December 5, Religious expression and Christmas in the public schools

Post Office Box 540774 Orlando, FL 32854-0774 Telephone: 800 671 1776 Facsimile: 407 875 0770 www.lc.org Via Email Superintendent Charles Wilson 150 Williams Road, Suite A, Statesboro, Georgia 30458 boe@bulloch.k12.ga.us 122 C St. NW, Suite 640 Washington, DC 20005 Telephone: 202 289 1776 Facsimile: 202 289 7474 Reply to: Virginia December 5, 2013 Post Office Box 11108 Lynchburg, VA 24506-1108 Telephone: 434 592 7000 Facsimile: 434 592 7700 liberty@lc.org RE: Religious expression and Christmas in the public schools Dear Superintendent Wilson, I understand there has been some controversy over the general issue of religious expression in the Bulloch County Schools ("the District"), as well as the specific issue of Christmas and the appropriate celebration of the holiday through decorations, Christmas cards, and other forms of expression. I write on behalf of concerned citizens to outline the constitutional requirements regarding these issues as set forth in attached legal memoranda, and to confirm in writing Liberty Counsel s offer of pro bono legal representation on behalf of individual religious liberties and expression should the District act in conformity with Liberty Counsel's advice. By way of brief introduction, Liberty Counsel is an international nonprofit litigation, education and policy organization dedicated to advancing religious freedom, the sanctity of life and the family since 1989, by providing pro bono assistance and representation on these and related topics. With offices in California, Florida, Virginia, Washington, D.C., and Israel, Liberty Counsel has hundreds of advocates around the world. We specialize in constitutional law, particularly free speech rights, religious freedom, and church-state matters, including representing school districts from the overreaching efforts of groups such as Americans United for Separation of Church and State ("AU"). I understand the following facts to be true. Citizens of Bulloch County have contacted Liberty Counsel, directing our attention to an article stating that Christmas

Bulloch County Schools December 5, 2013 Page 2 cards were removed by the District so students wouldn't see them 1, while the District denies this, and states that the relocation of the staff Christmas cards was done for staff privacy concerns 2. While it is unclear at this time which report is more accurate, it is likely the case that the recent demand to the District by Americans United for Separation of Church and State ("AU") bears ultimate responsibility for the whole controversy in the first place. As you may know, activist organizations like AU promulgate a false and misguided view of the concept of separation of church and state, a phrase which appears nowhere in the Constitution, and seek to extirpate all forms of religious expression from the public sphere. In the public school context, AU bullies school districts into adopting its stilted view of "religious freedom" via threat of lawsuits which will waste limited district resources, thus resulting frequently in districts' acquiescence to demands which would never be granted if the matter were litigated. When this happens, the religious expression rights of students and teachers are sacrificed as the "lesser of two evils," a result which AU knows will occur. To AU, however, this infringement is necessary collateral damage in its campaign to eradicate the public expression of religious liberty. As a result, there are reports that the Board of Education has directed teachers and faculty to remove all religious items from their classrooms and desks, has told teachers that they must remove themselves or turn their backs on student-led prayer, and has also instructed teachers to remove any scripture reference from the signature line of their emails. While I note that the District appears to have properly addressed the issue of email signature lines 3, the reports of removing religious items from classrooms and desks, as well as the reported mandate that teachers remove themselves or turn their backs on student-led prayer are concerning, and if true, may give the appearance of hostility toward religion, and not neutrality as the Constitution requires. The District must extend true neutrality toward voluntary student-led prayer. In addition, personal religious items, books, or religious Christmas holiday decorations are all permissible in the public school context, provided the appropriate procedures are followed. Liberty Counsel therefore extends with this letter an offer of review for district policies and practices to ensure compliance with the Constitution, and if the district respects the religious liberty rights of teachers, students and community members as outlined in the attached legal memoranda on religious liberty and Christmas in the public schools, Liberty Counsel offers a defense of the district should it come under attack from Americans United or other activist organizations. 1 http://townhall.com/columnists/toddstarnes/2013/12/03/georgia-school-confiscates-christmas-cards-n1756579 2 http://bcss-ga.schoolloop.com/file/1344348322750/2692763209486282326.pdf 3 http://bcss-ga.schoolloop.com/file/1344348322750/5263058342217861393.pdf

Bulloch County Schools December 5, 2013 Page 3 On the other hand, should Liberty Counsel be contacted by teachers or students whose constitutional rights have been violated by the District, Liberty Counsel will have no choice but to vigorously advocate on their behalf. We would prefer, however, to stand in unity with both the Bulloch County Schools, and the students, teachers and citizens of Bulloch County against outside interlopers acting with malice toward our cherished liberties. If you wish clarification on the offer contained in this letter, or on the resources I have provided, I may be reached at 1-800-671-1776. I look forward to hearing from you. Sincerely, RICHARD L. MAST, JR. RLM/jml Enclosure CC Via Email Bulloch County Schools Board of Education Mike Herndon Cheri Wagner Maurice Hill Mike Sparks Mary Henley LeVon E. Wilson Steve Hein Vernon Littles Anshul Jain statesboroagency@gmail.com cwagner@bulloch.k12.ga.us hillmaurice@yahoo.com msparks@bulloch.k12.ga.us mhenley@bulloch.k12.ga.us lwilson@bulloch.k12.ga.us shein@georgiasouthern.edu vlittles@georgiasouthern.edu jain4boe@aol.com Licensed in Virginia

A NATIONWIDE PUBLIC INTEREST RELIGIOUS CIVIL LIBERTIES LAW FIRM 1055 Maitland Center Cmns. Second Floor Maitland, Florida 32751 Tel: 800 671 1776 Fax: 407 875 0770 www.lc.org 1015 Fifteenth St. N.W. Suite 1100 Washington, DC 20005 Telephone: 202 289 1776 Facsimile: 202 216 9656 100 Mountain View Road Suite 2775 Lynchburg, Virginia 24502 Tel: 434 592 7000 Fax: 434 592 7700 liberty@lc.org STUDENTS RIGHTS ON PUBLIC SCHOOL CAMPUSES Liberty Counsel is a public interest law firm specializing in constitutional and civil rights issues. We are headquartered in Orlando, Florida, with offices in Virginia, and have hundreds of affiliate attorneys throughout the country. A. FREEDOM OF SPEECH 1. Expression Students on public school campuses enjoy constitutional protection of free speech, including religious speech. Student speech can be prohibited only when the speech activities substantially 1 interfere with the work of the school, or impinge upon the rights of other students. In Tinker v. Des Moines Independent School District, the United States Supreme Court stated: In our system, state-operated schools may not be enclaves of totalitarianism. School officials do not possess absolute authority over their students. Students in schools as well as out of school are persons under our Constitution. They are possessed of fundamental rights which the State must respect, just as they themselves must respect their obligations to the State. In our system, students may not be regarded as closed-circuit recipients of only that which the State chooses to communicate. They may not be confined to the expression of those sentiments that are officially approved. In the absence of a specific showing of constitutionally valid reasons to regulate their speech, students are entitled to freedom of expression of their views. 2 The Supreme Court further stated: It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate. 3 The Court recognized that when a student is in the cafeteria, or on the playing field, or on the 4 campus during the authorized hours, he may express his opinions. Students may exercise their constitutional right to free speech while on public school campuses before and after school, in between class, in the cafeteria, or on the playing field. Students have a right to free speech during Mathew D. Staver, Esq. Liberty Counsel P.O. Box 540774 Orlando, FL 32854 (800) 671-1776 Page 1

non-instructional time. Students are compelled to be in school until age sixteen. While they are under compulsory attendance, the State must protect their constitutional rights to freedom of expression. As soon as students walk on the premises of any public school, kindergarten through college, they carry with them the First Amendment s protection of free speech. Students certainly do not shed their Constitutional rights when they enter the schoolhouse gate. 5 Schools may prohibit student speech only if there is specific evidence that the speech materially and substantially interferes with the orderly operation of the school. Merely because others disagree or are offended by the message is no reason to prohibit student speech. Everyone would agree that when a student exits the school bus on the way to class, the student has the right to converse with another student. One student can say to another student, I like you. The same student can go even further and say, I love you. Moreover, the student can invite a friend to his or her house after school for a birthday party or some other after-school program. This is not only constitutionally correct, it just makes common sense. Since students may speak about secular topics, they may also speak about religious topics. The same student during non-instructional time may state, Jesus loves you. This student may also invite another student to an after school church function. 2. Literature Distribution 6 The right to free speech includes the right to distribute literature. The Supreme Court considers 7 the distribution of printed material as pure speech. Indeed, peaceful distribution of literature is a protected form of free speech just like verbal speech. 8 The Supreme Court has correctly recognized that the right to distribute flyers and literature lies at the heart of the liberties guaranteed by the speech and press clauses of the First Amendment. 9 From the time of the founding of our nation, the distribution of written material has been an 10 essential weapon in the defense of liberty. Literature distribution includes anything in printed format such as brochures, pamphlets, newspapers, cards, stamps, books, symbols and pictures. 11 Religious speech enjoys the same protection as political speech. Students not only have the right to verbal and written speech, they have the right to persuade, advocate and even proselytize a religious viewpoint. The Supreme Court recognized that free trade and ideas mean free trade and 12 the opportunity to persuade, not merely to describe facts. Merely because other students or school 13 officials disagree with the content of the message is no reason to deny student speech. The Supreme Court could not make this point any clearer than it did in Tinker: Any departure from absolute regimentation may cause trouble. Any variation from the majority s opinion may inspire fear. Any word spoken, in class, in the lunchroom, or on the campus, that deviates from the views of another person may start an argument or cause a disturbance. But our Constitution says we must take this risk and our history says that it is this sort of hazardous freedom -- this kind of openness -- that is the basis of our national strength and of the independence and vigor of Americans who grow up and live in this relatively permissive, often disputatious, society. 14 It is impermissible for schools to require students to submit their literature to a school official for review prior to distribution. It is important to remember that printed speech enjoys the same rights as verbal speech. Just as it would be unconstitutional and ludicrous for schools to preview all student verbal communication before it occurs, it is similarly unconstitutional to do so with respect to printed communication. Indeed, the Supreme Court s decision in Tinker in no way suggests that Mathew D. Staver, Esq. Liberty Counsel P.O. Box 540774 Orlando, FL 32854 (800) 671-1776 Page 2

students may be required to announce their intentions of engaging in a certain conduct beforehand 15 so school authorities may decide whether to prohibit such conduct. The Supreme Court has unequivocally stated that prior notification is quite incompatible with the requirement of the First 16 Amendment. Certainly the delay inherent in advanced notice requirements inhibits free speech 17 by outlawing spontaneous expression. Indeed, when an event occurs, it is often necessary to have 18 one s voice heard promptly, if it is to be considered at all. Finally, with respect to literature distribution, schools should not confine the distribution of literature to a designated location or to a bulletin board. Just as a school cannot require all students to report to a designated location before engaging in verbal communication, schools should not limit literature distribution in this manner. Student speech through literature cannot be confined to a bulletin board. Students have a constitutional right to free speech during non-instructional time, and this includes the right to speak through literature. Speech does not lose any constitutional protection simply because it is transformed from verbal expression to the printed page. 3. Clothing and Jewelry Students may communicate a message through words or symbols on clothing or by wearing jewelry. Indeed, students in the Tinker case wore black armbands to school as a symbolic protest of the Vietnam War. The Supreme Court held that such expression was protected by the First 19 Amendment. The only difference between clothing and jewelry as opposed to verbal or written speech is that clothes and jewelry are carried into the classroom during instructional time. Students cannot turn off the message on a t-shirt in the same manner that they can stop speaking when they enter the classroom or refrain from literature distribution during class time. Schools may therefore place some restrictions on clothing or jewelry if worn during class. However, if the school allows t-shirts or jewelry with secular messages or symbols, the school cannot prohibit students from wearing religious t-shirts or jewelry. If a school allows students to wear a t-shirt with a Nike symbol or the slogan, Just Do It, the school cannot prohibit students from wearing a t-shirt with the message, Jesus died for you. Students have a constitutional right during non-class time to 20 communicate through clothing or jewelry. If the First Amendment teaches us anything it teaches that [a]ll ideas having even the slightest redeeming social importance -- unorthodox ideas, controversial ideas, even ideas hateful to the prevailing climate of opinion-- have the full protection of the guarantees [of the First Amendment]. 21 4. Class Discussion and Reports While students have a constitutional right to free speech during non-instructional times, schools may place certain restrictions on speech during class time. Students may express their viewpoint on any subject being taught so long as it is consistent with the subject matter discussed at that time. While a student may pass out a religious tract during non-instructional time, the student may not pass out the same tract during a math class. However, students may express a religious view point during math class so long as it is consistent with the subject being studied. If students are asked to give verbal or written reports, then students may also give reports on religious topics so long as the report falls within the parameters of the assignment. For example, in a literature class, if students are required to read a secular book and give an oral or written report, then these students may also read a religious book. Teachers may not prohibit students from giving 22 written or oral reports solely because the content is religious. Some younger grades have what is known as Show and Tell. This is a time where students are asked to bring in personal items to show to the rest of the class and then talk about these items. So long as the student s item brought Mathew D. Staver, Esq. Liberty Counsel P.O. Box 540774 Orlando, FL 32854 (800) 671-1776 Page 3

into the Show and Tell is consistent with the assignment, schools should not prohibit students from either showing or telling about their item solely because the content is religious. Students have a constitutional right to show and tell their item even if the item centers on religion. 23 B. EQUAL ACCESS The Equal Access Act and the First Amendment guarantee that students have the right to form student clubs. 24 If a public secondary school receives federal funds and allows one or more non-curriculum related student groups to meet on campus, then the school cannot prohibit other non-curriculum related student groups from meeting on campus unless such clubs materially and substantially 25 interfere with the orderly conduct of educational activities within the school. A non-curriculum related student group is interpreted broadly to mean any student group that does not directly relate 26 to the body of courses offered by the school. The Supreme Court has indicated that a student group directly relates to a school s curriculum if the subject matter of the group is actually taught, or will soon be taught, in a regularly offered course; if the subject matter of the group concerns the body of courses of the whole; if the participation in the group is required for a particular course; or if 27 participation in the group results in academic credit. Examples of non-curriculum related student groups are chess clubs, stamp collecting clubs, community service clubs, environmental clubs, or special interest clubs. Equal Access means exactly what it says -- equal access to every facility of the school which is used by at least one or more non-curriculum related student groups. This includes use of class room facilities, copy machines, intercom systems, bulletin boards, school newspaper, yearbook, annual club fairs, funding, bank accounts, and any other benefit or facility afforded to secular student clubs. There must be no discrimination and no denial with respect to access of any school facility. All clubs must be treated equally regardless of the content of the message. SUMMARY OF STUDENT RIGHTS May engage in verbal speech during non-instructional time. May distribute literature during non-instructional time. Schools may not preview literature prior to its distribution. Schools may not confine literature distribution to a designated spot or to a bulletin board. May meet around the flag pole with other students during non-instructional time for prayer. May engage in free speech during class so long as the speech is consistent with the topic being studied. May wear clothing with religious messages or symbols including religious jewelry on the same basis and in the same manner as the school allows secular words, symbols, or jewelry to be worn and displayed. May wear clothing with religious words and symbols and wear religious jewelry during non-instructional time. May give oral and written reports on religious topics so long as the report or presentation is consistent with the assignment. May show and tell religious items so long as the item and the presentation is consistent with the assignment. May form Bible clubs so long as the school allows at least one other non-curriculum student club. Bible clubs must be treated equally to other non-curriculum related student clubs and be afforded Mathew D. Staver, Esq. Liberty Counsel P.O. Box 540774 Orlando, FL 32854 (800) 671-1776 Page 4

equal access to school facilities such as the bulletin board, intercom system, annual club fair, school newspaper, yearbook, copy machine, financial sponsorship, or any other benefit or facility afforded to secular student clubs. INDEX TO CITATIONS 1. Tinker v. Des Moines Indep. Sch. Dist., 393 U.S. 503, 509 (1969). 2. Id. at 511. 3. Id. at 506. 4. Id. at 512-13. 5. Id. at 506. 6. Martin v. City of Struthers, 319 U.S. 141 (1943). 7. Texas v. Johnson, 491 U.S. 397, 406 (1989). 8. United States v. Grace, 461 U.S. 171, 176 (1983) ( leafleting is protected speech. ); Lovell v. City of Griffin, 303 U.S. 444, 451-52 (1938) ( liberty of circulating is as essential to [freedom of speech] as liberty of publishing; indeed without circulation, the publication would be of little value. ). 9. ISKCON v. Lee, 505 U.S. 672, 702 (1992). 10. Paulsen v. County of Nassau, 925 F.2d 65, 66 (2d Cir. 1991). 11. Widmar v. Vincent, 454 U.S. 263, 269 (1981) (citations omitted). 12. Thomas v. Collins, 323 U.S. 516, 537 (1945). 13. Clark v. Dallas Indep. Sch. Dist., 806 F. Supp. 116, 120 (N.D. Tex. 1992). 14. Tinker, 393 U.S. at 508-09 (citations omitted). 15. Fujishima v. Bd. of Educ., 460 F.2d 1355, 1358 (7th Cir. 1972). See also Nitzderg v. Parks, 525 F.2d 378, 383-85 (4th Cir. 1975); Baughman v. Bd. of Educ., 478 F.2d 1345 (4th Cir. 1973); Quarterman v. Byrd, 453 F.2d 54 (4th Cir. 1971); Eisner v. Stamford Bd. of Educ., 440 F.2d 803 (2d Cir. 1971); Riseman v. Sch. Comm., 439 F.2d 148 (1st Cir. 1971); Johnston-Loehner v. O Brien, 859 F. Supp. 575 (M.D. Fla. 1994); Slotterback v. Interboro Sch. Dist., 766 F. Supp. 280 (E.D. Penn. 1991); Riveria v. Bd. of Regents, 721 F. Supp. 1189, 1197 (D. Col. 1989); Sullivan v. Houston Indep. Sch. Dist., 333 F. Supp. 1149 (S.D. Tex. 1971); Zucker v. Panitz, 299 F. Supp. 102 (S.D. N.Y. 1969). But see Muller v. Jefferson Lighthouse Sch., 98 F.3d 1530 (7th Cir. 1996), cert. denied, 520 U.S. 1156 (1997); Hedges v. Wauconda Comm. Unit Sch. Dist. No. 118, 9 F.3d 1295 (7th Cir. 1993); Bystrom v. Friedley High School, 822 F.2d 747 (8th Cir. 1987); Shanley v. Northeast Indep. Sch. Dist., 462 F.2d 960 (5th Cir. 1972). Mathew D. Staver, Esq. Liberty Counsel P.O. Box 540774 Orlando, FL 32854 (800) 671-1776 Page 5

16. Thomas, 323 U.S. at 540. 17. NAACP v. City of Richmond, 743 F.2d 1346, 1455 (9th Cir. 1984) (citations omitted). 18. Shuttlesworth v. City of Birmingham, 394 U.S. 147, 163 (1969). 19. Tinker, 393 U.S. at 506, 511. 20. See McIntire v. Bethel Indep. Sch. Dist., 804 F. Supp. 1415, 1421 (W.D. Ok. 1992). 21. Roth v. United States, 354 U.S. 476, 484 (1957). 22. See DeNooyer v. Livonia Public Schools, 799 F. Supp. 744 (E.D. Mich. 1992), aff d sub nom, DeNooyer v. Marinelli, 1 F.3d 1240 (6th Cir. 1993); Duran v. Nitsche, 780 F. Supp. 1048 (E.D. Penn. 1991). These particular cases generally stand for the proposition that a student must give a report within the parameters of the assignment. If the report is given within the parameters of the assignment, then the school is prohibited from restricting the report solely because the content is religious. 23. See Dept. of Educ., Religious Expression in Public Schools, www.ed.gov/speeches/08-1995/religion.html 24. Bd. of Educ. of the Westside Comm. Sch. v. Mergens, 496 U.S. 226 (1990). 25. Id. at 236, 241 26. Id. at 237. 27. Id. Mathew D. Staver, Esq. Liberty Counsel P.O. Box 540774 Orlando, FL 32854 (800) 671-1776 Page 6

A NATIONWIDE PUBLIC INTEREST RELIGIOUS CIVIL LIBERTIES LAW FIRM 1055 Maitland Center Cmns. Second Floor Maitland, Florida 32751 Tel: 800 671 1776 Fax: 407 875 0770 www.lc.org 1015 Fifteenth St. N.W. Suite 1100 Washington, DC 20005 Telephone: 202 289 1776 Facsimile: 202 216 9656 100 Mountain View Road Suite 2775 Lynchburg, Virginia 24502 Tel: 434 592 7000 Fax: 434 592 7700 liberty@lc.org This memorandum of law has been prepared by Liberty Counsel in order to offer guidance to public officials and schools regarding the upcoming holiday celebrations. Liberty Counsel is a national public interest law firm specializing in constitutional law, particularly in free speech, religious freedom and church-state matters. We have presented many briefs before the United States Supreme Court, and we have argued before the High Court and in state and federal courts throughout the nation. Liberty Counsel has offices in Florida and Virginia. We have hundreds of affiliate attorneys in all 50 states. This memorandum of law overviews (1) publicly and privately sponsored religious holiday displays, (2) religious holidays in public schools, and (3) the rights of public school students in the context of religious holidays. Publicly and Privately Sponsored Religious Holiday Displays The display of nativity scenes and religious symbols takes on two forms: publicly sponsored and privately sponsored, both of which can be displayed on public property. A publicly sponsored scene is one that is erected and maintained by public officials. A privately sponsored scene is one that is erected and maintained by private citizens. Both are constitutional, and both can be displayed on public property. The main difference is that a publicly sponsored scene should have some form of secular display in the same context, while a privately sponsored scene need not have any secular symbols, but should probably have a sign indicating the display is privately sponsored. Publicly Sponsored Symbols An example of a publicly sponsored religious symbol is one that is erected and maintained by city officials on public property. A publicly sponsored holiday display containing a religious 1 symbol should generally include secular symbols. The secular and religious symbols should be within the same parameter of view. For example, a holiday display can include a nativity scene along with Santa Claus, reindeer or a Christmas tree. What is true for publicly sponsored holiday displays on public property is also true for 1 Lynch v. Donnelly, 465 U.S. 668, 673 (1984). The absence of a secular symbol does not mean the religious symbol is unconstitutional. Christmas Memo - Page 1

holiday displays in public schools. A teacher may decorate the classroom with or feature a display having both religious and secular symbols of the holiday. Privately Sponsored Symbols A privately sponsored religious symbol can also be displayed on public property. The main difference is that the display is sponsored by private citizens. Privately sponsored scenes are more 2 common in public parks where citizens are allowed to engage in expressive activity. In most public parks, citizens are allowed to hold gatherings and erect displays. To prohibit religious expression in a public forum where other expressive activity is permitted violates the Constitution. In a privately sponsored scene, secular symbols are unnecessary. In order to clearly designate that the display is privately sponsored, a sign can be erected, similar to the following example: This 3 4 display is privately sponsored by XYZ Company. However, such a sign is not mandatory. Private holiday displays of religious symbols on public property are permissible under the Free Speech Clause. 5 Religious Holidays in Public Schools The former United States Secretary of Education once stated: Our public schools must treat 6 religion with fairness and respect.... The United States Supreme Court has also observed: It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate. 7 Teachers are both individuals and agents of the state. Consequently, the First Amendment serves to protect their freedom of speech and free exercise of religion and to prohibit them from establishing a religion. Since teachers are employees of the state, they are, in a sense, an extension of the state. As such, the First Amendment Establishment Clause, which prohibits the government from establishing a religion, places certain restrictions on teachers activities in matters of religion. On the other hand, teachers do not lose their rights to free speech and freedom of religion simply 8 because they are employees of the state. Teaching About Religion Teachers may objectively overview religion as long as the overview is consistent with the 9 subject matter being taught. Academic freedom is the principle that individual instructors are at liberty to teach that which they deem to be appropriate in the exercise of their professional 2 See Capitol Square Review and Advisory Bd. v. Pinette, 515 U.S. 753 (1995); Doe v. Small, 964 F.2d 611 (7th Cir. 1992) (en banc). 3 A disclaimer on a privately sponsored religious scene on public property is not necessary but may be helpful to alert the public that the display is, in fact, privately sponsored. 4 Capitol Square Review, 515 U.S. at 753. 5 See, e.g., Warren v. Fairfax County, 196 F.3d 186 (4th Cir. 1999); Kreisner v. City of San Diego, 1 F.3d 775 (9th Cir. 1993); Americans United, 980 F.2d at 1538. See Congregation Lubavitch v. City of Cincinnati, 997 F.2d 1160 (6th Cir. 1993). See also Chabad-Lubavitch of Georgia, 5 F.3d at 1383. 6 Richard W. Riley, U.S. Secretary of Education, Statement on Religious Expression, http://www.ed.gov/speeches/08-1995/religion.html. 7 Tinker v. Des Moines Indep. Sch. Dist., 393 U.S. 503, 506 (1969). 8 In addition to having constitutional rights and obligations, teachers are public employees and therefore have rights under state and federal employment laws. See MATHEW D. STAVER, ETERNAL VIGILANCE: KNOWING AND PROTECTING YOUR RELIGIOUS FREEDOM 439-451 (2005). 9 See Brown v. Woodland Joint Unified Sch. Dist., 27 F.3d 1373, 1380, (9th Cir. 1994) ( [A] reenactment of the Last Supper or a Passover dinner might be permissible if presented for historical or cultural purposes. ) Christmas Memo - Page 2

10 judgment. According to the Supreme Court, academic freedom is a special concern of the First 11 12 Amendment. No subject can be thoroughly taught without some discussion of religion. The Supreme Court stated that study of the Bible or religion, when presented objectively as 13 part of a secular program of education, is consistent with the First Amendment. The United States Department of Education has issued Guidelines on Religious Expression in Public Schools, noting that the Bible may be taught in school and that a teacher may instruct the class about religious influences relevant to the subject matter being discussed. 14 10 Edwards v. Aguillard, 482 U.S. 578, 586 n.6 (1987). 11 Keyishian v. Board of Regents, 385 U.S. 589, 603 (1967). 12 The fact is that, for good or for ill, nearly everything in our culture worth transmitting, everything which gives meaning to life, is saturated with religious influences derived from paganism, Judaism, Christianity B both Catholic and Protestant B and other faiths accepted by a large part of the world s peoples. One can hardly respect a system of education that would leave the student wholly ignorant of the currents of religious thought that move the world society for a part in which he is being prepared. McCollum, 333 U.S. at 236 (Jackson, J., concurring). 13 14 Symbols, Music, Art, Drama and Literature The constitutional principle regarding symbols, music, art, drama, or literature, whether in public school or in association with other public entities, is simple mix the secular and the sacred. In other words, if a public entity, or a teacher as an agent of that entity, displays or presents a secular aspect or purpose along with the religious symbol, music, art, drama, or literature, then the display or the presentation is considered constitutional. A nativity scene in the classroom follows the same guidelines as a publicly sponsored nativity scene on public property. A school-sponsored Christmas concert on a public school campus which contains only Christian music and where the concert was directed and the music selected by the school would be unconstitutional, but Christian Christmas 15 songs mixed with secular songs of the holiday make the presentation constitutional. On the other hand, if the students are permitted to select their own songs as part of a student performance, then their songs would not need to include secular themes. Probably the best illustration of the permissibility for the use of symbols, music, art, drama, and literature within the public school system is the school board policy of Sioux Falls School District in Sioux Falls, South Dakota. This policy has been court tested and serves as an example to 16 other schools. The policy states, in part, the following: Music, art, literature, and drama having religious themes or basis are permitted as part of the curriculum for school-sponsored activities and programs if presented in a prudent and objective manner and as a traditional part of the cultural and religious heritage of the particular holiday....the use of religious symbols such as a cross, menorah, crescent, Star of David, creche, symbols of Native American religions or other symbols that are part of a religious holiday [are] permitted as a teaching aid or School Dist. of Abington Township v. Schempp, 374 U.S. 203 (1963). The Guidelines, first released in 1995 and then again in 1999, state: Public schools may not provide religious instruction, but they may teach about religion, including the Bible or other scripture: the history of religion, comparative religion, the Bible (or other scripture)-asliterature, and the role of religion in the history of the United States and other countries all are permissible public school subjects. Similarly, it is permissible to consider religious influences on art, music, literature, and social studies. See http://www.ed.gov/speeches/08-1995/religion.html and http://www.ed.gov/inits/ religionandschools/. 15 See Bauchman v. West High Sch., 132 F.3d 542 (10th Cir. 1997), cert. denied, 524 U.S. 953. 16 Florey v. Sioux Falls Sch. Dist. 49-5, 619 F.2d 1311, 1319 (8th Cir. 1980), cert. denied, 449 U.S. 987 (1980). Christmas Memo - Page 3

resource provided such symbols are displayed as an example of the cultural and religious heritage of the holiday and are temporary in nature. Among these holidays are included Christmas, Easter, Passover, Hanukkah, St. Valentine s Day, St. Patrick=s Day, Thanksgiving and Halloween. 17 [T]o allow students only to study and not to perform (religious art, literature and music, when) such works... have developed an independent secular and artistic significance, would give 18 students a truncated view of our culture. It would be literally impossible to develop a public school curriculum that did not in some way affect the religious or nonreligious sensibilities of some 19 of the students or their parents. The court also rejected the argument that singing Christian carols 20 would entangle the school with religion. Certainly, [m]usic without sacred music, architecture minus the Cathedral, or painting without the Scriptural themes would be eccentric and incomplete, even from a secular point of view. 21 22 In Doe v. Duncanville Independent School District, a federal court held that a public high school choir s adoption of the song, The Lord Bless You and Keep You, as its theme song did not violate the Establishment Clause and was constitutional. In Doe, the song was sung every Friday during practice, at the end of some performances and choral competitions, and on the bus to and 23 from performances, which the students were required to sing. 24 In Bauchman v. West High School, another federal court held that singing songs with Christian lyrics, including The Lord Bless You and Keep You and Friends, was constitutional even 25 in settings such as graduation ceremonies and concerts at churches. The Constitution does not 26 require that the purpose of every government-sanctioned activity be unrelated to religion. Courts have long recognized the historical, social and cultural significance of religion in our lives and in the 27 world, generally. Any choral curriculum designed to expose students to the full array of vocal music culture therefore can be expected to reflect a significant number of religious songs. Moreover, a vocal music instructor would be expected to select any particular piece of sacred choral music, like any piece of secular choral music, in part for its unique qualities useful to teach a variety of vocal music skills (i.e., sight reading, intonation, harmonization, expression.). Plausible secular reasons also exist for performing school choir concerts in churches and other venues associated with religious institutions. Such venues often are acoustically superior to high school auditoriums or gymnasiums, yet still provide adequate seating. Moreover, by performing in such venues, an instructor can showcase his choir to the general public in an atmosphere conducive to the performance of serious choral music. 28 17 Id. at 1319-20. 18 Abington Township, 374 U.S. at 225 (quoting Florey v. Sioux Falls Sch. Dist. 49-5, 464 F. Supp. 911 (D.S.D. 1979)). 19 Id. at 1317. 20 Id. 21 Illinois ex rel. McCullom v. Board. of Educ., 333 U.S. 203, 236 (1948) (Jackson, J., concurring). 22 70 F.3d 402 (5th Cir. 1995). 23 Id. at 404, 407. 24 132 F.3d 542 (10th Cir. 1997). 25 Id. at 547. 26 Id. at 553. 27 Id. at 554. 28 Id. (emphasis added). Christmas Memo - Page 4

Public School Students in the Context of Religious Holidays The Supreme Court has declared that [i]t can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse 29 gate. The Court recognized that when a student is in the cafeteria, or on the playing field, or on 30 the campus during the authorized hours, he may express his opinions. Students may exercise their constitutional right to free speech while on public school campuses before and after school, between classes, in the cafeteria, or on the playing field. When students walk on the premises of any public school, kindergarten through college, they carry with them the First Amendment protection of free speech and free exercise of religion. 31 Undifferentiated fear or apprehension of disturbance is not enough to overcome the right to freedom 32 of expression. The Supreme Court in Tinker made clear that school property may not be declared off limits for expressive activity by students.... 33 The Supreme Court has long recognized that the right to distribute flyers and literature lies at the heart of the liberties guaranteed by the Speech and Press Clauses of the First Amendment. 34 35 It is axiomatic that written expression is pure speech. Well-settled constitutional law confirms that the guarantee of freedom of speech that is enshrined in the First Amendment encompasses the 36 right to distribute peacefully. From the time of the founding of our nation, the distribution of written material has been an essential weapon in the defense of liberty. 37 38 The right of free speech includes the right to distribute literature. In fact, the distribution 39 of printed material is considered pure speech. Students can distribute religious Christmas cards and greet one another by saying, Merry Christmas. If the school does not have a policy requiring the students to dress in uniform, then the students can wear clothing with religious symbols or words or religious jewelry. As already noted above, students may sing religious Christmas carols. If the songs are part of a school choral performance, then religious songs are permissible so long as the performance also includes some secular songs. Such a performance is equivalent to a publicly sponsored nativity scene. However, if the students are permitted to select their own songs without direction from school personnel, then they can sing whatever songs they choose. No secular component is necessary. This is similar to the privately sponsored nativity scene. 29 Tinker, 393 U.S. at 506. 30 Id. at 512-13. 31 The students in Tinker included an eight-year-old second grader, an eleven-year-old fifth grader, a thirteen-year-old eighth grader, and a fifteen- and sixteen-year-old in the eleventh grade. The students in Board of Education of Westside Community Schools v. Mergens, 496 U.S. 226 (1990), attended public secondary school. Public secondary schools, depending on state law, include middle schools and/or junior high schools and high schools. The students in Widmar v. Vincent, 454 U.S. 263 (1981), involved college students. Although the latter two cases pertained to student clubs within a public secondary school or college, these cases were based on student free speech rights. 32 Id. at 508. 33 Grayned v. City of Rockford, 408 U.S. 104, 118 (1972). Tinker provides the standard for restricting student speech on campus that is not part of a school-sponsored program. Clark, 806 F. Supp. at 119. 34 ISKCON v. Lee, 505 U.S. 672, 702-03 (1992). 35 Slotterback v. Interboro Sch. Dist., 766 F. Supp. 280, 288 (E.D. Pa. 1991). 36 Id. 37 Paulsen v. County of Nassau, 925 F.2d 65, 66 (2d Cir. 1991). 38 Martin v. City of Struthers, 319 U.S. 141 (1943). 39 Texas v. Johnson, 491 U.S. 397, 406 (1989) ( The Government generally has a freer hand in restricting expressive conduct than it has in restricting the written or spoken word. ) Christmas Memo - Page 5

Conclusion and Summary Publicly sponsored nativity scenes on public property are constitutional so long as there is a secular symbol of the holiday in the general context. Privately sponsored nativity scenes or religious symbols are also permissible on public property that has been opened to the general public for expressive activity. No secular symbol is necessary. A sign indicating the private sponsorship may be helpful. Public schools are not religion-free zones. Classroom discussion of the religious aspects of the holidays is permissible. A holiday display in a classroom may include a nativity scene or other religious imagery so long as the context also includes secular symbols. A choral performance may include religious songs. Indeed, the majority of the songs may be religious so long as the performance also includes secular holiday songs. If the students select their own songs independent of the direction of school officials, then there is no requirement that the songs include secular numbers. Students may distribute religious Christmas cards to their classmates during noninstructional time, before or after school or between classes. If the students are not required to dress in uniform, then they may wear clothing with religious words or symbols or don religious jewelry. If you would like additional information or representation, please do not hesitate to contact us. Liberty Counsel offers its representation free of charge. Sincerely, Liberty Counsel Christmas Memo - Page 6