First Amendment Update: St d t ’ R Students’ Religious li i E Expression i
Karen Haase Harding H di & Shultz Sh lt (402) 434-3000 khaase@hslegalfirm.com H & S School Law @KarenHaase
The First Amendment’s Religion Clause “Congress shall make no law respecting ti an establishment t bli h t off religion, or prohibiting the free exercise thereof . . .”
The First Amendment’s Religion Clause Establishment i Clause: C g shall make no “Congress law respecting an establishment of religion…” Free F Exercise E i Clause: Cl “… or prohibiting the free exercise thereof …”
Legal Standards for Students’ Religious Expression < Kids aren’t “the government” < difference “between ggovernment speech p endorsing religion, which the Establishment Clause forbids, forbids and private speech endorsing religion, which the Free Speech and Free Exercise Clauses protect”
Be Careful What You Wish For
K.A. v. Pocono Mtn. Sch. Dist. (P D. (Pa. D Ct. Ct 2011 Elementary student brought flyer inviting peers to Christmas party sponsored by girl’s church. church Student had to turn the flyer into the principal for approval, who in turn had thee superintendent supe e de look oo at it,, bec because use hee claimed it was religious in nature. The Th superintendent i t d t rejected j t d th the requestt based on district policy
Challenged Policies ď&#x192;&#x2DC; Policy: "Any requests from civic organizations or special interest groups...must be examined to insure that such h activities ti iti promote t student t d t interests i t t primarily, rather than the special interests of any particular group" ď&#x192;&#x2DC; Prohibits expression that "seek(s) seek(s) to establish the supremacy of a particular religious denomination denomination, sect or point of view."
K.A. v. Pocono Mtn. Sch. Dist. (P D. (Pa. D Ct. Ct 2011) Plaintiff: • flyer was prohibited "solely because of the religious nature of the message". • school usually allows flyers and other invitations to be distributed Defendant: D f d • District regulating “commercial commercial speech speech” • K.A. treated like any other student
Morgan v. Swanson
th (5
Cir. 2010)
Elementary students suing Plano, TX schools Alleged First Amendment Violations • No Christmas parties allowed • References to Christian holidays banned • Cards to solders censored • Goodie bags searched and confiscated • Tickets to church p play y banned and confiscated • Birthday treats censored • After-school distribution prohibited as well
Morgan v. Swanson
th (5
Cir. 2010)
School’s Defense • Constitution Constit tion does not prohibit viewpoint ie point discrimination against religious speech in elementary schools • Qualified immunity • First Amendment is not implicated by restrictions on student-to-student distribution of non-curricular materials by elementary school students to their classmates
Morgan v. Swanson
th (5
Cir. 2010)
District Court: no qualified immunity 5th Circuit: Circ it: no qualified q alified immunity imm nit • No conclusion about truth of allegations • No conclusion about disruption • Only deciding whether elementary school students have a First Amendment right to be free from religious-viewpoint g p discrimination while at school. En banc rehearing granted, granted oral arguments held May 23, 2011
Dominguez v. Grossmont Union Sch. Dist. (Cal. 2011) Student had conversion experience over Christmas break Teacher directed him to stop bringing Bibl tto school Bible h l and d evangelizing li i Seized Bible when he did not comply Told student he was violating “separation separation of church and state:” state: Student suspended for 2 days
Dominguez v. Grossmont Union Sch. Dist. (Cal. 2011) Case filed March 24th Answer filed April 26th Case settled and dismissed May 6th
What to do? Walk the straight and narrow Seek S k qualified lifi d llegall advice d i • Not from board • Not from patron • Not from advocacyy group g p • Not from law books • Not from your buddy • Don’t use common sense
What to do? Remember Tinker: Even protected student t d t expression i th thatt substantially b t ti ll interferes with school purposes can be regulated and (if necessary) punished Tinker exception is subject to dispute….
What about FCA, pregame prayers, Vet’s V t’ D Day, etc.? t ? All off these th activities ti iti mustt b be student-led t d tl d Teacher-sponsor must be “nonparticipatory” • Can’t pray p y • Can’t organize • Can Can’tt lead But school must not hinder students’ personal faith expressions
First Amendment Update: St d t ’ R Students’ Religious li i E Expression i
Karen Haase Harding H di & Shultz Sh lt (402) 434-3000 khaase@hslegalfirm.com H & S School Law @KarenHaase