An Update on Religion and Public Schools Ohio Council of School board Attorneys School Law Workshop Columbus, Ohio November 10, 2015 2.00-3.15 PM Charles J. Russo, J.D., Ed.D. Panzer Chair in Education Adjunct Professor of Law University of Dayton (937) 229-3722 (ph) crusso1@udayton.edu I. Generally Outline II. III. IV. State Aid to Religiously Affiliated Non-Public Schools Prayer and Religious Activity in Public Schools Emerging issues V. Conclusion 1
I. Religion-Generally First Amendment, 1791 Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof. I. Religion-Generally Appeals to history over the original intent of the Establishment Clause fail to provide clear answers, stemming largely from the close ties between religion and government that began during the colonial period. I. Religion-Generally In fact, up until the Revolutionary War, there... were established churches in at least eight of the thirteen former colonies and established religions in at least four of the other five. Engel v. Vitale, 370 U.S. 421, 428 n. 5 (1962). 2
I. Religion-Generally Accommodationists v. Separationists Child Benefit Test I. Religion Generally Pierce v. Society of Sisters, 268 U.S. 510 (1925) A Magna Carta for non-public schools, the Supreme Court recognized the power of the state reasonably to regulate all schools, to inspect, supervise, and examine them, their teachers and pupils... (p. 534), but focused on the schools Fourteenth Amendment property rights. I. Religion Generally The Court grounded its judgment on the realization that the schools sought protection from unreasonable interference with their students and the destruction of their business and property. 3
I. Religion Generally The Court added that while states may oversee such key features as health, safety, and teacher qualifications relating to the operation of non-public schools, they could not do so to an extent greater than they did for public schools. I. Religion Generally The child is not the mere creature of the state; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations. Id. at 535. 4
II. State Aid 1. Student Transportation Everson v. Board of Educ. (1947) cf. Child Benefit Test Wolman v. Walter (1977) II. State Aid 2. Text Books and Instructional Materials Cochran v. Louisiana State Board of Education (1930) cf. Abington v. Schempp, Murray v. Curlett (1963) Board of Education v. Allen (1968) Meek v. Pittenger (1975) Wolman v. Walter (1977) Mitchell v. Helms (2000) 5
II. State Aid 3. Tax Status, Tuition, and the Use of Public Funds Walz v. Tax Commission of City of N.Y. (1970) cf. Abington v. Schempp, Murray v. Curlett (1963) Lemon v. Kurtzman (1971) Mueller v. Allen (1983) Zelman v. Simmons-Harris (2002) III. State Aid THE Lemon Test Every analysis in this area must begin with consideration of the cumulative criteria developed by the Court over many years. Three such tests may be gleaned from our cases.... III. State Aid First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion; finally, the statute must not foster an excessive government entanglement with religion (pp. 612-13). 6
II. State Aid In addressing entanglement and state aid to religiously affiliated institutions, the Court noted that three additional factors: II. State Aid we must examine the character and purposes of the institutions that are benefitted, the nature of the aid that the State provides, and the resulting relationship between the government and religious authority (p. 615). II. State Aid 4. Student Services/ Secular Instruction Meek v. Pittenger (1975) Wolman v. Walter (1977) Aguillar v. Felton (1985) cf. Grand Rapids v. Ball (1985) Zobrest v. Catalina Foothills School District (1993) Grument v. Kyrias Joel (1994) Agostini v. Felton (1997) 7
When dealing with prayer and religious activity, courts sometimes move beyond the lemon test to the Endorsement Test (Lynch v. Donnelly, 1984) Psychological Coercion Test (Lee v. Weisman, 1992) 1. Religious Instruction in Public Schools Illinois ex rel. McCollum v. Board of Educ. (1948) Zorach v. Clauson (1952) 8
2. Prayer in Public Schools Engel v. Vitale (1962) Abington v. Schempp, Murray v. Curlett (1963) Lee v. Weisman (1992) cf. Jones v. Clear Creek (cert. denied) (5th Cir. 1993) Doe v. Sante Fe Independent School District (2000) 3. Moments of Silence Wallace v. Jaffree (1985) 9
4. Student Sponsored Religious Activity in Schools Westside Community Schools v. Mergens (1990) Cf. Christian Legal Society v. Martinez (2010) 5. Religion and the Public School Curriculum Epperson v. Arkansas (1968) Edwards v. Aguillard (1987) 10
6. Religious Symbols in Schools/ on Public Property Stone v. Graham (1980) cf. Lynch v. Donnelly (1985), Allegheny County v. ACLU, Greater Pittsburgh (1989) Elk Grove School District v. Newdow (2004) cf. McCreary County, Ky. v. ACLU, Van Orden v. Perry (2005) 7. Use of School Facilities by Religious Groups Lamb s Chapel v. Center Moriches (1993) Good News Club v. Milford (2001) 11
IV. Emerging Issues Ministerial Exception See Hosanna Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunities Commission (2011) Same-Sex Unions See Obergefell v. Hodges (2015) V. Conclusion One cannot step into the same river twice. Heraclitis Thank you for listening and participating 12