Recent Developments in First Amendment Law Karen Haase Harding & Shultz (402) 434-3000 khaase@hslegalfirm.com H & S School Law @KarenHaase
Religion Clause Establishment Clause: “Congress shall make no law respecting an establishment of religion…” Free Exercise Clause: “… 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 Music Make the Ministerial Alliance Happy: Focus on Religious Music Keep you job: Defer to the Principal, Superintendent or School Board
Performing Religious Music
Skarin v. Woodbine Cmty Sch High School Choir singing Lord’s Prayer at graduation Ct: “Whether receipted or sung “prayer by its very nature is undeniably a religious exercise” Principal effect was to advance the Christian religion
Nurre v. Whitehead Wind ensemble selected to play at graduation • •
Kids voted unanimously to play “Ave Maria” Superintendent vetoed
Senior member of wind ensemble sued Ct: • • •
Music is speech School did censor Censorship was permissible here (Lemon)
S.D. v. St. Johns Co. Sch. 3rd graders assigned to sing “In God We Still Trust” at end-of-year assembly • •
Song played in class and practiced Kids told if they objected they didn’t have to sing, but wouldn’t be able to attend assembly
Parents sued Ct: •
“Song fails to pass constitutional muster under any of the established tests”
S.D. v. St. Johns Co. Sch. School argued it was just like Doe v. Duncanville Indep. Sch. Dist. (5th Cir. 1995) Ct: No • Age of kids • 3rd grade music not elective • Choirs vs. classes • Quality of music
Observation of Holidays
Stratechuk v. Bd. of Ed. Parents objected to • •
“Christmas Sing Along December Concerts
Board adopted policy prohibiting religious music Parent sued Ct: • •
First Amendment does not compel school to include religious holiday music No record of hostility toward religion
Morgan v. Swanson Elementary students suing Plano, TX sch. 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 play banned and confiscated • Birthday treats censored • After-school distribution prohibited as well
Morgan v. Swanson School’s Defense • Constitution does not prohibit viewpoint discrimination against religious speech in elementary schools • restrictions were on student-to-student distribution of non-curricular materials by elementary school students to their classmates
Morgan v. Swanson 5th Circuit: no qualified immunity for school staff • Elementary school students have a First Amendment right to be free from religious-viewpoint discrimination while at school • Remanded for trial Supreme Court denied certiorari denied June 2012
Students’ Religious Expression
Dominguez v. Grossmont Union Sch. Dist. Student had conversion experience over Christmas break Teacher directed him to stop bringing Bible to school and evangelizing Seized Bible when he did not comply Told student he was violating “separation of church and state:” Student suspended for 2 days
Dominguez v. Grossmont Union Sch. Dist. Case filed March 24, 2011 Answer filed April 26, 2011 Case settled and dismissed May 6, 2011
Teachers’ Religious Expression
Borden v. Sch. Dist. School policy prohibited coaches from participating in student prayer Coach sued District Ct: nothing wrong with coach participating so long has he did not lead Appellate Ct: no First Amend. right to pray in employee’s role as public employee U.S. Supreme Court: denied cert
What to do?
What to do? Walk the straight and narrow Seek qualified legal advice • Not from board • Not from patron • Not from advocacy group • Not from law books • Not from your buddy • Don’t use common sense
What to do? Protect students’ right to free expression Unless disruptive under Tinker
What about FCA, pregame prayers, Vet’s Day, etc.? All of these activities must be studentled Teacher-sponsor must be “nonparticipatory” • Can’t pray • Can’t organize • Can’t lead But school must not hinder students’ personal faith expressions
National Anthem  Proposed Indiana Statute
Recent Developments in First Amendment Law Karen Haase Harding & Shultz (402) 434-3000 khaase@hslegalfirm.com H & S School Law @KarenHaase