First Amendment Basics

First Amendment Basics Texas Administrator Guide Texas Association of School Boards Legal Services 512.467.3610 800.580.5345 legal@tasb.org

First Amendment Basics Texas Administrator Guide Several laws form the foundation that guides public school districts in navigating the complex area of religion in schools. This document provides a basic overview of these laws, including the U.S. Constitution First Amendment. The documents entitled Student Religious Expression and Employee Religious Expression detail how these laws apply within several common contexts. First Amendment The First Amendment to the U.S. Constitution states: Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech.... U.S. Const., Amend. I. The First Amendment applies to school districts as political subdivisions of the state through the Fourteenth Amendment. Engel v. Vitale, 370 U.S. 421 (1962). Together, these laws protect private religious expression but prohibit government action to advance, coerce, or endorse religion in the public schools. Plaintiffs may sue the government for violations of the First Amendment through Section 1983, 42 U.S.C. 1983. Religious Liberty Clauses 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. To avoid an establishment of religion, government action must: Have a secular purpose. Lemon v. Kurtzman, 403 U.S. 602 (1971). Not have a primary effect of advancing or inhibiting religion. Lemon v. Kurtzman, 403 U.S. 602 (1971). Not foster an excessive government entanglement with religion. Lemon v. Kurtzman, 403 U.S. 602 (1971). Not persuade or compel a student to participate in a religious exercise. Lee v. Weisman, 505 U.S. 577 (1992). Not endorse religion in the public schools. Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290 (2000). 1

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. Under the federal Free Exercise Clause, the government may, however, adopt and apply neutral, generally applicable laws and practices. Employment Div., Dep t of Human Res. of Or. v. Smith, 494 U.S. 872 (1990). Not religion-free zones: The Religion Clauses of the First Amendment prevent the government from making any law respecting the establishment of religion or prohibiting the free exercise thereof. By no means do these commands impose a prohibition on all religious activity in our public schools. Indeed, the common purpose of the Religion Clauses is to secure religious liberty. Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290, 313 (2000) (citations omitted). 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. Free speech: First amendment rights, applied in light of the special characteristics of the school environment, are available to teachers and students. It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate. Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 506 (1969). Public forums: School officials can open school facilities for public use in other words, create a public forum through the policies or practices of the district or an individual campus. Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290 (2000). Within a limited public forum, limits on expression must be viewpoint-neutral and reasonable in light of the purpose of the forum. The government may impose reasonable time, place, and manner restrictions, as long as these restrictions do not relate to the content of the expression. See generally Cornelius v. NAACP Legal Def. and Educ. Fund, Inc., 473 U.S. 788 (1985). Private speech protected: There is a crucial difference between government speech endorsing religion, which the Establishment Clause forbids, and private speech endorsing religion, which the Free Speech and Free Exercise Clauses protect. Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290, 302 (2000) (quoting Bd. of Educ. of Westside Cmty. Sch. v. Mergens, 496 U.S. 226, 250 (1990) (opinion of O Connor, J.) (emphasis in original)). 2

Federal Statutes and Guidance Federal statutes and guidance further inform the topic of student and employee religious expression. Federal Law Title VII of the Civil Rights Act of 1964: Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e - 2000e-17, prohibits discrimination in employment: It shall be an unlawful employment practice for an employer... to fail or refuse to hire or discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual s... religion.... 42 U.S.C. 2000 e-2. Title VII prohibits an employer from doing any of the following to an employee or prospective employee based on the individual s religion: failing to hire; firing; discriminating with respect to compensation, terms, conditions, or privileges of employment; or classifying employees or applicants in a way that could adversely affect employment opportunities. 42 U.S.C. 2000e-2(a). For purposes of Title VII, the term religion includes all aspects of religious observance and practice, as well as belief, unless an employer demonstrates that it is unable to reasonably accommodate an employee s or prospective employee s religious observance or practice without undue hardship on the conduct of the employer s business. 42 U.S.C. 2000e(j). Under Title VII, an employee or prospective employee can establish a prima facie case of religious accommodation discrimination by showing: (1) he or she has a bona fide religious belief that conflicts with an employment requirement; (2) he or she informed the employer of the belief; and (3) he or she suffered an adverse consequence for failure to comply with the employment requirement. If an employer offers the individual a reasonable accommodation, the employer has complied with Title VII; the employer need not show that each of the individual s suggested accommodations would result in undue hardship. Ansonia Bd. of Educ. v. Philbrook, 479 U.S. 60 (1986). Equal Access Act: The Equal Access Act, 20 U.S.C. 4071, requires that districts 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. In secondary schools, student-organized, student-led groups meet pursuant to school district policies established under the Act. 20 U.S.C. 4071. Employees may be present at student religious meetings only in a non-participatory capacity. 20 U.S.C. 4071(c)(3). 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, meet on campus pursuant to school district policy. 3

Federal Guidance U.S. Department of Education Guidance: 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 www.ed.gov/policy/gen/guid/religionandschools/prayer_guidance.html. To receive funds under the federal Elementary and Secondary Education Act, as amended by the No Child Left Behind Act, local school districts must certify that their local policies do not prevent or deny participation in constitutionally protected prayer as set forth in related DOE guidance. See Texas Education Agency, No Child Left Behind School Prayer, available at www.tea.state.tx.us/nclb/prayer.html. EEOC Compliance Manual: The U.S. Equal Employment Opportunity Commission Compliance Manual on Religious Discrimination provides guidance on handling employee complaints of religious discrimination, available at www.eeoc.gov/policy/docs/religion.html. Texas Law Several Texas laws are relevant to the topics of student and employee religious expression. Freedom of Worship Clause: The Freedom of Worship Clause of the Texas Constitution provides, All men have a natural and indefeasible right to worship Almighty God according to the dictates of their own consciences. No man shall be compelled to attend, erect or support any place of worship, or to maintain any ministry against his consent. No human authority ought, in any case whatever, to control or interfere with the rights of conscience in matters of religion, and no preference shall ever be given by law to any religious society or mode of worship. But it shall be the duty of the Legislature to pass such laws as may be necessary to protect equally every religious denomination in the peaceable enjoyment of its own mode of public worship. Art. I, 6. 4

Under this provision, if a litigant shows that the exercise of his religious beliefs was substantially burdened by a school-imposed regulation or requirement, the district will be required to show a compelling state interest behind the regulation and the lack of a less restrictive, alternative means of meeting that interest. Some state appellate courts have observed that the Texas Constitution grants greater religious freedom than is provided by the U.S. Constitution. See, e.g., Howell v. State, 723 S.W.2d 755 (Tex. App. Texarkana 1986, no writ). No court s decision appears to turn on the distinction, however, and the Texas Supreme Court has more recently assumed without deciding that the state and federal free exercise guarantees are coextensive. Tilton v. Marshall, 925 S.W.2d 672 (Tex. 1996). Texas Equal Rights Amendment: The Texas Equal Rights Amendment, Texas Constitution article I, section 3a, prohibits discrimination on the basis of religion: Equality under the law shall not be denied or abridged because of sex, race, color, creed, or national origin. Tex. Const. art. I, 3a. Religious Freedom Restoration Act: In addition to all other protections provided under state and federal law, Texas Religious Freedom Restoration Act (RFRA) 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. Tex. Civ. Prac. & Rem. Code 110.003,.009. For purposes of RFRA, free exercise of religion means an act or refusal to act that is substantially motivated by sincere religious belief. In determining whether an act or refusal to act was substantially motivated by a sincere religious belief, it is not necessary to determine that the act or refusal to act was motivated by a central part or central requirement of the person s sincere religious belief. Tex. Civ. Prac. & Rem. Code 110.001(a)(1). In determining whether an interest is a compelling governmental interest under RFRA, a court shall give weight to the interpretation of compelling interest found in federal case law relating to the Free Exercise Clause. Tex. Civ. Prac. & Rem. Code 110.001(b). Possible remedies under RFRA include: declaratory relief; injunctive relief; compensatory damages for pecuniary and nonpecuniary losses up to $10,000; and reasonable attorney s fees, court costs, and other expenses incurred in bringing the action. In most cases, a person may not file suit under RFRA unless the person has given the governmental agency written notice 60 days before bringing the action. Tex. Civ. Prac. & Rem. Code 110.005,.006. 5

Texas Commission on Human Rights Act: The Texas Commission on Human Rights Act (TCHRA) provides, An employer commits an unlawful employment practice if because of race, color, disability, religion, sex, national origin, or age the employer: (1) fails or refuses to hire an individual, discharges an individual, or discriminates in any other manner against an individual in connection with compensation or the terms, conditions, or privileges of employment; or (2) limits, segregates, or classifies an employee or applicant for employment in a manner that would deprive or tend to deprive an individual of any employment opportunity or adversely affect in any other manner the status of an employee. Tex. Lab. Code 21.051. Due to the lack of case law interpreting TCHRA, the Texas Supreme Court has indicated that it is appropriate to seek guidance from the federal court cases interpreting Title VII when addressing TCHRA claims. Consequently, the standard for religious accommodation employment discrimination is the same under Title VII and TCHRA. Grant v. Joe Myers Toyota, Inc., 11 S.W.3d 419 (Tex. App. Houston 2000, no pet). Texas Civil Practice and Remedies Code chapter 106: Texas Civil Practice and Remedies Code chapter 106 provides, An officer or employee of the state or of a political subdivision of the state who is acting or purporting to act in an official capacity may not, because of a person s race, religion, color, sex, or national origin: (1) refuse to issue to the person a license, permit, or certificate; (2) revoke or suspend the person s license, permit, or certificate; (3) refuse to permit the person to use facilities open to the public and owned, operated, or managed by or on behalf of the state or a political subdivision of the state; (4) refuse to permit the person to participate in a program owned, operated, or managed by or on behalf of the state or a political subdivision of the state; (5) refuse to grant a benefit to the person; (6) impose an unreasonable burden on the person; or (7) refuse to award a contract to the person. Tex. Civ. Prac. & Rem. Code 106.001(a). 6

If a district employee knowingly violates Chapter 106, the employee will be deemed to have committed a misdemeanor punishable by a fine of up to $1,000, confinement in a county jail for up to a year, or both. Tex. Civ. Prac. & Rem. Code 106.003. The victim may also sue for preventative relief such as an injunction and, if the victim prevails, may be awarded attorneys fees. Tex. Civ. Prac. & Rem. Code 106.002. Texas Education Code provisions: The Texas Education Code includes several statutes that target specific issues that may arise regarding religious expression. The statutes are described in more detail in the documents entitled Student Religious Expression and Employee Religious Expression. The Religious Viewpoint Antidiscrimination Act, Texas Education Code sections 25.151 25.156, provides that school districts will not discriminate against students expressions of religious beliefs, including in their personal communications, though their schoolwork, and in student clubs. The RVAA requires school districts to adopt policies creating limited public forums for student speakers at school events. Tex. Educ. Code 25.151-.153. The Bible course statute, Texas Education Code section 28.011, provides that school districts may offer an elective course on the content, history, literary style, and influence of the Old and New Testaments. Texas Education Code section 25.087 requires that a district must excuse a student from attending school for the purpose of observing religious holy days, including traveling for that purpose. The voluntary prayer statute, Texas Education Code section 25.901, protects students right to individually, voluntarily, and silently pray in a nondisruptive manner at school. The school uniform exemption statute, Texas Education Code section 11.162, permits parents to 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. Under the immunization exemption statute and regulation, Texas Education Code section 38.001 and 25 Texas Administrative Code section 97.62, immunization is not required for admission to public school with a proper affidavit stating that the applicant declines immunization for reasons of conscience, including a religious belief. Texas Health and Safety Code sections 36.005, 37.002, and 95.003 and 25 Texas Administrative Code sections 37.23 and 37.148 require districts to exempt students from certain medical assessments based on request of parents who cite conflicts with the parents or students' religious beliefs. The temporary removal statute, Texas Education Code section 26.010, permits parents to temporarily remove their children from classes or school activities that conflict with their religious beliefs. 7

Texas Education Code section 25.082 permits exemptions to the required recitation of the Pledge of Allegiance and the moment of silence to be granted on the request of students parents. The educator absence statute, Texas Education Code section 21.406, 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 holy day observed by a qualified religion. District Policies TASB policies cover several topics related to student religious expression: Pledges of Allegiance and moment of silence, found at policies EC(LEGAL) and EC(LOCAL) Exemption from instruction based on religious belief, found at policy EMB(LEGAL) Prohibition on religious discrimination of a student, found at policy FB(LEGAL) Prohibition on accepting or rejecting interdistrict transfers based on religion, found at policy FDA(LOCAL) Excused absences for observing religious holy days, found at policies FEA(LEGAL), FEB(LEGAL), FEC(LEGAL), and FEC(LOCAL) Exemption from certain medical assessments based on religious belief, found at policy FFAA(LEGAL) Exemption from immunizations based on religious belief, found at policy FFAB(LEGAL) Prohibition on religious harassment, found at policy FFH(LOCAL) Religious expression at graduation, found at policy FMH(LEGAL) Religious expression generally, found at policies FNA(LEGAL) and FNA(LOCAL) Distribution of materials, found at policies FNAA(LEGAL) and FNAA(LOCAL) Facilities use by religious groups, found at policies FNAB(LEGAL) and FNAB(LOCAL) Exemption from uniform requirements based on religious belief, found at policies FNCA(LEGAL) and FNCA(LOCAL) Prohibition on religious discrimination in extracurricular standards of behavior, found at policy FO(LOCAL) 8

TASB policies also cover several topics related to employee religious expression: Prohibition on religious discrimination and harassment of an employee, found at policies DAA(LEGAL), DIA(LEGAL), and DIA(LOCAL) Prohibition on denial of an attendance bonus based on an absence for observing a religious holy day, found at policy DEAA(LEGAL) Absences for religious observances, found at policy DEC(LEGAL) Prohibition on religious discrimination in the nonrenewal of an employee, found at policies BJCF(LOCAL) and DFBB(LOCAL) Prohibition on religious discrimination of an employee or a student by an employee, found at policy DH(EXHIBIT) Teaching about religion, found at policies EMI(LEGAL) and EMI(LOCAL) 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 78767-0400. 9