School Administrators’ Guide to the First Amendment

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