religion neutral, yet in several states religious homeschoolers enjoy exemptions from certain regulations. When challenged by local school authorities and law enforcement officials, parents engaged in home instruction are generally brought to trial in a criminal action for failure to comply with a state’s compulsory education law.

A review of state statutes regarding parent qualifications to homeschool reveals a low, if not nonexistent, qualification bar. Many states have no qualification requirements, although some states require a high school or GED diploma. One state requires that “Instruction must be by a person who, in the judgment of the county superintendent and county board, is qualified to give instruction in subjects required to be taught in public elementary schools” (W.Va). These provisions, or lack thereof, are a far cry from earlier state regulations which in some states required parents to have teacher certification, have a minimum number of college credits, or be “tutors or teachers.”

Massachusetts’ highest court, in Brunelle v. Lynn Public Schools, 702 N.E.2d 1182 (Mass. 1998), held that approval of a home-education program conditioned on a requirement of home visits by the local school superintendent was invalid. The court reasoned that home visits were not essential to the state’s interest in education and could not be imposed as a condition of approval of parents’ home-education plans. In its decision, the court noted that school officials had examined the home education proposals and were satisfied with the qualifications of the parents as teachers, the contents of the curricula and instructional materials to be used, the amount of time to be devoted to instruction, and the student evaluation plans.

Objections on religious grounds to verifying compliance with attendance laws were not upheld in Mazanec v. North Judson-San Pierre School Corporation, 798 F.2d 230 (7th Cir. 1986). State homeschooling reporting requirements were also upheld in State v. Rivera, 497 N.W.2d 878 (Iowa 1993). The requirements, which were challenged on free exercise grounds, included course outlines, weekly lesson plans, and providing the amount of time spent on areas of instruction. A Maryland law regarding the state’s monitoring of home education was also upheld in Battles v. Anne Arundel County Board of Education, 904 F. Supp. 471 (Md. 1995), aff’d, 95 F.3d 41 (4th Cir. 1996). In that case a parent complained:

that the required curriculum promotes atheism, paganism, and evolutionism (sic), diminishes the importance of Christian holidays by introducing secular figures like the Easter Bunny and Santa Claus, and generally promotes a “Godless world view.” (p. 477)

In addressing this complaint, the court held that the law did not violate free exercise rights as it applied to all children and did not require the parent to alter her religious beliefs.

Less ideologically motivated parents have attempted to take advantage of public-school services they deem beneficial to their children’s success. Approximately 20 percent of homeschooled students attend either public or private schools part time. These parents

would like their children to take advanced mathematics and science courses, foreign language, band, or art, for instance. Others would like their children to participate in extracurricular activities such as athletics or other after-school activities. To date, courts have not been sympathetic to the notion of homeschooled students participating in public-school extracurricular activities or taking courses in the absence of state or local provisions allowing the practice. See Swanson v. Guthrie Independent School District No. I-1, 135 F.3d 694 (10th Cir. 1998), upholding a school district’s full-time attendance policy, which did not allow a homeschooled student to attend public school on a part-time basis. The court disagreed that the policy had an incidental impact on the family’s religious beliefs or practices and declared “The policy does not prohibit [the Swansons] from home-schooling Annie in accordance with their religious beliefs, and does not force them to do anything that is contrary to those beliefs.” Because part-time students did not qualify for state financial aid, the school board feared that the student’s attendance “could set a precedent allowing other homeschooled children as well as private-school students to use the public school’s facilities on an as-wanted basis, without a corresponding increase in state financial aid” (p. 698).

Since their lack of success in the courts, homeschooling proponents have focused their attention on state legislatures. As a result, more than two dozen states have passed statutes that create a qualified right for homeschooled students to participate in public-school activities, and several other states have pending legislation. Laws differ considerably among the states regarding public-school activities in which home-instructed students may participate. The various state laws may allow participation in one, several, or all of such public-school activities as: interscholastic athletics; extracurriculars such as clubs or band, and academic classes. Some states have enacted statutes that allow participation on the approval of the local school system. Statutes also differ widely in their conditioning participation in public-school programs on students’ attaining a minimum score on a standardized test, complying with requirements of regularly enrolled students, or conforming to standards of behavior and performance of other students participating in the activity.

States are also increasingly adopting various forms of online instruction, both in content and distribution. Where such programs have official state sanction, they satisfy compulsory attendance laws. Online offerings, which vary widely across the United States, may include specific courses and/or programs such as kindergarten through eighth grade, middle school, or high school. The terms virtual schools and cyber schools, referring to online programs, are often used interchangeably in state regulations and educational literature. See in Chapter 7 for a further discussion of online instruction.

Does your state or local system have provisions concerning home instruction? May homeschooled students spend part of the day taking courses or engaging in extracurricular activities in the public schools? What are your state’s provisions, if any, for online instruction?

D. Admission Issues

Compulsory attendance laws often state a minimum age at which formal education must begin. Disputes may arise when a child’s birthday is a few days or perhaps weeks after a designated date or when parents believe their child is emotionally and intellectually ready to begin school at an earlier age.

This issue was addressed by the West Virginia Supreme Court of Appeals. Although a state statute required, as a prerequisite to school admittance, that students attain the age of five on or before September 1, the court found that an intellectually mature child, whose birthday fell on September 3, should have been admitted to school. The court reasoned that it was the state legislature’s intent that school boards adopt flexible policies—consistent with resources at their disposal—to ease the burden of such unfortunate situations. See Blessing v. Mason County Board of Education, 341 S.E.2d 407 (W. Va. 1985). In the absence of state statutes or constitutional provisions establishing the age for entrance to school, local school boards of education have an implied authority to establish them. See Zweifel v. Joint District No. 1, 251 N.W.2d 822 (Wis. 1977).

The United State Supreme Court addressed the issue of public-school admission of illegal aliens in Plyler v. Doe, 457 U.S. 202 (1982). The Court, in a five-to-four decision, held that funding for the education of these children could not be withheld from local school districts, nor could local school districts deny enrollment to children not legally admitted to the country. This decision emphasized both the importance of public education in maintaining basic civic institutions and the lasting impact of educational deprivation on the life of a child. Provisions of a 1994 California initiative (Proposition 187) that sought to exclude illegal aliens and children who were citizens, but whose parents were illegal aliens, from public elementary and secondary schools was struck down as being in conflict with Plyler and other Supreme Court decisions. Another provision of the initiative requiring school districts to verify the immigration status of prospective and current students and their parents and to notify them of their suspected status, and to report this information to state and federal officials, was also struck down as violative of federal law. See League of United Latin American Citizens v. Wilson, 908 F. Supp. 755 (Cal. 1995) and 997 F. Supp. 1244 (Cal. 1997). In addition to agreeing with the 1995 decision, the latter decision held Proposition 187 invalid under the

congressionally enacted Personal Responsibility and Work Opportunity Reconciliation Act (PRA) of 1996, which restricted alien access to substantially all public benefits and severely restricted state legislation in the area of public benefits for aliens. However, the PRA did not deny public elementary and secondary education benefits to aliens.

Does your state or local school system have any provisions concerning a minimum age for school entry? If so, is there a provision for early admission or transfer from other states?

II. Religion in the Schools

Although the United States Supreme Court and lower federal court decisions have been consistent in declaring Bible reading for sectarian purposes and school-sponsored prayer during normal school hours to be unconstitutional, this issue and others dealing with religious activities at public schools remain highly charged and emotional. Consequently, issues focusing on church–state relations have provided a persistent stream of litigation.

In an effort to ensure a separation of church and state,* the framers of the Constitution included the following language in the First Amendment: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof” [Emphasis added]. On the basis of these words, courts must determine the constitutionality of such questions as allowing prayer and Bible reading in the public schools during normal school hours, allowing holiday religious displays, banning music with a religious orientation or focus on religious holidays, prayer at graduation exercises or football games, conducting baccalaureate services, permitting Bible study or other religious clubs, disseminating Gideon Bibles or other religious tracts, or observing religious holidays.

A review of court decisions dealing with these issues reveals that a rather high wall between the church and the state was erected in the early 1960s, and although church and state issues were frequently litigated over the years, the wall remained relatively high for over a quarter century. However, court decisions and legislative action such as passage of the No Child Left Behind Act, in addition to increased politicization of the issue, have resulted in a considerable lowering of the wall between church and state. These actions have resulted in school officials not only having a concern that proper separation of church and state was being observed but also ensuring that there was no discrimination against allowable religious expression.

A. School-Sponsored Religious Activity

Two United States Supreme Court decisions in the early 1960s dramatically established the case law pertaining to prayer and Bible reading in the public schools. In Engel v. Vitale, the Court, with one dissent, held that recitation of a prayer composed by the New York State Board of Regents, which was to be said in the presence of a teacher at the beginning of school each day, was unconstitutional and in violation of the Establishment Clause.

In School District of Abington Township v. Schempp, a lengthy decision of 117 pages, which included a majority opinion, three concurring opinions, and one dissent, the Court held that reading the Bible for sectarian purposes and reciting the Lord’s Prayer in public schools during normal hours were unconstitutional. However, the Court asserted that the Bible could be read as literature in an appropriate class and that the history of religion or comparative religion could be taught.

1. Recitation of a State Prayer

ENGEL v. VITALE

Supreme Court of the United States, 1962 370 U.S. 421

MR. JUSTICE BLACK delivered the opinion of the Court.

The respondent Board of Education of Union Free School District No. 9, New Hyde Park, New York, acting in its official capacity under state law, directed the School District’s principal to cause the following prayer to be said aloud by each class in the presence of a teacher at the beginning of each school day:

“Almighty God, we acknowledge our dependence upon Thee, and we beg Thy blessings upon us, our parents, our teachers and our Country.”

This daily procedure was adopted on the recommendation of the State Board of Regents, a governmental agency created by the State Constitution to which the New York Legislature has granted broad supervisory, executive, and legislative powers over the State’s public school system. These state officials composed the prayer which they recommended and published as part of their “Statement on Moral and Spiritual Training in the Schools,” saying: “We believe that this Statement will be subscribed to by all men and women of good will, and we call upon all of them to aid in giving life to our program.”

Shortly after the practice of reciting the Regents’ prayer was adopted by the School District, the parents of ten pupils brought this action in a New York State Court insisting that use of this official prayer in the public schools was contrary to the beliefs, religions, or religious practices of both themselves and their children. Among other things, these parents challenged the constitutionality of both the state law authorizing the School District to direct the use of prayer in public schools and the School District’s regulation ordering the recitation of this particular prayer on the ground that these actions of official governmental agencies violate that part of the First Amendment of the Federal Constitution which commands that “Congress shall make no law respecting an establishment of religion”—a command which was “made applicable to the State of New York by the Fourteenth Amendment of the said Constitution.” The New York Court of Appeals * * * sustained an order of the lower state courts which had upheld the power of New York to use the Regents’ prayer as a part of the daily procedures of its public schools so long as the schools did not compel any pupil to join in the prayer over his or her parents’ objection. We granted certiorari to review this important decision involving the rights protected by the First and Fourteenth Amendments.

We think that by using its public school system to encourage recitation of the Regents’ prayer, the State of New York has adopted a practice wholly inconsistent with the Establishment Clause. There can, of course, be no doubt that New York’s program of daily classroom invocation of God’s blessings as prescribed in the Regents’ prayer is a religious activity. It is a solemn avowal of divine faith and supplication for the blessings of the Almighty. The nature of such a prayer has always been religious, none of the respondents has denied this and the trial court expressly so found. * * *

The petitioners contend among other things that the state laws requiring or permitting use of the Regents’ prayer must be struck down as a violation of the Establishment Clause because that prayer was composed by government officials as a part of a governmental program to further religious beliefs. For this reason, petitioners argue, the State’s use of the Regents’ prayer in its public school system breaches the constitutional wall of separation between Church and State. We agree with that contention since we think that the constitutional prohibition against laws respecting an establishment of religion must at least mean that in this country it is no part of the business of government to compose official prayers for any group of the American people to recite as a part of a religious program carried on by government.

It is a matter of history that this very practice of establishing governmentally composed prayers for religious services was one of the reasons which caused many of our early colonists to leave England and seek religious freedom in America. The Book of Common Prayer, which was created under governmental direction and which was

approved by Acts of Parliament in 1548 and 1549, set out in minute detail the accepted form and content of prayer and other religious ceremonies to be used in the established, tax-supported Church of England. The controversies over the Book and what should be its content repeatedly threatened to disrupt the peace of that country as the accepted forms of prayer in the established church changed with the views of the particular ruler that happened to be in control at the time. Powerful groups representing some of the varying religious views of the people struggled among themselves to impress their particular views upon the Government and obtain amendments of the Book more suitable to their respective notions of how religious services should be conducted in order that the official religious establishment would advance their particular beliefs. Other groups, lacking the necessary political power to influence the Government on the matter, decided to leave England and its established church and seek freedom in America from England’s governmentally ordained and supported religion.

It is an unfortunate fact of history that when some of the very groups which had most strenuously opposed the established Church of England found themselves sufficiently in control of colonial governments in this country to write their own prayers into law, they passed laws making their own religion the official religion of their respective colonies. Indeed, as late as the time of the Revolutionary War, there were established churches in at least eight of the thirteen former colonies and established religions in at least four of the other five. But the successful Revolution against English political domination was shortly followed by intense opposition to the practice of establishing religion by law. * * *

By the time of the adoption of the Constitution, our history shows that there was a widespread awareness among many Americans of the dangers of a union of Church and State. These people knew, some of them from bitter personal experience, that one of the greatest dangers to the freedom of the individual to worship in his own way lay in the Government’s placing its official stamp of approval upon one particular kind of prayer or one particular form of religious services. They knew the anguish, hardship and bitter strife that could come when zealous religious groups struggled with one another to obtain the Government’s stamp of approval from each King, Queen, or Protector that came to temporary power. The Constitution was intended to avert a part of this danger by leaving the government of this country in the hands of the people rather than in the hands of any monarch. But this safeguard was not enough. Our Founders were no more willing to let the content of their prayers and their privilege of praying whenever they pleased be influenced by the ballot box than they were to let these vital matters of personal conscience depend upon the succession of monarchs. The First Amendment was added to the Constitution to stand as a guarantee that neither the power nor the prestige of the Federal Government would be used to control, support or influence the kinds of prayer the American people can say—that the people’s religions must not be

subjected to the pressures of government for change each time a new political administration is elected to office. Under that Amendment’s prohibition against governmental establishment of religion, as reinforced by the provisions of the Fourteenth Amendment, government in this country, be it state or federal, is without power to prescribe by law any particular form of prayer which is to be used as an official prayer in carrying on any program of governmentally sponsored religious activity.

There can be no doubt that New York’s state prayer program officially establishes the religious beliefs embodied in the Regents’ prayer. The respondents’ argument to the contrary, which is largely based upon the contention that the Regents’ prayer is “non-denominational” and the fact that the program, as modified and approved by state courts, does not require all pupils to recite the prayer but permits those who wish to do so to remain silent or be excused from the room, ignores the essential nature of the program’s constitutional defects. Neither the fact that the prayer may be denominationally neutral nor the fact that its observance on the part of the students is voluntary can serve to free it from the limitations of the Establishment Clause, as it might from the Free Exercise Clause, of the First Amendment, both of which are operative against the States by virtue of the Fourteenth Amendment. Although these two clauses may in certain instances overlap, they forbid two quite different kinds of governmental encroachment upon religious freedom. 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. This is not to say, of course, that laws officially prescribing a particular form of religious worship do not involve coercion of such individuals. When the power, prestige and financial support of the government is placed behind a particular religious belief, the indirect coercive pressure upon religious minorities to conform to the prevailing officially approved religion is plain. But the purposes underlying the Establishment Clause go much further than that.Its first and most immediate purpose rested on the belief that a union of government and religion tends to destroy government and degrade religion. The history of governmentally established religion, both in England and in this country, showed that whenever government had allied itself with one particular form of religion, the inevitable result had been that it had incurred the hatred, disrespect and even contempt of those who held contrary beliefs. That same history showed that many people had lost their respect for any religion that had relied upon the support of government to spread its faith. The Establishment Clause thus stands as an expression of principle on the part of the Founders of our Constitution that religion is too personal, too sacred, too holy, to permit its “unhallowed perversion” by a civil magistrate. Another purpose of the Establishment Clause rested upon an awareness of the historical fact that governmentally established religions and religious persecutions go hand in hand.

The Founders knew that only a few years after the Book of Common Prayer became the only accepted form of religious services in the established Church of England, an Act of Uniformity was passed to compel all the Englishmen to attend those services and to make it a criminal offense to conduct or attend religious gatherings of any kind—a law which was consistently flouted by dissenting religious groups in England and which contributed to widespread persecutions of people like John Bunyan who persisted in holding “unlawful [religious] meetings . . . to the great disturbance and distraction of the good subjects of this kingdom. . . .” And they knew that similar persecutions had received the sanction of law in several of the colonies in this country soon after the establishment of official religions in those colonies. It was in large part to get completely away from this sort of systematic religious persecution that the Founders brought into being our Nation, our Constitution, and our Bill of Rights with its prohibition against any governmental establishment of religion. The New York laws officially prescribing the Regents’ prayer are inconsistent both with the purposes of the Establishment Clause and with the Establishment Clause itself.

It has been argued that to apply the Constitution in such a way as to prohibit state laws respecting an establishment of religious services in public schools is to indicate a hostility toward religion or toward prayer. Nothing, of course, could be more wrong. The history of man is inseparable from the history of religion. And perhaps it is not too much to say that since the beginning of that history many people have devoutly believed that “More things are wrought with prayer than this world dreams of.” It was doubtless largely due to men who believed this that there grew up a sentiment that caused men to leave the crosscurrents of officially established state religions and religious persecution in Europe and come to this country filled with the hope that they could find a place in which they could pray when they pleased to the God of their faith in the language they chose. And there were men of this same faith in the power of prayer who led the fight for adoption of our Constitution and also for our Bill of Rights with the very guarantees of religious freedom that forbid the sort of governmental activity which New York has attempted here. These men knew that the First Amendment, which tried to put an end to governmental control of religion and prayer, was not written to destroy either. They knew rather that it was written to quiet well-justified fears which nearly all of them felt arising out of an awareness that governments of the past had shackled men’s tongues to make them speak only the religious thoughts that government wanted them to speak and to pray only to the God that government wanted them to pray to. It is neither sacrilegious nor antireligious to say that each separate government in this country should stay out of the business of writing or sanctioning official prayers and leave that purely religious function to the people themselves and to those the people choose to look to for religious guidance.

It is true that New York’s establishment of its Regents’ prayer as an officially approved religious doctrine of that State does not amount to a total establishment of one particular religious sect to the exclusion of all others—that, indeed, the government endorsement of that prayer seems relatively insignificant when compared to the governmental encroachments upon religion which were commonplace 200 years ago. To those who may subscribe to the view that because the Regents’ official prayer is so brief and general there can be no danger to religious freedom in its governmental establishment, however, it may be appropriate to say in the words of James Madison, the author of the First Amendment:

“[I]t is proper to take alarm at the first experiment on our liberties. . . . Who does not see that the same authority which can establish Christianity, in exclusion of all other Religions, may establish with the same ease any particular sect of Christians, in exclusion of all other Sects? That the same authority which can force a citizen to contribute three pence only of his property for the support of any one establishment, may force him to conform to any other establishment in all cases whatsoever?”

The judgment of the Court of Appeals of New York is reversed and the cause remanded for further proceedings not inconsistent with this opinion.

Reversed and remanded.

2. Prayer and Bible Reading

School District of Abington Township v. Schempp Murray v. Curlett

Supreme Court of the United States, 1963 374 U.S. 203

MR. JUSTICE CLARK delivered the opinion of the Court.

* * * These companion cases present the issues in the context of state action requiring that schools begin each day with readings from the Bible. While raising the basic questions under slightly different factual situations, the cases permit joint treatment. In light of the history of the First Amendment and of our cases interpreting and applying its requirements, we hold that the practices at issue and the laws requiring them are unconstitutional under the Establishment Clause, as applied to the States through the Fourteenth Amendment.

* * * The Commonwealth of Pennsylvania by law * * * requires that “At least ten verses from the Holy Bible shall be read, without comment, at the opening of each public school on each school day. Any child shall be excluded from such Bible reading, or

attending such Bible reading, upon the written request of his parent or guardian.” The Schempp family, husband and wife and two of their three children, brought suit to enjoin enforcement of the statute * * *. A three-judge statutory District Court for the Eastern District of Pennsylvania held that the statute is violative of the Establishment Clause of the First Amendment as applied to the States by the Due Process Clause of the Fourteenth Amendment and directed that appropriate injunctive relief issue. * * *

The appellees Edward Lewis Schempp, his wife Sidney, and their children, Roger and Donna, are of the Unitarian faith and are members of the Unitarian Church in Germantown, Philadelphia, Pennsylvania, where they * * * regularly attend religious services. * * *

On each school day at the Abington Senior High School between 8:15 and 8:30 a.m., while the pupils are attending their home rooms or advisory sections, opening exercises are conducted pursuant to the statute. The exercises are broadcast into each room in the school building through an intercommunications system and are conducted under the supervision of a teacher by students attending the school’s radio and television workshop. Selected students from this course gather each morning in the school’s workshop studio for the exercises, which include readings by one of the students of 10 verses of the Holy Bible, broadcast to each room in the building. This is followed by the recitation of the Lord’s Prayer, likewise over the intercommunications system, but also by the students in the various classrooms, who are asked to stand and join in repeating the prayer in unison. The exercises are closed with the flag salute and such pertinent announcements as are of interest to the students. Participation in the opening exercises, as directed by the statute, is voluntary. The student reading the verses from the Bible may select the passages and read from any version he chooses, although the only copies furnished by the school are the King James version, copies of which are circulated to each teacher by the school district. During the period in which the exercises have been conducted the King James, the Douay and the Revised Standard versions of the Bible have been used, as well as the Jewish Holy Scriptures. There are no prefatory statements, no questions asked or solicited, no comments or explanations made and no interpretations given at or during the exercises. The students and parents are advised that the student may absent himself from the classroom or, should he elect to remain, not participate in the exercises.

* * *

At the first trial Edward Schempp and the children testified as to specific religious doctrines purveyed by a literal reading of the Bible “which are contrary to the religious beliefs which they held and to their familial teaching.” * * * The children testified that all of the doctrines to which they referred were read to them at various times as part of the

exercises. Edward Schempp testified at the second trial that he had considered having Roger and Donna excused from attendance at the exercise but decided against it for several reasons, including his belief that the children’s relationships with their teachers and classmates would be adversely affected.

* * *

In 1905 the Board of School Commissioners of Baltimore City adopted a rule * * *. The rule provided for the holding of opening exercises in the schools of the city, consisting primarily of the “reading, without comment, of a chapter in the Holy Bible and/or the use of the Lord’s Prayer.” The petitioners, Mrs. Madalyn Murray and her son, William J. Murray III, are both professed atheists. Following unsuccessful attempts to have the respondent school board rescind the rule, this suit was filed for mandamus to compel its recision and cancellation. It was alleged that William was a student in a public school of the city and Mrs. Murray, his mother, was a taxpayer therein; that it was the practice under the rule to have a reading on each school morning from the King James version of the Bible; that at petitioners’ insistence the rule was amended to permit children to be excused from the exercise on request of the parent and that William had been excused pursuant thereto; that nevertheless the rule as amended was in violation of the petitioners’ rights to “freedom of religion under the First and Fourteenth Amendments” and in violation of “the principle of separation between church and state, contained therein. . . .” The petition particularized the petitioners’ atheistic beliefs and stated that the rule, as practiced, violated their rights:

“in that it threatens their religious liberty by placing a premium on belief as against non-belief and subjects their freedom of conscience to the rule of the majority; it pronounces belief in God as the source of all moral and spiritual values, equating these values with religious values, and thereby renders sinister, alien and suspect the beliefs and ideals of your Petitioners, promoting doubt and question of their morality, good citizenship and good faith.”

* * * The Maryland Court of Appeals affirmed, the majority of four justices holding the exercise not in violation of the First and Fourteenth Amendments, with three justices dissenting. * * *

* * *

The wholesome “neutrality” of which this Court’s cases speak * * * stems from a recognition of the teachings of history that powerful sects or groups might bring about a fusion of governmental and religious functions or a concert of dependency of one upon the other to the end that official support of the State or Federal Government would be

placed behind the tenets of one or of all orthodoxies. This the Establishment Clause prohibits. And a further reason for neutrality is found in the Free Exercise Clause, which recognizes the value of religious training, teaching and observance and, more particularly, the right of every person to freely choose his own course with reference thereto, free of any compulsion from the state. This the Free Exercise Clause guarantees. Thus, as we have seen, the two clauses may overlap. As we have indicated, the Establishment Clause has been directly considered by this Court eight times in the past score of years and, with only one Justice dissenting on the point, it has consistently held that the clause withdrew all legislative power respecting religious belief or the expression thereof. The test may be stated as follows: what are the purpose and the primary effect of the enactment? If either is the advancement or inhibition of religion, then the enactment exceeds the scope of legislative power as circumscribed by the Constitution. That is to say that to withstand the strictures of the Establishment Clause there must be a secular legislative purpose and a primary effect that neither advances nor inhibits religion.

Applying the Establishment Clause principles to the cases at bar we find that the States are requiring the selection and reading at the opening of the school day of verses from the Holy Bible and the recitation of the Lord’s Prayer by the students in unison. These exercises are prescribed as part of the curricular activities of students who are required by law to attend school. They are held in the school buildings under the supervision and with the participation of teachers employed in those schools. * * * The trial court * * * has found that such an opening exercise is a religious ceremony and was intended by the State to be so. We agree with the trial court’s finding as to the religious character of the exercises. Given that finding, the exercises and the law requiring them are in violation of the Establishment Clause.

* * *

It is insisted that unless these religious exercises are permitted a “religion of secularism” is established in the schools. We agree of course that the State may not establish a “religion of secularism” in the sense of affirmatively opposing or showing hostility to religion, thus “preferring those who believe in no religion over those who do believe.” * * * We do not agree, however, that this decision in any sense has that effect. In addition, it might well be said that one’s education is not complete without a study of comparative religion or the history of religion and its relationship to the advancement of civilization. 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. But the exercises here do not fall into those categories. They are religious exercises, required by the States in violation of the

command of the First Amendment that the Government maintain strict neutrality, neither aiding nor opposing religion.

* * *

The place of religion in our society is an exalted one, achieved through a long tradition of reliance on the home, the church and the inviolable citadel of the individual heart and mind. We have come to recognize through bitter experience that it is not within the power of government to invade that citadel, whether its purpose of effect be to aid or oppose, to advance or retard. In the relationship between man and religion, the State is firmly committed to a position of neutrality. Though the application of that rule requires interpretation of a delicate sort, the rule itself is clearly and concisely stated in the words of the First Amendment. * * *

Notes and Questions

Suppose every child in a public-school classroom voted to begin each class with a prayer and Bible reading. Would this lift any constitutional infirmity? Is there a difference if a local school board or state statute authorizes such practices? Should protections surrounding the issue of separation of church and state be relaxed during times of natural disasters, acts of or a fear of terrorism, or a threat of imminent war or during a war?

American notions regarding the separation of church and state are not shared in many other countries. Religion is still only grudgingly tolerated in countries such as Russia. There is a Church of England, and that country’s monarch is also the church’s head; Christian churches in Germany receive direct government support; many Latin countries’ laws are based on Catholic church dogma; and teachings from the Koran underpin governmental policy in Islamic countries, thereby allowing religious leaders to exert enormous political and societal influence. In Saudi Arabia, the Koran serves as that country’s constitution. Daily state-sanctioned prayer periods are allowed in the public schools of Finland, Great Britain, Greece, Libya, Nepal, Pakistan, Romania, Saudi Arabia, Sweden, Thailand, and the two Canadian provinces of Newfoundland and Saskatchewan.

At the time they were rendered, the decisions in Engel and Schempp were considered to be highly controversial and were widely discussed. Many citizens berated the Court for being Godless, whereas others applauded the Court’s actions. Over the years, the decisions were flouted, often openly, by many public-school teachers, administrators, and school board members. Opponents of the decisions stimulated debate at the local, state, and national levels of government and attempted to introduce a constitutional amendment that would allow school prayer. To date, these political efforts have not

been successful in allowing school-sponsored sectarian prayer in the public schools. It should be noted that there is no prohibition on individual students, of their own volition, engaging in private nondisruptive prayer in school or at school activities.

Although litigation involving school prayer continued uninterrupted in the lower courts after Engel and Schempp, the United States Supreme Court did not directly address the issue again until Wallace v. Jaffree, 472 U.S. 38 (1985). This six-to-three decision held that setting aside classroom time for school-sponsored silent prayer, which was authorized in sixteen states at the time of the decision, was unconstitutional. The Court found that the expressed purpose of the Alabama law authorizing “meditation or silent prayer” was to return voluntary prayer to the schools. A careful reading of the decision suggests that allowing for a moment of silence, which was then authorized in nine states, may be constitutional. According to Justice O’Connor, who wrote a concurring opinion, the crucial question regarding a moment of silence is “whether the state has conveyed or attempted to convey the message that children should use the moment of silence for prayer.” This issue was again raised in Brown v. Gilmore, 258 F.3d 265 (4th Cir. 2001), cert. denied, 534 U.S. 996 (2001). The court of appeals upheld a Virginia law that authorized but did not require local school boards to establish a minute of silence in their classrooms. The law stated that “each pupil may, in the exercise of his or her individual choice, meditate, pray, or engage in any other silent activity which does not interfere with, distract, or impede other pupils in the like exercise of individual choice.” The court distinguished this case from Wallace because the Virginia law was not designed solely for school-sponsored silent prayer. Rather, the court contended that the minute of silence was an opportunity for students to think, meditate, quiet emotions, clear the mind, focus on the day, relax, doze, or pray. And the court reasoned, just as it served the religious interests of those students wishing to pray silently, it also served the secular interests of those not wishing to do so.

Prayer issues dealing with governmental agencies other than public schools have also appeared before the judiciary. See Marsh v. Chambers, 463 U.S. 783 (1983), which upheld the Nebraska legislative practice of opening the day with prayer. Many persons do not understand why this and similar practices by other levels and branches of government are allowed by the Supreme Court, but school prayers are not allowed.

3. Other Religious Activity

a. Displays.

A large picture of Jesus Christ, which had hung in a high school hallway, was found to endorse religion and violate the First Amendment. The court contended that the

picture’s prominence in the hallway, that it was not part of a larger display, and that it was not incorporated into a class lecture or other context had the effect of endorsing religion in general and Christianity in particular. See Washegesic v. Bloomingdale Public Schools, 813 F. Supp. 559 (Mich. 1993), aff’d, 33 F.3d 679 (6th Cir. 1994).

A state law requiring the posting of the Ten Commandments in public classrooms was upheld by a tie vote of the Kentucky Supreme Court in Stone v. Graham, 599 S.W.2d 157 (Ky. 1980). However, this provision was struck down by a five-to-four per curiam decision of the United States Supreme Court in 449 U.S. 39 (1980). The Court applied the three-part Lemon test, under which a challenged statute must (1) have a secular legislative purpose; (2) have a principal or primary effect that neither advances nor inhibits religion; and (3) not foster an excessive entanglement with religion. In concluding that the statute had no secular purpose, the Court found it to be unconstitutional. A statute need only violate one of the three Lemon principles to be held unconstitutional.

The constitutionality of displaying the Ten Commandments in a public place was addressed in two five-to-four decisions by the Supreme Court in McCreary County v. American Civil Liberties Union of Kentucky, 545 U.S. 844 (2005) and Van Orden v. Perry, 545 U.S. 677 (2005). The Court, in Van Orden, upheld the constitutionality of displaying a six-foot-high monolith inscribed with the Ten Commandments as a part of thirty-eight nonreligious educational and historical symbols outside the Texas State Capitol. In its holding, the Court’s plurality noted that the monolith had been in place for 40 years and recognized that the nation had a long history of displaying religious symbols in addition to recognizing the role of God in the nation’s heritage. The plurality maintained it was not overturning the decision in Stone because that decision only applied to a public-school setting. However, in McCreary County the Court did not uphold the practice of posting the Ten Commandments in a courthouse. The Court, employing Lemon analysis, held that the posting did not serve any secular purpose and therefore ran afoul of the Establishment Clause. The Court’s majority also revealed its suspicion of the display having been revised twice during litigation to give it a more secular and educational look, by stating that this was “reaching for any way to keep a religious document on the walls of the courthouse.” Additionally, the Court found similarities between the display the Court rejected in its Stone decision and what was attempted in McCreary County. As they had done in previous Establishment decisions, Justices Scalia and Thomas (both concurring in Van Orden and dissenting in McCreary County) revealed their distaste for the Lemon test in their opinions in Van Orden and McCreary County.

Holiday displays have been the subject of several United States Supreme Court opinions. In Allegheny v. American Civil Liberties Union, 492 U.S. 573 (1989), the Court

ruled, in a five-to-four vote, that a crèche depicting the Christian nativity scene placed in a county courthouse violated the Establishment Clause of the First Amendment. However, in the same decision, the Court, by a six-to-three margin, upheld a holiday display featuring an eighteen-foot Chanukah menorah, which was placed just outside a city-county building next to the city’s forty-five-foot decorated Christmas tree and a sign saluting liberty. The combined display, the Court reasoned, was recognition that both Christmas and Chanukah are part of the same winter-holiday season.

Five years earlier, in Lynch v. Donnelly, 465 U.S. 668 (1984), a forty-year practice of having a city-erected Christmas display in a park owned by a nonprofit organization was upheld by the Court. The display included a Santa Claus house, a Christmas tree, a banner that read “Seasons Greetings,” and a nativity scene. In its five-to-four decision, the Court contended that, in context, the display did not endorse religion. In Capitol Square Review and Advisory Board v. Pinette, 515 U.S. 753 (1995), the Court, in a seven-to-two decision, upheld the right of the Ku Klux Klan to place an unattended cross in a government plaza during the Christmas season. The Court stated that this action on the Klan’s part represented private expression and reiterated that private religious speech is as fully protected as secular private expression. The Court ruled that a public forum had been created because the square had been used for over a century for public speeches, gatherings, and festivals advocating and celebrating a variety of causes, both secular and religious. Finally, the Court held that religious expression does not violate the Establishment Clause when it (1) is purely private and (2) occurs in a traditional or designated public forum, publicly announced and open to all on equal terms.

A request to place a privately donated religious monument in a public park that already had fifteen other mostly privately donated permanent monuments, including one depicting the Ten Commandments, was brought before the United States Supreme Court in Pleasant Grove City v. Summum, 129 S.Ct. 1125 (2009). In its unanimous decision, allowing the placement of the monument, with four concurring opinions, the Court held:

. . that although a park is a traditional public forum for speeches and other transitory expressive acts, the display of a permanent monument in a public park is not a form of expression to which forum analysis applies. Instead, the placement of a permanent monument in a public park is best viewed as a form of government speech and is therefore not subject to scrutiny under the Free Speech Clause. (p. 1129)

* * *

If government entities must maintain viewpoint neutrality in their selection of donated monuments, they must either “brace themselves for an influx of clutter” or face the pressure to remove longstanding and cherished monuments. (p. 1138)

How would you distinguish Pleasant Grove City from Pinette? Does this decision have implications for public school districts that display privately donated monuments on their grounds? Would public-school property be viewed differently from a public park?

b. Halloween.

Some proponents of prayer in the public schools contend that Halloween is a pagan festival that has no place in the public schools. This issue was addressed in Guyer v. School Board of Alachua County, 634 So.2d 806 (Fla. App. 1994), appeal denied, 641 So.2d 1345 (Fla. 1994), cert. denied, 513 U.S. 1044 (1994), where it was alleged that the depiction of witches, cauldrons, brooms, and related costumes was a celebration of the Wiccan religion. The court held that the use of these symbols did not constitute an establishment of religion and that Halloween signified nothing more than the secular celebration of a traditional cultural event.

c. Music.

Complaints about celebratory religious music at school-sponsored events resulted in a school district policy banning such music. The policy was challenged because the district’s goal was to avoid a potential Establishment Clause violation, and it was alleged that this conveyed the impermissible government-sponsored message of disapproval of and hostility toward religion. In its decision, the court in Stratechuk v. Board of Education, South Orange-Maplewood School District, 587 F.3d 597 (3rd Cir. 2009), cert. denied, 562 U.S. ___ (2010) held that the school district’s policies did not have an impermissible purpose and satisfied all the prongs of the Lemon test (i.e., had a valid secular purpose, did not convey a message of disapproval of religion, and did not foster an excessive entanglement with religion). The court cited the following in relation to religious music:

. . . [Policy 2270 permitted the] inclusion of religious literature, music, drama, dance and visual arts in the curriculum provided that it achieves specific goals of the written curriculum in the various fields of study; that it is presented objectively; and that it neither inhibits nor advances any religious point of view. (p. 599)

* * *

4. Religious music, like any other music, can only be used if it achieves specific goals of the music curriculum. (p. 600)

Additionally, the court held that the policy did not violate students’ First Amendment right to receive information and ideas, right to learn, and right to academic freedom. The court also found that under the endorsement test, enunciated in Lynch v. Donnelly, the policy did not exhibit hostility or endorsement toward religion.

d. Observances.

In response to the United States Supreme Court’s decision in Employment Division, Department of Human Resources of Oregon v. Smith, 494 U.S. 872 (1990), which held that a state did not violate a Native American’s free exercise rights by refusing him employment benefits for smoking peyote as part of his religious observances, Congress passed the Religious Freedom Restoration Act (RFRA) in 1993. This law was designed to make it more difficult for state and local governments to limit an individual’s free exercise of religion. However, although still applicable to the federal government, the RFRA was held to be unconstitutional as applied to state governments in City of Boerne v. Flores, 521 U.S. 507 (1997). The Court held that Congress overstepped its authority by improperly expanding the scope of the First Amendment’s guarantee of the free exercise of religion. The Court contended that the law’s sweeping coverage ensured its intrusion at every level of government and made almost any governmental action or law subject to challenge by any individual who alleged a substantial burden on his or her free exercise of religion. Additionally, the Court emphasized that Congress cannot change the meaning of the Constitution by merely passing an ordinary statute or by doing so tell the judiciary how to decide cases.

Many court decisions that forced school officials to allow religious practices with which they were in disagreement were rendered by applying the Religious Freedom Restoration Act before it was held to be unconstitutional. In one of these decisions, Cheema v. Thompson, 67 F.3d 883 (9th Cir. 1995), the court allowed male Sikh students to wear a kirpan, a 61⁄2-to-7 inch curved, dull-edged ceremonial dagger worn in a sheath, which hangs around the neck and under clothing, although the school had a no-weapons policy.

The RFRA also created many problems in nonschool settings such as prisons. Under their interpretation of the RFRA, some prisoners demanded to be able to have sex because their reading of the scriptures told them to procreate. Others wanted certain dietary food, in one instance steak and lobster, based on their religion. These and similar, often bizarre, requests permeated every level of government before the law was held to be unconstitutional.

Does your state or local school system have provisions for school-sponsored teaching about religion, Bible reading or prayer, Bible study, silent prayer, meditation, voluntary prayer, or observance of religious holidays? Will noncompliance with statutory provisions prohibiting Bible reading or school-sponsored prayer result in any penalties in your state?

4. Prayers at Graduation Exercises and other Public-School-Sponsored Activities.

Courts have grappled with the constitutionality of invocations and benedictions at graduation exercises and prayer at other school-sponsored activities outside the classroom, such as football games, school assemblies, team prayers at the end of games and practices, and prior to band concerts and practices. In a dramatic five-to-four decision, which revealed a deep split among the justices, the United States Supreme Court in Lee v. Weisman ruled that prayers mandated or organized by school officials and delivered by local clergy at graduation exercises were unconstitutional.

Lee v. Weisman

Supreme Court of the United States, 1992 505 U.S. 577

JUSTICE KENNEDY delivered the opinion of the Court.

School principals in the public school system of the city of Providence, Rhode Island, are permitted to invite members of the clergy to offer invocation and benediction prayers as part of the formal graduation ceremonies for middle schools and for high schools. The question before us is whether including clerical members who offer prayers as part of the official school graduation ceremony is consistent with the Religion Clauses of the First Amendment, provisions the Fourteenth Amendment makes applicable with full force to the States and their school districts.

Deborah Weisman graduated from Nathan Bishop Middle School, a public school in Providence, at a formal ceremony in June 1989. She was about 14 years old. For many years it has been the policy of the Providence School Committee and the Superintendent of Schools to permit principals to invite members of the clergy to give invocations and benedictions at middle school and high school graduations. Many, but not all, of the principals elected to include prayers as part of the graduation ceremonies. Acting for himself and his daughter, Deborah’s father, Daniel Weisman, objected to any prayers at Deborah’s middle school graduation, but to no avail. The school principal, petitioner Robert E. Lee, invited a rabbi to deliver prayers at the graduation exercises for Deborah’s class. Rabbi Leslie Gutterman, of the Temple Beth El in Providence, accepted.

It has been the custom of Providence school officials to provide invited clergy with a pamphlet entitled “Guidelines for Civic Occasions,” prepared by the National Conference of Christians and Jews. The Guidelines recommend that public prayers of nonsectarian civic ceremonies be composed with “inclusiveness and sensitivity,” though they acknowledge that “[p]rayer of any kind may be inappropriate on some civic occasions.” The principal gave Rabbi Gutterman the pamphlet before the graduation and advised him the invocation and benediction should be nonsectarian.

Rabbi Gutterman’s prayers were as follows:

“Invocation

“God of the Free, Hope of the Brave:

“For the legacy of America where diversity is celebrated and the rights of minorities are protected, we thank You. May these young men and women grow up to enrich it.

“For the liberty of America, we thank You. May these new graduates grow up to guard it.

“For the political process of America in which all its citizens may participate, for its court system where all may seek justice we thank You. May those we honor this morning always turn to it in trust.

“For the destiny of America we thank You. May the graduates of Nathan Bishop Middle School so live that they might help to share it.

“May our aspirations for our country and for these young people, who are our hope for the future, be richly fulfilled.

“AMEN”

“Benediction

“O God, we are grateful to You for having endowed us with the capacity for learning which we have celebrated on this joyous commencement.

“Happy families give thanks for seeing their children achieve an important milestone. Send Your blessings upon the teachers and administrators who helped prepare them.

“The graduates now need strength and guidance for the future, help them to understand that we are not complete with academic knowledge alone. We must each strive to fulfill what You require of us all: To do justly, to love mercy, to walk humbly.

“We give thanks to You, Lord, for keeping us alive, sustaining us and allowing us to reach this special, happy occasion.

“AMEN”

* * *

The case was submitted on stipulated facts. The District Court held that petitioners’ practice of including invocations and benedictions in public school graduations violated the Establishment Clause of the First Amendment, and it enjoined petitioners from continuing the practice. The court applied the three-part Establishment Clause test set forth in Lemon v. Kurtzman. Under that test as described in our past cases, to satisfy the Establishment Clause a governmental practice must (1) reflect a clearly secular purpose; (2) have a primary effect that neither advances nor inhibits religion; and (3) avoid excessive government entanglement with religion.* * * The District Court held that petitioners’ actions violated the second part of the test, and so did not address either the first or the third. The court decided, based on its reading of our precedents, that the effects test of Lemon is violated whenever government action “creates an identification of the state with a religion, or with religion in general,” or when “the effect of the governmental action is to endorse one religion over another, or to endorse religion in general.” The court determined that the practice of including invocations and benedictions, even so-called nonsectarian ones, in public school graduations creates an identification of governmental power with religious practice, endorses religion, and violates the Establishment Clause.* * *

* * *

These dominant facts mark and control the confines of our decision: State officials direct the performance of a formal religious exercise at promotional and graduation ceremonies for secondary schools. Even for those students who object to the religious exercise, their attendance and participation in the state-sponsored religious activity are in a fair and real sense obligatory, though the school district does not require attendance as a condition for receipt of the diploma.

This case does not require us to revisit the difficult questions dividing us in recent cases, questions of the definition and full scope of the principles governing the extent of permitted accommodation by the State for the religious beliefs and

practices of many of its citizens. See Allegheny County v. Greater Pittsburgh ACLU; Wallace v. Jaffree; Lynch v. Donnelly. For without reference to those principles in other contexts, the controlling precedents as they relate to prayer and religious exercise in primary and secondary public schools compel the holding here that the policy of the city of Providence is an unconstitutional one. We can decide the case without reconsidering the general constitutional framework by which public schools’ efforts to accommodate religion are measured. Thus we do not accept the invitation of petitioners and amicus the United States to reconsider our decision in Lemon v. Kurtzman, supra. The government involvement with religious activity in this case is pervasive, to the point of creating a state-sponsored and state-directed religious exercise in a public school. Conducting this formal religious observance conflicts with settled rules pertaining to prayer exercises for students, and that suffices to determine the question before us.

The principle that government may accommodate the free exercise of religion does not supersede that fundamental limitations imposed by the Establishment Clause. It is beyond dispute that, at a minimum, the Constitution guarantees that 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.”* * *

* * *

We are asked to recognize the existence of a practice of nonsectarian prayer, prayer within the embrace of what is known as the Judeo-Christian tradition, prayer which is more acceptable than one which, for example, makes explicit references to the God of Israel, or to Jesus Christ, or to a patron saint. There may be some support, as an empirical observation, to the statement of the Court of Appeals for the Sixth Circuit, picked up by Judge Campbell’s dissent in the Court of Appeals in this case, that there has emerged in this country a civic religion, one which is tolerated when sectarian exercises are not.* * *

The First Amendment’s Religion Clauses mean that religious beliefs and religious expression are too precious to be either proscribed or prescribed by the State. The design of the Constitution is that preservation and transmission of religious beliefs and worship is a responsibility and a choice committed to the private sphere, which itself is promised freedom to pursue that mission. It must not be forgotten then, that while concern must be given to define the protection granted to an objector or a dissenting nonbeliever, these same Clauses exist to protect religion from government interferences.* * *

* * *

The lessons of the First Amendment are as urgent in the modern world as in the 18th Century when it was written. One timeless lesson is that if citizens are subjected to state-sponsored religious exercises, the State disavows its own duty to guard and respect that sphere of inviolable conscience and belief which is the mark of a free people. To compromise that principle today would be to deny our own tradition and forfeit our standing to urge others to secure the protections of that tradition for themselves.

As we have observed before, there are heightened concerns with protecting freedom of conscience from subtle coercive pressure in the elementary and secondary public schools.* * * Our decisions in Engel v. Vitale and Abington School District, supra, recognize, among other things, that prayer exercises in public schools carry a particular risk of indirect coercion.* * * See Allegheny County v. Greater Pittsburgh ACLU. What to most believers may seem nothing more than a reasonable request that the nonbeliever respect their religious practices, in a school context may appear to the nonbeliever or dissenter to be an attempt to employ the machinery of the State to enforce a religious orthodoxy.

We need not look beyond the circumstances of this case to see the phenomenon at work. The undeniable fact is that the school district’s supervision and control of a high school graduation ceremony places public pressure, as well as peer pressure, on attending students to stand as a group or, at least, maintain respectful silence during the Invocation and Benediction. This pressure, though subtle, and indirect, can be as real as any overt compulsion.* * * There can be no doubt that for many, if not most, of the students at the graduation, the act of standing or remaining silent was an expression of participation in the Rabbi’s prayer. That was the very point of the religious exercise. It is of little comfort to a dissenter, then, to be told that for her the act of standing or remaining in silence signifies mere respect, rather than participation. What matters is that, given our social conventions, a reasonable dissenter in this milieu could believe that the group exercise signified her own participation or approval of it.

Finding no violation under these circumstances would place objectors in the dilemma of participating, with all that implies, or protesting. We do not address whether that choice is acceptable if the affected citizens are mature adults, but we think the State may not, consistent with the Establishment Clause, place primary and secondary school children in this position. Research in psychology supports the common assumption that adolescents are often susceptible to pressure from their peers towards conformity, and that the influence is strongest in matters of social convention.* * * To recognize that the choice imposed by the State constitutes an unacceptable constraint only acknowledges that the government

may no more use social pressure to enforce orthodoxy than it may use more direct means.

The injury caused by the government’s action, and the reason why Daniel and Deborah Weisman object to it, is that the State, in a school setting, in effect required participation in a religious exercise. It is, we concede, a brief exercise during which the individual can concentrate on joining its message, meditate on her own religion, or let her mind wander. But the embarrassment and the intrusion of the religious exercise cannot be refuted by arguing that these prayers, and similar ones to be said in the future, are of a de minimis character. To do so would be an affront to the Rabbi who offered them and to all those for whom the prayers were an essential and profound recognition of divine authority. And for the same reason, we think that the intrusion is greater than the two minutes or so of time consumed for prayers like these.* * *

* * *

True, Deborah could elect not to attend commencement without renouncing her diploma; but we shall not allow the case to turn on this point. Everyone knows that in our society and in our culture high school graduation is one of life’s most significant occasions. A school rule which excuses attendance is beside the point. Attendance may not be required by official decree, yet it is apparent that a student is not free to absent herself from the graduation exercise in any real sense of the term “voluntary,” for absence would require forfeiture of those intangible benefits which have motivated the student through youth and all her high school years. Graduation is a time for family and those closest to the student to celebrate success and express mutual wishes of gratitude and respect, all to the end of impressing upon the young person the role that it is his or her right and duty to assume in the community and all of its diverse parts.

The importance of the event is the point the school district and the United States rely upon to argue that a formal prayer ought to be permitted, but it becomes one of the principal reasons why their argument must fail. Their contention, one of considerable force were it not for the constitutional constraints applied to state action, is that the prayers are an essential part of these ceremonies because for many persons an occasion of this significance lacks meaning if there is no recognition, however brief, that human achievements cannot be understood apart from their spiritual essence. We think the Government’s position that this interest suffices to force students to choose between compliance or forfeiture demonstrates fundamental inconsistency in its argumentation. It fails to acknowledge that what for many of Deborah’s classmates and their parents was a spiritual imperative was for Daniel and Deborah Weisman religious conformance

compelled by the State. While in some societies the wishes of the majority might prevail, the Establishment Clause of the First Amendment is addressed to this contingency and rejects the balance urged upon us. The Constitution forbids the State to exact religious conformity from a student as the price of attending her own high school graduation. This is the calculus the Constitution commands.

The Government’s argument gives insufficient recognition to the real conflict of conscience faced by the young student. The essence of the Government’s position is that with regard to a civic, social occasion of this importance it is the objector, not the majority, who must take unilateral and private action to avoid compromising religious scruples, here by electing to miss the graduation exercise. This turns conventional First Amendment analysis on its head. It is a tenet of the First Amendment that the State cannot require one of its citizens to forfeit his or her rights and benefits as the price of resisting conformance to state-sponsored religious practice. To say that a student must remain apart from the ceremony at the opening invocation and closing benediction is to risk compelling conformity in an environment analogous to the classroom setting, where, we have said the risk of compulsion is especially high. * * *

Inherent differences between the public school system and a session of a State Legislature distinguish this case from Marsh v. Chambers. The considerations we have raised in objection to the invocation and benediction are in many respects similar to the arguments we considered in Marsh. But there are also obvious differences. The atmosphere at the opening of a session of a state legislature where adults are free to enter and leave with little comment and for any number of reasons cannot compare with the constraining potential of the one school event most important to the student to attend. The influence and force of a formal exercise in a school graduation are far greater than the prayer exercise we condoned in Marsh. At a high school graduation, teachers and principals must and do retain a high degree of control over the precise contents of the program, the speeches, the timing, the movements, the dress, and the decorum of the students. * * * In this atmosphere the state-imposed character of an invocation and benediction by clergy selected by the school combine to make the prayer a state-sanctioned religious exercise in which the student was left with no alternative but to submit. This is different from Marsh and suffices to make the religious exercise a First Amendment violation. * * *

We do not hold that every state action implicating religion is invalid if one or a few citizens find it offensive. People may take offense at all manner of religious as well as nonreligious messages, but offense alone does not in every case show a violation. We know too that sometimes to endure social isolation or even anger may be the price of

conscience or nonconformity. But, by any reading of our cases, the conformity required of the student in this case was too high an exaction to withstand the test of the Establishment Clause. The prayer exercises in this case are especially improper because the State has in every practical sense compelled attendance and participation in an explicit religious exercise at an event of singular importance to every student, one the objecting student had no real alternative to avoid.

* * *

Our society would be less than true to its heritage if it lacked abiding concern for the values of its young people, and we acknowledge the profound belief of adherents to many faiths that there must be a place in the student’s life for precepts of a morality higher even than the law we today enforce. We express no hostility to those aspirations, nor would our oath permit us to do so. A relentless and all-pervasive attempt to exclude religion from every aspect of public life could itself become inconsistent with the Constitution. * * * We recognize that, at graduation time and throughout the course of the educational process, there will be instances when religious values, religious practices, and religious persons will have some interaction with the public schools and their students. * * * But these matters, often questions of accommodation of religion, are not before us. The sole question presented is whether a religious exercise may be conducted at a graduation ceremony in circumstances where, as we have found, young graduates who object are induced to conform. No holding by this Court suggests that a school can persuade or compel a student to participate in a religious exercise. That is being done here, and it is forbidden by the Establishment Clause of the First Amendment.

For the reasons we have stated, the judgment of the Court of Appeals is

Affirmed.

JUSTICE SCALIA, with whom THE CHIEF JUSTICE, JUSTICE WHITE, and JUSTICE THOMAS join, dissenting.

Three Terms ago, I joined an opinion recognizing that the Establishment Clause must be construed in light of the “[g]overnment policies of accommodation, acknowledgment, and support for religion [that] are an accepted part of our political and cultural heritage.” That opinion affirmed that “the meaning of the Clause is to be determined by reference to historical practices and understandings.” It said that “[a] test for implementing the protections of the Establishment Clause that, if applied with consistency, would invalidate longstanding traditions cannot be a proper reading of the Clause.” Allegheny County v. Greater Pittsburgh ACLU.

These views of course prevent me from joining today’s opinion, which is conspicuously bereft of any reference to history. In holding that the Establishment Clause prohibits invocations and benedictions at public-school graduation ceremonies, the Court—with nary a mention that it is doing so—lays waste a tradition that is as old as public-school graduation ceremonies themselves, and that is a component of an even more longstanding American tradition of nonsectarian prayer to God at public celebrations generally. As its instrument of destruction, the bulldozer of its social engineering, the Court invents a boundless, and boundlessly manipulable, test of psychological coercion, * * * Today’s opinion shows more forcefully than volumes of argumentation why our Nation’s protection, that fortress which is our Constitution, cannot possibly rest upon the changeable philosophical predilections of the Justices of this Court, but must have deep foundations in the historic practices of our people.

* * *

The history and tradition of our nation are replete with public ceremonies featuring prayers of thanksgiving and petition. * * *

From our Nation’s origin, prayer has been a prominent part of governmental ceremonies and proclamations. * * *

* * *

The other two branches of the Federal Government also have a long-established practice of prayer at public events. As we detailed in Marsh, Congressional sessions have opened with a chaplain’s prayer ever since the First Congress. And this Court’s own sessions have opened with the invocation “God save the United States and this Honorable Court” since the days of Chief Justice Marshall. * * *

In addition to this general tradition of prayer at public ceremonies, there exists a more specific tradition of invocations and benedictions at public-school graduation exercises. * * * As the Court obliquely acknowledges in describing the “customary features” of high school graduations, and as respondents do not contest, the invocation and benediction have long been recognized to be “as traditional as any other parts of the [school] graduation program and are widely established.” * * *

The Court presumably would separate graduation invocations and benedictions from other instances of public “preservation and transmission of religious beliefs” on the ground that they involve “psychological coercion.” I find it a sufficient embarrassment that our Establishment Clause jurisprudence regarding holiday displays, see Allegheny County v. Greater Pittsburgh ACLU, has come to “requir[e] scrutiny more commonly

associated with interior decorators than with the judiciary.” * * * But interior decorating is a rock-hard science compared to psychology practiced by amateurs. A few citations of “[r]esearch in psychology” that have no particular bearing upon the precise issue here, cannot disguise the fact that the Court has gone beyond the realm where judges know what they are doing. The Court’s argument that state officials have “coerced” students to take part in the invocation and benediction at graduation ceremonies is, not to put too fine a point on it, incoherent.

* * *

The Court declares that students’ “attendance and participation in the [invocation and benediction] are in a fair and real sense obligatory.” But what exactly is this “fair and real sense”? According to the Court, students at graduation who want “to avoid the fact or appearance of participation,” in the invocation and benediction are psychologically obligated by “public pressure, as well as peer pressure, . . . to stand as a group or, at least, maintain respectful silence” during those prayers. This assertion—the very linchpin of the Court’s opinion—is almost as intriguing for what it does not say as for what it says. It does not say, for example, that students are psychologically coerced to bow their heads, place their hands in a Dürer-like prayer position, pay attention to the prayers, utter “Amen,” or in fact pray. (Perhaps further intensive psychological research remains to be done on these matters.) It claims only that students are psychologically coerced “to stand . . . or, at least, maintain respectful silence.” * * *

* * *

The opinion manifests that the Court itself has not given careful consideration to its test of psychological coercion. For if it had, how could it observe, with no hint of concern or disapproval, that students stood for the Pledge of Allegiance, which immediately preceded Rabbi Gutterman’s invocation? The government can, of course, no more coerce political orthodoxy than religious orthodoxy. West Virginia Board of Education v. Barnette. Moreover, since the Pledge of Allegiance has been revised since Barnette to include the phrase “under God,” recital of the Pledge would appear to raise the same Establishment Cause issue as the invocation and benediction. If students were psychologically coerced to remain standing during the invocation, they must also have been psychologically coerced, moments before, to stand for (and thereby, in the Court’s view, take part in or appear to take part in) the Pledge.

* * *

The other “dominant fac[t]” identified by the Court is that “[s]tate officials direct the performance of a formal religious exercise” at school graduation ceremonies. * * * All the record shows is that principals of the Providence public schools, acting within their

delegated authority, have invited clergy to deliver invocations and benedictions at graduations; and that Principal Lee invited Rabbi Gutterman, provided him a two-page flyer, prepared by the National Conference of Christians and Jews, giving general advice on inclusive prayer for civic occasions, and advised him that his prayers at graduation should be nonsectarian. How these facts can fairly be transformed into the charges that Principal Lee “directed and controlled the content of [Rabbi Gutterman’s] prayer,” that school officials “monitor prayer,” and attempted to “ ‘compose official prayers,’ ” and that the “government involvement with religious activity in this case is pervasive,” is difficult to fathom.

* * *

The deeper flaw in the Court’s opinion does not lie in its wrong answer to the question whether there was state-induced “peer-pressure” coercion; it lies, rather, in the Court’s making violation of the Establishment Clause hinge on such a precious question. The coercion that was a hallmark of historical establishments of religion was coercion of religious orthodoxy and of financial support by force of law and threat of penalty. Typically, attendance at the state church was required; only clergy of the official church could lawfully perform sacraments; and dissenters, if tolerated, faced an array of civil disabilities. * * *

The Establishment Clause was adopted to prohibit such an establishment of religion at the federal level (and to protect state establishments of religion from federal interference). * * *

Thus, while I have no quarrel with the Court’s general proposition that the Establishment Clause “guarantees that government may not coerce anyone to support or participate in religion or its exercise,” I see no warrant for expanding the concept of coercion beyond acts backed by threat of penalty—a brand of coercion that, happily, is readily discernible to those of us who have made a career of reading the disciples of Blackstone rather than of Freud. * * *

* * *

Our religion-clause jurisprudence has become bedeviled (so to speak) by reliance on formulaic abstractions that are not derived from, but positively conflict with, our long-accepted constitutional traditions. Foremost among these has been the so-called Lemon test, see Lemon v. Kurtzman, which has received well-earned criticism from many members of this Court. * * * The Court today demonstrates the irrelevance of Lemon by essentially ignoring it, and the interment of that case may be the one happy byproduct of the Court’s otherwise lamentable decision. Unfortunately, however, the Court has replaced Lemon with its psycho-coercion test, which suffers the double

disability of having no roots whatever in our people’s historic practice, and being as infinitely expandable as the reasons for psychotherapy itself.

Another happy aspect of the case is that it is only a jurisprudential disaster and not a practical one. Given the odd basis for the Court’s decision, invocations and benedictions will be able to be given at public-school graduations next June, as they have for the past century and a half, so long as school authorities make clear that anyone who abstains from screaming in protest does not necessarily participate in the prayers. All that is seemingly needed is an announcement, or perhaps a written insertion at the beginning of the graduation Program, to the effect that, while all are asked to rise for the invocation and benediction, none is compelled to join in them, nor will be assumed, by rising, to have done so. That obvious fact recited, the graduates and their parents may proceed to thank God, as Americans have always done, for the blessings He has generously bestowed on them and on their country.

* * *

Notes and Questions

Many observers thought that, due to several personnel changes that had occurred on the Court since Jaffree, the Leedecision would have become a vehicle for changing the legal rules regarding prayer in public schools. Rather, in addition to clearly revealing the basic philosophic differences regarding this issue, the majority, concurring, and dissenting opinions also exposed the high degree of acrimony among the justices. Although seeming not to be abandoning the Lemon test, Justice Kennedy formulated another test, in the majority opinion, which has become known as the coercion test.

Justice Scalia’s dissent in Lee contains several remarkable statements whose discussion should enliven class debate. He states that the majority opinion “. . . lays waste [to a] longstanding American tradition of nonsectarian prayer to God at public celebrations generally.” Could not the same argument have been made regarding a long-standing tradition when the Court struck down segregation in the public schools in 1954? He asserts that the Court’s decision has replaced the Lemontest, yet the majority opinion states “. . . we do not accept the invitation . . . to reconsider Lemon . . . ,” and affirms the lower courts’ use of the test. Does Justice Scalia suggest that states may establish an official state religion when he asserts “The Establishment Clause was adopted to prohibit such an establishment of religion at the federal level and to protect state establishments of religion from federal interference” [emphasis added]?* Does Justice Scalia undermine the spirit of the majority decision when he offers a suggestion for circumventing the Lee decision whereby school officials could merely insert a disclaimer in the graduation announcement? Does his dissent accurately reflect the view of the majority of Americans at this time in our history on the prayer issue?

A later Court decision, Santa Fe Independent School District v. Doe, 530 U.S. 290 (2000), addressed the issue of prayer at football games, and several U.S. Courts of Appeals continued to address prayer at graduation exercises. Before reviewing those decisions, a brief discussion of the background of the justices who decided the Lee decision may be helpful.

Justice Anthony Kennedy, who wrote the majority opinion in Lee, had been in private practice and a member of the U.S. Court of Appeals for the Ninth Circuit prior to being appointed to the Supreme Court by President Reagan in 1987. Joining Justice Kennedy in the decision were Justices Blackmun, Stevens, O’Connor, and Souter. Justice Blackmun was appointed to the Court by President Nixon in 1970 and retired in 1994. He was replaced in 1994 by Stephen Breyer, who had been chief judge of the U.S. Court of Appeals for the First Circuit. Justice Stevens had been in private practice and a member of the U.S. Court of Appeals for the Seventh Circuit before being appointed to the Supreme Court by President Ford in 1975. He resigned from the Court in 2010 and was replaced by Elena Kagan, who became the fourth woman to sit on the high court. Her background included being a law clerk for Thurgood Marshall, professor of constitutional law and administrative law at the University of Chicago and Harvard, Dean of the Harvard Law School, and the first woman solicitor general. Sandra Day O’Connor was the first woman to be appointed a Supreme Court justice. Before her appointment by President Reagan in 1981, she was an assistant attorney general, a state appellate court judge, and a legislator in Arizona. She left the Court in 2006 and was replaced by Samuel Alito, who had been on the U.S. Court of Appeals for the Third Circuit for sixteen years. Prior to his service on the circuit court, he had been U.S. Attorney for the District of New Jersey and an assistant to the U.S. solicitor general. Justice David Souter was appointed to the Court by President George H. Bush in 1990. He had been state attorney general and a member of the New Hampshire Supreme Court. Justice Souter was replaced by Justice Sonia Sotomayor in 2009. Appointed by President Barack Obama, she became the Court’s first Hispanic justice and its third female justice. Prior to her appointment, she had been an assistant district attorney in New York, was in private practice, and served on the U.S. Court of Appeals for the Second Circuit for eleven years.

Justice Antonin Scalia, who wrote the dissenting opinion in Lee, was joined by Chief Justice Rehnquist and Justices White and Thomas. Justice Scalia was appointed by President Reagan in 1986 to replace Justice Rehnquist, who was elevated to the Chief Justiceship. Justice Scalia came to the High Court from the U.S. Court of Appeals for the District of Columbia. He had been a practicing attorney, law school professor, and an assistant attorney general in the Justice Department. Justice Scalia is considered to have an “originalist” interpretation of the Constitution. Chief Justice William H. Rehnquist was appointed by President Reagan in 1986 to become the sixteenth Chief

Justice of the Supreme Court, replacing Chief Justice Warren Burger. Rehnquist had been an associate justice since 1972. Before his tenure on the Court, he had been a law clerk for Justice Robert Jackson, in private practice, and an assistant attorney general in the Justice Department. Chief Justice Rehnquist died in 2005. He was replaced in that year as Chief Justice by John G. Roberts, Jr., who had been a judge on the U.S. Court of Appeals for the District of Columbia, in private practice, principal deputy solicitor general, associate counsel to President Reagan in the White House Counsel’s Office, special assistant to the attorney general, and a law clerk to Rehnquist when he was an associate justice. Justice Byron “Whizzer” White brought a unique background to the Supreme Court. Justice White was a Phi Beta Kappa, Rhodes scholar, all-American football star at the University of Colorado, professional football player (leading ground gainer in the National Football League in 1938), member of the Football Hall of Fame, decorated naval officer, Supreme Court clerk, lawyer, and a deputy attorney general in the Justice Department. He was the leader of the Citizens for Kennedy in Colorado, and he was appointed to the Court by President Kennedy in 1962. Justice White left the Court in 1993. Justice Ruth Bader Ginsburg, who replaced Justice White, is the second woman on the Court. She has been a law school professor and spent thirteen years on the U.S. Court of Appeals for the District of Columbia prior to her appointment. Justice Clarence Thomas was appointed to the Court by President George H. Bush in 1991. He had been an assistant attorney general in Missouri, Chairman of the Equal Employment Opportunity Commission, and a judge on the U.S. Court of Appeals for the District of Columbia. His nomination drew intense scrutiny during confirmation hearings related to allegations of sexual harassment, unfitness, and being a right-wing ideologue.

The Lee decision did not end the debate over religious activities at graduation exercises. After the Court’s decision, the U.S. Court of Appeals for the Fifth Circuit, in Jones v. Clear Creek Independent School District, 977 F.2d 963 (5th Cir. 1992), cert. denied, 508 U.S. 967 (1993), upheld a school district resolution permitting public high school seniors to choose student volunteers to deliver nonsectarian, nonproselytizing invocations and/or benedictions at their graduation ceremonies. This court distinguished its case from Lee on the facts; namely, students, not the school, were making the decision regarding the speaker and the religious content at the graduation exercise, whereas in Lee it was the school principal. In its ruling, the appellate court reviewed five tests the Supreme Court had employed from Lemon to Lee to determine whether a public school’s involvement with religion violated the Establishment Clause. Based on this analysis, the court concluded the resolution: had a secular purpose; had as its primary effect to solemnize graduation and not “advance religion”; did not excessively entangle government with religion; and did not endorse religion, because the decision of graduation invocation content was made by a majority of the senior class. Additionally, the court asserted that (1) graduation attendees were not coerced to join in a formal

religious exercise because the school did not have direct and complete control over graduation prayers, (2) it was not a “formal religious observance,” and (3) there was little psychological pressure on students because a student presenter is less able to coerce participation than an authority figure from the state or clergy. The court concluded that, in an instance such as this, the majority of students could do what the state acting on its own could not do.

Certiorari was denied in Jones. Such a denial simply means that four or more Justices did not vote to hear the case. Under the “rule of four,” at least four Justices must vote to hear a case before certiorari will be granted. When certiorari is denied, as it was in Jones, the lower court decision stands and only has applicability, in this instance, in the Fifth Circuit.

A decision by the U.S. Courts of Appeals for the Third Circuit, American Civil Liberties Union of New Jersey v. Black Horse Pike Regional Board of Education, 84 F.3d 1471 (3rd. Cir. 1996), rejected the Jones rationale. In this instance, a board policy, based on the Jones precepts, allowed high school seniors to vote, “in the spirit of protected speech,” to determine whether prayer would be included in graduation ceremonies. The policy also contained a disclaimer explaining that any presentation given at graduation did not reflect views of the school board. The appellate court did not accept the charge that the students’ freedom of speech was being abridged by their not being allowed to have prayer at graduation. Rather, the court asserted that an impermissible practice, such as restricting one’s freedom of religion, cannot be transformed into a constitutionally acceptable one by putting a democratic process, such as allowing a vote, to an improper use. And the court reasoned, “A policy that does this cannot be legitimized by arguing that it promotes the free speech of the majority.” The court also argued that even with the disclaimer the school had considerable control over graduation by stating:

Although the state’s involvement here is certainly less evident, the student referendum does not erase the state’s imprint from this graduation prayer. Graduation at Highland Regional High School, like graduation at nearly any other school, is a school sponsored event. School officials decide the sequence of events and the order of speakers on the program, and ceremonies are typically held on school property at no cost to the students. The atmosphere at Highland’s graduations is characterized by order and uniformity. School officials necessarily [citing Lee] “retain a high degree of control over the precise contents of the program, the speeches, the timing, the movements, the dress, and the decorum of the students.” * * * Delegation of one aspect of the ceremony to a plurality of students does not constitute the absence of school officials’ control over the graduation.

Students decided the question of prayer at graduation only because school officials agreed to let them decide that one question. (p. 1479)

The court disputed the notion that attendance at graduation was voluntary because there is so much public pressure, as well as peer pressure, to attend graduation. It stated, “Everyone knows that in our society and in our culture high school graduation is one of life’s most significant occasions.” The court also declared that the disclaimer did not help “. . . recapture some of the separation between church and state . . .” and that the “ . . . [school] Board cannot sanction coerced participation in a religious observance merely by disclaiming responsibility for the content of the ceremony.” Although the school board contended that prayer solemnizes this “once-in-a-lifetime” event, the court questioned why it would be less solemn if students were not permitted to vote. In conclusion, the court declared:

We cannot allow the school district’s delegate to make decisions that the school district cannot make. When the senior class is given plenary power over a state-sponsored, state-controlled event such as high school graduation, it is just as constrained by the Constitution as the state would be. (p. 1483)

In Santa Fe Independent School District v. Doe, 530 U.S. 290 (2000), the United States Supreme Court, in a six-to-three decision, held that student-led, student-initiated prayer at football games violated the Establishment Clause. The challenged school policy authorized an “invocation and/or message” before home football games and also authorized two student elections, the first to determine whether prayers should be delivered at games and the second to select the spokesperson to deliver them. In its decision, the Court reiterated its language regarding coercion in Lee v. Weisman that, “at a minimum, the Constitution guarantees that government may not coerce anyone to support or participate in religion or its exercise, or otherwise act in a way that establishes a state religion or religious faith, or tends to do so.” Additionally, the Court addressed such issues as whether the disputed practice was private speech, the district’s attempt to introduce prayer at football games by having a student election sanction it, the school district’s attempt to ferret out the plaintiffs’ identities, and the district’s policy being a sham.

The Court asserted that coercion in this case manifested itself in several ways. Having student elections did not absolve the district from impermissible coercion because it was the district’s decision to hold the “constitutionally problematic election.” The Court also held that the district’s contention that attendance at a football game was voluntary, unlike graduation, was also unpersuasive, because several groups of students such as cheerleaders, band members (sometimes for class credit), and football players would

have to attend games. Also, not to be overlooked, the Court maintained, was the genuine desire and immense social pressure to attend “the extracurricular event that is American football.” And the Court stated that “the Constitution demands that schools not force on students the difficult choice between whether to attend these games or to risk facing a personally offensive religious ritual.”

Giving the invocation at games was not private speech, as the school district argued. The Court determined that the invocation was given on school property, at a school-sponsored event, using the school’s public address system, by a speaker representing the student body, under the supervision of the faculty, and pursuant to a school policy that explicitly and implicitly encouraged school prayer. And, the pregame ceremony could not be considered an open forum, the Court reasoned, because the ceremony was not open to indiscriminate use by the student body.

Establishing a student electoral mechanism, the Court held, turned the school into a forum for religious debate and empowered the student majority with the authority to subject students of minority views to constitutionally improper messages. Such a system, the Court stated, undermines the essential protection of minority viewpoints and “. . . encourages divisiveness along religious lines and threatens the imposition of coercion upon these students not desiring to participate in a religious exercise.”

The Court also expressed its concern that the plaintiffs, Mormon and Catholic families, needed protection from intimidation and harassment resulting in the district court allowing them to litigate anonymously as “Does” and issuing an order that provided, in part:

[A]ny further attempt on the part of the District or school administration, officials, counselors, teachers, employees or servants of the School District, parents, students or anyone else, overtly or covertly to ferret out the identities of the Plaintiffs in this cause, by means of bogus petitions, questionnaires, individual interrogation, or downright “snooping” will cease immediately. ANYONE TAKING ANY ACTION ON SCHOOL PROPERTY, DURING SCHOOL HOURS, OR WITH SCHOOL RESOURCES OR APPROVAL FOR PURPOSES OF ATTEMPTING TO ELICIT THE NAMES OR IDENTITIES OF THE PLAINTIFFS IN THIS CAUSE OF ACTION, BY OR ON BEHALF OF ANY OF THESE INDIVIDUALS, WILL FACE THE HARSHEST POSSIBLE CONTEMPT SANCTIONS FROM THIS COURT, AND MAY ADDITIONALLY FACE CRIMINAL LIABILITY. . . . (pp. 294–295, n.1)

The strongly worded majority opinion in Santa Fe revealed the Court’s attitude toward the school district’s impermissible attempt to introduce prayer at football games. The Court referred to the policy’s sham secular purpose and announced that the district “. . .

asks us to pretend that we do not recognize what every Santa Fe High School student understands clearly—that this policy is about prayer. The District further asks us to accept what is obviously untrue: that these messages are necessary to ‘solemnize’ a football game and that this single-student, year-long position is essential to the protection of student speech.”

In this case, the school board obviously reflected the values of a majority in the community regarding prayer at football games by instituting the policy under which prayers would be given, and when that was challenged, engaged in litigation all the way to the United States Supreme Court. The school board clearly revealed that it would fight with all its might to preserve values it considered important. Would you consider the board to be a role model to students by its conduct in this case? Prayer at football games was the issue in Santa Fe; however, does the language of the Court suggest that the practice of allowing prayer at other school-sponsored activities outside the classroom such as school assemblies, team prayers before or at the end of games or practices, and prior to band concerts and practices may also be unconstitutional?

After the Santa Fe decision, two U.S. courts of appeals rendered opposite opinions regarding religious expression at graduation exercises. Adler v. Duval County School Board, 250 F.3d 1330 (11th Cir. 2001), cert. denied, 534 U.S. 1065 (2001), upheld a school policy that allowed high school seniors to vote on whether to have a two-minute opening and/or closing message at their graduation. If the class voted to have a message, it would be prepared and delivered by a senior class volunteer who was chosen by the senior class. The content of the message would be entirely of his or her choosing and would not be monitored or reviewed by school officials. In its ruling, the court distinguished this case from Santa Feon several grounds. These included: School officials had no power to direct that a religious message would be delivered because they were divorced from the decision-making process; school officials had no control over the content of the message because its content rested solely with the student speaker and neither the senior class nor school officials exercised any oversight over content; and although the school board may have exerted control over the entire graduation exercise, it did not have control over this element. In the initial appeal to the Supreme Court, the case was vacated and remanded for further consideration by the appellate court in light of the Court’s decision in Santa Fe. After rehearing the case en banc, the appellate court reinstated its original decision, and on its appeal to the Supreme Court was denied.

In Lassonde v. Pleasanton Unified School District, 320 F3d 979 (9th Cir. 2003), cert. denied, 540 U.S. 817 (2003), the appellate court held that censoring sectarian, proselytizing portions of a student’s speech given at his high school graduation ceremony did not violate his freedom of speech. In this case, as a result of his academic

standing, the student was invited to deliver a speech at his graduation; however, he was asked to take out the following:

I urge you to seek out the Lord, and let Him guide you. Through His power, you can stand tall in the face of darkness, and survive the trends of “modern society.”

As Psalm 146 says, “Do not put your trust in princes, in mortal men, who cannot even save themselves. When their spirit departs, they return to the ground; on that very day their plans come to nothing. Blessed is he whose help is the God of Jacob, whose hope is in the Lord his God, the Maker of heaven and earth, the sea, and everything in them—the Lord, who remains faithful forever. He upholds the cause of the oppressed and gives food to the hungry. The Lord sets prisoners free, the Lord gives sight to the blind, the Lord lifts up those who are bowed down, the Lord loves the righteous. The Lord watches over the alien and sustains the fatherless and the widow, but he frustrates the ways of the wicked.” . . . .

. . . For the wages of sin is death; but the gift of God is eternal life through Jesus Christ our Lord. Have you accepted the gift, or will you pay the ultimate price? (p. 981)

The court agreed that there were no other means of preventing the coerced participation of dissenters attending their graduation ceremony, other than censoring the portion of the speech quoted here. Additionally, the court reasoned that the school’s restriction was “necessary” to avoid running afoul of the Establishment Clause, permitting such a proselytizing speech at a public school’s graduation ceremony would amount to coerced participation in a religious practice, and a “less restrictive” alternative was provided by permitting the student to distribute copies of the complete draft just outside the graduation venue.

Guidance on Constitutionally Protected Prayer in Public Elementary and Secondary Schools, issued in 2003 by the Secretary of Education in accordance with the No Child Left Behind Act, addressed the issue of student-led prayer at graduation.

School officials may not mandate or organize prayer at graduation or select speakers for such events in a manner that favors religious speech such as prayer. Where students or other private graduation speakers are selected on the basis of genuinely neutral, evenhanded criteria and retain primary control over the content of their expression, however, that expression is not attributable to the school and therefore may not be restricted because of its religious (or antireligious) content. To avoid any mistaken perception

that a school endorses student or other private speech that is not in fact attributable to the school, school officials may make appropriate, neutral disclaimers to clarify that such speech (whether religious or nonreligious) is the speaker’s and not the school’s.

Does the Guidance reflect an endorsement of the rationale offered in Jones and Adler and a rejection of the ACLU and Lassonde rationale? Until the Supreme Court renders a substantive decision, the “law” regarding student-led prayer at graduation ceremonies will be different in states in the Fifth and Eleventh Circuits from that in the Third and Ninth Circuits, see Figure 1-1, which shows the states within the various federal judicial circuits. Does the Guidance place school officials in the Third and Ninth Circuits in an untenable legal position?

What has been your school system’s policy regarding prayer at graduation or other school-sponsored activities?

Schools requiring a larger weatherproof venue for graduation exercises often find church facilities less expensive to rent than civic centers or other commercial properties. Would having a graduation ceremony in a church violate separation of church and state? Would such a rental jeopardize church tax exemption status?

Epilogue: Prayer and Bible Reading.

Several forces have contributed to the historic acrimony and hostility surrounding prayer and other religious observances in public schools. One of these forces is the lack of understanding or refusing to accept, by some otherwise law-abiding citizens, that a Supreme Court decision is the law of the land. Many proponents of state-sponsored school prayer have not accepted the premise that a Supreme Court decision must be obeyed until it is changed through specific means, such as the passage of an appropriate law by Congress, the Court overturning its decision, or an amendment to the Constitution. This unwillingness to obey Supreme Court case law has often been particularly evident when a significant majority, in a homogeneous Christian community (with few Jews, Muslims, and perhaps even Catholics), strongly disagree with a decision dealing with separation of church and state. Such majorities at the local or state level have often attempted to make permissible, by exerting political pressure, what the Supreme Court has ruled impermissible.

Proponents of prayer in the public schools have also had difficulty in understanding what appears to them to be seemingly blatant inconsistencies in both public policy and the utterances of some governmental officials. Such proponents have not understood why “government” does not allow school prayer, yet allows legislatures to begin sessions with prayers; allows the word God in the Pledge of Allegiance and on legal

tender; allows taking an oath on a Bible in a court of law; employs chaplains in the military; and allows churches and church services on military bases. Many of these proponents do not understand why prayer is banned in the schools when high governmental officials lambast Court prayer decisions and reveal their strong endorsement of school prayer. Unfortunately, such statements by these local, state, and federal officials often have caused confusion among the public. In fact, such rhetoric may even have encouraged inadvertent lawlessness at the local level by boards of education, school administrators, teachers, or parents who did not feel compelled to obey a controversial decision, in spirit or in fact, because of such statements. Many proponents of school-sponsored prayer would undoubtedly favor a federalism viewpoint allowing government-sanctioned prayer to be the province of the state.

Also contributing to the confusion over school prayer and related religious issues has been the lack of a clear message from the judiciary regarding the height of the wall that separates church and state. This may be seen in United States Supreme Court split decisions that are rife with strident and often acrimonious dissenting opinions. Many laypersons have found the Court’s Ten Commandments decisions in McCreary County and Van Orden to be confusing if not contradictory and seeming to be unnecessarily splitting hairs. Conflicting rulings by federal appellate courts also tend to erode confidence in the judiciary as a dependable governmental authority. For instance, laypersons have had enormous difficulty understanding why high school seniors were allowed to select a fellow student to deliver a religious message at graduation exercises in their jurisdiction, but not in some other jurisdictions across the country. At the lower court level, clearly unconstitutional prayer and other religious activities in the public schools are occasionally upheld by plaintiffs carefully selecting friendly trial judges; yet, these decisions are often touted by “true believers” as being “the law” during the appellate process and even after these decisions have been reversed.

Given this state of affairs with the judiciary and coupled with increasingly successful political activity by those not wishing to have religion excluded from the public schools, lawsuits have been brought by those challenging school restrictions placed on religious activity. They argue that their right of freedom of expression is being infringed by not allowing certain forms of religious expression. Also, revealing evidence of the political strength of those wanting less religious interference from school authorities, the federal government issued guidance under the No Child Left Behind Act, which mandates that school authorities allow constitutionally protected prayer, protects privately initiated religious expression, and requires school authorities to be neutral in their treatment of religion. Failure to follow the guidance may result in the loss of federal funds.

Court decisions have not banned Bible reading for nonsectarian reasons, such as the teaching of the history of religions and the study of comparative religions. Yet many

parents have contended that fear of lawsuits has been responsible for public-school educators seemingly excluding religion from the curriculum, thereby providing the perception that schools exhibit a hostility toward religion. In an effort to counter such perceptions, several states have launched efforts to adopt books that promote teaching about religion or have endorsed plans to teach more about religion. Some observers have referred to this as a return to the “Fourth R.” Proponents contend that such programs, in addition to imparting useful knowledge, will also promote understanding and heightened sensitivity toward all religions. Opponents view such programs as being fraught with potential controversies such as the fear that the dominant local religions will receive preferential treatment and that teachers will not be able to provide “religiously correct” answers to such potentially difficult student questions as Did Jews kill Jesus? Did God really part the Red Sea? Do non-Christians go to hell? Why have people killed each other in the name of religion? Do all religions condemn homosexuality, divorce, or unmarried couples living together?

Given the split among justices and the high level of court involvement for sixty years with the issue of how high the bar should be between the separation of church and state, great interest continues in the makeup of the Supreme Court, especially, as a result of resignations and new appointments. When a vacancy occurs, speculation is often rife on how a newly appointed justice will vote on this issue. If a newly appointed justice has a federalism philosophy, for instance, the speculation would be that the justice would favor lowering the bar. However, it should be kept in mind that it often takes years for a new appointee’s philosophy to be revealed, and that his or her philosophy may change over time. Is it unfair to accuse those wanting to lower the so-called bar between church and state to also want our country to become a theocracy?

B. Equal Access

Many public schools have Bible or other religious study groups that meet on school grounds before, during, or after school. In some instances, they have been recognized as official student-body organizations and have often advertised their activities on bulletin boards or through the school newspaper. Occasionally, such groups meet during an “activity period.”

Fearful that official recognition of religious groups would raise separation of church and state issues, some school administrators were reluctant to grant them student-body status. Refusal to grant official recognition often resulted in litigation, and in an attempt to address the issue, Congress in 1984 passed the Equal Access Act.* Under this act, it is unlawful for a public secondary school that receives federal financial assistance and has created a limited open forum to deny recognition of student-initiated groups on the

basis of the religious, political, or philosophical content of the speech at meetings. Although faculty members may be present, they may not participate, and outsiders may not control or regularly attend group meetings. The law declares that a limited open forum has been created when one or more noncurricular student groups are allowed to meet on school premises during noninstructional time. A limited open forum is not created when the clubs are curriculum oriented.

Passage of the Equal Access Act did not eliminate controversies surrounding the recognition of religion-oriented clubs by public schools, and the issue was addressed by nearly half of the federal appellate courts. In its decision in Board of Education of the Westside Community Schools v. Mergens, 496 U.S. 226 (1990), the United States Supreme Court in an eight-to-one ruling upheld the constitutionality of the Equal Access Act.

In defining “a limited open forum,” the Court stated that such a forum exists when the school “grants an offering to or opportunity for one or more non-curriculum related student groups to meet on school premises during noninstructional time.” Under the Equal Access Act, students who wish to conduct a meeting within its limited forum have been given a fair opportunity if a school uniformly provides that:

(c) * * * (1) the meeting is voluntary and student-initiated; (2) there is no sponsorship of the meeting by the school, the government, or its agents or employees; (3) employees or agents of the school or government are present at religious meetings only in a nonparticipatory capacity; (4) the meeting does not materially and substantially interfere with the orderly conduct of educational activities within the school; and (5) nonschool persons may not direct, conduct, control, or regularly attend activities of student groups. 29 U.S.C. § 4071.

A curriculum-related group, the Court revealed, is one that has more than just a tangential or attenuated relationship to courses offered by the school. Such a group directly relates to the school’s curriculum if the subject matter of the group is actually taught, or will be taught, in a regularly offered course; if the subject matter of the group concerns the body of courses as a whole; if participation in the group is required for a particular course; or if participation in the group results in academic credit. Examples of such groups might include French club, student government, or band. Normally, groups such as a chess club, stamp collecting club, or a community service club would be considered to be “non-curriculum related student groups.”

There is little doubt that the primary intent of the Equal Access Act was to ensure official school recognition for religious student groups; consequently, the Court’s decision may be viewed as lowering the so-called wall of separation of church and state by allowing an accommodation to religiously oriented groups. Perhaps not fully recognized at the time of its passage, however, was that the language of the act also protected religious and political groups that may have little local community support, such as Satanists, Skinheads, Homosexuals for Christ, Muslim Club, Hemlock Society members, gay-straight alliance, and various nonviolent “gangs.” Official school recognition of such politically or religiously oriented student clubs entitles them to be a part of the student activities program. This carries with it access to the school newspaper, bulletin boards, the public address system, and school fairs. Under provisions of the Equal Access Act, the only way these groups may be denied official recognition is by sanctioning only curriculum-related groups or by declining federal funding.

Disputes involving the Equal Access Act have continued since it was passed and upheld in Mergens. In one case, Colin ex. rel. Colin v. Orange Unified School District, 83 F. Supp.2d 1135 (Cal. 2000), a Gay-Straight Alliance club was denied equal access to school facilities. In its ruling the court reasoned that the club had a strong likelihood of success in its claim to meet on campus. The court contended that by recognizing such noncurriculum groups as the Asian Club and Christian Club, the board had established a limited open forum. The court also reasoned that the proposed club was noncurriculum related, nonschool persons did not direct or control the club, the possibility for students to meet informally did not satisfy requirements of the Equal Access Act, and conditioning of recognition on changes to the club’s name and mission statement violated the Act.

A contrary view, albeit a solitary one, toward recognition of a gay-straight student group was given in Caudillo v. Lubbock Independent School District, 311 F. Supp.2d 550 (Tex. 2004). In upholding the refusal of the school district to recognize the group, the court agreed that material on the group’s Web site stating that one of its goals was to “Educate willing youth about safe sex” and the Web site’s direct link to sexually explicit content were inappropriate in the light of the district’s abstinence-only policy. In responding to the group’s equal access claim, the court concluded that, given the group’s goals and direct link to sexually explicit content, the school district could ban the group under the “Maintaining-Order-and-Discipline Exception” to the Equal Access Act for avoiding disruptions to the school setting.

Several cases have addressed religious issues. In an early case, a religious club was not allowed to meet during the lunch period although other clubs could. In addressing this issue, the court, in Ceniceros v. Board of Trustees of the San Diego Unified School

District, 106 F.3d 878 (9th Cir. 1997), reasoned that because no classes were held during the lunch period it was “noninstructional time” within the meaning of the Act. Because other clubs met at that time, allowing the religious club to meet at lunchtime did not violate the Establishment Clause. In Hsu v. Roslyn Union Free School District No. 3, 85 F.3d 838 (2nd Cir. 1996), cert. denied, 519 U.S. 1040 (1996), the court ruled that a school system should allow the formation of the “Walking on Water” student Bible club, although certain club officers had to be Christians who had accepted Jesus Christ as their savior. In its decision, the court declared:

We conclude that the club’s Christian officer requirement, as applied to some of the club’s officers, is essential to the expressive content of the meetings and to the group’s preservation of its purpose and identity, and is therefore protected by the Equal Access Act. This application of the Act is constitutional because the school’s recognition of the club will not draw the school into an establishment of religion or impair the school’s efforts to prevent invidious discrimination. (p. 847)

However in Truth v. Kent School District, 542 F.3d 634 (9th Cir. 2008), cert. denied, 557 U.S. ___ (2009), the court upheld a school district’s denial of Truth’s application based on its general membership provision, which divided the membership into:

. . . three categories: voting members, non-voting members, and attendees. Meetings are open to everyone. But the “privilege of membership is contingent upon the member complying in good faith with Christian character, Christian speech, Christian behavior and Christian conduct as generally described in the Bible.” The charter application also lists a “true desire to . . . grow in a relationship with Jesus Christ” under the “Membership Criteria” heading. In order to be a voting member or officer, students are required to sign a “statement of faith.” The statement of faith requires the person to affirm that he or she believes “the Bible to be the inspired, the only infallible, authoritative Word of God.” A voting member must also pledge that he or she believes “that salvation is an undeserved gift from God,” and that only by “acceptance of Jesus Christ as my personal Savior, through His death on the cross for my sins, is my faith made real.” Other than the ability to call oneself a “member,” there is no difference between the rights of non-voting members and attendees. (p. 639)

The court held that the school district did not violate the Equal Access Act or Truth’s First Amendment rights by applying its nondiscrimination policy to require Truth to remove its general membership provision.

Although not brought on grounds involving the Equal Access Act because it dealt with higher education, the Supreme Court in Christian Legal Society Chapter of the University of California, College of Law v. Martinez, 561 U. S. ___ (2010) addressed a similar factual situation to the one described in Truth. In this case the Hastings Christian group required members and officers to sign a “Statement of Faith” under which they promised to conduct their lives in accord with prescribed principles, which included: sexual activity not occurring outside marriage between a man and a woman; not engaging in unrepentant homosexual sex; or holding religious convictions different from those in the “Statement.” The College contended that this requirement was in conflict with its “all-comers” policy and a Nondiscrimination Policy, which included religion and sexual orientation. In upholding the college’s rejection of the Christian group’s official recognition, the Court, in its five-to-four decision, held that the all-comers policy was constitutional and did not violate the First Amendment. The policy was viewpoint neutral, and it did not limit freedom of association, free speech, or expressive-association.

The Equal Access Act has also been challenged on the grounds that student religiously oriented meetings could be restricted under the Washington State constitution, which barred school officials from permitting religious organizations to meet on school property. A federal appellate court did not agree with this contention and held that states cannot abridge rights granted by a federal law such as the Equal Access Act. See Garnett v. Renton School District No. 403, 987 F.2d 641 (9th Cir. 1993), cert. denied, 510 U.S. 819 (1993).

The appropriateness of murals to be painted in the main hallway of a school by members of a Bible Club was litigated in Gernetzke v. Kenosha Unified School District, 274 F.3d 464 (7th Cir. 2002), cert. denied, 535 U.S. 1017 (2002). The club had submitted a sketch depicting a heart, two doves, an open Bible with a well-known passage from the New Testament (John 3:16: “For God so loved the world, that he gave his only begotten Son, that whosoever believeth in him should not perish, but have everlasting life”), and a large cross. The court agreed with the principal’s approval of what had been proposed with the exception of the cross. The principal had feared that the inclusion of so prominent a Christian symbol would invite an Establishment Clause lawsuit from other groups proposing murals. The court provided a portrayal of the state of affairs at this school, which included the presence of student members of Satanic and neo-Nazi groups, the defacing of the Bible Club’s mural with a witchcraft symbol, a group of skinheads wishing to paint a mural containing a swastika, and Students

Against Drunk Driving wanting to include the mention (denied by the principal) of a particular brand of beer in its proposed mural. Given this school’s environment, the court found no discrimination on the part of the principal against religion but merely against displays, religious or secular, that were reasonably believed likely to lead to litigation or disorder.

A set of religious liberty guidelines addressing the Equal Access Act was issued by the Department of Education in 1998 that included the following:

The Equal Access Act is designed to ensure that, consistent with the First Amendment, student religious activities are accorded the same access to public school facilities as are student secular activities. Based on decisions of the Federal courts, as well as its interpretations of the Act, the Department of Justice has advised that the Act should be interpreted as providing, among other things, that:

General provisions

Student religious groups at public secondary schools have the same right of access to school facilities as is enjoyed by other comparable student groups. Under the Equal Access Act, a school receiving Federal funds that allows one or more student noncurriculum-related clubs to meet on its premises during noninstructonal time may not refuse access to student religious groups.

Prayer services and worship exercises covered

A meeting, as defined and protected by the Equal Access Act, may include a prayer service, Bible reading, or other worship exercise.

Equal access to means of publicizing meetings

A school receiving Federal funds must allow student groups meeting under the Act to use the school media—including the public address system, the school newspaper, and the school bulletin board—to announce their meetings on the same terms as other noncurriculum-related student groups are allowed to use the school media. Any policy concerning the use of school media must be applied to all noncurriculum-related student groups in a nondiscriminatory manner. Schools, however, may inform students that certain groups are not school sponsored.

Lunch time and recess covered

A school creates a limited open forum under the Equal Access Act, triggering equal access rights for religious groups, when it allows students to meet during their lunch periods or other noninstructional time during the school day, as well as when it allows students to meet before and after the school day.

Does a potential for faculty conflict present itself if a faculty member, who is merely asked to be present at a group’s meeting for maintaining order or for tort liability reasons and who does not participate, objects to such an assignment because of religious or political disagreements with the group’s views?

C. The Teaching of Evolution

The famous “Scopes monkey trial” in 1925 focused the nation’s attention on the teaching of evolution in the public schools. Although John Scopes was found guilty of teaching evolution, his conviction was overturned on a technicality, and the issue remained relatively dormant until the 1970s. At that time, forces opposed to the teaching of evolution developed a new strategy, which sought to establish that the Biblical account of creation is a respectable scientific theory and thus deserves public classroom time for its teaching. Although debated in several legislatures, creationism, as this theory became known, was enacted into law in Arkansas and Louisiana. These statutes were quickly challenged on the basis of their constitutionality. In Edwards v. Aguillard, a seven-to-two decision, the United States Supreme Court declared the practice as violative of the First Amendment’s prohibition against establishment of religion.

Edwards v. Aguillard

Supreme Court of the United States, 1987 482 U.S. 578

JUSTICE BRENNAN delivered the opinion of the Court.

The question for decision is whether Louisiana’s “Balanced Treatment for Creation-Science and Evolution-Science in Public School Instruction” Act (Creationism Act), La. Rev. Stat. Ann. §§ 17:286.1-17:286.7 is facially invalid as violative of the Establishment Clause of the First Amendment.

The Creationism Act forbids the teaching of the theory of evolution in public schools unless accompanied by instruction in “creation science.” No school is required to teach evolution or creation science. If either is taught, however, the other must also be taught.

The theories of evolution and creation science are statutorily defined as “the scientific evidences for [creation or evolution] and inferences from those scientific evidences.”

* * *

It is clear from the legislative history that the purpose of the legislative sponsor, Senator Bill Keith, was to narrow the science curriculum. During the legislative hearings, Senator Keith stated: “My preference would be that neither [creationism nor evolution] be taught.” Such a ban on teaching does not promote—indeed, it undermines—the provision of a comprehensive scientific education.

It is equally clear that requiring schools to teach creation science with evolution does not advance academic freedom. The Act does not grant teachers a flexibility that they did not already possess to supplant the present science curriculum with the presentation of theories, besides evolution, about the origin of life. Indeed, the Court of Appeals found that no law prohibited Louisiana public schoolteachers from teaching any scientific theory. * * * As the president of the Louisiana Science Teachers Association testified, “[a]ny scientific concept that’s based on established fact can be included in our curriculum already, and no legislation allowing this is necessary.” The Act provides Louisiana schoolteachers with no new authority. Thus the stated purpose is not furthered by it.

* * *

Furthermore, the goal of basic “fairness” is hardly furthered by the Act’s discriminatory preference for the teaching of creation science and against the teaching of evolution. While requiring that curriculum guides be developed for creation science, the Act says nothing of comparable guides for evolution. * * * Similarly, research services are supplied for creation science but not for evolution. Only “creation scientists” can serve on the panel that supplies the resource services. The Act forbids school boards to discriminate against anyone who “chooses to be a creation scientist” or to teach “creationism,” but fails to protect those who choose to teach evolution or any other non-creation science theory, or who refuse to teach creation science.

If the Louisiana legislature’s purpose was solely to maximize the comprehensiveness and effectiveness of science instruction, it would have encouraged the teaching of all scientific theories about the origins of humankind. But under the Act’s requirements, teachers who were once free to teach any and all facets of this subject are now unable to do so. Moreover, the Act fails even to ensure that creation science will be taught, but instead requires the teaching of this theory only when the theory of evolution is taught. Thus we agree with the Court of Appeals’ conclusion that the Act does not serve to protect academic freedom, but has the distinctly different purpose of discrediting

“evolution by counterbalancing its teaching at every turn with the teaching of creation science. . . .”

* * *

As in Stone and Abington, we need not be blind in this case to the legislature’s preeminent religious purpose in enacting this statute. There is a historic and contemporaneous link between the teachings of certain religious denominations and the teaching of evolution. It was this link that concerned the Court in Epperson v. Arkansas, which also involved a facial challenge in a statute regulating the teaching of evolution. In that case, the Court reviewed an Arkansas statute that made it unlawful for an instructor to teach evolution or to use a textbook that referred to this scientific theory. Although the Arkansas antievolution law did not explicitly state its predominant religious purpose, the Court could not ignore that “[t]he statute was a product of the upsurge of ‘fundamentalist’ religious fervor” that has long viewed this particular scientific theory as contradicting the literal interpretation of the Bible. After reviewing the history of antievolution statutes, the Court determined that “there can be no doubt that the motivation for the [Arkansas] law was the same [as other antievolution statutes]: to suppress the teaching of a theory which, it was thought, ‘denied’ the divine creation of man.” The Court found that there can be no legitimate state interest in protecting particular religions from scientific views “distasteful to them,” and concluded “that the First Amendment does not permit the State to require that teaching and learning must be tailored to the principles or prohibitions of any religious sect or dogma.” * * *

These same historic and contemporaneous antagonisms between the teachings of certain religious denominations and the teaching of evolution are present in this case. The preeminent purpose of the Louisiana legislature was clearly to advance the religious viewpoint that a supernatural being created humankind. The term “creation science” was defined as embracing this particular religious doctrine by those responsible for the passage of the Creationism Act. Senator Keith’s leading expert on creation science, Edward Boudreaux, testified at the legislative hearings that the theory of creation science included belief in the existence of a supernatural creator. * * * Senator Keith also cited testimony from other experts to support the creation science view that “a creator [was] responsible for the universe and everything in it.” The legislative history therefore reveals that the term “creation science,” as contemplated by the legislature that adopted this Act, embodies the religious belief that a supernatural creator was responsible for the creation of mankind.

Furthermore, it is not happenstance that the legislature required the teaching of a theory that coincided with this religious view. The legislative history documents that the Act’s primary purpose was to change the science curriculum of public schools in order to

provide persuasive advantage to a particular religious doctrine that rejects the factual basis of evolution in its entirety. The sponsor of the Creationism Act, Senator Keith, explained during the legislative hearings that his disdain for the theory of evolution resulted from the support that evolution supplied to views contrary to his own religious beliefs. According to Senator Keith, the theory of evolution was consonant with the “cardinal principle[s] of religious humanism, secular humanism, theological liberalism, aetheistism [sic].“ * * * The state senator repeatedly stated that scientific evidence supporting his religious views should be included in the public school curriculum to redress the fact that the theory of evolution incidentally coincided with what he characterized as religious beliefs antithetical to his own. The legislation therefore sought to alter the science curriculum to reflect endorsement of a religious view that is antagonistic to the theory of evolution.

In this case, the purpose of the Creationism Act was to restructure the science curriculum to conform with a particular religious viewpoint. Out of many possible science subjects taught in the public schools, the legislature chose to affect the teaching of the one scientific theory that historically has been opposed by certain religious sects.

* * *

We do not imply that a legislature could never require that scientific critiques of prevailing scientific theories be taught. Indeed, the Court acknowledged in Stone that its decision forbidding the posting of the Ten Commandments did not mean that no use could ever be made of the Ten Commandments or that the Ten Commandments played an exclusively religious role in the history of Western Civilization. In a similar way, teaching a variety of scientific theories about the origins of humankind to schoolchildren might be validly done with the clear secular intent of enhancing the effectiveness of science instruction. But because the primary purpose of the Creationism Act is to endorse a particular religious doctrine, the Act furthers religion in violation of the Establishment Clause.

* * *

The Louisiana Creationism Act advances a religious doctrine by requiring either the banishment of the theory of evolution from public school classrooms or the presentation of a religious viewpoint that rejects evolution in its entirety. The Act violates the Establishment Clause of the First Amendment because it seeks to employ the symbolic and financial support of government to achieve a religious purpose. The judgment of the Court of Appeals therefore is

Affirmed.

* * *

JUSTICE SCALIA, with whom THE CHIEF JUSTICE joins, dissenting.

Even if I agreed with the questionable premise that legislation can be invalidated under the Establishment Clause on the basis of its motivation alone, without regard to its effects, I would still find no justification for today’s decision. The Louisiana legislators who passed the “Balanced Treatment for Creation-Science and Evolution-Science Act,” * * * each of whom had sworn to support the Constitution, were well aware of the potential Establishment Clause problems and considered that aspect of the legislation with great care. After seven hearings and several months of study, resulting in substantial revision of the original proposal, they approved the Act overwhelmingly and specifically articulated the secular purpose they meant it to serve. Although the record contains abundant evidence of the sincerity of that purpose (the only issue pertinent to this case), the Court today holds, essentially on the basis of “its visceral knowledge regarding what must have moved the legislators,” * * * that the members of the Louisiana Legislature knowingly violated their oaths and then lied about it. I dissent. Had requirements of the Balanced Treatment Act that are not apparent on its face been clarified by an interpretation of the Louisiana Supreme Court, or by the manner of its implementation, the Act might well be found unconstitutional; but the question of its constitutionality cannot rightly be disposed of on the gallop, by impugning the motives of its supporters.

* * *

* * * Even if one concedes, for the sake of argument, that a majority of the Louisiana Legislature voted for the Balanced Treatment Act partly in order to foster (rather than merely eliminate discrimination against) Christian fundamentalist beliefs, our cases establish that that alone would not suffice to invalidate the Act, so long as there was a genuine secular purpose as well.

* * *

The people of Louisiana, including those who are Christian fundamentalists, are quite entitled, as a secular matter, to have whatever scientific evidence there may be against evolution presented in their schools, just as Mr. Scopes was entitled to present whatever scientific evidence there was for it. Perhaps what the Louisiana Legislature has done is unconstitutional because there is no such evidence, and the scheme they have established will amount to no more than a presentation of the Book of Genesis.

* * *

Because I believe that the Balanced Treatment Act had a secular purpose, which is all the first component of the Lemontest requires, I would reverse the judgment of the Court of Appeals and remand for further consideration.

* * *

Notes and Questions

In an earlier decision, the Court held that an Arkansas “anti-evolution” statute violated the Establishment Clause. See Epperson v. Arkansas, 393 U.S. 97 (1968).

Justice William Brennan, who wrote the majority opinion in Aguillard, was appointed to the Court by President Dwight D. Eisenhower in 1956. He had been an associate justice of the New Jersey Supreme Court. Justice Brennan retired from the Court in 1990 and was replaced by Justice David Souter. Both Justice Scalia and Chief Justice Rehnquist, as their dissent in Aguillard and other decisions reveals, have shown strong dissatisfaction with prevailing legal rationale used to decide separation of church and state issues. Does their dissent reflect the federalist view?

Teaching Bible-based creationism, which some thought was a thinly disguised effort to have Genesis compete with Darwin, was held to be unconstitutional in Aguillard. However, another notion called intelligent design (ID) replaced creationism in the attempt to unseat the Darwinian study of evolution in the curriculum as the sole source of information regarding the origins of humans. Its adherents assert that natural selection is fatally flawed in its attempt to explain how life evolved to present-day humans and that the complexity of nature can more plausibly be explained as the work of a supernatural intelligent designer. ID proponents have employed several strategies in their attempt to not only challenge the validity of Darwin’s theories, but also have ID taught alongside evolution. These strategies have included the Kansas State Board of Education in 2005 adopting science guidelines questioning evolution (repealed in 2007); rewriting science standards to cast doubt on Darwin’s theories and allowing for nonnatural explanations in scientific inquiry; several other state boards of education discussing the desirability of ID in the curriculum; introduction of bills in several state legislatures requiring science classes to mention alternative theories of origin of species; disclaimers in science books or a disclaimer being read to students regarding evolution’s scientific status; and local school boards authorizing the teaching of ID.

Opponents of teaching evolution in the public schools have not prevailed in the courts, yet controversy surrounding the issue persists. A disclaimer, which was to be read immediately before the teaching of evolution in all elementary and secondary classes, was challenged in Freiler v. Tangipahoa Parish Board of Education, 185 F.3d 337 (5th Cir 1999), cert. denied, 530 U.S. 1251 (2000). The disclaimer contained such

statements as evolution is presented “to inform students of the scientific concept and not intended to influence or dissuade the Biblical version of Creation or any other concept” and “students are urged to exercise critical thinking and gather all information possible and closely examine each alternative toward forming an opinion.” In declaring the disclaimer unconstitutional, the appellate court stated that the primary effect of the disclaimer was to “protect and maintain a particular religious viewpoint, namely belief in the Biblical version of creation.” This had the effect, the court concluded, of “impermissibly advancing religion, thereby violating the second prong of the Lemon test as well as the endorsement test.”

The decision in Kitzmiller v. Dover Area School District, 400 F. Supp.2d 707 (Pa. 2005), which received widespread national attention, also held unconstitutional a local school board policy, which stated “Students will be made aware of gaps/problems in Darwin’s theory and of other theories of evolution including, but not limited to, intelligent design. Note: Origins of Life is not taught” (p. 708). In its decision, the court concluded the following:

The proper application of both the endorsement and Lemon tests to the facts of this case makes it abundantly clear that the Board’s ID Policy violates the Establishment Clause. In making this determination, we have addressed the seminal question of whether ID is science. We have concluded that it is not, and moreover that ID cannot uncouple itself from its creationist, and thus religious, antecedents.

Both Defendants and many of the leading proponents of ID make a bedrock assumption which is utterly false. Their presupposition is that evolutionary theory is antithetical to a belief in the existence of a supreme being and to religion in general. Repeatedly in this trial, Plaintiffs’ scientific experts testified that the theory of evolution represents good science, is overwhelmingly accepted by the scientific community, and that it in no way conflicts with, nor does it deny, the existence of a divine creator.

To be sure, Darwin’s theory of evolution is imperfect. However, the fact that a scientific theory cannot yet render an explanation on every point should not be used as a pretext to thrust an untestable alternative hypothesis grounded in religion into the science classroom or to misrepresent well-established scientific propositions.

The citizens of the Dover area were poorly served by the members of the Board who voted for the ID Policy. It is ironic that several of these individuals, who so staunchly and proudly touted their religious

convictions in public, would time and again lie to cover their tracks and disguise the real purpose behind the ID Policy.

With that said, we do not question that many of the leading advocates of ID have bona fide and deeply held beliefs which drive their scholarly endeavors. Nor do we controvert that ID should continue to be studied, debated, and discussed. As stated, our conclusion today is that it is unconstitutional to teach ID as an alternative to evolution in a public school science classroom. (p. 765)

Some observers contend that this decision by a conservative Republican judge in a conservative community may well have been the death knell for ID litigation.

Something to ponder: For many years following the Brown desegregation decision in 1954, as we shall see in Chapter 5, public schools were the primary focal point for effecting desegregation in the South. During those days, in many instances, schools often became political battlegrounds, and the desegregation agenda frequently took precedence over instruction. When such political battles occur, valuable local resources are expended addressing the issue, animosity toward the school develops among different segments of the population, and attention is diverted from the primary purpose of the school. Has the battle over the teaching of evolution been a similar situation? Is it a part of a political agenda, as some suggest, or is it a sincere attempt to provide necessary balance?

D. Textbooks

Parents may object to the use of certain textbooks on the grounds that the books advance secular humanism and inhibit theistic religion. In one instance, parents charged that history, social studies, and home economics books promoted secular humanism by excluding facts about religion and by failing to present a biblically based or divine framework for decision making. The U.S. Court of Appeals for the Eleventh Circuit did not uphold the parents’ contentions and declared:

Examination of the contents of these textbooks, including the passages pointed out by Appellees as particularly offensive, in the context of the books as a whole and the undisputedly nonreligious purpose sought to be achieved by their use, reveals that the message conveyed is not one of endorsement of secular humanism or any religion. Rather, the message conveyed is one of a governmental attempt to instill in Alabama public school children such values as independent thought, tolerance of diverse views, self-respect, maturity, self-reliance and logical decision-making. This is an entirely appropriate secular effect. Indeed, one of the major objectives

of public education is the “inculcat[ion of] fundamental values necessary to the maintenance of a democratic political system.” * * * Nor do these textbooks evidence an attitude antagonistic to theistic belief. The message conveyed by these textbooks with regard to theistic religion is one of neutrality: the textbooks neither endorse theistic religion as a system of belief, nor discredit it. Indeed, many of the books specifically acknowledge that religion is one source of moral values and none preclude that possibility. (p. 692)

See Smith v. Board of School Commissioners of Mobile County, 827 F.2d 684 (11th Cir. 1987).

In another instance, a parent objected to the use of the Holt, Rinehart and Winston basic reading series and specifically to a story about mental telepathy. The parent wanted an alternative reading program. In rejecting this petition, the U.S. Court of Appeals for the Sixth Circuit stated:

The divisiveness and disruption caused by the opt-out remedy would be magnified if the schools had to grant other exemptions. Although the District Court found that no other objections to the Hawkins County public school curriculum have been raised and that Hawkins County is homogeneous from a religious perspective, this case would create a precedent for persons from other religions to request exemptions from core subjects because of religious objections. If the school district were required to accommodate exceptions and permit other students to opt-out of the reading program and other core courses with materials others found objectionable, this would result in a public school system impossible to administer. (pp. 1072–73)

See Mozert v. Hawkins County Board of Education, 827 F.2d 1058 (6th Cir. 1987), cert. denied, 484 U.S. 1066 (1988).

In a case dealing with an elementary teacher, a federal court of appeals held that school officials could not require removal of the Bible from the school’s library but could require the removal of religiously oriented books from the classroom library and require the teacher to keep his Bible out of sight and refrain from silently reading it during classroom hours. See Roberts v. Madigan, 921 F.2d. 1047 (10th Cir. 1990), cert. denied, 505 U.S. 1218 (1992).

E. Distribution of Religious Literature

Distribution in the public schools of Bibles and other religious literature has been a much litigated issue over the years. In one of the earliest decisions, Tudor v. Board of Education of Borough of Rutherford, 100 A.2d 857 (N.J. 1953), allowing Gideons, an evangelical Christian organization, to distribute Bibles to public-school students was held to violate the Establishment Clause. In a decision nearly a half-century later addressing the issue of distributing religious or other nonschool materials, the court in Muller v. Jefferson Lighthouse School, 98 F.3d 1530 (7th Cir. 1996), cert. denied, 520 U.S. 1156 (1997), held that such distribution may take place, but because a public elementary school is a “nonpublic forum” certain restrictions may be imposed. These include prior approval and screening for offensive messages, time and place requirements, and a disclaimer that the materials were not endorsed by the school. It should be noted that allowing one religious group to distribute its literature opens a forum for such distribution that cannot be closed to groups that are often objects of community opprobrium, such as Satanists, atheists, or Wahhabi Muslims.

Limited and passive distribution of Bibles and other religious material during school hours was upheld in Peck v. Upshur County Board of Education, 155 F.3d 274 (4th Cir. 1998). The court cited the well-established, historical practice of the school board allowing private groups such as Little League, Boy Scouts, Girl Scouts, and the Women’s Christian Temperance Union to distribute literature. The court considered the “age appropriate” (the ability to distinguish between private and government speech) distribution policy to be a neutral one that did not advance religion, but had a secular purpose of keeping a forum open that was already open to other private materials. Restrictions on the manner in which the Bibles could be made available included

1. The private groups making the Bibles available were to be responsible for setting up the tables on which the Bibles would be displayed.

2. Bibles not picked up by students during the day were to be removed at the end of that day by the groups responsible for the display.

3. No teacher or other school employee was to participate in these or any other custodial activity relating to the Bible displays.

4. the tables were to be placed in a location in each school . . . that was accessible to students . . . “where students normally congregate and would not feel they were being watched or pressured into taking a Bible.”

5. There was to be a sign on each table that read “Please feel free to take one . . .” 6. The source of the Bible was not to be identified. 7. No one was allowed to stand at the table to encourage or pressure students to

take Bibles. 8. No one was to be allowed to enter classrooms to discuss the Bibles’ availability.

9. The schools were not to announce that Bibles were available or hold any school assembly in connection with the availability of the Bibles.

A reading of Roark v. South Iron R-1 School District, 573 F.3d 556 (8th Cir. 2009) reveals that there are still vestiges of recalcitrance on the part of some school boards regarding Bible distribution. In this instance, school officials had permitted Gideons to distribute Bibles to fifth-grade students in the classroom during the school day for thirty years. When this practice was challenged, the school superintendent informed the board that several attorneys, including the district attorney, had advised him that the district should discontinue the Bible distribution practice. Thereupon he suggested to the board that they adopt an “open forum” policy regarding Bible distribution. The board’s response to this discussion was voting “to pretend this meeting never happened, and to continue to allow the Gideons to distribute Bibles as we have done in the past.” Facing a lawsuit, a new policy was adopted that allowed outside groups to distribute literature, including Bibles, either in front of the administrative offices or at a table in a corner of the cafeteria “either before or after the school day, before or after classes or during lunch time,” but not in classrooms. In rejecting the new policy, the appellate court upheld the permanent injunction that prohibited “distribution of Bibles to elementary school children on school property at any time during the school day.” In addition, the court declared that the new policy violated the Establishment Clause because its purpose is “the promotion of Christianity” and its primary effect is “advancing religion by conveying a message of endorsement to elementary school children.” What lessons did students in this community learn by the board’s actions? Always stand up for what you believe in? Or, it’s OK to evade well-settled constitutional law or use taxpayer money to fight for what is essentially a political cause.

A policy permitting community nonprofit groups that serve children, including religious groups, to have their flyers distributed to elementary-school students was held not to violate the Establishment Clause in Rusk v. Crestview Local Schools, 379 F.3d 418 (6th Cir.2004). In this instance, the principal scrutinized all the flyers and then gave them to teachers to distribute in the students’ mailboxes. In its decision, the court held that the policy allowing religious flyers to be distributed was not an endorsement of religion on the part of the school. The court asserted that neither otherwise impressionable elementary students nor reasonable observers could conclude that distributing these flyers would constitute an endorsement of religion.

F. Released and Shared Time and Religious Instruction

Two early United States Supreme Court decisions have addressed the questions of releasing public-school students during normal school hours and thereby enabling them to receive religious instruction. In one of the decisions, McCollum v. Board of Education

of School District No. 71, 333 U.S. 203 (1948), the Court invalidated a plan under which separate Protestant, Catholic, and Jewish religious classes were taught in the public-school buildings. The Court contended that the use of tax-supported property for religious instruction; the close cooperation between school authorities and religious officials; and the use of the state’s compulsory-education system all tended to promote religious education; and, therefore, violated the First Amendment. In another decision, Zorach v. Clauson, 343 U.S. 306 (1952), the Court upheld a plan whereby students were released during public-school hours to attend religious instruction classes off the school premises. The Court stated,

The government must be neutral when it comes to competition between sects. It may not thrust any sect on any person. It may not make a religious observance compulsory. It may not coerce anyone to attend church, to observe a religious holiday, or to take religious instruction. But it can close its doors or suspend its operations as to those who want to repair to their religious sanctuary for worship or instruction. No more than that is undertaken here. (p. 314)

Zorach was held to be controlling in a more recent decision, Pierce v. Sullivan West Central School District, 379 F.3d 56 (2nd Cir. 2004). In this instance, it was alleged that the way the “released time” program was implemented violated the Establishment Clause because it left nonparticipants in the program with nothing to do during compulsory time that had to be spent in the classroom and gave teachers no guidance on how to use that time; conveyed a message of endorsement of religion to especially susceptible young pupils during prime learning time; violated the terms of the regulation by allowing students to leave in the middle of the morning rather than before lunch or at the end of the school day, as called for by the statute; enabled the students receiving religious instruction to bring religious literature into the classrooms; led to abusive religious invective directed against those who did not participate; and did not protect nonparticipants from the taunts of program participants because teachers and principals were not adequately trained. In its holding the court contended that even conceding that all the allegations were true, the school district implemented the “released time” statute in a manner consistent with Zorach. In its decision upholding the school system, the court concluded that the program used no public funds, involved no on-site religious instruction, was purely voluntary, and brought no specific coercion or pressure to bear on nonparticipants by school officials.

A federal appellate court, in Lanner v. Wimmer, 662 F.2d 1349 (10th Cir. 1981), held that academic credit could not be given in a released-time seminary program, operated by the Church of Jesus Christ of Latter Day Saints, for courses in the Old Testament and

New Testament. However, the court ruled credit could be given for daily attendance purposes, eligibility for extracurricular activities, and state-funding purposes.

Is it permissible for a public school system to offer Bible study courses? See Wiley v. Franklin, 474 F. Supp. 525 (Tenn. 1979), which held that such courses could not be offered unless they were (1) secular in nature, intent, and purpose; (2) neither advancing nor inhibiting religion; and (3) offered in a manner that avoided excessive entanglement between government and religion. A course entitled Science of Creative Intelligence—Transcendental Meditation, which involved religious activity, was held to constitute establishment of religion proscribed by the First Amendment. See Malnak v. Yogi, 592 F.2d 197 (3rd Cir. 1979).

A Bible course was taught during regular school hours in grades K–5 for thirty minutes every week. The program was operated and taught by students from Bryan College, in Tennessee, no lesson plans were provided to the school system, and parent consent was not obtained. Bryan College was named after the fiery William Jennings Bryan, of the Scopes trial fame, who expressed the wish that a school be established in Rhea County to teach the truth from a biblical perspective. The school counsel’s statement “that since Rhea County is a place where they respect the Bible, it ought therefore to be at liberty to teach the tenets of the Bible in its public schools as truth,” revealed that perhaps little had changed since the Scopes trial took place in Rhea County years earlier. In its ruling, the court in Doe v. Porter, 188 F. Supp.2d 904 (Tenn. 2002) maintained that the content of the Bible program and its complete delegation to such a decidedly religious institution, by itself, resulted in an impermissible entanglement of government and religion. Additionally, the court declared,

It is probably true that the citizens of Rhea County who are of the Christian faith are in the majority. This, however, does not give them license to teach their religion in the public schools. The Constitution in this area and others protects persons who happen to be in the minority. We all—the majority and the minority—live in the same Nation. The Constitution protects each one of us, including those who may not have the same religious views as the School Board. (p. 915)

G. Religious Holidays

Given the many court decisions requiring school systems not to favor one religion, closing schools on Christian holidays such as Christmas, Easter, and Good Friday has received much attention. Christmas has generally been acknowledged to have sufficient secular connotations to warrant closing the schools during that holiday, but Easter and Good Friday have not been similarly viewed. Consequently, many school systems

wishing to continue having a break in the spring have renamed their Easter break, spring break.

An Illinois statute designating Good Friday as one of twelve state-mandated school holidays was held to be in violation of the Establishment Clause. The court declared that unlike Christmas or Thanksgiving, and to some extent Easter, which have both secular and religious connotations, Good Friday has no secular aspect. Such a statute, the court contended, conveyed the impermissible message that Christianity was the favored religion in the state of Illinois. The court asserted that “The state has accorded special recognition to Christianity beyond anything that has been shown to be necessary to accommodate the religious needs of the Christian majority.” This suit was brought by a public-school teacher who objected to tax dollars being paid to teachers on the Good Friday holiday. See Metzl v. Leininger, 57 F.3d 618 (7th Cir. 1995). However, for an opposite opinion see Koenick v. Felton, 190 F.3d 259 (4th Cir 1999), cert. denied, 528 U.S. 1118 (2000), which held that a Maryland statute creating a public-school holiday from Friday before Easter through the Monday after Easter did not violate the Establishment Clause. The court reasoned that the statute passed the three-pronged Lemon test. In its decision, the court argued: the law provided a four-day holiday for all students and teachers and did not express a preference for one religion; the statutory holiday around Easter had been part of the school calendar for 130 years and had become part of the community’s expectations and plans; and the board had satisfactorily solved the problem of some Christian religions observing Easter on different days by consulting commercially printed calendars to determine the date of Easter each year.

H. Guidance on Constitutionally Protected Prayer in Public Elementary and Secondary Schools

Controversies surrounding separation of church and state issues over the years have resulted in some school officials, teachers, and parents assuming that religious expression of any type is either inappropriate or forbidden altogether in public schools. In some instances, this assumption has resulted in implementation of school policies that appeared to be hostile toward religious expression. In an effort to remedy this situation, the No Child Left Behind Act of 2001 required the Secretary of Education to issue guidance on constitutionally protected prayer in public elementary and secondary schools every two years. The purpose of the guidance was to provide state agencies, local agencies, and the public with information on the current state of the law concerning constitutionally protected prayer in the public schools, and thus to clarify the extent to which prayer in public schools is legally protected. The guidance also required that, as a condition of receiving funds under the Elementary and Secondary Education Act, local education agencies certify in writing to its state educational agency that “it has

no policy that prevents, or otherwise denies participation in, constitutionally protected prayer in public schools as set forth in this guidance.”

Overview of Governing Constitutional Principles

The relationship between religion and government in the United States is governed by the First Amendment to the Constitution, which both prevents the government from establishing religion and protects privately initiated religious expression and activities from government interference and discrimination. The First Amendment thus establishes certain limits on the conduct of public school officials as it relates to religious activity, including prayer.

* * *

The Supreme Court has repeatedly held that the First Amendment requires public school officials to be neutral in their treatment of religion, showing neither favoritism toward nor hostility against religious expression such as prayer. Accordingly, the First Amendment forbids religious activity that is sponsored by the government but protects religious activity that is initiated by private individuals, and the line between government-sponsored and privately initiated religious expression is vital to a proper understanding of the First Amendment’s scope. As the Court has explained in several cases, “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.”

The Supreme Court’s decisions over the past forty years set forth principles that distinguish impermissible governmental religious speech from the constitutionally protected private religious speech of students. For example, teachers and other public school officials may not lead their classes in prayer, devotional readings from the Bible, or other religious activities. Nor may school officials attempt to persuade or compel students to participate in prayer or other religious activities. Such conduct is “attributable to the State” and thus violates the Establishment Clause.

* * *

Applying the Governing Principles in Particular Contexts

Prayer During Noninstructional Time

Students may pray when not engaged in school activities or instruction, subject to the same rules designed to prevent material disruption of the educational program that are applied to other privately initiated expressive activities. Among other things, students may read their Bibles or other scriptures, say grace before meals, and pray or study religious materials with fellow students during recess, the lunch hour, or other noninstructional time to the same extent that they may engage in nonreligious activities. While school authorities may impose rules of order and pedagogical restrictions on student activities, they may not discriminate against student prayer or religious speech in applying such rules and restrictions.

Organized Prayer Groups and Activities

Students may organize prayer groups, religious clubs, and “see you at the pole” gatherings before school to the same extent that students are permitted to organize other non-curricular student activities groups. Such groups must be given the same access to school facilities for assembling as is given to other non-curricular groups, without discrimination because of the religious content of their expression. School authorities possess substantial discretion concerning whether to permit the use of school media for student advertising or announcements regarding non-curricular activities. However, where student groups that meet for nonreligious activities are permitted to advertise or announce their meetings—for example, by advertising in a student newspaper, making announcements on a student activities bulletin board or public address system, or handing out leaflets—school authorities may not discriminate against groups who meet to pray. School authorities may disclaim sponsorship of non-curricular groups and events, provided they administer such disclaimers in a manner that neither favors nor disfavors groups that meet to engage in prayer or religious speech.

Teachers, Administrators, and Other School Employees

When acting in their official capacities as representatives of the state, teachers, school administrators, and other school employees are prohibited by the Establishment Clause from encouraging or discouraging prayer, and from actively participating in such activity with students. Teachers may, however, take part in religious activities where the overall context makes clear that they are not participating in their official capacities. Before school or during lunch, for example, teachers may meet

with other teachers for prayer or Bible study to the same extent that they may engage in other conversation or nonreligious activities. Similarly, teachers may participate in their personal capacities in privately sponsored baccalaureate ceremonies.

Moments of Silence

If a school has a “minute of silence” or other quiet periods during the school day, students are free to pray silently, or not to pray, during these periods of time. Teachers and other school employees may neither encourage nor discourage students from praying during such time periods.

Accommodation of Prayer During Instructional Time

It has long been established that schools have the discretion to dismiss students to off-premises religious instruction, provided that schools do not encourage or discourage participation in such instruction or penalize students for attending or not attending. Similarly, schools may excuse students from class to remove a significant burden on their religious exercise, where doing so would not impose material burdens on other students. For example, it would be lawful for schools to excuse Muslim students briefly from class to enable them to fulfill their religious obligations to pray during Ramadan.

Where school officials have a practice of excusing students from class on the basis of parents’ requests for accommodation of nonreligious needs, religiously motivated requests for excusal may not be accorded less favorable treatment. In addition, in some circumstances, based on federal or state constitutional law or pursuant to state statutes, schools may be required to make accommodations that relieve substantial burdens on students’ religious exercise. Schools officials are therefore encouraged to consult with their attorneys regarding such obligations.

Religious Expression and Prayer in Class Assignments

Students may express their beliefs about religion in homework, artwork, and other written and oral assignments free from discrimination based on the religious content of their submissions. Such home and classroom work should be judged on the basis of academic standards (such as literary quality) and neither penalized nor rewarded on account of its religious content.

Student Assemblies and Extracurricular Events

Student speakers at student assemblies and extracurricular activities such as sporting events may not be selected on a basis that either favors or disfavors religious speech. Where student speakers are selected on the basis of genuinely neutral, evenhanded criteria and retain primary control over the content of their expression, that expression is not attributable to the school and therefore may not be restricted because of its religious (or anti-religious) content. By contrast, where school officials determine or substantially control the content of what is expressed, such speech is attributable to the school and may not include prayer or other specifically religious (or anti-religious) content. To avoid any mistaken perception that a school endorses student speech that is not in fact attributable to the school, school officials may make appropriate, neutral disclaimers to clarify that such speech (whether religious or nonreligious) is the speaker’s and not the school’s.

Prayer at Graduation

School officials may not mandate or organize prayer at graduation or select speakers for such events in a manner that favors religious speech such as prayer. Where students or other private graduation speakers are selected on the basis of genuinely neutral, evenhanded criteria and retain primary control over the content of their expression, however, that expression is not attributable to the school and therefore may not be restricted because of its religious (or anti-religious) content. To avoid any mistaken perception that a school endorses student or other private speech that is not in fact attributable to the school, school officials may make appropriate, neutral disclaimers to clarify that such speech (whether religious or nonreligious) is the speaker’s and not the school’s.

Baccalaureate Ceremonies

School officials may not mandate or organize religious ceremonies. However, if a school makes its facilities and related services available to other private groups, it must make its facilities and services available on the same terms to organizers of privately sponsored religious baccalaureate ceremonies. In addition, a school may disclaim official endorsement of events sponsored by private groups, provided it does so in a manner that neither favors nor disfavors groups that meet to engage in prayer or religious speech.

With the passage of the No Child Left Behind Act and issuance of the Guidance, the climate has seemingly changed from one in which school officials were fearful of allowing religious activities that might be violative of the Establishment Clause to one in which they face losing federal funds if they do not allow constitutionally protected religious activities. As the NCLB is revised and becomes the new Elementary and Secondary Education Act, school law students should ascertain if the Guidance remains intact or is modified to any degree.

III. Use of Facilities

Another issue that arises at the local school level concerns the extent, if any, that school buildings may be used by the public during noninstructional hours. In most instances, the local school board has either implied or specific authority to promulgate reasonable rules for the use of school buildings when they are not being used for school purposes or when their use does not interfere with normal school operations. Controversies often arise when the use of school facilities is requested by a group whose purpose or speaker may be offensive to some in the community, that represents certain religious organizations, or that is primarily interested in using the facility for commercial gain.

A general rule that has evolved concerning the use of school facilities suggests that if facilities are to be leased to one type of group, they must be available to all within the group. However, such use may be denied if (1) the user fails or refuses to abide by reasonable rules and regulations pertaining to the use, (2) there is a demonstrated danger of violence or disruption associated with meetings of this particular group, or (3) the meeting violates a local ordinance or either state or federal constitutional provisions or law. It should be noted that in the absence of a state statute mandating their use, local systems are not obligated to make school buildings available for public activities.

Those denied use of a school facility often allege that their right of freedom of expression has been denied. The United States Supreme Court addressed this notion in Police Department of the City of Chicago v. Mosley, 408 U.S. 92 (1972), when it stated:

Necessarily, then, under the Equal Protection Clause, not to mention the First Amendment itself, government may not grant the use of a forum to people whose views it finds acceptable, but deny use to those wishing to express less favored or more controversial views. And it may not select which issues are worth discussing or debating in public facilities. There is an “equality of status in the field of ideas,” and government must afford all points of view an equal opportunity to be heard. Once a forum is opened up to assembly or speaking by some groups, government may not prohibit others from assembling or speaking on the basis of what they intend to

say. Selective exclusions from a public forum may not be based on content alone, and may not be justified by reference to content alone. (p. 96)

Although allowing buildings to be used for social, civic, and recreational meetings outside school hours, many school systems, fearing lawsuits, have not allowed their buildings to be used for religious purposes. Such restrictions resulted in lawsuits brought by churches and religious organizations claiming unfair treatment. A unanimous Supreme Court decision in Lamb’s Chapel v. Center Moriches Union Free School District, 508 U.S. 384 (1993), ruled that excluding “a private group from presenting films at the school based solely on the films’ discussion of family values from a religious perspective” was viewpoint discrimination that violated the Free Speech Clause of the First Amendment. In Good News Club v. Milford Central School, the Court again relied on the viewpoint discrimination test by allowing a religious club that engaged in religious activities to meet after school.

Good News Club v. Milford Central School

Supreme Court of the United States, 2001 533 U.S. 98

JUSTICE THOMAS delivered the opinion of the Court.

This case presents two questions. The first question is whether Milford Central School violated the free speech rights of the Good News Club when it excluded the Club from meeting after hours at the school. The second question is whether any such violation is justified by Milford’s concern that permitting the Club’s activities would violate the Establishment Clause. We conclude that Milford’s restriction violates the Club’s free speech rights and that no Establishment Clause concern justifies that violation.

The State of New York authorizes local school boards to adopt regulations governing the use of their school facilities. * * * In 1992, respondent Milford Central School (Milford) enacted a community use policy. * * * Two of the stated purposes are relevant here. First, district residents may use the school for “instruction in any branch of education, learning or the arts.” Second, the school is available for “social, civic and recreational meetings and entertainment events, and other uses pertaining to the welfare of the community, provided that such uses shall be nonexclusive and shall be opened to the general public.”

Steve and Darleen Fournier reside within Milford’s district and therefore are eligible to use the school’s facilities as long as their proposed use is approved by the school. Together they are sponsors of the local Good News Club, a private Christian

organization for children ages 6 to 12. Pursuant to Milford’s policy, in September 1996 the Fourniers submitted a request to Dr. Robert McGruder, interim superintendent of the district, in which they sought permission to hold the Club’s weekly afterschool meetings in the school cafeteria. The next month, McGruder formally denied the Fournier’s request on the ground that the proposed use—to have “a fun time of singing songs, hearing a Bible lesson and memorizing scripture,”—was “the equivalent of religious worship.” According to McGruder, the community use policy, which prohibits use “by any individual or organization for religious purposes,” foreclosed the Club’s activities.

In response to a letter submitted by the Club’s counsel, Milford’s attorney requested information to clarify the nature of the Club’s activities. The Club sent a set of materials used or distributed at the meetings and the following description of its meeting:

“The Club opens its session with Ms. Fournier taking attendance. As she calls a child’s name, if the child recites a Bible verse the child receives a treat. After attendance, the Club sings songs. Next Club members engage in games that involve, inter alia, learning Bible verses. Ms. Fournier then relates a Bible story and explains how it applies to Club members’ lives. The Club closes with prayer. Finally, Ms. Fournier distributes treats and the Bible verses for memorization.”

* * * In February 1997, the Milford Board of Education adopted a resolution rejecting the Club’s request to use Milford’s facilities “for the purpose of conducting religious instruction and Bible study.”

* * *

The standards that we apply to determine whether a State has unconstitutionally excluded a private speaker from use of a public forum depend on the nature of the forum. * * * If the forum is a traditional or open public forum, the State’s restrictions on speech are subject to stricter scrutiny than are restrictions in a limited public forum. We have previously declined to decide whether a school district’s opening of its facilities pursuant to N.Y. Educ. Law § 414 creates a limited or a traditional public forum. * * * Because the parties have agreed that Milford created a limited public forum when it opened its facilities in 1992, we need not resolve the issue here. Instead, we simply will assume that Milford operates a limited public forum.

When the State establishes a limited public forum, the State is not required to and does not allow persons to engage in every type of speech. The State may be justified “in reserving [its forum] for certain groups or for the discussion of certain topics.” * * * The State’s power to restrict speech, however, is not without limits. The restriction must not

discriminate against speech on the basis of viewpoint, and the restriction must be “reasonable in light of the purpose served by the forum.” * * *

* * * In Lamb’s Chapel, we held that a school district violated the Free Speech Clause of the First Amendment when it excluded a private group from presenting films at the school based solely on the films’ discussions of family values from a religious perspective.

Milford has opened its limited public forum to activities that serve a variety of purposes, including events “pertaining to the welfare of the community.” Milford interprets its policy to permit discussions of subjects such as child rearing, and of “the development of character and morals from a religious perspective.” For example, this policy would allow someone to use Aesop’s Fables to teach children moral values. Additionally, a group could sponsor a debate on whether there should be a constitutional amendment to permit prayer in public schools, and the Boy Scouts could meet “to influence a boy’s character, development and spiritual growth.” In short, any group that “promotes the moral and character development of children” is eligible to use the school building.

* * * , no one disputes that the Club instructs children to overcome feelings of jealousy, to treat others well regardless of how they treat the children, and to be obedient, even if it does so in a nonsecular way. Nonetheless, because Milford found the Club’s activities to be religious in nature—“the equivalent of religious instruction itself,”—it excluded the Club from use of its facilities.

Applying Lamb’s Chapel, we find it quite clear that Milford engaged in viewpoint discrimination when it excluded the Club from the afterschool forum. In Lamb’s Chapel, the local New York school district similarly had adopted § 414’s “social, civic or recreational use” category as a permitted use in its limited public forum. The district also prohibited use “by any group for religious purposes.” Citing this prohibition, the school district excluded a church that wanted to present films teaching family values from a Christian perspective. We held that, because the films “no doubt dealt with a subject otherwise permissible” under the rule, the teaching of family values, the district’s exclusion of the church was unconstitutional viewpoint discrimination.

Like the church in Lamb’s Chapel, the Club seeks to address a subject otherwise permitted under the rule, the teaching of morals and character, from a religious standpoint. Certainly, one could have characterized the film presentations in Lamb’s Chapel as a religious use, as the Court of Appeals did, [in Lamb’s Chapel]. And one easily could conclude that the films’ purpose to instruct that “‘society’s slide toward humanism . . . can only be counterbalanced by a loving home where Christian values are instilled from an early age,’” was “quintessentially religious.” The only apparent difference between the activity of Lamb’s Chapel and the activities of the Good News

Club is that the Club chooses to teach moral lessons from a Christian perspective through live storytelling and prayer, whereas Lamb’s Chapel taught lessons through films. This distinction is inconsequential. Both modes of speech use a religious viewpoint. Thus, the exclusion of the Good News Club’s activities, like the exclusion of Lamb’s Chapel’s films, constitutes unconstitutional viewpoint discrimination.

* * *

We disagree that something that is “quintessentially religious” or “decidedly religious in nature” cannot also be characterized properly as the teaching of morals and character development from a particular viewpoint. * * * What matters for purposes of the Free Speech Clause is that we can see no logical difference in kind between the invocation of Christianity by the Club and the invocation of teamwork, loyalty, or patriotism by other associations to provide a foundation for their lessons. It is apparent that the unstated principle of the Court of Appeals’ reasoning is its conclusion that any time religious instruction and prayer are used to discuss morals and character, the discussion is simply not a “pure” discussion of those issues. According to the Court of Appeals, reliance on Christian principles taints moral and character instruction in a way that other foundations for thought or viewpoints do not. We, however, have never reached such a conclusion. Instead, we reaffirm our holdings in Lamb’s Chapel * * * that speech discussing otherwise permissible subjects cannot be excluded from a limited public forum on the ground that the subject is discussed from a religious viewpoint. Thus, we conclude that Milford’s exclusion of the Club from use of the school, pursuant to its community use policy, constitutes impermissible viewpoint discrimination.

Milford argues that, even if its restriction constitutes viewpoint discrimination, its interest in not violating the Establishment Clause outweighs the Club’s interest in gaining equal access to the school’s facilities. In other words, according to Milford, its restriction was required to avoid violating the Establishment Clause. We disagree.

* * *

We rejected Establishment Clause defenses similar to Milford’s in . . . previous free speech cases. * * * [I]n Lamb’s Chapel, we explained that “the showing of the film series would not have been during school hours, would not have been sponsored by the school, and would have been open to the public, not just to church members.” * * * Accordingly, we found that “there would have been no realistic danger that the community would think that the District was endorsing religion or any particular creed.” * * *

The Establishment Clause defense fares no better in this case. As in Lamb’s Chapel, the Club’s meetings were held after school hours, not sponsored by the school, and

open to any student who obtained parental consent, not just to Club members. * * * Thus, Milford’s reliance on the Establishment Clause is unavailing.

* * *

First, we have held that “a significant factor in upholding governmental programs in the face of Establishment Clause attack is their neutrality towards religion.” * * * The Good News Club seeks nothing more than to be treated neutrally and given access to speak about the same topics as other groups. Because allowing the Club to speak on school grounds would ensure neutrality, not threaten it, Milford faces an uphill battle in arguing that the Establishment Clause compels it to exclude the Good News Club.

Second, to the extent we consider whether the community would feel coercive pressure to engage in the Club’s activities, * * * the relevant community would be the parents, not the elementary school children. It is the parents who choose whether their children will attend the Good News Club meetings. Because the children cannot attend without their parents’ permission, they cannot be coerced into engaging in the Good News Club’s religious activities. * * *

Third, whatever significance we may have assigned in the Establishment Clause context to the suggestion that elementary school children are more impressionable than adults, * * * we have never extended our Establishment Clause jurisprudence to foreclose private religious conduct during nonschool hours merely because it takes place on school premises where elementary school children may be present.

* * *

Finally, even if we were to inquire into the minds of schoolchildren in this case, we cannot say the danger that children would misperceive the endorsement of religion is any greater than the danger that they would perceive a hostility toward the religious viewpoint if the Club were excluded from the public forum. * * * For that matter, members of the public at large are permitted in the school after hours pursuant to the community use policy. Any bystander could conceivably be aware of the school’s use policy and its exclusion of the Good News Club, and could suffer as much from viewpoint discrimination as elementary school children could suffer from perceived endorsement. * * *

* * *

The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion.

It is so ordered.

* * *

JUSTICE SOUTER, with whom JUSTICE GINSBURG joins, dissenting.

The majority rules on two issues. First, it decides that the Court of Appeals failed to apply the rule in Lamb’s Chapel v. Center Moriches Union Free School Dist., which held that the government may not discriminate on the basis of viewpoint in operating a limited public forum. The majority applies that rule and concludes that Milford violated Lamb's Chapel in denying Good News the use of the school. The majority then goes on to determine that it would not violate the Establishment Clause of the First Amendment for the Milford School District to allow the Good News Club to hold its intended gatherings of public school children in Milford’s elementary school. The majority is mistaken on both points. The Court of Appeals unmistakably distinguished this case from Lamb’s Chapel, though not by name, and accordingly affirmed the application of a policy, unchallenged in the District Court, that Milford’s public schools may not be used for religious purposes. As for the applicability of the Establishment Clause to the Good News Club’s intended use of Milford’s school, the majority commits error even in reaching the issue, which was addressed neither by the Court of Appeals nor by the District Court. I respectfully dissent.

* * *

The sole question before the District Court was, therefore, whether, in refusing to allow Good News’s intended use, Milford was misapplying its unchallenged restriction in a way that amounted to imposing a viewpoint-based restriction on what could be said or done by a group entitled to use the forum for an educational, civic, or other permitted purpose. The question was whether Good News was being disqualified when it merely sought to use the school property the same way that the Milford Boy and Girl Scouts and the 4-H Club did. The District Court held on the basis of undisputed facts that Good News’s activity was essentially unlike the presentation of views on secular issues from a religious standpoint held to be protected in Lamb’s Chapel, and was instead activity precluded by Milford’s unchallenged policy against religious use, even under the narrowest definition of that term.

The Court of Appeals understood the issue the same way. * * * The appeals court agreed with the District Court that the undisputed facts in this case differ from those in Lamb’s Chapel, as night from day. A sampling of those facts shows why both courts were correct.

Good News’s classes open and close with prayer. In a sample lesson considered by the District Court, children are instructed that “the Bible tells us how we can have our sins forgiven by receiving the Lord Jesus Christ. It tells us how to live to please Him. . . . If

you have received the Lord Jesus as your Savior from sin, you belong to God’s special group—His family.” The lesson plan instructs the teacher to “lead a child to Christ,” and, when reading a Bible verse, to “emphasize that this verse is from the Bible, God’s Word” and is “important—and true—because God said it.” The lesson further exhorts the teacher to “be sure to give an opportunity for the ‘unsaved’ children in your class to respond to the Gospel” and cautions against “neglecting this responsibility.”

While Good News’s program utilizes songs and games, the heart of the meeting is the “challenge” and “invitation,” which are repeated at various times throughout the lesson. During the challenge, “saved” children who “already believe in the Lord Jesus as their Savior” are challenged to “‘stop and ask God for the strength and the “want” . . . to obey Him.”’ They are instructed that

“if you know Jesus as your Savior, you need to place God first in your life. And if you don’t know Jesus as Savior and if you would like to, then we will—we will pray with you separately, individually. . . . And the challenge would be, those of you who know Jesus as Savior, you can rely on God’s strength to obey Him.”

During the invitation, the teacher “invites” the “unsaved” children “‘to trust the Lord Jesus to be your Savior from sin,’” and “‘receive [him] as your Savior from sin.’” The children are then instructed that

“if you believe what God’s Word says about your sin and how Jesus died and rose again for you, you can have His forever life today. Please bow your heads and close your eyes. If you have never believed on the Lord Jesus as your Savior and would like to do that, please show me by raising your hand. If you raised your hand to show me you want to believe on the Lord Jesus, please meet me so I can show you from God’s Word how you can receive His everlasting life.”

It is beyond question that Good News intends to use the public school premises not for the mere discussion of a subject from a particular, Christian point of view, but for an evangelical service of worship calling children to commit themselves in an act of Christian conversion. The majority avoids this reality only by resorting to the bland and general characterization of Good News’s activity as “teaching of morals and character, from a religious standpoint.” If the majority’s statement ignores reality, as it surely does, then today’s holding may be understood only in equally generic terms. Otherwise, indeed, this case would stand for the remarkable proposition that any public school opened for civic meetings must be opened for use as a church, synagogue, or mosque.

I also respectfully dissent from the majority’s refusal to remand on all other issues, insisting instead on acting as a court of first instance in reviewing Milford’s claim that it would violate the Establishment Clause to grant Good News’s application. Milford raised this claim to demonstrate a compelling interest for saying no to Good News, even on the erroneous assumption that Lamb’s Chapel’s public forum analysis would otherwise require Milford to say yes. Whereas the District Court and Court of Appeals resolved this case entirely on the ground that Milford’s actions did not offend the First Amendment’s Speech Clause, the majority now sees fit to rule on the application of the Establishment Clause, in derogation of this Court’s proper role as a court of review. * * *

The Court’s usual insistence on resisting temptations to convert itself into a trial court and on remaining a court of review is not any mere procedural nicety, and my objection to turning us into a district court here does not hinge on a preference for immutable procedural rules. Respect for our role as a reviewing court rests, rather, on recognizing that this Court can often learn a good deal from considering how a district court and a court of appeals have worked their way through a difficult issue. It rests on recognizing that an issue as first conceived may come to be seen differently as a case moves through trial and appeal; we are most likely to contribute something of value if we act with the benefit of whatever refinement may come in the course of litigation. And our customary refusal to become a trial court reflects the simple fact that this Court cannot develop a record as well as a trial court can. If I were a trial judge, for example, I would balk at deciding on summary judgment whether an Establishment Clause violation would occur here without having statements of undisputed facts or uncontradicted affidavits showing, for example, whether Good News conducts its instruction at the same time as school-sponsored extracurricular and athletic activities conducted by school staff and volunteers, whether any other community groups use school facilities immediately after classes end and how many students participate in those groups; and the extent to which Good News, with 28 students in its membership, may “dominate the forum” in a way that heightens the perception of official endorsement. We will never know these facts.

* * *

Notes and Questions

Good News Club was a six-to-three decision. Would you agree that the decisions in Lamb’s Chapel and Good News Clubhave lowered the wall of separation between church and state? Or do you agree with the majority that groups like the Good News Club have heretofore been discriminated against and that their meetings are similar to Boy or Girl Scout meetings? Do you agree with Justice Souter, in his dissent, that the Court should not have acted as a court of first instance and ruling on whether the

Establishment Clause applied in this case? As he states in his dissent, normally the Court does not address matters not introduced in the lower courts and “customarily [refuses] to become a trial court.” Would the majority decision have been the same if the group’s name was the Wahhabi Good News Club and conducted similar religiously oriented meetings as Good News Club did?

Not allowing Boy Scouts to continue to have after-hours use of school facilities because of the Scouts’ policy of excluding homosexual children and adults from group membership was litigated in Boy Scouts of America v. Till, 136 F. Supp2d 1295 (Fla. 2001). The school district’s action was based on a policy that prohibited the “rental use or enjoyment of school facilities by any group or organization which discriminates on the basis of age, race, color, disability, gender, marital status, national origin, religion, or sexual orientation.” In upholding the Scouts in their quest to continue using school facilities, the lower court cited the United States Supreme Court decision, in Boy Scouts of America v. Dale, 530 U.S. 640 (2000). In that decision, the Court ruled that New Jersey’s nondiscrimination law requiring the Boy Scouts to appoint a homosexual assistant scoutmaster ran “afoul of the Scouts’ freedom of expressive association.” Consequently, the Tillcourt contended it could not punish the Boy Scouts, by withholding their use of school facilities, for operating under a policy (excluding homosexuals) that the United States Supreme Court has condoned.

In addressing the issue of conditioning the off-time use of public school facilities on the political or ideological views of the applicant, on its membership policies, or on its attendance restrictions, a federal appellate court declared that the school system was not responsible for the views expressed or for the composition of the group that expressed them. The court also stated that “merely permitting the occasional and temporary use of state facilities by racially discriminatory groups along with all others does not constitute significant state involvement in their practices.” See Knights of the Ku Klux Klan v. East Baton Rouge Parish School Board, 578 F.2d 1122 (5th Cir. 1978). Also see National Socialist White People’s Party v. Ringers, 473 F.2d 1010 (4th Cir. 1973).

Assume that a local school board had a policy of allowing school facilities to be used by local groups. Would the school board be on sound constitutional footing if it barred any of the following local groups: the Gay Liberation League? Committee to Legalize the Use of Marijuana, Cocaine, or Heroin? American Nazis? Muslims Supporting Palestine? Evangelicals in Support of Israel? Suicide Advocates? Abortion Advocates? Committee to Recall Local School Board Members? Devil Worshipers? Nudists? What is the basis for your response in each of these instances?

Does your state have legislation pertaining to the use of public school facilities when they are not being used by the school system? Does your public school system have policies regulating the use of facilities?

IV. Aid to Nonpublic Schools

In the 1970s, legislatures in states such as Rhode Island, New York, and Pennsylvania, which had large numbers of predominately Catholic private schools (in 1969, 85 percent of private-school students were Catholic), began passing measures that attempted to financially assist this nonpublic school sector. Because these measures raised serious questions pertaining to the proper separation of church and state under the First Amendment, their constitutionality has been examined over the years by the United States Supreme Court. The following represents a brief history of some of this litigation.

In Lemon v. Kurtzman, * 403 U.S. 602 (1971) the Court struck down both an attempt by the Rhode Island legislature to provide a 15 percent salary supplement to be paid to those teachers dealing with secular subjects in nonpublic schools and a Pennsylvania statute that provided financial support to nonpublic elementary and secondary schools by way of reimbursement for the cost of teachers’ salaries, textbooks, and instructional materials in specified secular subjects. The Court held that the “cumulative impact of the entire relationship arising under the statutes in each state involves excessive entanglement between government and religion.” Furthermore, the Court reasoned that these state programs had a divisive political potential that would be a threat to the normal political process. Because candidates would be forced to declare their position on amounts of money to be expended in such programs, political division along religious lines would develop. The Court contended that this was a principal evil that the First Amendment was intended to protect against.

A New York statute was struck down by the Court in Levitt v. Committee for Public Education and Religious Liberty, 413 U.S. 472 (1973). Under this statute, nonpublic schools would have been reimbursed for expenses incurred in administering, grading, compiling, and reporting test results; maintaining pupil attendance and health records; recording qualifications and characteristics of personnel; and preparing and submitting various reports to the state. The Court ruled that such aid would have the primary purpose or effect of advancing religion or religious education and that it would lead to excessive entanglement between church and state. However, in Committee for Public Education and Religious Libertyv. Regan, 442 U.S. 928 (1980), a five-to-four opinion, the Court upheld a revised version of the law that had been declared unconstitutional in Levitt. The revised law allowed the state to reimburse private schools, including sectarian schools, for the expenses connected with keeping official attendance and other records, for administering three state tests, and for grading two of the tests.

Another New York law was invalidated in Committee for Public Education and Religious Liberty v. Nyquist, 413 U.S. 756 (1973), which provided for the maintenance and repair of nonpublic school facilities, tuition reimbursement for parents of nonpublic school students, and tax relief for those not qualifying for tuition reimbursement. And a Pennsylvania law providing for parent reimbursement for nonpublic school students was also invalidated in Sloan v. Lemon, 413 U.S. 825 (1973). The majority opinion declared that there was no constitutionally significant difference between Pennsylvania’s tuition-grant scheme and New York’s tuition-reimbursement program, which was held violative of the Establishment Clause in Nyquist.

In Meek v. Pittenger, 421 U.S. 349 (1975), the Court was asked to rule on a Pennsylvania statute that provided for auxiliary services for exceptional, remedial, or educationally disadvantaged nonpublic school students; for lending instructional materials and equipment to nonpublic schools; and for lending textbooks to nonpublic school students. The Court invalidated all but the textbook-loan provision of the Pennsylvania law. It held that the act had the unconstitutional primary effect of advancing religion because of the predominantly religious character of the benefitting schools. Additionally, the Court stated that the act provided excessive opportunities for political fragmentation and division along religious lines. Expanding on this theme, the Court declared:

This potential for political entanglement, together with the administrative entanglement which would be necessary to ensure that auxiliary-services personnel remain strictly neutral and nonideological when functioning in church-related schools . . . violates the constitutional prohibition against laws “respecting an establishment of religion.” (p. 372)

In another decision, Wolman v. Walter, 433 U.S. 229 (1977), the Court addressed the constitutionality of an Ohio statute that had attempted to conform to the Meek ruling. The decision, which revealed wide disagreement among the justices, held that the provisions providing nonpublic school students with books, standardized testing and scoring, diagnostic services, and therapeutic and remedial services were constitutional. However, provisions relating to instructional materials and equipment and field-trip services were held to be unconstitutional.

Initially, the major impetus for obtaining government financial assistance for nonpublic schools came from Catholic parochial school supporters, who were largely responsible for bringing the cases discussed previously. These supporters thought it only fair to receive such assistance because, although they were paying taxes for the public schools, they were not using them. Opponents, some of whom were accused of having

an anti-Catholic bias, argued that tax money should not be expended for schools that had a religious orientation. In time, supporters of assistance to nonpublic schools were joined by those who were interested in government aid to private schools in general and those who thought if nonpublic schools received aid, religiously oriented schools should not be discriminated against. Two United States Supreme Court decisions, Agostini v. Felton (1997) and Mitchell v. Helms (2000), reflected a shift in the Court’s thinking regarding financial aid to nonpublic religious schools.

Using federal education funds under Chapter 1 (formerly Title I of the Elementary and Secondary Education Act) to pay public school teachers who taught in programs aimed at helping low-income, educationally deprived students within parochial schools was allowed in Agostini v. Felton, 521 U.S. 203 (1997). This five-to-four decision overruled both Aguilar v. Felton, 473 U.S. 402 (1985) and Grand Rapids School District v. Ball, 473 U.S. 373 (1985), which had not allowed the practice. In Agostini, the Court abandoned its previous assumption that public-school teachers within parochial schools would inevitably inculcate religion to their students or that their presence constituted a symbolic union between government and religion. The Court established the following criteria for determining whether or not school-aid programs have an impermissible effect: (1) whether the aid results in governmental indoctrination, (2) whether the program defines its recipients by reference to religion, and (3) whether the aid creates an excessive entanglement between government and religion. The United States Supreme Court rarely overrules previous decisions. It does so when a majority on the Court prevails on a doctrinal position, such as in this case, of where to place the proverbial “line in the sand” on the issue of separation of church and state.

A federal program involving Chapter 2 (technically Subchapter VI of Chapter 70 of 20 U.S.C.) that loaned computers, software, and library books to religious schools was upheld in a six-to-three decision in Mitchell v. Helms, 530 U.S. 793 (2000). The plurality opinion held that the aid was allocated on the basis of neutral, secular criteria that neither favored nor disfavored religion and was made available to both religious and secular beneficiaries on a nondiscriminatory basis. However, the concurring opinion states,

The plurality announces a rule of unprecedented breadth for the evaluation of Establishment Clause challenges to government school-aid programs. That rule is particularly troubling because, first, its treatment of neutrality comes close to assigning that factor singular importance. . . . Second, the plurality’s approval of actual diversion of government aid to religious indoctrination is in tension with this Court’s precedents. . . . Because Agostini represents the Court’s most

recent attempt to devise a general framework (its) criteria should control here. (p. 844)

Mitchell overruled key holdings in Meek v. Pittenger and Wolman v. Walter that had barred the government from providing maps, charts, overhead projectors, and other instructional materials to religious schools.

In a five-to-four decision, Mueller v. Allen, 463 U.S. 388 (1983), the Court upheld a Minnesota law permitting taxpayers to claim a deduction from gross income on their state income tax returns for expenses incurred for “tuition, textbooks and transportation” not exceeding $500 for dependents in grades K–6 and $700 for dependents in grades 7–12. A distinction between this decision and the Court’s 1973 Nyquist ruling appears to be that Nyquist rejected a tax credit for parents whose children attended nonpublic school, whereas Mueller allowed a tax deduction for all parents, including those whose children attended public schools. The tax deduction, the Mueller majority reasoned, was simply part of the state’s tax law permitting deductions for a number of things. The dissenters argued that of the total number of taxpayers who were eligible for the tuition deduction, approximately 96 percent sent their children to religious schools. Public-school parents, the dissenters maintained, whose children went to free public schools, were simply ineligible to obtain the full benefit of the deduction, “except in the unlikely event that they buy $700 worth of pencils, notebooks, and bus rides for their school-age children.” However, a New Jersey statute was held to be unconstitutional that provided taxpayers with a $1,000 tax deduction for each child attending nonpublic schools. See Public Funds for Public Schools of New Jersey v. Byrne, 590 F.2d 514 (3rd Cir. 1979), aff’d, 442 U.S. 907 (1979).

The United States Supreme Court, in a five-to-four decision, upheld the constitutionality of providing transportation to parochial school students in Everson v. Board of Education of Township of Ewing, 330 U.S. 1 (1947). Over thirty years later, a Rhode Island statute providing for the busing of students to nonpublic schools was held not to violate state or federal constitutional provisions. See Members of the Jamestown School Committee v. Schmidt, 405 A.2d 16 (R.I. 1979). The Connecticut Supreme Court was asked to determine whether a state statute authorizing transportation for private and parochial students required transportation by a school district on days that public schools were not in session. In determining that such transportation was required, the court held that the intent of the statute was to provide private-school students with the same quality of transportation public-school students received, regardless of schools’ schedules. See Board of Education of the Town of Stafford v. State Board of Education, 243 Conn. 772 (1998).

Under the Internal Revenue Code, tax exemptions may be granted to “corporations . . . organized and operated exclusively for religious, charitable . . . or educational purposes.” A private religious university was devoted to the teaching and propagation of fundamentalist religious beliefs, which included that God intended segregation of the races and that scripture forbids interracial dating and marriage. Students were expelled if they did not follow these prohibitions. The Internal Revenue Service, upheld by the Supreme Court, withdrew the college’s tax-exempt status, having determined that the racial policy was not “charitable” as required by the Code. See Bob Jones University v. United States, 461 U.S. 574 (1983).

In Zelman v. Simmons-Harris, 536 U.S. 639 (2002), a five-to-four decision, the Court upheld an Ohio program that provided vouchers to low-income and minority families in Cleveland. The voucher program was instituted because the Cleveland schools were considered to be some of the worst performing schools in the country and, as a consequence, were placed under a federal court order that required supervision and management by the state. Under the program, tuition aid up to $2,250 was given to students in grades K–3 (expanding each year through eighth grade) to attend a participating public or private school of their parent’s choosing, and tutorial aid was given to students wishing to remain in public school. Because 82 percent of the participating private schools had a religious affiliation and 96 percent (99.4 percent in 2002) of the participating students were enrolled in private religious schools, opponents to the program charged that the program violated the First Amendment’s prohibition against the establishment of religion. In upholding the program, the Court declared:

Mueller [tax deductions for private school tuition], Witters, [vocational scholarship program that provided tuition aid to a student studying at a religious institution to become a pastor] and Zobrest [federal program that permitted sign-language interpreters to assist deaf children enrolled in religious schools] thus make clear that where a government aid program is neutral with respect to religion, and provides assistance directly to a broad class of citizens who, in turn, direct government aid to religious schools wholly as a result of their own genuine and independent private choice, the program is not readily subject to challenge under the Establishment Clause. (p. 652)

Dissenters argued that this voucher program differed “in both kind and degree from aid programs upheld in the past” because public money was provided “to a core function of the church: the teaching of religious truths to young children.”

Does your state have any provisions for aid to nonpublic schools?

V. School Fees

Disputes often arise in regard to the charging of fees by public school systems for supplies, materials, extracurricular activities, transportation to school, and texts. Whether or not fees may be charged legitimately depends on statutory provisions or the interpretation of a state’s constitution. Although decisions in several states have denied the charging of fees for textbooks and/or supplies, decisions in other states have taken an opposite view.

The Indiana Supreme Court considered the issue of charging a general student fee and fees for extracurricular activities inNagy v. Evansville-Vanderburgh School Corporation.

Nagy v. Evansville-Vanderburgh School Corporation

Supreme Court of Indiana, 2006 844 N.E.2d 481

OPINION BY: Rucker

The question presented is whether the mandatory $20 student services fee imposed on students enrolled in a school corporation violates Article 8, Section 1 of the Indiana Constitution. We conclude it does.

The facts of this case are largely undisputed. For the 2002–2003 school year, the Evansville-Vanderburgh School Corporation (“EVSC”) imposed a $20 student services fee on all students in grades Kindergarten through Twelve. EVSC acknowledges that the fee was imposed as part of an attempt to balance its budget, which had a $2.3 million deficit in 2002 and a predicted $5.5 million deficit for 2003. * * * The $20 fee is charged to every student including students who qualify for the free or reduced school lunches and textbook programs. If the fee is not paid, a notice is sent to the student’s parents notifying them that if payment is not received by a date certain the matter would be referred to a law firm for collection and attorney fees of up to $100 would be charged to the parent regardless of whether legal action is taken.

Frank Nagy and Sonja Brackett are residents of Evansville whose children are enrolled in public schools under EVSC’s jurisdiction. EVSC charged Nagy and Brackett a $20 fee for each of their children enrolled for the 2002–2003 academic year. The Brackett children qualify for the reduced or free school lunch and textbook programs.

* * *

In a divided opinion, the Court of Appeals reversed the judgment of the trial court, holding that the $20 fee violates Article 8, Section 1 of the Indiana Constitution because it is used to pay for what amounts to tuition. Because the court found the fee in violation of the Indiana Constitution, it did not reach the federal due process claim. We agree that the student services fee is inconsistent with Article 8, Section 1, but for reasons slightly different than those expressed by the Court of Appeals. Having previously granted transfer, we now reverse the judgment of the trial court.

* * *

. . . , unlike constitutions in a number of states, the framers of Indiana’s constitution were careful not to provide for a free school system. Rather, at most the framers provided that tuition would be free, or more precisely “tuition shall be without charge.” This is a subtle distinction, but a significant one that we believe the framers made intentionally. A free public school system implies a level of educational subsidization that the framers at least did not endorse and at most rejected outright.

* * *

. . . Rather than completely subsidizing education, which would fall within the meaning of a “free school” system, the framers pursued a more modest, and perhaps less controversial, route: a uniform statewide system of public schools that would be supported by taxation. Indeed the term “common school” was widely understood to mean “public school.” * * *

* * *

Arguing that tuition contemplates only fees for instruction, EVSC insists that “expenses incidental to credited, academic instruction such as heat, light, facility maintenance, non-instructional salaries/stipend do not fall within the commonly understood definition of ‘tuition.’” EVSC suggests that other than legislatively-mandated curriculum requirements all other educationally related expenses may be assessed against students and their parents. * * *

* * *

It is of course true that what constitutes a public education has dramatically expanded over these several decades. We doubt for example that the framers could have had in their contemplation such cost items as computer labs, athletic departments, and media specialists. But it is equally true that determining the components of a public education is left within the authority of the legislative branch of government. * * *

* * *

In this case the $20 fee that EVSC imposes on all students is deposited into its general fund and is used to offset the costs of such things as a coordinator of student services, nurses, media specialists, alternative education, elementary school counselors, a drama program, a music program, speech and debate programs, academic academies, athletic programs, and a police liaison program. But either the legislature or the State Board has already determined that all such items are part and parcel of a public school education and by extension qualify for public funding. * * *

In essence, the very programs, services, and activities for which EVSC charges a fee already are a part of a publicly-funded education in the state of Indiana. However, this conclusion does not preclude EVSC from offering programs, services or activities that are outside of or expand upon those deemed by the legislature or State Board as part of a public education. The Indiana Constitution does not prohibit EVSC from charging individual students for their participation in such extracurriculars or for their consumption of such services. However the mandatory fee EVSC imposed generally on all students, whether the student avails herself of a service or participates in a program or activity or not, becomes a charge for attending a public school and obtaining a public education. Such a charge contravenes the “Common Schools” mandate as the term is used in Article 8, Section 1 and is therefore unconstitutional.

We reverse the judgment of the trial court and remand this cause for further proceedings.

Shepard C.J., and Dickson and Boehm, J.J., concur.

Sullivan, J., dissents with separate opinion.

Note and Questions

A United States Supreme Court decision, Kadrmas v. Dickinson Public Schools, 487 U.S. 450 (1988), upheld a North Dakota statute that allowed local school boards to assess fees for transporting pupils to school. Inasmuch as the policy caused education to be more expensive for some citizens than for others, plaintiffs contended that the statute offended the Equal Protection Clause of the United States Constitution. In rejecting that contention, the Court declined on two counts to subject the statute to “strict scrutiny.” First it reaffirmed its position that education is not a “fundamental” constitutional right. Second it held that laws impacting disproportionately on the poor do not, on that account, invoke such scrutiny. Moreover, the Court declared, a state’s choosing to offer a service does not impose on the state a constitutional obligation to offer it free of charge. Does your state constitution or statutory law address the issue of school fees? What is the practice or policy regarding fees in your school system?

VI. Health Services

Occasionally, school systems attempt to impose unpopular health services on students that parents oppose. The most notable and heavily litigated issue has dealt with immunization. However, in recent years some parents have objected to the distribution of condoms, although the rationale for the distribution was based on its being a health service for the prevention of disease.

A. Immunization

Upheld by the courts, every state has immunization requirements that must be met before a child may enter school. These requirements allow for medical exemptions, and most permit exemptions based on religious practices. In 2008, twenty states also allowed for some kind of personal exemption. To the chagrin of public health authorities, the number of vaccine skeptics has grown in recent years, largely due to their belief that vaccines are linked to autism.

Berg v. Glen Cove City School District

United States District Court, Eastern District of New York, 1994 853 F. Supp 651

WEXLER, District Judge

* * *

The facts as alleged in the complaint, and as adduced at the hearing, are summarized as follows: In or before April 1993, Kathryn and David Berg sought to enroll their five-year-old twin daughters, Emily and Sasha, in the Glen Cove City School District, and requested exemption from the immunization requirement of New York Public Health Law § 2164. This section requires that all children be immunized against certain communicable diseases before they enter school. * * *

By letters dated April 28, 1993 and July 22, 1993, defendant, through Assistant Superintendent Michael S. Perricone (“Perricone”), sought information from plaintiffs to determine whether the requirements for exemption were satisfied. In particular, Perricone asked plaintiffs to identify the religion to which they claimed to belong and the tenets of that religion that would be violated by permitting immunization.

Plaintiffs responded to Perricone’s request by summarizing their purported religious beliefs in a letter dated July 29, 1993. As alleged in paragraph 17 of the Complaint, the July 29 letter described plaintiffs’ religious beliefs as follows:

While we feel we are members of the Jewish Faith and we believe in God, we adhere to certain personal and sacred religious beliefs. Our beliefs are partly based on Torah and what we believe that God commands of us. We believe that God has endowed us with the energy of life. We believe that this special energy, directed by God, has constructed our cells, our tissues, and our organs with infinite intelligence and these interconnected systems function in perfect harmony when we follow nature’s laws which are the Laws of God. We believe a lifestyle that is in accordance with the Laws of God creates healthy bodies and healthy minds. God is pure and we must strive to live our lives as purely as possible. Eating unpure substances or injecting substances unnaturally into our bloodstreams is in our opinion a violation of these laws. * * *

Plaintiffs thereafter filed their complaint in this action on November 9, 1993, ultimately seeking: (1) a declaratory judgment, that they are entitled to the exemption from immunizations provided in § 2164(9); (2) a permanent injunction preventing defendant from violating plaintiffs’ constitutional rights; and (3) damages in the amount of $1 million for violation of their constitutional rights, together with costs and disbursements of this action, including reasonable attorney’s fees pursuant to 42 U.S.C. § 1988. * * *

Before a discussion of the merits, the Court notes that in Sherr v. Northport–East Northport Union Free School Dist., 672 F. Supp. 81 (E.D.E.Y. 1987), this Court declared that the predecessor of § 2164(9) violated both the establishment and free exercise clauses of the First Amendment. The earlier version of § 2164(9) required that the parent or guardian seeking the exception be a “bona fide member of a recognized religious organization” whose doctrines oppose such immunizations. In response to this Court’s Sherr decision, the New York legislature amended § 2164(9) to require that the parent or guardian “hold genuine and sincere religious beliefs which are contrary to the practices herein required.” Because the statutory exception is for persons whose opposition to immunizations stems from religious beliefs, it does not extend to persons whose views are founded upon, for instance, “medical or purely moral considerations,” Sherr, 672 F. Supp. at 92, “scientific and secular theories,” or “philosophical and personal” beliefs, Mason v. General Brown Cent. School Dist., 851 F.2d 47, 51–52 (2d Cir. 1988). Thus, this Court must first determine whether plaintiffs’ purported beliefs are “religious.” Only if they are, then this Court must determine whether those beliefs are genuinely and sincerely held. Moreover, the Court is mindful that attempts to ascertain the sincerity of claims of religious beliefs must be undertaken with extreme caution. * * *

As for plaintiffs’ beliefs, both Kathryn and David Berg testified that they consider themselves “Jewish,” but that they do not fit within any recognized classification of

Judaism; rather, they adhere to their own concept of being Jewish. Although defendant offered testimony from an expert in Jewish religion that there is nothing in the teachings of the Jewish religion that would proscribe immunization for children, plaintiffs maintained, nevertheless, that the basis for their opposition to immunization was their own interpretation of passages from certain Hebrew scripture, and claimed to adhere strongly to those passages, as they interpreted them, for at least the past six years.

Based on this testimony and plaintiffs’ statement of their beliefs in the complaint, it appears that plaintiffs will likely succeed on their claim that the beliefs they hold opposing immunization qualify as “religious.”

As for plaintiffs’ claim that their beliefs are genuinely and sincerely held, this Court’s examination of certain medical and dental records substantiates plaintiffs’ claim that for at least six years they have practiced those beliefs they contend are opposed to immunization in contexts other than immunization, for instance, in the receipt of prenatal, pediatric and dental care. Although it may seem odd that plaintiffs interpret certain tenets of the Jewish religion to prohibit immunization, while Jewish teaching, according to defendant’s expert, imposes no such prohibition, and although these facts bear on determining whether plaintiffs’ beliefs are genuine and sincere, plaintiffs have thus far sufficiently shown that they hold their beliefs genuinely and sincerely.

Based on the record presented thus far, this Court finds that plaintiffs have established a likelihood of success on the merits of their claim that their opposition to the required immunizations is based on beliefs which qualify as “religious,” and that they hold these beliefs both “genuinely” and “sincerely.” * * *

Notes

For a contrary view, see Boone v. Boozman, 217 F. Supp.2d 938 (Ark. 2002). Here, the court upheld the Arkansas compulsory immunization law as a reasonable measure but severed the religious exemption as being unconstitutional. By having such an exemption, the court questioned how the state would have a compelling interest in limiting the religious exemption to some religious sects and individuals over others. According to Heard v. Payne, 665 S.W.2d 865 (Ark. 1984), exemption may not be given for students receiving a note of medical exemption from a chiropractor.

A school rule requiring a tetanus shot as a condition of playing on a baseball team was upheld. A Pennsylvania court held that a school district’s compelling interest to immunize did not infringe on a boy’s religious practice. See Calendra v. State College Area School District, 512 A.2d 809 (1986). An Alaska law requiring tuberculosis testing through a purified protein derivative skin test was challenged on grounds that the parents: had complied with the medical exemption requiring an affidavit from a

physician of medicine or osteopathy (an affidavit by the father, a naturopath was submitted); had their religious freedom violated; and had liberty and privacy interests. The Alaska Supreme Court in, Huffman v. State, 204 P.3d 339 (Alaska 2009), held that the parents’ regulatory and religious freedom had not been violated. However, the court remanded the case with instructions “to determine whether the Huffmans’ fundamental right to make decisions about their children’s medical treatment can be accommodated by other tests that are acceptable to them while also satisfying the compelling public health interests of the State”.

B. Distribution of Condoms

Some school authorities, primarily in urban areas, have attempted to deal with problems associated with high levels of student pregnancy and a student-wide AIDS epidemic by making condoms available. Such school districts contend that condom distribution is not only a valuable component of the sex-education and/or health-education curriculum but also invaluable in preventing the spread of sexually transmitted diseases such as AIDS. Parents who oppose such a scheme generally argue that such distribution is tantamount to condoning promiscuity and sexual permissiveness and encourages sexual relations at an earlier age and/or with more frequency. When litigated, condom distribution programs have generally been upheld by the courts.

In Curtis v. School Committee of Falmouth, 652 N.E.2d 580 (Mass. 1995), a condom-availability program for grades 7–12 was upheld. Under this program junior high school students could request free condoms from the school nurse, who would counsel the students and provide them with pamphlets on AIDS/HIV and other sexually transmitted diseases. At the high school, students could request free condoms from the school nurse or purchase them from the condom-vending machines located in the girls’ and boys’ restrooms. Counseling was provided if requested. This program did not provide for an “opt-out” under which parents had the option of excluding their student from the availability of condoms, nor a parental notification provision whereby parents would be notified of their children’s requests for condoms. The court ruled that this program did not violate parental liberties or privacy rights. Additionally, the court stated that although the program may offend the religious sensibilities of parents, mere exposure to offensive programs does not amount to a violation of free exercise. Parents have no right to tailor public-school programs to meet their individual religious or moral preference.

A condom distribution program, including an “opt-out” provision, was challenged by parents who argued that their Fourteenth Amendment right to bring up their children without unnecessary governmental interference was violated. The court, in Parents United for Better Schools, Inc. v. School District of Philadelphia, 148 F.3d 260 (3rd Cir.

1998), upheld the consensual program and argued that because the program did not demand student participation and gave parents the option to exclude their children from receiving condoms, it did not violate the parents’ rights. The condom distribution program was a result of the school board’s concern about an epidemic in adolescent pregnancy, sexually transmitted diseases, and HIV infection. It was a part of a larger program to educate students about health and hygiene. Given the program’s goals, the court agreed that the program was within the implied definition of health services. A mandatory condom distribution program was not upheld in Alfonso v. Fernandez, 606 N.Y.S.2d 259 (N.Y. App. 1993).In its three-to-two supreme court appellate division decision,* the court announced:

Today, we hold that the respondents are prohibited from dispensing condoms to unemancipated minor students without the prior consent of their parents or guardians, or without an opt-out provision. Condom distribution in the public schools is a health service rather than health education and thus, in the absence of a provision requiring the prior consent of unemancipated minor students’ parents or guardians, or in the absence of an opt-out provision, lacks common-law or statutory authority. In addition, the respondents’ plan to dispense condoms to unemancipated minor children without the consent of their parents or guardians, or an opt-out provision, violates the civil rights of the parent petitioners and similarly situated parents or guardians under the substantive Due Process Clauses of the Fourteenth Amendment of the United States Constitution and New York Constitution, article I, § 6. (pp. 260–261)

Chapter 5: School Desegregation

I. Historical Perspective

A. Separate but Equal Doctrine

Plessy v. Ferguson

Supreme Court of the United States, 1896 163 U.S. 537

MR. JUSTICE BROWN, after stating the case, delivered the opinion of the court.

This case turns upon the constitutionality of an act of the General Assembly of the State of Louisiana, passed in 1890, providing for separate railway carriages for the white and colored races. * * *

The first section of the statute enacts “that all railway companies carrying passengers in their coaches in this State, shall provide equal but separate accommodations for the white, and colored races, by providing two or more passenger coaches for each passenger train, or by dividing the passenger coaches by a partition so as to secure separate accommodations: Provided, That this section shall not be construed to apply to street railroads. No person or persons shall be admitted to occupy seats in coaches other than the ones assigned to them on account of the race they belong to.”

By the second section it was enacted “that the officers of such passenger trains shall have the power and are hereby required to assign each passenger to the coach or compartment used for the race to which such passenger belongs; any passenger insisting on going into a coach or compartment to which by race he does not belong, shall be liable to a fine of twenty-five dollars, or in lieu thereof to imprisonment for a period of not more than twenty days in the parish prison, and any officer of any railroad insisting on assigning a passenger to a coach or compartment other than the one set aside for the race to which said passenger belongs, shall be liable to a fine of twenty-five dollars, or in lieu thereof to imprisonment for a period of not more than twenty days in the parish prison; and should any passenger refuse to occupy the coach or compartment to which he or she is assigned by the officer of such railway, said officer shall have power to refuse to carry such passenger on his train, and for such refusal neither he nor the railway company which he represents shall be liable for damages in any of the courts of this State.”

The third section provides penalties for the refusal or neglect of the officers, directors, conductors and employees of railway companies to comply with the act, with a proviso that “nothing in this act shall be construed as applying to nurses attending children of the other race.” The fourth section is immaterial.

The information filed in the criminal District Court charged in substance that Plessy, being a passenger between two stations within the State of Louisiana, was assigned by officers of the company to the coach used for the race to which he belonged, but he insisted upon going into a coach used by the race to which he did not belong. Neither in the information nor the plea was his particular race or color averred.

The petition for the writ of prohibition averred that petitioner was seven-eighths Caucasian and one-eighth African blood; that the mixture of colored blood was not discernible in him, and that he was entitled to every right, privilege and immunity secured to citizens of the United States of the white race; and that, upon such theory, he took possession of a vacant seat in a coach where passengers of the white race were accommodated, and was ordered by the conductor to vacate said coach and take a seat in another assigned to persons of the colored race, and having refused to comply with such demand he was forcibly ejected with the aid of a police officer, and imprisoned in the parish jail to answer a charge of having violated the above act.

The constitutionality of this act is attacked upon the ground that it conflicts both with the Thirteenth Amendment of the Constitution, abolishing slavery, and the Fourteenth Amendment, which prohibits certain restrictive legislation on the part of the States.

1. That it does not conflict with the Thirteenth Amendment, which abolished slavery and involuntary servitude, except as a punishment for crime, is too clear for argument. Slavery implies involuntary servitude—a state of bondage; the ownership of mankind as a chattel, or at least the control of the labor and services of one man for the benefit of another, and the absence of a legal right to the disposal of his own person, property and services. * * *

* * *

A statute which implies merely a legal distinction between white and colored races—a distinction which is founded in the color of the two races, and which must always exist so long as white men are distinguished from the other race by color—has no tendency to destroy the legal quality of the two races, or reestablish a state of involuntary servitude. Indeed, we do not understand that the Thirteenth Amendment is strenuously relied upon by the plaintiff in error in this connection.

2. By the Fourteenth Amendment, all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are made citizens of the United States and of the State wherein they reside; and the States are forbidden from making or enforcing any law which shall abridge the privileges or immunities of citizens of the United States, or shall deprive any person of life, liberty or property without due process of law, or deny to any person within their jurisdiction the equal protection of the laws.

The proper construction of this amendment was first called to the attention of this court in the Slaughter-house cases, 16 Wall. 36, which involved, however, not a question of race, but one of exclusive privileges. The case did not call for any expression of opinion as to the exact rights it was intended to secure to the colored race, but it was said generally that its main purpose was to establish the citizenship of the negro; to give definitions of citizenship of the United States and of the States, and to protect from the hostile legislation of the States the privileges and immunities of citizens of the United States, as distinguished from those of citizens of the States.

The object of the amendment was undoubtedly to enforce the absolute equality of the two races before the law, but in the nature of things it could not have been intended to abolish distinctions based upon color, or to enforce social, as distinguished from political equality, or a commingling of the two races upon terms unsatisfactory to either. Laws permitting, and even requiring, their separation in places where they are liable to be brought into contact do not necessarily imply the inferiority of either race to the other, and have been generally, if not universally, recognized as within the competency of the state legislatures in the exercise of their police power. The most common instance of this is connected with the establishment of separate schools for white and colored children, which has been held to be a valid exercise of the legislative power even by courts of States where the political rights of the colored race have been longest and most earnestly enforced.

One of the earliest of these cases is that of Roberts v. City of Boston, 5 Cush. 198, in which the Supreme Judicial Court of Massachusetts held that the general school committee of Boston had power to make provision for the instruction of colored children in separate schools established exclusively for them, and to prohibit their attendance from the other schools. * * * It was held that the powers of the committee extended to the establishment of separate schools for children of different ages, sexes and colors, and that they might also establish special schools for poor and neglected children, who have become too old to attend the primary school, and yet have not acquired the rudiments of learning, to enable them to enter the ordinary schools. Similar laws have been enacted by Congress under its general power of legislation over the District of

Columbia, * * * as well as by the legislatures of many of the States, and have been generally, if not uniformly, sustained by the courts. * * *

Laws forbidding the intermarriage of the two races may be said in a technical sense to interfere with the freedom of contract, and yet have been universally recognized as within the police power of the State. * * *

The distinction between laws interfering with the political equality of the negro and those requiring the separation of the two races in schools, theatres and railway carriages has been frequently drawn by this court. Thus in Strauder v. West Virginia, it was held that a law of West Virginia limiting white male persons, 21 years of age and citizens of the State, the right to sit upon juries, was a discrimination which implied a legal inferiority in civil society, which lessened the security of the right of the colored race, and was a step toward reducing them to a condition of servility. Indeed, the right of the colored man that, in the selection of jurors to pass upon his life, liberty and property, there shall be no exclusion of his race, and no discrimination against them because of color, has been asserted in a number of cases. * * *

* * *

So far, then, as a conflict with the Fourteenth Amendment is concerned, the case reduces itself to the question of whether the statute of Louisiana is a reasonable regulation, and with respect to this there must necessarily be a large discretion on the part of the legislature. In determining the question of reasonableness it is at liberty to act with reference to the established usages, customs and traditions of the people, and with a view to the promotion of their comfort, and the preservation of the public peace and good order. Gauged by this standard, we cannot say that a law which authorized or even requires the separation of the two races in public conveyances is unreasonable, or more obnoxious to the Fourteenth Amendment than the acts of Congress requiring separate schools for colored children in the District of Columbia, the constitutionality of which does not seem to have been questioned, or the corresponding acts of state legislatures.

We consider the underlying fallacy of the plaintiff’s argument to consist in the assumption that the enforced separation of the two races stamps the colored race with a badge of inferiority. If this be so, it is not by reason of anything found in the act, but solely because the colored race chooses to put that construction upon it. The argument necessarily assumes that if, as had been more than once the case, and is not unlikely to be so again, the colored race should become the dominant power in the state legislature, and should enact a law in precisely similar terms, it would thereby relegate the white race to an inferior position. We imagine that the white race, at least, would not acquiesce in this assumption. The argument also assumes that social prejudices may

be overcome by legislation, and that equal rights cannot be secured to the negro except by an enforced commingling of the two races. We cannot accept this proposition. If the two races are to meet upon terms of social equity, it must be the result of natural affinities, a mutual appreciation of each other’s merits and a voluntary consent of individuals. * * * Legislation is powerless to eradicate racial instincts or to abolish distinctions based upon physical differences, and the attempt to do so can only result in accentuating the difficulties of the present situation. If the civil and political rights of both races be equal one cannot be inferior to the other civilly or politically. If one race be nferior to the other socially, the Constitution of the United States cannot put them upon the same plane.

It is true that the question of the proportion of colored blood necessary to constitute a colored person, as distinguished from a white person, is one upon which there is a difference of opinion in the different States, some holding that any visible admixture of black blood stamps the person as belonging to the colored race, * * * others that it depends upon the preponderance of blood, * * * and still others that the predominance of white blood must only be in the proportion of three-fourths. * * * But these are questions to be determined under the laws of each State and are not properly put in issue in this case. Under the allegations of his petition it may undoubtedly become a question of importance whether, under the laws of Louisiana, the petitioner belongs to the white or colored race.

The judgment of the court below is, therefore,

Affirmed.

MR. JUSTICE HARLAN dissenting.

* * *

* * * [W]e have before us a state enactment that compels, under penalties, the separation of the two races in railroad passenger coaches, and makes it a crime for a citizen of either race to enter a coach that has been assigned to citizens of the other race.

* * *

However apparent the injustice of such legislation may be, we have only to consider whether it is consistent with the Constitution of the United States.

* * *

In respect of civil rights, common to all citizens, the Constitution of the United States does not, I think, permit any public authority to know the race of those entitled to be protected in the enjoyment of such rights. Every true man has pride of race, and under appropriate circumstances when the rights of others, his equals before the law, are not to be affected, it is his privilege to express such pride and to take such action based upon it as to him seems proper. But I deny that any legislative body or judicial tribunal may have regard to the race of citizens when the civil rights of those citizens are involved. Indeed, such legislation, as that here in question, is inconsistent not only with that equality of rights which pertains to citizenship, National and State, but with the personal liberty enjoyed by every one within the United States.

The Thirteenth Amendment does not permit the withholding or the deprivation of any right necessarily inhering in freedom. It not only struck down the institution of slavery as previously existing in the United States, but it prevents the imposition of any burdens or disabilities that constitute badges of slavery or servitude. It decreed universal civil freedom in this country. This court has so adjudged. But that amendment having been found inadequate to the protection of the rights of those who had been in slavery, it was followed by the Fourteenth Amendment, which added greatly to the dignity and glory of American citizenship, and to the security of personal liberty, by declaring that “all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside,” and that “no State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty or property without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws.” These two amendments, if enforced according to their true intent and meaning, will protect all the civil rights that pertain to freedom and citizenship. Finally, and to the end that no citizen should be denied, on account of his race, the privilege of participating in the political control of his country,it was declared by the Fifteenth Amendment that “the right of the citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color or previous condition of servitude.”

These notable additions to the fundamental law were welcomed by the friends of liberty throughout the world. They removed the race line from our governmental systems. They had, as this court has said, a common purpose, namely, to secure “to a race recently emancipated, a race that through many generations has been held in slavery, all the civil rights that the superior race enjoys.” They declared, in legal effect, this court has further said, “that the law in the States shall be the same for the black as for the white; that all persons, whether colored or white, shall stand equal before the laws of the States, and, in regard to the colored race, for whose protection the amendment was primarily designed, that no discrimination shall be made against them by law because of

their color.” We also said: “The words of the amendment, it is true, are prohibitory, but they contain a necessary implication of a positive immunity, or right, most valuable to the colored race—the right to exemption from unfriendly legislation against them distinctively as colored—exemption from legal discriminations, implying inferiority in civil society, lessening the security of their enjoyment of the rights which others enjoy, and discriminations which are steps towards reducing them to the condition of a subject race.” It was, consequently, adjudged that a state law that excluded citizens of the colored race from juries, because of their race and however well qualified in other respects to discharge the duties of jurymen, was repugnant to the Fourteenth Amendment. * * *

* * *

It was said in argument that the statute of Louisiana does not discriminate against either race, but prescribes a rule applicable alike to white and colored citizens. But this argument does not meet the difficulty. Every one knows that the statute in question had its origins in the purpose, not so much to exclude white persons from railroad cars occupied by blacks, as to exclude colored people from coaches occupied by or assigned to white persons. Railroad corporations of Louisiana did not make discrimination among whites in the matter of accommodation for travellers. The thing to accomplish was, under the guise of giving equal accommodation for whites and blacks, to compel the latter to keep to themselves while travelling in railroad passenger coaches. No one would be so wanting in candor as to assert the contrary. The fundamental objection, therefore, to the statute is that it interferes with the personal freedom of citizens. * * * If a white man and a black man choose to occupy the same public conveyance on a public highway, it is their right to do so, and no government proceeding alone on grounds of race can prevent it without infringing the personal liberty of each.

* * *

The white race deems itself to be the dominant race in this country. And so it is, in prestige, in achievements, in education, in wealth and power. So, I doubt not, it will continue to be for all time, if it remains true to its great heritage and holds fast to the principles of constitutional liberty. But in view of the Constitution, in the eye of the law, there is in this country no superior, dominant, ruling class of citizens. There is no caste here. Our Constitution is color-blind, and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law. The humblest is the peer of the most powerful. The law regards man as man, and takes no account of his surroundings or of his color when his civil rights as guaranteed by the supreme law of the land are involved. It is, therefore, to be regretted that this high tribunal, the final

expositor of the fundamental law of the land, has reached the conclusion that it is competent for a State to regulate the enjoyment by citizens of their civil rights solely upon the basis of race.

In my opinion, the judgment this day rendered will, in time, prove to be quite as pernicious as the decision made by this tribunal in the Dred Scott case. It was adjudged in that case that the descendants of Africans who were imported into this country and sold as slaves were not included nor intended to be included under the word “citizens” in the Constitution, and could not claim any of the rights and privileges which that instrument provided for and ensured to citizens of the United States; that at the time of the adoption of the Constitution they were “considered as a subordinate and inferior class of beings, who had been subjugated by the dominant race, and, whether emancipated or not, yet remained subject to their authority, and had no rights or privileges but such as those who held the power and the government might choose to grant them.” * * * The recent amendments of the Constitution, it was supposed, had eradicated these principles from our institutions. But it seems that we have yet, in some of the States, a dominant race—a superior class of citizens, which assumes to regulate the enjoyment of civil rights, common to all citizens, upon the basis of race. The present decision, it may well be apprehended, will not only stimulate aggressions, more or less brutal and irritating, upon the admitted rights of colored citizens, but will encourage the belief that it is possible, by means of state enactments, to defeat the beneficent purposes which the people of the United States had in view when they adopted the recent amendments of the Constitution, by one of which the blacks of this country were made citizens of the United States and of the States in which they respectively reside, and whose privileges and immunities, as citizens, the States are forbidden to abridge. Sixty millions of whites are in no danger from the presence here of eight millions of blacks. The destinies of the two races, in this country, are indissolubly linked together, and the interests of both require that the common government of all shall not permit the seeds of race hate to be planted under the sanction of law. What can more certainly arouse race hate, what more certainly create and perpetuate a feeling of distrust between these races, than state enactments, which, in fact, proceed on the ground that colored citizens are so inferior and degraded that they cannot be allowed to sit in public coaches occupied by white citizens? That, as all will admit, is the real meaning of such legislation as was enacted in Louisiana.

* * *

There is a race so different from our own that we do not permit those belonging to it to become citizens of the United States. Persons belonging to it are, with few exceptions, absolutely excluded from our country. I allude to the Chinese race. But by the statute in question, a Chinaman can ride in the same passenger coach with white citizens of the

United States, while citizens of the black race in Louisiana, many of whom, perhaps, risked their lives for the preservation of the Union, who are entitled, by law, to participate in the political control of the State and nation, who are not excluded, by law or by reason of their race, from public stations of any kind, and who have all the legal rights that belong to white citizens, are yet declared to be criminals, liable to imprisonment, if they ride in a public coach occupied by citizens of the white race. * * *

* * *

I do not deem it necessary to review the decisions of state courts to which reference was made in argument. Some, and the most important, of them are wholly inapplicable, because rendered prior to the adoption of the last amendment of the Constitution, when colored people had very few rights which the dominant race felt obliged to respect. Others were made at a time when public opinion, in many localities, was dominated by the institution of slavery; when it would not have been safe to do justice to the black man; and when, so far as the rights of blacks were concerned, race prejudice was, practically, the supreme law of the land. Those decisions cannot be guides in the era introduced by the recent amendments of the supreme law, which established universal civil freedom, gave citizenship to all born or naturalized in the United States and residing here, obliterated the race line from our systems of governments, National and State, and placed our free institutions upon the broad and sure foundation of the equality of all men before the law.

* * *

For the reasons stated, I am constrained to withhold my assent from the opinion and judgment of the majority.

* * *

Notes and Questions

It was during the Reconstruction period that Southern states adopted so-called Jim Crow laws under which white and black Americans were required to use such separate public facilities as toilets, water fountains, and recreational facilities. Often, these laws required using separate telephone booths, gambling tables, Bibles for swearing in witnesses, cemeteries, hospitals, theaters, and restaurants. The segregative intent of these laws was to prevent contact between white and black Americans.

Justice Harlan’s dissenting opinion has proven to be prophetic. As we will see, it is an example of how a dissent’s rationale, in time, may be adopted as a majority view.

Justice Harlan, a Kentuckian, was considered a strong defender of civil liberties and is remembered as the “great dissenter.”

As used in the Plessy decision, what did the term “equal” in “separate but equal” mean? Did it mean that facilities and services would be equal to those provided white Americans, or did it mean services and facilities afforded black Americans should be equal? Could “equal” have had any other meaning than the latter one, because at the time of the decision whites dominated political, economic, and social life?

Given the racial attitudes of that day, some argue that a contrary decision in Plessy would have been widely flouted, thereby weakening the status of the Court as an institution. Do you think it possible that the Court would take such a factor into consideration in rendering a decision?

The Court drew a distinction between “social” and “political” equality. Is the key to this distinction the involvement of state action? Do you agree that the Constitution should protect only “political” equality?

It was not until 1927 that the Court specifically extended the Plessy doctrine to public education. See Gong Lum v. Rice, 275 U.S. 78 (1927).

B. De Jure Public School Segregation Unconstitutional (Brown I)

Several United States Supreme Court decisions dealing with higher education segregative practices successfully eroded the Plessy doctrine before it received a mortal blow from Brown v. Board of Education. In one of these cases, a black law-school applicant challenged a policy under which he had to attend an out-of-state law school because his home state did not have a “separate” law school for black students. The Court held that such an arrangement did not meet the “separate but equal” doctrine. See Missouri ex rel. Gaines v. Canada, 305 U.S. 337 (1938). In another decision, Sweatt v. Painter, 339 U.S. 629 (1950), the Court contended that “separate” law schools in Texas were not “equal” to those attended by white law students. In its decision, the Court not only compared tangible factors between racially segregated law schools but also compared such intangible factors as prestige, faculty reputation, and experience of the administration.

Decisions such as Gaines, Sweatt, and others set the stage for a challenge to the de jure segregative practices in the primary and secondary public schools. This challenge was presented in Brown, and the Court declared that segregation in public education was a denial of the Fourteenth Amendment’s guarantee of the equal protection of the laws.

Brown v. Board of Education of Topeka

Supreme Court of the United States, 1954 347 U.S. 483

MR. CHIEF JUSTICE WARREN delivered the opinion of the Court.

These cases come to us from the States of Kansas, South Carolina, Virginia, and Delaware. They are premised on different facts and different local conditions, but a common legal question justifies their consideration together in this consolidated opinion.

In each of the cases, minors of the Negro race, through their legal representatives, seek the aid of the courts in obtaining admission to the public schools of their community on a nonsegregated basis. In each instance, they had been denied admission to schools attended by white children under laws requiring or permitting segregation according to race. This segregation was alleged to deprive the plaintiffs of the equal protection of the laws under the Fourteenth Amendment. In each of the cases other than the Delaware case, a three-judge federal district court denied relief to the plaintiffs on the so-called “separate but equal” doctrine announced by this Court in Plessy v. Ferguson. Under that doctrine, equality of treatment is accorded when the races are provided substantially equal facilities, even though these facilities be separate. In the Delaware case, the Supreme Court of Delaware adhered to that doctrine, but ordered that the plaintiffs be admitted to the white schools because of their superiority to the Negro schools.

The plaintiffs contend that segregated public schools are not “equal” and cannot be made “equal,” and that hence they are deprived of the equal protection of the laws. Because of the obvious importance of the question presented, the Court took jurisdiction. Argument was heard in the 1952 Term, and reargument was heard this Term on certain questions propounded by the Court.

Reargument was largely devoted to the circumstances surrounding the adoption of the Fourteenth Amendment in 1868. It covered exhaustively consideration of the Amendment in Congress, ratification by the states, then existing practices in racial segregation, and the views of proponents and opponents of the Amendment. This discussion and our own investigation convince us that, although the sources cast some light, it is not enough to resolve the problem with which we are faced. At best, they are inconclusive. The most avid proponents of the post-War Amendments undoubtedly intended them to remove all legal distinctions among “all persons born or naturalized in the United States.” Their opponents, just as certainly, were antagonistic to both the letter and the spirit of the Amendments and wished them to have the most limited effect. What others in Congress and the state legislatures had in mind cannot be determined with any degree of certainty.

An additional reason for the inconclusive nature of the Amendment’s history, with respect to segregated schools, is the status of public education at that time. In the South, the movement toward free common schools, supported by general taxation, had not yet taken hold. Education of white children was largely in the hands of private groups. Education of Negroes was almost nonexistent, and practically all of the race were illiterate. In fact, any education of Negroes was forbidden by law in some states. Today, in contrast, many Negroes have achieved outstanding success in the arts and sciences as well as in the business and professional world. It is true that public school education at the time of the Amendment had advanced further in the North, but the effect of the Amendment on Northern States was generally ignored in the congressional debates. Even in the North, the conditions of public education did not approximate those existing today. The curriculum was usually rudimentary; ungraded schools were common in rural areas; the school term was but three months a year in many states; and compulsory school attendance was virtually unknown. As a consequence, it is not surprising that there should be so little in the history of the Fourteenth Amendment relating to its intended effect on public education.

In the first cases in this Court construing the Fourteenth Amendment, decided shortly after its adoption, the Court interpreted it as proscribing all state-imposed discriminations against the Negro race. The doctrine of “separate but equal” did not make its appearance in this Court until 1896 in the case of Plessy v. Ferguson, supra, involving not education but transportation. American courts have since labored with the doctrine for over half a century. In this Court, there have been six cases involving the “separate but equal” doctrine in the field of public education. In Cumming v. County Board of Education, 175 U.S. 528, and Gong Lum v. Rice, 275 U.S. 78, the validity of the doctrine itself was not challenged. In more recent cases, all on the graduate school level, inequality was found in that specific benefits enjoyed by white students were denied to Negro students of the same educational qualifications. Missouri ex rel. Gaines v. Canada, 305 U.S. 337; Sipuel v. Oklahoma, 332 U.S. 631; Sweatt v. Painter, 339 U.S. 629; McLaurin v. Oklahoma State Regents, 339 U.S. 637. In none of these cases was it necessary to re-examine the doctrine to grant relief to the Negro plaintiff. And in Sweatt v. Painter, supra, the Court expressly reserved decision on the question whether Plessy v. Ferguson should be held inapplicable to public education.

In the instant cases, that question is directly presented. Here, unlike Sweatt v. Painter, there are findings below that the Negro and white schools involved have been equalized, or are being equalized, with respect to buildings, curricula, qualifications and salaries of teachers, and other “tangible” factors. Our decision, therefore, cannot turn on merely a comparison of these tangible factors in the Negro and white schools involved in each of the cases. We must look instead to the effect of segregation itself on public education.

In approaching this problem, we cannot turn the clock back to 1868 when the Amendment was adopted, or even to 1896 when Plessy v. Ferguson was written. We must consider public education in the light of its full development and its present place in American life throughout the Nation. Only in this way can it be determined if segregation in public schools deprives these plaintiffs of the equal protection of the laws.

Today, education is perhaps the most important function of state and local governments. Compulsory school attendance laws and the great expenditures for education both demonstrate our recognition of the importance of education to our democratic society. It is required in the performance of our most basic public responsibilities, even service in the armed forces. It is the very foundation of good citizenship. Today it is a principal instrument in awakening the child to cultural values, in preparing him for later professional training, and in helping him to adjust normally to his environment. In these days, it is doubtful that any chiId may reasonably be expected to succeed in life if he is denied the opportunity of an education. Such an opportunity, where the state has undertaken to provide it, is a right which must be made available to all on equal terms.

We come then to the question presented: Does segregation of children in public schools solely on the basis of race, even though the physical facilities and other “tangible” factors may be equal, deprive the children of the minority group of equal educational opportunities? We believe that it does.

In Sweatt v. Painter, supra, in finding that a segregated law school for Negroes could not provide them equal educational opportunities, this Court relied in large part on “those qualities which are incapable of objective measurement but which make for greatness in a law school.” In McLaurin v. Oklahoma State Regents, supra, the Court, in requiring that a Negro admitted to a white graduate school be treated like all other students, again resorted to intangible considerations: “ . . . his ability to study, to engage in discussions and exchange views with other students, and, in general, to learn his profession.” Such considerations apply with added force to children in grade school and high schools. To separate them from others of similar age qualifications solely because of their race generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone.

The effect of this separation on their educational opportunities was well stated by a finding in the Kansas case by a court which nevertheless felt compelled to rule against the Negro plaintiffs:

“Segregation of white and colored children in public schools has a detrimental effect upon the colored children. The impact is greater when it has the sanction of the law: for the policy of separating the

races is usually interpreted as denoting the inferiority of the negro group. A sense of inferiority affects the motivation of a child to learn. Segregation with the sanction of law, therefore, has a tendency to retard the educational and mental development of negro children and to deprive them of some of the benefits they would receive in a racially integrated school system.”

Whatever may have been the extent of psychological knowledge at the time of Plessy v. Ferguson, this finding is amply supported by modern authority. Any language in Plessy v. Ferguson contrary to this finding is rejected.

We conclude that in the field of public education the doctrine of “separate but equal” has no place. Separate educational facilities are inherently unequal. Therefore, we hold that the plaintiffs and others similarly situated for whom the actions have been brought are, by reason of the segregation complained of, deprived of the equal protection of the laws guaranteed by the Fourteenth Amendment. This disposition makes unnecessary any discussion whether such segregation also violates the Due Process Clause of the Fourteenth Amendment.

Because these are class actions, because of the wide applicability of this decision, and because of the great variety of local conditions, the formulation of decrees in these cases presents problems of considerable complexity. On reargument, the consideration of appropriate relief was necessarily subordinated to the primary question—the constitutionality of segregation in public education. We have now announced that such segregation is a denial of the equal protection of the laws. * * *

It is so ordered.

Notes and Questions

Brown may be one of the most significant decisions rendered by the United States Supreme Court. By declaring de juresegregation in the public schools unconstitutional, the decision had reverberations far beyond schools. It was a catalyst that forced Americans to examine many forms of government-condoned separation of the races.

It should be emphasized that the consolidated opinion in Brown addressed de jure segregation in the public schools. Constitutional and statutory provisions in South Carolina, Virginia, and Delaware and statutory provisions in Kansas required the segregation of black and white students. Consequently, Brown applied only to those states having government-imposed segregation at the time of the decision. It did not have applicability to de facto segregated public schools outside the South.

The decision was widely criticized by those opposed to desegregation and applauded by those who were for it. Criticism on legalistic grounds focused on the fact that the Court relied on sociological evidence to establish the negative effect of segregation on black students rather than relying on precedent. In this regard, the Court was influenced by the work of Gunnar Myrdal, a Swedish sociologist and economist, who had written An American Dilemma: The Negro Problem and Modern Democracy, which was published in 1944. The Court’s employing such data raises the question of precisely which factors should be taken into consideration when attempting to determine whether or not persons have received the “equal protection of the laws” guaranteed by the Fourteenth Amendment to the Constitution.

Proponents of “judicial activism” argued that because the executive and legislative branches were apparently unwilling to address this issue, it was the duty of the judiciary to ensure that all persons, in this instance black Americans, receive their constitutional rights. Opponents of the decision contended that nine appointed judges, as opposed to elected officials, should not have the power to institute such fundamental social change. Which view do you hold?

C. Implementation (Brown II)

Brown discussed the broad issue of public-school segregation and declared de jure segregation to be unconstitutional. However, the decision did not provide a remedy for those whom it affected. As the Court stated:

Because these are class actions, because of the wide applicability of this decision, and because of the great variety of local conditions, the formulation of decrees in these cases presents problems of considerable complexity. (p. 495)

Therefore, the Court addressed this question in a separate opinion in Brown II.

Brown v. Board of Education of Topeka

Supreme Court of the United States, 1955 349 U.S. 294

MR. CHIEF JUSTICE WARREN delivered the opinion of the Court.

These cases were decided on May 17, 1954. The opinions of that date, declaring the fundamental principle that racial discrimination in public education is unconstitutional, are incorporated herein by reference. All provisions of federal, state, or local law requiring or permitting such discrimination must yield to this principle. There remains for consideration the manner in which relief is to be accorded.

Because these cases arose under different local conditions and their disposition will involve a variety of local problems, we requested further argument on the question of relief. * * *

hese presentations were informative and helpful to the Court in its consideration of the complexities arising from the transition to a system of public education freed of racial discrimination. The presentations also demonstrated that substantial steps to eliminate racial discrimination in public schools have already been taken, not only in some of the communities in which these cases arose, but in some of the states appearing as amici curiae, and in other states as well. Substantial progress has been made in the District of Columbia and in the communities in Kansas and Delaware involved in this litigation. The defendants in the cases coming to us from South Carolina and Virginia are awaiting the decision of this Court concerning relief.

Full implementation of these constitutional principles may require solution of varied local school problems. School authorities have the primary responsibility for elucidating, assessing, and solving these problems; courts will have to consider whether the action of school authorities constitutes good faith implementation of the governing constitutional principles. Because of their proximity to local conditions and the possible need for further hearings, the courts which originally heard these cases can best perform this judicial appraisal. Accordingly, we believe it appropriate to remand the cases to those courts.

In fashioning and effectuating the decrees, the courts will be guided by equitable principles. Traditionally, equity has been characterized by a practical flexibility in shaping its remedies and by a facility for adjusting and reconciling public and private needs. These cases call for the exercise of these traditional attributes of equity power. At stake is the personal interest of the plaintiffs in admission to public schools as soon as practicable on a nondiscriminatory basis. To effectuate this interest may call for elimination of a variety of obstacles in making the transition to school systems operated in accordance with the constitutional principles set forth in our May 17, 1954, decision. Courts of equity may properly take into account the public interest in the elimination of such obstacles in a systematic and effective manner. But it should go without saying that the vitality of these constitutional principles cannot be allowed to yield simply because of disagreement with them.

While giving weight to these public and private considerations, the courts will require that the defendants make a prompt and reasonable start toward full compliance with our May 17, 1954, ruling. Once such a start has been made, the courts may find that additional time is necessary to carry out the ruling in an effective manner. The burden rests upon the defendants to establish that such time is necessary in the public interest

and is consistent with good faith compliance at the earliest practicable date. To that end, the courts may consider problems related to administration, arising from the physical condition of the school plant, the school transportation system, personnel, revision of school districts and attendance areas into compact units to achieve a system of determining admission to the public schools on a nonracial basis, and revision of local laws and regulations which may be necessary in solving the foregoing problems. They will also consider the adequacy of any plans the defendants may propose to meet these problems and to effectuate a transition to a racially nondiscriminatory school system. During this period of transition, the courts will retain jurisdiction of these cases.

The judgments below, except that in the Delaware case, are accordingly reversed and the cases are remanded to the District Courts to take such proceedings and enter such orders and decrees consistent with this opinion as are necessary and proper to admit to public schools on a racially nondiscriminatory basis with all deliberate speed the parties to these cases. The judgment in the Delaware case—ordering the immediate admission of plaintiffs to schools previously attended only by white children—is affirmed on the basis of the principles stated in our May 17, 1954, opinion, but the case is remanded to the Supreme Cou

Court of Delaware for such further proceedings as that Court may deem necessary in light of this opinion.

It is so ordered.

Notes and Questions

Did Brown II temper the original decision by employing such an imprecise standard as “all deliberate speed”? In this regard, Justice Frankfurter suggested that “[n]othing could be worse from my point of view than for this court to make an abstract declaration that segregation is bad and then to have it evaded by tricks.” Would the establishment of a specific time frame, for instance, have been enforceable?

Court of Delaware for such further proceedings as that Court may deem necessary in light of this opinion.

It is so ordered.

Notes and Questions

Did Brown II temper the original decision by employing such an imprecise standard as “all deliberate speed”? In this regard, Justice Frankfurter suggested that “[n]othing could be worse from my point of view than for this court to make an abstract declaration that

segregation is bad and then to have it evaded by tricks.” Would the establishment of a specific time frame, for instance, have been enforceable?

II. Early Desegregation in the South

Under the Brown II formula, local school authorities were given the primary responsibilities for fashioning desegregation plans. Lower-level federal courts were to determine whether such plans constituted good-faith implementation of the principles enunciated in Brown I. However, the Court’s abstract doctrine, lack of clear guidance, and imprecise time frame, especially in those areas of the South where there was considerable animosity to the decision, all contributed to attempts at delay, if not outright noncompliance with, Brown I.

Consequently, lower federal courts in the South were inundated with school desegregation cases. Some of these cases represented resistance in complying with Brown I on the part of local school systems, yet in other instances local authorities were thwarted in their attempt to desegregate by state-level action. An example of this latter problem, which gained nationwide notoriety at the time, is the events in Little Rock, Arkansas. Here, the local school system had made good-faith efforts to desegregate; however, the governor ordered the National Guard to prevent black students from entering the school to which they had been assigned. Under the circumstances, the local authorities sought a postponement of the desegregation plan by citing preservation of the public peace. In addressing this issue, the Supreme Court, in Cooper v. Aaron, 358 U.S. 1 (1958), declared that although the Court was sympathetic to the authorities’ good-faith efforts that had been hindered by state action, desegregation of the schools could not be postponed.

In Virginia, that state’s compulsory-education laws were repealed, and school attendance was made a matter of local option. Prince Edward County closed its schools, and private schools for whites only were operated in their place with state and county assistance. The Supreme Court rejected such a course in Griffin v. County School Board of Prince Edward County, 377 U.S. 218 (1964), by instructing the local district court to require the authorities to levy taxes, thereby raising funds to reopen and operate a nondiscriminatory public school system such as those in other Virginia counties.

A so-called freedom-of-choice plan was another method school systems employed to comply with the necessity to desegregate. Under such a plan, parents had the choice of determining which school their children would attend, with the result that there was often little or no actual desegregation within a school system. This issue was addressed in Green v. County School Board of New Kent County, 391 U. S. 430 (1968) by the United

States Supreme Court. In not ruling out freedom-of-choice as a desegregation tool, the court stated:

Although the general experience under “Freedom of Choice” to date has been such as to indicate its ineffectiveness as a tool of desegregation, there may well be instances in which it can serve as an effective device. Where it offers real promise of aiding a desegregation program to effectuate conversion of a state-imposed dual system to a unitary, nonracial system there might be no objection to allowing such a device to prove itself in operation. On the other hand, if there are reasonable available other ways, such for illustration as zoning, promising speedier and effective conversion to a unitary, nonracial school system, “freedom of choice” must be held unacceptable. (pp. 440–441)

In a per curiam opinion one year after Green, the Court declared that with respect to continued operation of racially segregated schools, the standard of “all deliberate speed” was no longer constitutionally permissible and that school districts must immediately terminate dual-school systems based on race or color. See Alexander v. Holmes County Board of Education, 396 U.S. 19 (1969).

In its next major desegregation decision, the Court in Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1 (1971), defined the scope of the duty to eliminate the dual-school system. The decision represented another example of the Supreme Court’s continued effort to render decisions that unequivocally reflected its desire to eliminate the dual-school system. The unanimous decision ruled that the dismantling of the dual-school system could be accomplished by assigning teachers to achieve a particular degree of faculty desegregation; ensuring that future school construction and abandonment would not perpetuate or reestablish a dual system; scrutinizing one-race schools to ensure that the racial composition did not result from present or past discriminatory action; altering attendance zones and employing pairing and grouping of noncontiguous zones to counteract past segregation; and although not requiring it, employing bus transportation as a constitutionally permissible method of dismantling the dual system. Would the path to eliminating de jure segregation have been smoother if Brown I had contained such guidelines?

III. Desegregation in the Non-Southern States

Continued and successful desegregation efforts in the Southern states clearly revealed the lack of similar efforts in many non-Southern states where public school racial segregation existed. The legitimate question was often raised of why one section of the country was required to desegregate its schools, yet obviously segregated school systems continued to operate in the northern and western portions of the United States. From a legal standpoint, a partial answer to this question was the Supreme Court’s reliance on the distinction between de jure and de facto segregation.

As has been noted, the presence of constitutional and/or statutory provisions and local policies mandating segregated schools in the Southern states made it possible to address this form of state-sanctioned de jure segregation. Segregated school systems existed outside the South, and although such segregation was not always based on officially stated state or local policy, in some areas it had been. Several non-Southern states had statutes authorizing separate but equal public schools, and although eventually repealed, such statutes remained on the books in New York until 1938, in Wyoming until 1954, and in Indiana until 1959. The presence of such statutes established persistent patterns of segregated schools that were not always easily changed.

Segregation outside the South existed for other reasons. In some instances, long-standing “customs” were present at the local level, which also contributed to racial attitudes and resultant segregated schools. Perhaps the most significant force, however, contributing to segregated schools outside the South resulted from housing patterns, which in some areas found black Americans living in neighborhoods and attending schools populated solely by blacks. Such de facto segregation was often based on housing patterns that allegedly were not the result of direct state action. Because the Supreme Court had not considered de facto segregation violative of the Brown I edict, non-Southern public schools that were segregated on that basis were not immediately challenged in the courts. However, in time, segregative practices of non-Southern school systems were examined by the judiciary. One of the contentions made against segregated non-Southern school systems was that they had engaged in a form of de jure segregation, perhaps not as blatant as in the South, but nevertheless resulting in impermissible racial discrimination.

Although United States Supreme Court decisions dealing with school segregation in the South had a certain consistency and unanimity in attempting to eradicate de jure segregation, the same may not be said for the Court’s decisions regarding non-Southern school segregation. These differences may be seen by examining the

often split Court decisions dealing with such issues as intentional segregation and interdistrict integration.

A. Intentional Segregative Action

Desegregation litigation in the two decades after Brown I focused primarily on dismantling dual-school systems, for the most part, in the rural South. During the mid-1970s, however, school desegregation entered its “second generation,” and the locus of school desegregation efforts shifted outside the South and to the nation’s large urban centers. In decisions involving Dayton and Columbus, Ohio, the United States Supreme Court revealed a continued reliance on the de jure/de facto distinction. The Court maintained that if racially segregated dual-school systems were operated at the time of Brown I in 1954, boards of education had an “affirmative duty” not to engage in actions that would have impeded the desegregation process. See for instance, Columbus Board of Education v. Penick, 443 U.S. 449 (1979).

In a decision involving Denver, Colorado, the Court held that:

. . . a finding of intentionally segregative school board actions in a meaningful portion of a school system, as in this case, creates a presumption that other segregated schooling within the system is not adventitious. It establishes, in other words, a prima facie case of unlawful segregative design on the part of school authorities, and shifts to those authorities the burden of proving that other segregated schools within the system are not also the result of intentionally segregative actions. Keyes v. School District No. 1, 413 U.S. 189, 208 (1973).

Keyes was the first case of a school system without a history of state-mandated racial assignment before the Supreme Court.

B. Interdistrict Integration

As a result of increasing white flight from urban areas to the suburbs, it became increasingly difficult to keep urban schools desegregated because there simply were not enough white students. Consequently, many urban school districts became virtually all black and/or Hispanic. In response to such a situation in Detroit, a federal district court ordered a metropolitan integration remedy that, in effect, would have required the consolidation with the Detroit school system of fifty-three independent school districts surrounding the city that had historically been administered as separate units into a vast new super-school district. At the time, many parents who had moved from Detroit to the

often more affluent suburbs, with school systems, which they considered to be considerably better than inner-city schools, faced the prospect of their children being bused long distances to perceived inferior and often dangerous schools. Many of these parents vowed to fight this court order. When the issue came before the United States Supreme Court in Milliken v. Bradley, 418 U.S. 717 (1974) (Milliken I), a five-to-four decision, the Court declared that:

[t]he record before us, voluminous as it is, contains evidence of de jure segregated conditions only in the Detroit schools; indeed, that was the theory on which the litigation was initially based and on which the District Court took evidence. * * * With no showing of significant violations by the 53 outlying school districts and no evidence of any Interdistrict violation or effect, the court went beyond the original theory of the case as framed by the pleading and mandated a metropolitan area remedy. To approve the remedy ordered by the court would impose on the outlying districts, not shown to have committed any constitutional violation, a wholly impermissible remedy based on a standard not hinted at in Brown I and Brown II or any holding of this Court. (p. 745)

On remand, the district court approved a desegregation plan that included educational components in the areas of reading, in-service teacher training, testing, and counseling. Costs were to be borne by both the Detroit School Board and the state. The Supreme Court upheld the lower court’s action and stated that such a remedy was reasonable in the light of past acts of de jure segregation. See Milliken v. Bradley, 433 U.S. 267 (1977) (Milliken II).

Many observers consider Milliken I as marking an end to the United States Supreme Court’s unwavering support of desegregation efforts. Subsequent to this decision, the Court has been viewed decreasingly as a friendly and receptive forum for achieving school desegregation.

The plight of an urban school system similar to the one described in Milliken was addressed by Connecticut’s Supreme Court in Sheff v. O’Neill, 678 A.2d 1267 (Conn. 1996). In that decision, the court found that there was an extreme concentration of poor children in Hartford’s schools, that Hartford students scored last on the state’s standardized tests, and that although statewide there were 26 percent minority students, Hartford schools had 95 percent minority students; the court held the state’s school districting and attendance statutes unconstitutional. The court found that Hartford students suffered from unconstitutional segregation and that disparities in racial and ethnic composition of the city’s schools in

comparison with surrounding school districts violated their constitutional right for equal educational opportunity. The court noted that the state had ample notice of ongoing trends toward racial and ethnic isolation in the public schools, and whether or not the legislature created or intended to create the conditions that led to racial and ethnic isolation, it did not relieve state officials of their responsibility to provide effective remedies. The court announced that the legislature was required to take affirmative responsibility to remedy segregation in the public schools, regardless of whether the segregation occurred de jure or de facto.

Connecticut’s legislature reacted quickly to the court’s order by passing legislation to remedy the situation described in the supreme court’s opinion. In a challenge to the citizenry and elected officials to support reform efforts described in the newly enacted law, the court in Sheff v. O’Neill, 733 A.2d 925 (Conn. Super. Ct. 1999) stated:

Within five months of receiving the final report of the [governor appointed] panel, the Connecticut legislature had passed Public Acts 1997, No. 97-290, entitled “An Act Enhancing Educational Choices and Opportunities.” This legislation was aimed at reducing racial, ethnic and economic isolation, as well as improving the quality of education throughout the state-with an emphasis on improving urban education.

The first section of * * * the statute which defines the “educational interests of the state,” to include the reduction of “racial, ethnic and economic isolation,” and to impose a duty on each school district to “provide educational opportunities for its students to interact with students and teachers from other racial, ethnic and economic backgrounds. . . .” The failure of local districts to carry out one or all of the “educational interests of the state,” can * * * result in financial and other sanctions, including the loss of state educational funding. Moreover, the state department of education can initiate litigation to enforce the state’s educational interests.

Section 2 of Public Act 97-290 provided that school boards could reduce racial, ethnic and economic isolation by using programs or methods such as: “(1) Interdistrict magnet school programs; (2) charter schools; (3) interdistrict after-school, Saturday and summer programs and sister-school projects; (4) intradistrict and interdistrict public school choice programs; (5) interdistrict school building projects; (6) interdistrict program collaboratives for students and staff; (7) minority staff recruitment; (8) distance learning through the use of

technology; and (9) any other experience that increases awareness of the diversity of individuals and cultures.”

Interdistrict cooperative programs are school sponsored programs in which students from different school districts participate together in a diverse array of educational experiences. These programs, funded largely by the state, bring urban and suburban students together in the context of quality educational experiences. * * *

The nature and duration of interdistrict cooperative programs varies considerably. Some such programs are five week residential programs, where the participants live together and conduct in-depth studies of particular topics like art and literature. Others are “sister school” programs with minor state stipends that allow for students from urban and suburban schools to visit museums together or conduct other classroom exchanges. * * * (pp. 927–929)

And the court concluded its holding by stating:

* * * The state has acted expeditiously and in good faith to respond to the decision of the Supreme Court in this case. It has devised a comprehensive, interrelated, well funded set of programs and legislation designed to improve education for all children, with a special emphasis on urban children, while promoting diverse educational environments. The legislative and executive branches should have a realistic opportunity to implement their remedial programs before further court intervention. This will not only satisfy the Supreme Court’s desire to be sensitive to the “constitutional authority of coordinate branches of government”; * * * but will also allow any educational reform plan to gain grassroots popular support which is crucial to the success of any plan. The best way to achieve popular support is not to impose a judicially mandated remedial plan, but to encourage Connecticut’s populace as a whole, both directly and through their elected representatives, to solve the problems facing the state’s schools. (p. 943)

IV. Recent Desegregation Issues

A. Release from Court Order

Estimates suggest that there were nearly nine hundred school systems across the United States placed under federal court jurisdiction at the height of the desegregation effort. Although often ill-equipped to deal with educational and racial concerns, federal courts became the arbiters of when a school system had shed its segregationist past. It has been estimated that presently there are still several hundred formerly segregated local school systems under some form of federal court jurisdiction.

Several United States Supreme Court decisions provided guidance to lower courts on executing desegregation plans. In Green v. County School Board of New Kent County, 391 U. S. 430 (1968), the Court stated that schools should not be removed from court supervision until they achieved “unitary status.” Such status was defined as no longer reflecting any vestiges of past racial discrimination in student assignment, faculty, staff, transportation, extracurricular activities, and facilities (now known as the Green factors). In Board of Education of Oklahoma City Public Schools v. Dowell, 498 U.S. 237 (1991), the Court provided the following factors for lower courts to consider when terminating a court order: the importance of local control, that court supervision was intended to be a temporary measure, the need for “good faith compliance” with the desegregation decree, and that past discrimination has been eliminated “to the extent practicable.” Freeman v. Pitts, 503 U.S. 467 (1992), held that federal district courts have the discretion to withdraw their supervision over formerly segregated school systems incrementally and are not responsible for segregation based on demographic changes in student population.

Kansas City has had a long history of school desegregation litigation beginning in 1985. At issue, in what was to become extensive litigation was an extremely controversial plan that has been considered to be the most ambitious desegregation program in the country. The program consisted of a capital improvements plan to rectify the decay in the schools’ physical facilities, numerous quality education programs, and a far-reaching magnet school plan. The goals of the remedial programs were to compensate the former victims of segregation by improving the education given them (Missouri’s constitution had required segregation); to enhance the programs so as to reverse the white-flight pattern, winning back white students from private and suburban schools and thus ending the racial isolation of the former victims; and to use the magnet schools as a way of bringing about voluntary redistribution of students within the Kansas City schools. A federal appellate court originally held that the state of Missouri had to provide funding for the Kansas City desegregation program in Jenkins v. Missouri, 807 F.2d 657 (8th Cir. 1986) (Jenkins I), cert. denied, 484 U.S. 816 (1987). As a result of this order, more than $2 billion was spent in such areas as magnet schools with special themes such as classical Greek and Slavic studies; special facilities such as petting zoos, robotics labs, model United Nations with simultaneous translation, a six-lane indoor track, and an Olympic-size swimming pool; raising teachers’ salaries 40 percent; and

reducing class size. Unfortunately, none of these efforts turned around low achievement.

In Missouri v. Jenkins, 495 U.S. 33 (1990), the United States Supreme Court held that the school system could be ordered to levy taxes in excess of statutory limitations to pay for desegregation remedies. In Missouri v. Jenkins, 515 U.S. 70 (1995) (Jenkins III), the Court questioned the notion that the state should indefinitely be required to fund remedial “quality education” programs until national norms were met. In instructing the lower court, the Supreme Court articulated a standard for unitary status that required a showing of “compliance in good faith with the desegregation decree since it was entered” and that the “vestiges of past discrimination have been eliminated to the extent possible.” The Court reminded the lower court that on remand an important end purpose, in addition to remedying violations, was the restoration of control of the school system to state and local authorities.

After Jenkins III, the state of Missouri and the Kansas City School Board entered into an agreement under which the state would pay the school district $320 million over three years and be released from any further obligation in the desegregation litigation in 1999. This agreement was upheld in Jenkins v. Missouri, 959 F. Supp. 1151 (Mo. 1997) (Jenkins VIII), aff’d, 122 F.3d 588 (8th Cir. 1997) (Jenkins XIV). The Jenkins XIV decision also declared that the school district still had not remedied the “achievement gap vestige” and had not remedied several of the Green factors, including student assignment, faculty and staff assignments, transportation, and facilities. Litigation ended when the Kansas City schools were released from court oversight in 2003.

After years of mismanagement, turnover in superintendents (26 in 40 years), billions of dollars spent, and 18,000 students leaving for suburban or charter schools, the overbuilt and overstaffed Kansas City School Board in 2010 made a dramatic decision. It decided to close nearly half of its schools (28 out of 61) and eliminate 700 jobs (approximately 300 of which were teachers) of the system’s 3,000 jobs.

A lengthy decision in Brown v. Board of Education of Topeka, 892 F.2d 851 (10th Cir. 1989) (Brown III), a progeny of the landmark school desegregation case, had pronounced the Topeka schools not to be a racially unitary system because the school district had exercised a form of benign neglect by insufficiently attending to desegregation efforts. However, in 1992, the United States Supreme Court vacated and remanded this decision for further consideration in the light of Dowelland Freeman. On reflection, the federal appellate court reinstated its original opinion in full and entered an additional opinion. The court argued that the facts underlying Brown III were far different from those before the Supreme Court in Dowell and Freeman because the Topeka school board had not fulfilled its affirmative duty in the areas of student and faculty and

staff assignments. See Brown v. Board of Education of Topeka, 978 F.2d 585 (10th Cir. 1992) (Brown IV), denied sub nom. Unified School District No. 501 v. Smith, 509 U.S. 903 (1993). Finally, in Brown v. Unified School District No. 501, 56 F.Supp.2d 1212 (Kan. 1999), the court declared:

After careful consideration, the court has no reservation in finding that: defendant has complied in good faith with the mandates of the court over a reasonable period of time; the vestiges of past discrimination in the school district have been eliminated to the extent practicable; and defendant has demonstrated a good faith commitment to the law and the Constitution which presages no future need for judicial intervention. (p. 1214)

Cleveland schools were released from further remedial obligations in Reed v. Rhodes, 1 F. Supp.2d 705 (Ohio 1998). In its decision, the court declared that socioeconomic factors were the primary cause of disparities in achievement on reading tests between blacks and other students. The court also asserted that it was “. . . not convinced the voluminous remedial orders issued in this case benefitted the students . . . to the degree that all Parties and the Court had hoped.”

After being under a federally supervised desegregation plan for thirty years, the Charlotte schools were declared to have “achieved unitary status by eliminating the vestiges of past discrimination to the extent practicable,” in Belk v. Charlotte-Mecklenburg Board of Education, 269 F.3d 305 (4th Cir. 2001), cert. denied, 535 U.S. 986 (2002). In the early days of court-ordered desegregation, the Charlotte-Mecklenburg School System often stood out in its vigorous efforts to continue having segregated schools. The first desegregation lawsuit against the school system was filed in 1965 against a practice known as “freedom of choice,” and in 1971 the United States Supreme in Swann v. Charlotte-Mecklenburg Board of Education defined the historic scope of the duty to eliminate the dual-school system. This scope included the polarizing issue of busing, which the Court held to be constitutionally permissible.

B. Race-Related Placement

Many school systems, which may or may not have been under court order to desegregate, attempted to have their community’s diversity reflected in classes, schools, and/or enrichment programs. In their attempt to accomplish such diversity, school systems have employed admissions schemes to ensure that members of minority groups were properly represented. These schemes included magnet schools, preferences, set-asides, underrepresentation racial balancing, racial quota, controlled choice, and weighted lottery. Many of these schemes were challenged in the courts by

white students who were denied access to a neighborhood school or an enrichment program because of their race. And in some instances, white students may have had higher test scores than minority students who had been accepted to programs requiring test scores.

After many years of litigation dealing with local school systems’ plans for providing diversity, a contentious Supreme Court five-to-four plurality decision* in Parents Involved in Community Schools v. Seattle School District No. 1, 551 U.S. 701 (2007),** ruled that race cannot be the sole determinant for student placement. At issue in this case was the inclusion of a race-based “tiebreaker,” which came into play when a school was oversubscribed and racially unbalanced. Under the Seattle plan, eighth-graders prioritized high schools they wished to attend, and if demand exceeded available vacancies, then tiebreakers were employed. First, attendance of siblings at a requested school was considered. Next, the race of an applying student would be considered if the makeup of an oversubscribed school differed by more than 15 percent from the racial makeup of Seattle students as a whole. The Court also noted that the population of Seattle was approximately 70 percent white and 30 percent nonwhite and that the student population was approximately 40 percent white and 60 percent nonwhite.

In not upholding the Seattle plan, the Chief Justice [joined by Justices Kennedy (concurring in part), Scalia, Thomas, and Alito] wrote:

Before Brown, schoolchildren were told where they could and could not go to school based on the color of their skin. The school districts in these cases have not carried the heavy burden of demonstrating that we should allow this once again—even for very different reasons. For schools that never segregated on the basis of race, such as Seattle, or that have removed the vestiges of past segregation, such as Jefferson County, the way “to achieve a system of determining admission to the public schools on a nonracial basis,” Brown II, 349 U.S. 300-301, is to stop assigning students on a racial basis. The way to stop discrimination on the basis of race is to stop discriminating on the basis of race. (pp. 747–748)

However, Justice Kennedy although concurring in the judgment stated:

This is by way of preface to my respectful submission that parts of the opinion by The Chief Justice imply an all-too-unyielding insistence that race cannot be a factor in instances when, in my view, it may be taken into account. The plurality opinion is too dismissive of the legitimate interest government has in ensuring all people have equal opportunity

regardless of their race. The plurality’s postulate that “[t]he way to stop discrimination on the basis of race is to stop discriminating on the basis of race, * * * is not sufficient to decide these cases. Fifty years of experience since Brown v. Board of Education, * * *, should teach us that the problem before us defies so easy a solution. School districts can seek to reach Brown’s objective of equal educational opportunity. The plurality opinion is at least open to the interpretation that the Constitution requires school districts to ignore the problem of de facto resegregation in schooling. I cannot endorse that conclusion. To the extent the plurality opinion suggests the Constitution mandates that state and local school authorities must accept the status quo of racial isolation in schools, it is, in my view, profoundly mistaken. (pp. 787–788)

Justice Breyer’s 73-page dissent (joined by Justices Stevens, Souter, and Ginsburg) argued that:

These cases [Seattle and Jefferson County] consider the longstanding efforts of two local school boards to integrate their public schools. The school board plans before us resemble many others adopted in the last 50 years by primary and secondary schools throughout the Nation. All of those plans represent local efforts to bring about the kind of racially integrated education that Brown v. Board of Education, * * * long ago promised—efforts that this Court has repeatedly required, permitted, and encouraged local authorities to undertake. This Court has recognized that the public interests at stake in such cases are “compelling.” We have approved of “narrowly tailored” plans that are no less race conscious than the plans before us. And we have understood that the Constitution permits local communities to adopt desegregation plans even where it does not require them to do so.

The plurality pays inadequate attention to this law, to past opinions’ rationales, their language, and the contexts in which they arise. As a result, it reverses course and reaches the wrong conclusion. In doing so, it distorts precedent, it misapplies the relevant constitutional principles, it announces legal rules that will obstruct efforts by state and local governments to deal effectively with the growing resegregation of public schools, it threatens to substitute for present calm a disruptive round of race-related litigation, and it undermines Brown’s promise of integrated primary and secondary education that

local communities have sought to make a reality. This cannot be justified in the name of the Equal Protection Clause. (pp. 803–805)

There is a certain tone and vehemence expressed in the plurality and dissenting opinions and Justice Kennedy’s concurring opinion, in which he agrees with the Court’s holding regarding these two cases, but differs with the plurality’s central tenet that race cannot be used as basis for student assignment. Does this decision represent definitive-settled law?

Two earlier decisions by the United States Supreme Court in 2003 addressed the issue of admissions policies designed to favor selected racial minorities in higher education. Both decisions upheld the notion that diversity is a compelling state interest in the context of university admissions. However, programs designed to bring about such diversity must be narrowly tailored to serve that interest, and quotas could not be established for members of certain racial or ethnic groups. In Gratz v. Bollinger, 539 U.S. 244 (2003), a six-to-three undergraduate admissions decision, the Court held that “distributing 20 points, or one-fifth of the points needed to guarantee admission, to every single ‘underrepresented minority’ applicant solely because of race, is not narrowly tailored to achieve the interest in educational diversity.” However, in Grutter v. Bollinger, 539 U.S. 306 (2003), the Court in a five-to-four decision upheld a law school admissions policy that engaged “in a highly individualized, holistic review of each applicant’s file, giving serious consideration to all the ways an applicant might contribute to a diverse educational environment.” Because both of these decisions dealt with higher education admissions, their applicability to public-school K–12 programs intended to promote diversity may be limited, a view shared by the Chief Justice in Seattle.

In San Francisco, after years of contentious litigation, the San Francisco schools, the National Association for the Advancement of Colored People, and Chinese American students (the parties) put their differences aside and submitted a stipulated settlement for court approval. The parties thought it best to work out an agreement among themselves rather than continue litigation. A suit by Chinese American students had been contemplated that sought to end the use of racial quotas such as the 40 percent ceiling that had been set for any ethnic group at such prestigious institutions as Lowell High School. In this instance, Chinese American students were being discriminated against because of their overrepresentation. The settlement was approved in San Francisco NAACP v. San Francisco Unified School District, 59 F. Supp.2d 1021 (Cal. 1999). In addressing student assignment, the court stated:

In fact, the settlement expressly acknowledges that, in assigning students to the schools of the SFUSD, “state and federal law provide that district officials may consider many factors, including the desire to

promote residential geographic, economic, racial and ethnic diversity in all SFUSD schools.” The settlement merely precludes the SFUSD from using race or ethnicity as the primary or predominant consideration in determining student admissions. (p. 1034)

V. Epilogue

As public education entered the twenty-first century, a crosscurrent of forces appeared to be operating on the K–12 desegregation landscape. The federal judiciary could no longer be relied on to assist in furthering historic desegregation measures. Large-scale, costly desegregation efforts in inner-city school systems had not brought about desired results. There appeared to be little public support for traditional public-school desegregation efforts, especially busing, which is now often viewed as a major reason for bringing about white flight. Observers argued that large urban school systems, after years of desegregation efforts, appeared to be undergoing resegregation rather than further desegregation. Black students have been replaced by white students who now also claim discrimination because they are excluded from prestigious public schools or programs that they contend are race based or have quotas to ensure diversity. And Latino students have become the largest minority.

The Brown I decision set off an avalanche of civil-rights decisions and legislation that gave black Americans equality before the law, not only in education but also in such areas as public accommodation, housing, and voting. However, many of the assumptions made at the time of the Brown decision pertaining to education have not come to fruition: the original emphasis on racial integration as a means toward equal education somehow shifted to integration being an end in itself; the notion that once de jure segregation ended, “equal educational” opportunities would result has not come about, and the idea that putting black and white students together would solve racial problems now seems quite naive. More than 50 years after the decision, the educational racial scene is not all that its proponents had hoped it would be. Such court-ordered efforts as numerical quotas and forced busing of students have not had the desired effect and, unfortunately, in many instances have increased racial tension. As the goal of integration has decreased, as we shall see in Chapter 7, courts have increasingly dealt with issues of educational adequacy rather than equity and whether states are providing sufficient resources to schools having a low tax base.

Although the South went from being completely segregated to being the least segregated area in the United States, this accomplishment is diminishing. According to a report for the Harvard Project on School Desegregation, Southern states, which have had an enviable record in desegregating their school systems, are resegregating and following a national trend of blacks attending poor and inferior schools while their white

counterparts attend affluent and superior schools. Inner-city schools increasingly have become totally “minority” because of the flight of whites and middle-class blacks. The report further stated that schools in the Midwest and Northeast remain the most segregated between black and white students, and in the West segregation between white and Hispanic students is growing.

There appears to be conflicting evidence regarding the efficacy of once-heralded magnet schools in the desegregation process. According to congressional findings cited in the No Child Left Behind Act, magnet schools were a significant part of the effort to achieve voluntary desegregation; the use of magnet schools had increased dramatically, with approximately two million students nationwide, of whom more than 65 percent were nonwhite; and magnet schools’ distinctive programs had served as models for school improvement efforts. Yet, other studies reveal that although magnet schools have been widely touted, they have had spotty success in desegregation efforts. Often cited is the ambitious court-ordered program of heavily funded magnet schools in Kansas City, which did not achieve its original goal of drawing significant numbers of white students from the suburbs. A study by the Harvard Project on School Desegregation found relatively small academic and racial gains. In 2000, Kansas City schools were characterized by the director of the Council of the Great City Schools as being “an island of incompetence in a sea of indifference.” Due to its dismal scholastic record, the State of Missouri revoked its accreditation, and the district was placed in danger of being broken up or taken over by the state if there were no improvement. Total expenses for the two-decade court-ordered desegregation program, which after 1999 no longer received state funding, reached over $2 billion. It would be difficult not to conclude that the Kansas City experiment was an abject failure.

Several states have passed anti-affirmative action measures. California voters passed Proposition 209 in 1996, a measure that provided that the “state shall not discriminate against, or grant preferential treatment to any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting.” Proposition 209 effectively ended affirmative action in California’s public sector. Following California’s lead, Washington’s Initiative 200 (1998), Michigan’s Proposal 2 (2006) and Nebraska’s Initiative 424 (2008) were all measures designed to eliminate state-sponsored affirmative action.

Courts are no longer viewed as being efficacious in effecting greater diversity in the public schools. Although the Court in Seattle rejected the diversification plan brought before it, a reading of the various opinions reveals strong philosophical differences between the Roberts, Scalia, Thomas, and Alito camp on one side and the Stevens, Breyer, Souter, and Ginsburg camp on the other side. Justice Sotomayor’s replacing Justice Souter and Justice Kagan replacing Justice Stevens is not expected to alter the

Court’s ideological balance. Justice Kennedy appears to be in somewhat of a middle camp of his own. This split opinion represents a far cry from the unanimous decisions of the early days of desegregation. Two United States Supreme Court opinions (Gratz and Grutter) have held that diversity is a compelling state interest that can be furthered by narrowly tailored university undergraduate and graduate programs. Although the Court held that diversity is a compelling state interest, unfortunately, neither decision clearly defines a “narrowly tailored” program for the public schools.

Arguments made in the courts by proponents who favor the diversity notion have contended that schools should attempt to reflect the racial and/or ethnic makeup of the community, diversity promotes learning outcomes, and diversity better prepares students for an increasingly diverse workforce. Opponents have argued that diversity is a legally imprecise term, emphasizing diversity over merit too often has resulted in academic programs being watered down, too often quotas have been imposed to ensure diversity, and there is no credible evidence that racial diversity has had an impact on test scores or has achieved tangible socialization benefits.

More than a half-century after Brown I, two views on opposite ends of the desegregation continuum may be illuminating in describing the desegregation landscape as the twenty-first century begins. Dinesh D’Souza, author of The End of Racism (1995), argued that attempting to effect desegregation through judicial involvement and antidiscriminatory legislation “has failed.” He further contended that the major problem facing blacks today is no longer racism but “destructive and pathological cultural patterns of behavior” within the subculture of the black underclass. D’Souza argued that although discrimination still exists, it is “rational discrimination,” namely, whites rationally choosing to steer clear of that pathological subculture. Also cited in the literature is the prevalence of such conduct as high-achieving black students in public schools often being mocked by fellow black students for “acting white.” One can only wonder if the presence of a black president will alter these perceptions.

Gary Orfield, then codirector of the Harvard Project on School Desegregation, has different views. In his writings, he cites the profound transformation of Southern society due to the full implementation of desegregation efforts. However, he argues that the lack of judicial support outside the South in implementing desegregation remedies has essentially stopped the desegregation process nationwide. In such publications as Resegregation in American Schools (1999) and A Multiracial Society with Segregated Schools, Are We Losing the Dream? (2003), Orfield and his fellow authors posit that Southern schools, after having the highest levels of integration, are now resegregating “as the courts terminate many major and successful desegregation orders.” They believe that, unfortunately, too many policymakers and courts assume that

desegregation is no longer necessary and will be accomplished by benign neglect. They argue that desegregation gains made since Brown are increasingly being lost.

Given this overall climate surrounding desegregation efforts, especially in the inner cities, would you agree with those who suggest that there is a possibility of public school desegregation efforts returning full circle to a notion of separate but equal, in terms of resources?