At the time of its school prayer decisions in the early 1960s, the Supreme Court had never ruled on whether students have the right of free speech inside public schools. By the end of that decade, however, the court began to consider the question. And the results have made the rules for religious expression far more complex.

Rights of Students

The leading Supreme Court decision on freedom of student speech is Tinker v. Des Moines School District (1969), which upheld the right of students to wear armbands protesting the Vietnam War.The court ruled that school authorities may not supress expression by students unless the expression significantly disrupts school discipline or invades the rights of others.

This endorsement of students’ freedom of speech did not entirely clarify things for school officials trying to determine students’ rights. Tinker supported student expression, but it did not attempt to reconcile that right of expression with the Supreme Court’s earlier decisions forbidding student participation in school-sponsored prayer and Bible reading. Some school officials responded to the mix of student liberties and restraints by forbidding certain forms of student-initiated religious expression such as the saying of grace before lunch in the school cafeteria, student-sponsored gatherings for prayer at designated spots on school property or student proselytizing aimed at other students.

After years of uncertainty about these matters, several interest groups devoted to religious freedom and civil liberties drafted a set of guidelines, “Religious Expression in Public Schools,” which the U.S. Department of Education sent to every public school superintendent in 1995.The department revised the guidelines in 2003, placing somewhat greater emphasis on the rights of students to speak or associate for religious purposes.The guidelines highlight these four general principles:

• Students, acting on their own, have the same right to engage in religious activity and discussion as they do to engage in comparable secular activities.
• Students may offer a prayer or blessing before meals in school or assemble on school grounds for religious purposes to the same extent as other students who wish to express their personal views or assemble with others.
• Students may not engage in religious harassment of others or compel other students to participate in religious expression, and schools may control aggressive and unwanted proselytizing.
• Schools may neither favor nor disfavor students or groups on the basis of their religious identities.

A case recently decided by the 9th U.S. Circuit Court of Appeals underscores the difficulties that school officials still can face when students exercise their right to religious expression on school property. In this case, gay and lesbian students in a California high school organized a Day of Silence, in which students promoting tolerance of differences in sexual orientation refrained from speaking in school.The following day,Tyler Harper, a student at the school, wore a T-shirt that on the front read,“Be Ashamed, Our School Has Embraced What God Has Condemned,” and on the back,“Homosexuality Is Shameful, Romans 1:27.” School officials asked him to remove the shirt and took him out of class while they attempted to persuade him to do so.

The Court of Appeals, in Harper v. Poway Unified School District (2006), rejected Harper’s claim that the school officials violated his First Amendment rights. Judge Stephen Reinhardt, writing for a 2- 1 majority and citing Tinker, argued that students’ constitutional rights may be limited to prevent harming the rights of other students. He concluded that the T-shirt could be seen as violating school policies against harassment based on sexual orientation.

Writing in dissent, Judge Alex Kozinski asserted that the school’s sexual harassment policy was far too vague and sweeping to support a restriction on all anti-gay speech. He also argued that the school district had unlawfully discriminated against Harper’s freedom of speech. By permitting the Gay and Lesbian Alliance to conduct the Day of Silence, Kozinski said, the district was choosing sides on a controversial social issue and stifling religiously motivated speech on one side of the issue.

Harper petitioned the Supreme Court to review the appeals court decision. But Harper graduated from high school, and the case took a different turn.The Supreme Court, in early 2007, ordered the lower court to vacate its ruling and dismiss the case on the grounds that it had become moot.

Although the case appears to be over, it highlights a conflict – one likely to recur – between the rights of students to engage in religious expression and the rights of other students to be educated in a nonhostile environment. Indeed,Tyler Harper’s sister, Kelsie Harper, filed suit in a federal district court arguing that the school district’s “anti-hate behavior” policies violate the First Amendment as well as California law.The district court rejected Kelsie Harper’s argument, and her case is now being appealed to the U.S. 9th Circuit Court of Appeals.The Supreme Court eventually may clarify school officials’ power to suppress speech as a means of protecting the rights of other students. For now, cases like Harper illustrate the difficulties for school officials in regulating student expression.

Rights of Parents

Parents sometimes complain that secular practices at school inhibit their right to direct the religious upbringing of their children.These complaints typically rest on both the Free Exercise Clause of the First Amendment and the 14th Amendment’s Due Process Clause, which forbids the state to deprive any person of “life, liberty or property without due process of law.”The Supreme Court has interpreted them as protecting the right of parents to shape and control the education of their children.When they object to certain school practices, the parents often seek permission for their children to skip the offending lesson or class – to opt out – rather than try to end the practice schoolwide.

The first decision by the Supreme Court on parents’ rights to control their children’s education came in Pierce v. Society of Sisters (1925), which guarantees to parents the right to enroll their children in private rather than public schools, whether the private schools are religious or secular. In West Virginia State Board of Education v. Barnette (1943), the court upheld the right of public school students who were Jehovah’s Witnesses to refuse to salute the American flag. The students said the flag represented a graven image and that their religion forbade them from recognizing it.The court’s decision rested on the right of all students, not just those who are religiously motivated, to resist compulsory recitation of official orthodoxy, political or otherwise.

Of all the Supreme Court rulings supporting religious opt-outs, perhaps the most significant came in Wisconsin v.Yoder (1972), which upheld the right of members of the Old Order Amish to withdraw their children from formal education at the age of 14.The court determined that a state law requiring children to attend school until the age of 16 burdened the free exercise of their families’ religion.The Amish community had a well-established record as hardworking and law abiding, the court noted, and Amish teens would receive home-based training.The worldly influences present in the school experience of teenagers, the court said, would undercut the continuity of agrarian life in the Amish community.

In later decisions, lower courts recognized religious opt-outs in other relatively narrow circumstances. Parents successfully cited religious grounds to win the right to remove their children from otherwise compulsory military training (Spence v. Bailey, 1972) and from a coeducational physical education class in which students had to dress in “immodest apparel” (Moody v. Cronin, 1979). In Menora v. Illinois High School Association (1982), the 7th U.S. Circuit Court of Appeals ruled that the Illinois High School Association was constitutionally obliged to accommodate Orthodox Jewish basketball players who wanted to wear a head covering, despite an association rule forbidding headgear. The Menora case involves a narrow exception from the dress code, rather than a broader right to opt-out of a curriculum requirement.

A great many school districts, meanwhile, have recognized the force of parents’ religious or moral concerns on issues of sexuality and reproduction and have voluntarily provided opt-outs from classes devoted to those topics. Under these opt-out programs, parents do not have to explain their objection, religious or otherwise, to participation by their children. On other occasions, however, parental claims that the Constitution entitles them to remove their children from part or all of a public school curriculum have fared rather poorly.

The issue of home schooling is a good example. Before state legislatures passed laws allowing home schooling, parents seeking to educate their children at home were often unsuccessful in the courts. Many judges distinguished these home schooling cases from Yoder on the grounds that Yoder involved teenagers rather than young children. The judges also noted that Yoder was concerned with the survival of an entire religious community – the Old Order Amish – rather than the impact of education on a single family. Indeed, in virtually all of the cases decided over the past 25 years, courts have found that the challenged curriculum requirement did not unconstitutionally burden parents’ religious choices.

The most famous of the cases is Mozert v. Hawkins County Board of Education (1987), in which a group of Tennessee parents complained that references to mental telepathy, evolution, secular humanism, feminism, pacifism and magic in a series of books in the reading curriculum offended the families’ Christian beliefs.The school board originally allowed children to choose alternative reading materials but then eliminated that option.

The 6th U.S. Circuit Court of Appeals ruled in the county’s favor on the grounds that students were not being asked to do anything in conflict with their religious obligations. Furthermore, the court said, the school board had a strong interest in exposing children to a variety of ideas and images and in using a uniform series of books for all children. Because the books did not explicitly adopt or denigrate particular religious beliefs, the court concluded, the parents could insist neither on the removal of the books from the schools nor on their children opting out.

The 1st U.S. Circuit Court of Appeals reached a similar conclusion in a case involving a public high school in Massachusetts that held a mandatory assembly devoted to AIDS and sex education. In that case, Brown v. Hot, Sexy, and Safer Productions (1995), the court rejected a complaint brought by parents who alleged that exposure to sexually explicit material infringed on their rights to religious freedom and control of the upbringing of their children.The court concluded that this onetime exposure to the material would not substantially burden the parents’ freedom to rear their children and that the school authorities had strong reasons to inform high school students about “safe sex.”

Rights of Teachers and Administrators

Without question, public school employees retain their rights of free exercise.When off duty, school employees are free to engage in worship, proselytizing or any other lawful faith-based activity.When they are acting as representatives of a public school system, however, courts have said their rights are constrained by the Establishment Clause.

This limitation on religious expression raises difficult questions.The first is what limits school systems may impose on the ordinary and incidental expression of religious identity by teachers in the classroom. Most school systems permit teachers to wear religious clothing or jewelry. Similarly, teachers may disclose their religious identity; for instance, they need not refuse to answer when a student asks,“Do you celebrate Christmas or Hanukkah?” or “Did I see you at the Islamic center yesterday morning?”

At times, however, teachers act in an uninvited and overtly religious manner toward students and are asked by school administrators to refrain.When those requests have led to litigation, the administrators invariably have prevailed, on the grounds that they are obliged (for constitutional and pedagogical reasons) to be sensitive to a teacher’s coercive potential.

In Bishop v. Aronov (1991), for example, the 11th U.S. Circuit Court of Appeals upheld a set of restrictions imposed by the University of Alabama on a professor of exercise physiology. Professor Phillip Bishop had been speaking regularly to his class about the role of his Christian beliefs in his work and had scheduled an optional class in which he offered a “Christian perspective” on human physiology.The court recognized the university’s general authority to control the way in which instruction took place, noting that Bishop’s academic freedom was not jeopardized since he retained the right to express his religious views in his published writing and elsewhere.

In Roberts v. Madigan (1990), a federal district court similarly upheld the authority of a public school principal in Colorado to order a fifth-grade teacher to take down a religious poster from the classroom wall and to remove books titled The Bible in Pictures and The Life of Jesus from the classroom library.The court also backed the principal’s order that the teacher remove the Bible from his desktop and refrain from silently reading the Bible during instructional time.The court emphasized that school principals need such authority to prevent potential violations of the Establishment Clause and to protect students against a religiously coercive atmosphere.

That much is clear.What is less clear is how public school systems should draw the line between teachers’ official duties and their own time.That was the key question in Wigg v. Sioux Falls School District (8th U.S. Circuit Court of Appeals, 2004), in which a teacher sued the South Dakota school district for refusing to allow her to serve as an instructor in the Good News Club (an evangelical Christian group) that met after school hours at various public elementary schools in the district.

A federal district court ruled that the teacher, Barbara Wigg, should be free to participate in the club but said the school district could insist that the teacher not participate at the school where she was employed.The appellate court affirmed the decision but went further in protecting the teacher’s rights, concluding that the school district could not exclude her from the program at her own school.The court reasoned that once the school day ended,Wigg became a private citizen, leaving her free to be a Good News Club instructor at any school, including the one where she worked.The court ruled that no reasonable observer would perceive Wigg’s after-school role as being carried out on behalf of the school district, even though the club met on school property.

In general, then, the courts have ruled that public schools have substantial discretion to regulate the religious expression of teachers during instructional hours, especially when students are required to be present.The courts have also ruled, however, that attempts by schools to extend that control into noninstructional hours constitute an overly broad intrusion on the teachers’ religious freedom.

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