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CHAPTER 9: Legal Aspects of Education groups. Permitting such meetings, the Court stated, does not mean that the school endorses or supports them. Many analysts and some courts have emphasized this point in supporting equal access for gay, lesbian, bisexual, and transgendered students. Courts have ruled that this equal access applies to not only before and after school but also to noninstructional time during the school day.66 Implications of the Mergens case have aroused great uncertainty. Schools apparently must choose between allowing practically any student group to meet or dropping all extracurricular activities. Similar considerations apply concerning the distribution of flyers about religious activities. A third option would be to permit meetings only by groups whose activities relate directly to the curriculum, but difficult problems arise in defining such activities. Recent Supreme Court cases have failed to fully clarify the issue, but it is clear that religious and other groups and activities must receive equivalent access and must satisfy criteria such as the following:67 ●● The activity must be student initiated. ●● The school may not sponsor the activity, but its employees may attend meetings, and it may pay incidental costs such as heating. ●● Outsiders may not direct the group or regularly attend meetings. ●● The group cannot be disruptive. ●● Each group must have equal access to meeting spaces, school periodicals, bulletin boards, and other facilities and resources.
9-4c The Pledge of Allegiance in Limbo The separation of church and state also applies to statements of allegiance to the state. In one case, several Jehovah’s Witnesses went to court over a West Virginia requirement that their children recite the pledge of allegiance at school each morning. The parents based their objection on religious doctrine. The US Supreme Court supported school officials’ actions in expelling students who would not recite the pledge and salute the flag. However, three years later, after Witnesses in several locations had been accosted in the streets and forced to salute the flag, the Court reversed itself and concluded that students could be excused from reciting the pledge (Photo 9.2). The court ruled that the children could be exempted because the requirement to pledge conflicted with their religious beliefs. Subsequent decisions have provided further support for this conclusion.68 In 2002, a federal court of appeals ruled the Pledge of Allegiance unconstitutional because it includes the words “under God.” This decision predictably sparked nationwide controversy; however, final disposition of the issue has yet to be determined by the Supreme Court and other courts.69
Board of Education of the Westside Community Schools v. Mergens, 88 S. Ct. 1597 (1990). See also “Transgender and Gender Non-Conforming Students,” April 2014 posting by the National Center for Transgender Equality, available at www.transequality.org/sites/default/files /docs/kyr/KnowYourRightsSchools_April2014.pdf. 67 Benjamin Dowling-Sendor, “Opening Your Schools,” American School Board Journal (May 1999); “A Question of Equity,” American School Board Journal (February 2003); Colby M. May, “Religion’s Legal Place in the Schoolhouse,” School Administrator (October 2006), available at www .aasa.org; and “Overview of the Federal Equal Access Act,” 2014 posting by Religious Tolerance, available at www.religioustolerance.org/equ_acce.htm. 68 West Virginia State Board of Education v. Barnette, 319 US 624 (1943); Lipp v. Morris, 579 F. 2d 834 (3rd Cir. 1978); Perry A. Zirkel and Ivan B. Gluckman, “Pledge of Allegiance,” NASSP Bulletin (September 1990), pp. 115–117; Garrett Epps, “Beware,” American Prospect (October 2011), available at www.prospect.org; and “Pledge of Allegiance Fast Facts,” November 11, 2014, posting by CNN, available at www.cnn.com. 69 Margaret M. McCarthy, “ Controversy Continues over the Pledge of Allegiance,” Educational Horizons (Winter 2005), pp. 92–97; Grace Y. Kao and Jerome E. Coplulsky, “The Pledge of Allegiance and the Meanings and Limits of Civil Religion,” Journal of the American Academy of Religion (March 2007), pp. 121–149; Kathleen Hopkins, “Lawsuit Challenges ‘Under God’ in Pledge of Allegiance,” USA Today (November 19, 2014), available at www.usatoday.com; and “The Pledge of Allegiance Cases,” undated posting by The Becket Fund, available at www.becketfund.org. 66
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