Religion in the Public Schools

Transcription

1 Religion in the Public Schools Texas Employee Guide Texas Association of School Boards Legal Services

2 Religion in the Public Schools Texas Employee Guide First Amendment Basics What are the First Amendment religious liberty clauses? Together, the U.S. Constitution First Amendment religious liberty clauses protect private religious expression but prohibit government action to advance, coerce, or endorse religion in the public schools. The religious liberty clauses apply both to the actions of the school district and the employees of the school district. Establishment Clause: The First Amendment Establishment Clause, Congress shall make no law respecting an establishment of religion..., prohibits school districts and their employees from establishing religion. U.S. Const. Amend. I. The Establishment Clause prohibits schools from advancing, coercing, or endorsing a particular religion or religion over non-religion. Free Exercise Clause: The First Amendment Free Exercise Clause, Congress shall make no law... prohibiting the free exercise [of religion], prohibits districts and their employees from unduly burdening citizens free exercise of religion. U.S. Const. Amend. I. The Free Exercise Clause prohibits the government from passing laws or establishing practices that specifically target adherents of particular faiths. The government may, however, adopt and apply neutral, generally applicable laws and practices. The religious liberty clauses act not to keep religion out of the schools. Instead, the clauses act to protect the religious freedom of all people of all religious viewpoints. What is the First Amendment Free Speech Clause? The First Amendment also prohibits interference with an individual s freedom of speech, the Free Speech Clause, stating that, Congress shall make no law... abridging the freedom of speech. U.S. Const. Amend. I. The Free Speech Clause protects private speech and prohibits the government from discriminating against individual viewpoints. What does it mean to be neutral towards religion? To comply with the First Amendment, school districts and their employees must be neutral towards religion. They may not show preference for one religious viewpoint over another. They may, however, impose reasonable time, place, and manner restrictions, as long as these restrictions do not relate to the content of the expression. 1

3 What other federal laws and guidance impact religious expression in schools? Employees: Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e e-17, prohibits a district from discriminating against an employee or applicant based on that person s religious beliefs. For example, Title VII prohibits a district from failing to hire an applicant; firing an employee; or discriminating against an employee or applicant with respect to compensation, terms, conditions, or privileges of employment based on the person s religion. The Equal Employment Opportunity Commission Compliance Manual on Religious Discrimination provides guidance on handling employee complaints of religious discrimination, available at Students: The Equal Access Act, 20 U.S.C. 4071, requires that districts to permit student clubs of a religious nature to meet on school property, subject to the same rules and privileges as other non-curricular student groups. Employees and students: The Department of Education Guidance on Constitutionally Protected Prayer in Public Elementary and Secondary Schools provides guidance on the current state of the law regarding religious expression in schools, available at Does Texas law prohibit discrimination based on religion? Yes. The Texas Constitution Freedom of Worship Clause, Texas Constitution article I, section 6, offers protections similar to those offered by the First Amendment religious liberty clauses. The Freedom of Worship Clause forbids the preference of one religion over another and offers protections for individual religious expression. The Texas Equal Rights Amendment, Texas Constitution article I, section 3a, prohibits discrimination on the basis of religion. The Texas Religious Freedom Restoration Act, Texas Civil Practice & Remedies Code chapter 110, prohibits a government agency from substantially burdening a person s free exercise of religion unless the burden is in furtherance of a compelling governmental interest and is the least restrictive means of furthering that interest. The Texas Commission on Human Rights Act, Texas Labor Code chapter 21, subchapter B, prohibits discrimination in employment based on religion. The protections of this law are comparable to those of Title VII. Texas Civil Practice and Remedies Code chapter 106 prohibits discrimination on the basis of religion. 2

4 In addition to the general prohibitions on religious discrimination, Texas law also includes several statutes that address specific issues relating to religious expression such as excused absences to observe religious holy days, prayer led by student speakers, Bible courses, and exceptions to state immunization requirements. Student Religious Expression Voluntary Prayer When is prayer allowed in a public school setting? Student may pray individually as long as that prayer is initiated by the student and is nondisruptive. A student may pray silently before a test or stop to pray between classes. Students may also pray in groups as long as that prayer is voluntary, non-disruptive, and occurs outside of instructional time. Students may meet to pray at the flagpole prior to school or to pray and read the Bible over lunch. The district may not sponsor prayer. The district or an individual employee may not require, encourage, or coerce a student to pray or not to pray. They must be neutral; for example, an employee cannot let a Christian student pray before a test but not a Jewish student. Employees with supervisory authority over students need to respect students rights to express their own religious viewpoints, but they also need to be vigilant for instances when private religious expression becomes perceived harassment or bullying based on religion. If a student speaker is not taking no for an answer and continues to pressure other students to join in a religious activity, for example, supervisory employees need to intervene. Employees may also need to step in when a student is having trouble articulating an objection to a classmate s religious advances. In a perfect world, this would be accomplished with sensitivity and without embarrassing any of the students involved. Must a district observe a moment of silence at the beginning of each school day? Yes. Texas Education Code section mandates that school districts provide for a oneminute period of silence following the recitation of the pledges of allegiance to allow each student to reflect, meditate, pray, or engage in other silent activity that does not disrupt or distract another student. Teachers and other school employees must ensure that no student is distracted or interfered with by other students during this one-minute period. 3

5 Even if Texas s minute of silence law was adopted with a secular purpose, a classroom teacher could still violate the constitution if he coerced, endorsed, or conversely, was hostile toward prayer in the way he administered the minute of silence. Districts should offer educators specific guidance or an optional script for introducing and overseeing the minute of silence. Example: During the lunch period, a tenth grade student, Carla, prays audibly before eating her meal. A couple of students begin to join her. Two more students ask for a change in their lunch schedule to be able to join them. Assistant Principal Goodheart accommodates the request. Soon more students ask for a schedule change so they can sit at the Christian table. This time Ms. Goodheart refuses. Carla s mother calls to complain and insists on coming to school each day during lunch time to make sure the students rights are protected. That same week, another mother calls to complain that children were pressuring her child, an atheist, to sit at the Christian table and pray with them. Did Principal Goodheart make the right decisions? Carla herself has a constitutionally protected right to pray either silently or audibly in a nondisruptive way before her meal. If a group of students wants to join Carla in prayer during noninstructional time, such as at the lunch table, they may. Voluntary group prayer is permitted during non-instructional time, but it cannot be disruptive to the school program nor can it become school sponsored. If rearranging the lunch schedule is not feasible, Ms. Goodheart is not required to accommodate the requested changes. Moreover, Ms. Goodheart can, and probably should, refuse to grant the requests if she fears that having a table known as the Christian table may be perceived as school sponsorship or that the table is creating a hostile environment for other students. In Assignments Can a student express religious views in his or her schoolwork? Students First Amendment right to freedom of expression is not limited to prayer but extends into their schoolwork. In general, school employees must assess schoolwork that contains religious expression on the same terms as other schoolwork. Employees may, however, reject students school work on instructional grounds. Instructional grounds are neutral criteria focused on educational purposes and not discrimination against religious views. For example, a teacher may ask the students to write about their favorite afterschool activity. A student could choose to write about an afterschool church program and what the student learns as a participant. However, the teacher may define the project more narrowly, such as a request that students write a story about their favorite sport. Teachers who permit their students to express their religious views within the bounds of a secular assignment will not be considered to have endorsed the students religious views in violation of the Establishment Clause. In that context, the students views will be considered to be those of the students choosing. However, if the teacher asks the students to write about what they learned at their last Sunday school class, the teacher s assignment will violate the Establishment Clause. 4

6 Teachers must be cautious not to allow one student s right to religious expression to interfere with the rights of a student with conflicting beliefs. A picture with an image of a cross drawn as part of an assignment and displayed in class offers minimal interference. However, a student reading a religious story to the class as part of story time may impose on the other students rights. How can the teacher in this situation protect all students right to freedom of expression? One way would be for the teacher can ask the student to read the religious story only to the teacher. Then the student would be able to express the student s religious views within the bounds of the assignment without imposing those views on the other students. Teachers should set unambiguous parameters for class assignments and articulate those parameters clearly to the class. Teachers should also document the assignment plans in the event someone questions the scope of the assignments. Example: Anne, an eighth grader, proposes as her science fair project to examine data regarding amino acids to support the conclusion that human life exists as the result of an intelligent designer. Anne s teacher, Mr. Pascal Newton, is concerned about both the project s religious connotations and the credibility of the student s sources. Assuming Anne s project proposal followed the school s guidelines, would Mr. Newton be penalizing Anne for her religious viewpoint if he refused to allow her to pursue the project? Because this activity is part of academic instruction, current law permits Mr. Newton to limit Anne s expression based on any legitimate pedagogical concern, including, for instance, the credibility of her scientific research. At the same time, however, current law suggests that Mr. Newton may not make a decision based solely on the project s religious viewpoint. Courts are divided on the question of whether preventing a potential Establishment Clause violation is a legitimate pedagogical concern that would justify limiting student speech. Perhaps the most important questions in this scenario are: If Anne is allowed to pursue the project, will other students understand that the content represents Anne s personal viewpoint and not instructional content endorsed by Mr. Newton or the school district? And if Anne is allowed to pursue the project, will Mr. Newton be able to assess the project based on purely pedagogical standards? Student Led Groups Can student religious groups meet after school on a public school campus? If noncurriculum-related student groups meet on campus, student clubs of a religious nature must be permitted to meet on school property, subject to the same rules and privileges as the other non-curricular student groups. In secondary schools, student-organized, student-led groups meet pursuant to school district policies established under the federal Equal Access Act. Under the Equal Access Act, employees may be present at student religious meetings only in a non-participatory capacity. 5

7 In both elementary and secondary schools, community groups, including adult-led groups attended by students, such as the Good News Club or the Boy Scouts, often meet on campus pursuant to local school district policy. Under the First Amendment, these policies must be viewpoint neutral; schools must permit community groups that espouse religious viewpoints to have the same access to school facilities as that extended to community groups espousing secular viewpoints. In addition to these federal laws, the Texas Religious Viewpoints Antidiscrimination Act (RVAA), described in more detail at Student Speakers below, provides that students may organize prayer groups, religious clubs, see you at the pole gatherings, and other religious gatherings before, during, and after school to same extent students are permitted to organize other non-curricular groups or gatherings. Likewise, religious groups are entitled to the same facilities access and other benefits provided other noncurriculum student groups. In most Texas school districts, TASB Policies FNAB(LEGAL) and (LOCAL) govern meetings of student-led, student-initiated noncurriculum-related groups at school facilities during noninstructional time. Typically, these policies provide a limited open forum for meetings of secondary school students, but not elementary students. TASB Policy GKD(LOCAL) governs the use of school facilities for community group meetings, including meetings organized by adults but attended by students. In most districts, these policies create a limited public forum for community group meetings under certain conditions, such as seeking access on a first come, first served basis, paying a usage fee, or providing proof of insurance. Example: A group of students attending Principal Dodge Trubble s campus have been permitted to organize a prayer group that meets on campus immediately after school in accordance with local school district policy. A community watchdog group has heard about the meetings and has written a letter to the editor complaining that the school district is sponsoring prayer meetings in violation of the First Amendment. If the rules are established in advance, written down, clearly expressed, and consistently applied, Mr. Trubble will have an easy time responding to the community and the press about the propriety of the prayer meeting. Mr. Trubble can rest easy until a more controversial group seeks an opportunity to use school facilities for a meeting. Student Speakers Under federal law, is prayer or other religious speech permitted over a public address system? A public school may not permit school-sponsored prayer to be given over the public address system at school or school events, even if the prayer is given by a student. In Santa Fe Independent School District v. Doe, 530 U.S. 290 (2000), the U.S. Supreme Court held that a school district s policy permitting a student volunteer to provide an invocation before games 6

8 violated the Establishment Clause due to several factors. First, the invocations in Santa Fe ISD were authorized by official policy and took place on government property, at governmentsponsored events, and under the supervision of school employees. As a result, the Court refused to conclude that the pregame invocations could be considered private speech. In addition, even though attendance at football games was not mandatory, the Court felt that students should not be forced to choose between attending and facing what might be a personally offensive religious ritual. Finally, the Court took issue with the school district s election system for choosing a student speaker. Electing a student speaker would tend to result in the majority viewpoint being selected, to the exclusion of minority viewpoints. The Court held that the school district s policy is invalid on its face because it establishes an improper majoritarian election on religion, and unquestionably has the purpose and creates the perception of encouraging the delivery of prayer at a series of important school events. Under Texas law, may a district disclaim student prayer or other religious speech expressed over the public address system? The Texas Religious Viewpoints Antidiscrimination Act (RVAA), Texas Education Code sections , also known as the Schoolchildren s Religious Liberties Act, has four primary components: (1) a school district must treat a student s voluntary expression of a religious viewpoint on an otherwise permissible topic the same way it would treat voluntary student expression of a secular viewpoint; (2) students who express religious beliefs in homework, artwork, and other written or oral assignments must be free from discrimination based on the religious content of their submissions; (3) students may organize prayer groups, religious clubs, see you at the pole gatherings, and other religious gatherings before, during, and after school to same extent students are permitted to organize other non-curricular groups or gatherings; and (4) school districts are required to adopt a policy that establishes a limited public forum for student speakers at all school events at which a student is to publicly speak. Under its student speaker policy, a school district must include a disclaimer, in writing, orally, or both, to clarify that students speech does not reflect the endorsement, sponsorship, position, or expression by the school district. The limited public forums created pursuant to the RVAA offer an opportunity for student expression without school officials controlling or disciplining students based on the viewpoints they express. This opportunity for student speech may be welcomed by many school districts. Nevertheless, establishing limited public forums for student speech may subject school districts to practical and legal challenges even if the school districts are complying with the RVAA. New opportunities for student free speech raise the possibility that some speech will be controversial. For example, religious speech that expresses the viewpoint of a minority religion may cause controversy in some communities. Parents who initially supported the idea of student speeches may withdraw their support upon learning that their children have been exposed to viewpoints that differ from their own. On the other hand, implementation of RVAA policies 7

9 raises the risk of an as applied challenge to the policies. A family professing a minority religious view in a school district that creates limited public forums that, over time, are used solely or primarily by students professing majority religious views may be able to establish that a school district s policy adopted under the RVAA nevertheless violates the First Amendment as interpreted by the U.S. Supreme Court in Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290 (2000). Example: High Point ISD has adopted a new policy FNA(LOCAL), which creates limited public forums for student speech at school events. Morning announcements are one of the events designated as having introductory student speakers. Delia, a Senior, has been selected to be the student speaker. During her designated time on the school s public address system, Delia reads a number of announcements scripted by the main office. She also reads a Bible verse and offers a sectarian Christian prayer. Whether Delia s prayer is constitutional may ultimately be a question for a court to resolve. The legal issue at stake will be whether the state s RVAA law and the school district s local policy and practices sufficiently clarify for this audience (and their parents) that Delia s prayer is her own choice and is not sponsored, encouraged, or endorsed by school officials. Is student-initiated, student-led prayer allowed at graduation ceremonies? The U.S. Supreme Court has ruled that school officials cannot arrange for prayer to be included in a graduation ceremony. Similarly, graduation speeches cannot contain sectarian or proselytizing language if the speeches are properly characterized as school sponsored. Questions remain, however, about the circumstances under which a student might independently elect to include prayer as part of his or her remarks during such an event. To many, the U.S. Supreme Court s reasoning in Santa Fe seems to prohibit even student-led prayer at graduation. Significantly, however, in the Santa Fe appeal, the U.S. Supreme Court was asked but declined the opportunity to reverse the decision of a court with jurisdiction over Texas, the Fifth Circuit Court of Appeal, regarding graduation prayer. Prior to Santa Fe and in subsequent decisions, the Fifth Circuit upheld student-initiated, student-led, nonsectarian, nonproselytizing prayer at graduation. A primary purpose of the RVAA was to indicate in state law and local school district policies that school districts do not sponsor student speech, including prayer, at events such as graduation. In this respect, the RVAA echoes the U.S. Department of Education s (DOE) Guidance on Constitutionally Protected Prayer in Public Elementary and Secondary Schools, available at The guidance provides that when student speakers are selected based on genuinely neutral and even-handed criteria, and when student speakers selected under such criteria retain primary control over the content of their expression, such student speech is not attributable to the school and may not be restricted for either its religious or anti-religious content. Both the RVAA and the DOE guidance rely on disclaimers and local school district policies to declare that student speech is not school sponsored. Whether the disclaimers will suffice will depend on the circumstances of any potential challenge. 8

10 Example: Valedictorian Erica Einstein has prepared her valedictory address and submitted it to Principal Dodge Trubble. The address includes several references to religion including thanking God for his many blessings and thanking Congregation Beth El for its support of her and her family. Erica s speech ends with the recitation of a Psalm in Hebrew. Should Mr. Trubble tell Erica to remove the references? Delete the Psalm? Mr. Trubble should proceed with caution before allowing the speech either as-is or with amendments. If the district has taken appropriate steps in policy and practice to distance the views expressed by individual speakers from the views of the district as a governmental entity, the speech may be permissible as-is. On the other hand, the more Mr. Trubble becomes involved in reviewing and editing the speech, the more likely a court would be to consider the speech school sponsored. Distribution of Materials When can religious materials be distributed on a public school campus? Religious materials from students can be distributed on the same terms as all other nonschool materials, cards, notes, invitations. Districts may only deny religious materials on viewpointneutral grounds such as reasonable time, place, and manner restrictions. For example, a district may prohibit all noncurriculum materials from being distributed during instructional time or that they be placed on a common table. In most Texas school districts, TASB Policy FNAA(LOCAL) governs the distribution of nonschool materials by students, while TASB Policy GKDA(LOCAL) governs the distribution of nonschool materials by community members, including parents. In most districts, these policies create a limited public forum for distribution of nonschool materials. Typically, materials to be distributed or posted on campus must be submitted for prior review; the purpose of the review is to ensure that the materials do not contain any of the specified categories of prohibited content, such as speech that is defamatory, that advertises or encourages the use of illegal drugs, or that is reasonably calculated to cause a material disruption of school operations. In most districts, board-adopted literature distribution policies provide that campus principals will make appropriate time, place, and manner restrictions for their campuses. By law, these rules must be reasonable and viewpoint neutral. The rules should also be written, circulated, and posted in appropriate ways and consistently applied. Even if campus rules are quite restrictive with respect to mass distribution or posting of materials by community members, campus rules should leave ample opportunities for students to share written materials with each other in the ordinary course of social interaction. Example: Ferris, a seventh grader, is Mormon. His church is holding a youth retreat over the weekend, and Ferris wants to invite his classmates. He brings a flyer to school and asks to put them in his friends classroom cubbies. 9

11 Ideally, the school principal should have a ready answer for Ferris. Most local school district policies place the responsibility on campus principals to set clear rules for the distribution of nonschool materials and explain those rules to all instructional staff. Campus rules may require that all materials being widely distributed be brought to the main office for placement on a distribution table or may permit materials to be sent home periodically in backpacks. The rules may allow students to hand some number of materials to classmates during noninstructional time. Whatever the answer, clear, written campus rules, established in advance of any request and uniformly applied, are essential to avoiding a claim of religious discrimination. Religious Diversity May a teacher deny a student a perfect attendance award based on an absence taken to observe a religious holy day? Texas Education Code section requires that a district excuse a student from attending school for the purpose of observing religious holy days, including traveling for that purpose. A student whose absence is excused to observe a religious holy day may not be penalized for the absence and must be allowed a reasonable time to make up the school work missed. A perfect attendance award may not be withheld if a student was granted an excused absence under this provision. Must an employee permit a student to miss part of class if the student s parent objects to the lesson being taught? Texas Education Code section permits parents to temporarily remove their children from classes or school activities that conflict with their religious or moral beliefs by providing the teacher with a written statement to that effect. However, the removal may not be to avoid a test or for an entire semester, and the exemption from instruction does not exempt the child from grade level and graduation requirements. May a student be exempted from reciting the Pledges of Allegiance? Texas, like many other states, requires its public school students to recite daily the pledges of allegiance to the United States and state flags. On request from a student s parent or guardian, a school district must excuse the student reciting a pledge. Can a district restrict a student s religious dress? The Fifth Circuit Court of Appeals has assumed, for purposes of a constitutional challenge to a uniform policy, that a student s manner of dress implicates the First Amendment. Districts may therefore only enforce content-neutral restrictions on student dress. Though a district may establish a general dress code provision of neutral application, such as a ban on all t-shirts, a district may not specifically prohibit students from wearing religious symbols absent a substantial disruption. 10

12 Texas law includes a provision specifically addressing school uniforms. Under Texas Education Code section , authorizing the adoption of uniform policies, parents may seek an exemption from a school uniform requirement or request a transfer to a campus without such a requirement based on a bona fide religious objection. Must a district exempt students from required immunizations based on the religious beliefs of the students parents? Under Texas Education Code section , immunization is not required for admission to public school if the applicant for admission submits an affidavit signed by the applicant or, if a minor, by the applicant s parent or guardian stating that the applicant declines immunization for reasons of conscience, including a religious belief. A person who has not received the required immunizations for reasons of conscience, including because of the person s religious beliefs, may be excluded from school in times of emergency or epidemic declared by the commissioner of public health. What constitutes a valid religious belief? If a parent requests an exemption based on a religious belief, as described above, an employee should not attempt to assess the validity of the religious belief. Instead, the employee should assess whether the belief is sincerely held and whether it functions as religion for the individual in question. Example: Kim, a high-school student, wore a rosary as a necklace to school. The principal asked her to remove the rosary, citing the district dress code prohibition on gang-related apparel including rosaries. Could the principal make such a request? No. Absent substantial reason to believe that the rosaries would cause a disruption, the dress code prohibition on rosaries violated Kim s free speech rights. The restriction also violated Kim s free exercise rights. Employee Religious Expression Overview May employees express their religious views on campus? Employees statements in their official capacity are attributed to the school district, and consequently, employees are not at liberty to express their personal religious beliefs in a way that violates the constitutional prohibition on an establishment of religion. 11

13 Like their employer, district employees are required to educate and serve all students equally regardless of their religious faith. Students, particularly younger students, have difficulty distinguishing between an employee s personal views and the lessons they are required to learn as part of the district curriculum. Employees discussion of personal religious beliefs could have the effect of coercing students to develop similar beliefs. Additionally, such discussion could contradict the beliefs of a student s parents, and thereby violate the parents fundamental right to direct their child s education. Praying with Students Can a school employee lead or participate in a religious activity with students? A school employee may not lead or participate in a religious activity with students while acting in the employee s official capacity. The Establishment Clause prohibits districts and district employees from endorsing a particular religion. By praying or participating in another religious activity with students, an employee will be considered to be endorsing a particular religion in violation of the First Amendment. How should I respond if a student asks what my religious beliefs are? You may choose to explain that your personal beliefs should not be part of class discussion, the answer least likely to lead to an Establishment Clause violation. However, you may choose to consider the age and maturity level of the student and determine that if you give an honest but brief answer, that student will understand that you are not promoting your religious views or speaking on behalf of the district Example: Coach Upright has bus duty every Monday and Wednesday, starting at 7:10 a.m. On other days, the coach is expected to report for duty no later than 7:40 a.m. Last year, the local See You at the Flagpole event occurred on a Wednesday at 7:30 a.m. Because he was on bus duty at the time, Coach Upright was present, but did not participate in the prayer by praying aloud or by joining hands with the group. This year, the event will take place on a Thursday at 7:30 a.m., before the coach is technically on duty. Coach Upright asks his principal whether he may participate in the prayer circle. Due to the restrictions of the Establishment Clause, Coach Upright cannot participate in the See You at the Flagpole event in his official capacity; he may only do so if he is clearly acting as a private citizen. No Texas court decision helps us define when professional school employees are and are not on duty. If the district administration knows that teachers and other campus employees may choose on their own to attend the event before they are officially on duty, the administration might consider taking steps to clarify that staff who attend are doing so in their personal, not official, capacities. 12

14 Teaching Class How should religion be taught in public school classrooms? Throughout history, religion has shaped significant events and the development of literature and the arts. Religion also affects human behavior and decision making. Districts therefore cannot provide students a well-rounded education in history, literature, social science, and other topics without discussing the impact of religion. In fact, Texas Education Code section specifically requires that the study of religious literature and its impact on history and literature be included as part of the required curriculum. Districts are constrained, however, in the manner by which these lessons may be taught by the prohibition on the sponsorship of religion by the Establishment Clause. To avoid a violation of the Establishment Clause, teachers must teach about religion without endorsing or coercing or even promoting religion over non-religion. Teachers must teach religious topics in a fair and objective manner. For example, a teacher may teach about how an artist s Christian beliefs impacted the artist s choice of subject matter but may not teach that the Biblical stories portrayed in the artwork are historical fact. Similarly, a teacher may not teach America s history with the perspective of the country as a Christian nation because that perspective favors Christianity over other religions in violation of the Establishment Clause. These same principles apply to a teacher crafting lessons for the Bible class permitted by Texas law. Will teaching about religion violate the free exercise rights of a student who holds contrary religious views? Merely exposing students to ideas they or their parents find objectionable does not place an unconstitutional burden on students free exercise of religion when students are not being compelled to affirm or deny a religious belief, nor to perform or not perform a religious exercise. Does Texas law require that the Bible be taught in schools as a separate course? Texas Education Code section provides that school districts may offer an elective course on the content, history, literary style, and influence of the Old and New Testaments. The decision to offer a Bible course is a local decision; districts are not required to offer the course. If a district does choose to offer such a course, the course instructors must complete required staff development on how to teach the course, including how to teach the course in compliance with federal law. Can teachers be required to teach lessons that are contrary to the teachers religious beliefs? Regardless of a teacher s personal religious beliefs, a teacher can be required to teach the statemandated curriculum. For example, a teacher who is an atheist may not refuse to teach elements of the required curriculum regarding patriotic observances, including the full text of the Pledge of Allegiance ( under God ) and the National Motto ( In God We Trust ). 13

15 Example: Students in Ms. Teaks s AP World History class will be studying the Crusades as part of the unit on the Middle Ages. Malik s parents are strictly observant Muslims. They have reviewed the section in the textbook regarding the Crusades, and they object to certain aspects of the text. Ms. Teaks believes the text presents an objective account of these historic events, and she knows the AP test is likely to include questions on this subject matter. A number of solutions may be acceptable to Malik s parents. For instance, they may be willing for him to study the text they find troubling if he is also permitted to study additional texts. In a mature and advanced setting like an AP classroom, appropriate class discussion about the different accounts may present a richer learning opportunity. If, however, Malik s parents continue to object to the curriculum, they may ask that he be excused from class temporarily during this unit of study. He will still be responsible for knowing the material for purposes of both local and AP testing. With Other Employees Can an employee share religious views with other employees? Though employees must restrict their religious expression in front of students, they may share their religious beliefs with other employees on campus, during their free time, and outside of the presence of students. Teachers may join together to pray during lunch or gather after school to discuss the Bible, or post religious messages on boards designated for employees to share personal messages in the staff lounge. The expression is permissible only during free time. Employees cannot pray at the beginning of staff meetings because that is business time. Sharing religious beliefs with other employees permitted: Employees may share their religious beliefs with other employees while on-campus during their free time and away from students. For example, a group of employees may meet in the faculty lounge during their lunch break to pray or after school to study the Koran. Employees may also post religious messages on a board in the staff lounge that is designated for employees to share personal message. Employees may not attempt to force their beliefs on other employees or harass other employees based on their religious beliefs, however. Example: Karen, an assistant principal, is tasked with running a staff development meeting in the principal s absence. Karen opens the meeting by leading the staff in a Christian prayer. A Jewish teacher objects. Can Karen pray at the beginning of a staff meeting? No. Even though Karen is not praying in the presence of students, her act is occurring during business-time and in her official capacity. Her act would be considered an endorsement of religion in violation of the Establishment Clause. Her prayer also could be interpreted as forcing her beliefs on other employees in violation of their free exercise rights. 14

16 Religious Diversity Can a district penalize an employee for missing work to observe a religious holy day? Under federal law, absent a demonstration of undue hardship on the part of the district, an employee may not be subjected to an adverse employment action based on an absence taken to observe a religious holy day. Similarly, Texas Education Code section expressly prohibits a district from denying a salary, bonus, or similar compensation, based in whole or part on attendance, to an educator on the basis of an absence for observation of a religious holy day. For example, a district may not deny a teacher, an Orthodox Jew, her supplemental pay for serving as the academic decathlon coach if the teacher misses a Saturday competition to observe a religious holy day. Can the district restrict an employee s religious dress? A district may choose to adopt neutral and generally applicable dress code restrictions that may incidentally burden religion. However, if the district makes an exception to a dress code policy for a secular purpose, a religious exemption is required. A district may also choose to specifically prohibit religious dress if the district can show the dress would cause an undue hardship on the district. However, non-obtrusive items, like a necklace with a cross or Star of David charm, are unlikely to be deemed to cause the district an undue hardship; therefore, a policy restricting such symbols will likely be held unconstitutional. Employee dress that promotes a particular religion cannot be worn. By promoting a particular religious viewpoint in front of students, the employee will violate the Establishment Clause. Example: A teacher arrives at work in a t-shirt bearing the slogan Jesus Saves. When the principal asks the teacher to change or cover the shirt, the teacher is quick to point out that the district has permitted employees to teach wearing t-shirts bearing a variety of slogans ranging from political messages to product advertisements. Will the principal s request violate the teacher s free exercise rights? Here, the teacher s free exercise rights are outweighed by the Establishment Clause prohibition on the endorsement of religion. The message on the teacher s shirt promotes a particular religious viewpoint. The principal may therefore ask her to change or cover the shirt, even though the district allows other t-shirts with messages. 15

17 Away from School Can an employee pray with students away from school? In their free time, away from school and school events, school employees are free to involve themselves in religious activities, including activities designed for youth that may involve some of the students the employee knows from school. Outside of school they will not be perceived to be serving in their roles as district employees and potentially run afoul of the Establishment Clause. Example: Mike, a kindergarten teacher, serves as a Sunday school teacher at a local church. Several of his students are in his Sunday school class. Can Mike teach the Bible to students who are in his kindergarten class? Yes. Mike is serving in a role of a church volunteer, sharing church doctrine. Because his role is in no way associated with the school, the children will not perceive him to be sharing the views of the district, only the church. Mike should be careful to draw the line when he returns to class Monday. If one of his students has a follow-up question to the Sunday school lesson, Mike should explain to the student that he cannot discuss the church lesson at school and tell the student he will answer the student s question outside of the school district context. Texas Version The Training Material is provided for educational purposes only and contains information to facilitate a general understanding of the law. It is neither an exhaustive treatment of the law on this subject nor is it intended to substitute for the advice of an attorney. It is important for the viewer to consult with the viewer s own attorney in order to apply these legal principles to specific fact situations. Copyright 2008 Texas Association of School Boards, Inc. All rights reserved. Further duplication or distribution of the Training Material (other than as specifically set out above), in whole or in part, is prohibited without written permission of TASB. Requests to duplicate or distribute any portion of the Training Material should be made in writing to Director, Legal Services, Texas Association of School Boards, P.O. Box 400, Austin, Texas