School Administrators’ Guide to the First Amendment: Karen Haase Harding & Shultz (402) 434-3000 434 3000 khaase@hslegalfirm.com Facebook: H & S School Law
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 …”
The Lemon Test Purpose Prong: the public school’s action must have a primary secular purpose Effect Prong: the primary or principal effect of the public school action must be one that neither advances nor inhibits religion. Entanglement Prong: the public school action must not result in an excessive entanglement of government with religion.
There is no “when in doubt” choice < Make the ACLU Happy: Exclude Religious Speakers < Make M k th the Mi Ministerial i t i l Alliance Alli Happy: ppy Encourage g Religious g Speakers < Keep K you job: j b D Defer f tto th the S School h l Board
Lakeview Elementary School
Part of Wilson County School System, which has 12 elementary schools and 5 high schools Lakeview has K-5th grade Active PTO, PTO heavy parent involvement Exceeded district and state test scores in 2009
Doe v. Wilson County. Sch. Sys. (M.D. Tenn. 2008) Parents of kindergartner sued claiming that the school engaged in a pattern of endorsing religion District Di t i t policies: li i • Allowed groups to use facilities without charge • Allowed ggroups p to distribute materials • Prohibited belittling any faith
Challenged Practices “Praying Parents” group • Meetings • Flyers • “Eagle Eye” publication
“See you At the Pole” event Thanksgiving Unit Christmas Program CD in Class N ti National l Day D off P Prayer Event E t Gideon Bible distribution
The Court “Praying Parents”: violated all three prongs of Lemon SYATP : violated endorsement prong Thanksgiving i i Unit: i no violation i i Christmas Program: g no violation CD in Class: no violation NDoP: violated endorsement prong Gideon Bible distribution: violated endorsement prong
Gould v. Wilson County. BOE (M.D. Tenn. 2009) Parents who participated in Praying Parents group organizing SYATP and NDoP event Solicited S li it d kids kid tto make k posters t ffor SYATP Brought to school to display Ended covering “offensive” offensive language and images
Challenged Practices “Parents …are outraged that they are unable to express their Christian beliefs.... The find censorship belittling i i to their i faith f i and they believe the administration shows hostility to their religion….” Seeking injunction allowing posters advertising NDoP
The Court School created limited public forum in hallways and commons Banned posters based solely on their religious i i content: viewpoint-based i i discrimination • Posters weren’t proselytizing • Posters weren’t coercive; parents decide whether to bring kids early New policy too broad and too vague
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 about FCA, pregame prayers, Vet’s V t’ D Day, etc.? t ? All off these th activities ti iti mustt be b student-led t d tl d Teacher-sponsor must be “nonparticipatory” • Can’t pray p y • Can’t organize • Can Can’tt lead • Can’t answer questions about personal faith
School Administratorsâ&#x20AC;&#x2122; Guide to the First Amendment: Karen Haase Harding & Shultz (402) 434-3000 434 3000 khaase@hslegalfirm.com Facebook: H & S School Law