Do you believe that your religious liberty has been harmed by a government action? Please tell us about it. We advocate in and out of court to protect your religious liberty by preserving the separation of church and state.
Review Examples and FAQs
Before taking the time to report a violation of the separation of church and state, please review our examples and information about what does (and doesn't) constitute a violation. We would hate to be unable to help with your situation!
Examples of violations:
- An organization uses a government grant for religious activity.
- A public school event includes prayer or a public school teaches creationism or intelligent design.
- The government displays a religious symbol or text on public property.
- The government funds religious hospitals that refuse to provide certain kinds of reproductive health care services for religious reasons.
Frequently Asked Questions
- Graduation Prayer: Can public schools have prayers at graduation ceremonies?
Primary or Secondary School:
The U.S. Supreme Court has held that neither school officials nor invited clergy may lead a prayer — even a nonsectarian prayer — at a public-school graduation ceremony. Even student-led prayers at public-school graduations are unconstitutional, if the school is involved in organizing, editing, or approving the prayers. And schools may not hold student votes on whether a prayer will be offered.
As for entirely student-initiated prayers at graduation, the rules are less clear. What is clear is that schools that screen all student speakers' messages may forbid prayers and proselytizing statements. Schools may then take the microphone away from students who do not adhere to the restrictions. When, however, schools take an entirely hands-off approach to speakers' messages, and do not pre-review them, the legal rules have not been firmly established.
If you attend a public school where graduation prayers have traditionally been offered or are scheduled to occur this year, any of the following circumstances may be unconstitutional:
- A school official (school-board member, administrator, or teacher) delivers the prayer.
- An invited guest of the school (a local member of the clergy or other guest speaker) delivers the prayer.
- The school selects a student to offer a prayer.
- The school organizes a voting system so that students may decide whether they wish to have prayers at graduation.
- The school facilitates a pre-planned, student-initiated, and student-led prayer by, for example, announcing the prayer in the graduation program.
- The school pre-screens or edits student speeches and approves prayers or proselytizing remarks.
University or College:
The Supreme Court has not addressed whether prayers may be offered at public-university graduations. Some lower courts have allowed it, reasoning that college students are less impressionable than primary and secondary students. Adults are not entirely immune from coercion, however, and many would be incredibly uncomfortable having prayer incorporated into their graduation exercises. Certainly, therefore, a public college or university could lawfully direct its graduation speakers not to pray or deliver proselytizing addresses; and some courts would likely hold that colleges and universities are required to do so — especially if attendance at the graduation ceremony is required to receive one's diploma.
If you are concerned about prayer at your graduation, please contact Americans United. Please provide any information you have about the planned prayers, including:
- Who will deliver the prayer?
- How was that person selected?
- In what ways has the school facilitated delivery of a prayer?
- Legislative Prayer: Can legislatures open meetings with prayers?
Government is generally forbidden to deliver, sponsor, orchestrate, or encourage prayers. Since the nation's founding, however, many legislatures have traditionally opened their meetings with prayer. Given this historical tradition, the U.S. Supreme Court has held that legislative prayers are constitutionally permissible if, but only if, they do not use language or symbols specific to one religion. (Courts have held, however, that elected school boards are different than legislatures, and are forbidden to open their sessions even with nonsectarian prayers.) Furthermore, prayergivers at legislative sessions may not exploit the prayer opportunity to proselytize or advance any one, or to disparage any other, faith or belief. A number of federal courts of appeals have thus held that sectarian prayers (i.e., prayers using language specific to one faith) before legislatures or other representative bodies are unconstitutional. One court, with jurisdiction over Alabama, Georgia, and Florida, has taken a more limited view, concluding that sectarian prayers in legislatures are permissible as long as they do not proselytize.
Even apart from using sectarian language, there are many ways that legislative prayer might impermissibly proselytize, advance, or disparage a particular faith. Those who do not wish to be present for a prayer must be allowed to leave and may not be excluded from participating in the rest of the meeting. And those who do not wish to stand or bow their head for the prayer must be allowed to remain seated and must not otherwise be penalized for their nonconformity. A prayer practice may also be unconstitutional if a legislative body selects prayergivers based on their faith or excludes some faith groups from offering prayers. Thus, if a legislative body invites clergy to deliver prayers, it should strive to invite a wide variety of faiths and should instruct the prayergivers to make their prayers nonsectarian, ecumenical, and inclusive of minority faiths.
If your representative body offers a prayer and one or more of the following statements is true, the prayer practice may be unconstitutional:
- Clergy or other invited guests offer the prayers, but minority faiths are excluded from being prayergivers.
- The prayers often contain explicit references to a particular deity, symbolic religious language, quotations of religious texts, or statements that promote, advance, or denigrate a particular religion.
If you are concerned about a legislative-prayer practice, please contact Americans United. Please tell us:
- Who delivers the prayers?
- How are the prayergivers selected?
- Is the audience asked to stand, bow heads, or otherwise participate in the prayers?
- Are minority faiths being excluded from participation as prayergivers?
- Are the prayers sectarian? In what way?
- Holiday Displays: Can the government erect a holiday display that contains religious symbols?
The government is permitted to create displays that recognize, and even celebrate, holidays that have religious origins or significance — so long as the displays themselves celebrate the holidays' secular rather than religious aspects. Thus, a governmental holiday display can include religious symbols, but only if the overall display promotes a secular theme and does not send the message that the government endorses or supports a particular faith, or religion generally. The presence of secular holiday symbols in addition to religious ones is crucial. A religious holiday symbol, such as a crèche (i.e., a nativity scene), is almost certainly unconstitutional if it stands alone on public property. The same is true of a display consisting wholly of different religions' holiday symbols. Only when religious holiday symbols are paired with secular symbols, and the overall display promotes a unified, secular theme — such as liberty or cultural diversity — will a holiday display pass constitutional muster.
Two U.S. Supreme Court cases involving Christmas crèche displays illustrate the distinction. The Court upheld a city's display of a creche along with a Santa Claus house, reindeer, candy-striped poles, carolers, a giant teddy bear, a wishing well, and various other, secular Christmas symbols in the city's downtown shopping district. But the Court struck down a county's display of a crèche on the main staircase inside its courthouse, where the display's only other elements were poinsettias and a banner reading, "Glory to God in the Highest." Although a sign explained that the crèche in the latter case had been placed by a private group, the Court held that this fact did not cure the violation.
In each case, what mattered was the display's context, not only in terms of the items accompanying the religious symbol, but also the display's location and connection to government. That these two cases involved the same religious holiday symbol but came out differently demonstrates that with governmental holiday displays, the specific facts of the display make all the difference.
If after reading this description of the law, you suspect a constitutional violation, please contact us and provide answers to the following questions:
Where, specifically, is the display about which you are concerned? Please explain whether it is indoors or outdoors; its location within the building, grounds, or parkland relative to entry points and other landmarks; its overall setting, etc.
Describe the components of the overall display, their placement, and their relative sizes.
Who placed the religious items in the display? If a private party placed the items, does the display identify this person or group as its owner, and if so, how?
- Ceremonial Deism: Can the government make official references to religion, as in the Pledge of Allegiance and the national motto?
Under the Establishment Clause of the First Amendment to the U.S. Constitution, no governmental practice may convey the message that a particular religious belief, or religion generally, is favored or preferred. Notwithstanding this cardinal rule, courts have identified a discrete category of highly common, longstanding, and nonsectarian governmental references to religion that have, through time and use, lost religious significance — and that consequently do not offend the Constitution. The courts often use the term "ceremonial deism" to describe these references.
Some individual Justices of the U.S. Supreme Court have labeled the following as permissible examples of ceremonial deism:
- the national motto, "In God We Trust," appearing on U.S. coins and currency;
- nonsectarian legislative prayers;
- the announcement, "God save this honorable Court," that opens sessions of the U.S. Supreme Court;
- religious references in traditional patriotic songs, such as the National Anthem; and
- the phrase "under God" in the Pledge of Allegiance.
The full Supreme Court has never expressly approved any of these religious references, however. That being said, a number of lower courts have held that displays of the national motto are constitutionally permissible. Further, one court has held that Ohio’s motto, "With God, All Things Are Possible," is likewise an instance of permissible ceremonial deism. Two federal appellate courts have commented on whether the phrase "under God" in the Pledge of Allegiance is "ceremonial deism," with one court opining that the phrase is constitutional, and the other holding that it is not. The latter decision, however, was vacated by the Supreme Court on procedural grounds.
If after reading this description of the law, you continue to suspect a constitutional violation, please contact us and provide us with answers to the following questions:
- Describe, as specifically as possible, the governmental practice or reference to religion about which you are concerned.
- How often, and for how long, has this practice occurred?
- Ten Commandments Displays: Can the government display the Ten Commandments on public property?
As a general rule, the government may not display religious items on public property. That rule applies to displays of the Ten Commandments, just as it does to any other religious symbol. Thus, for example, the U.S. Supreme Court has held that it is unlawful to require the posting of the Ten Commandments in public-school classrooms.
The courts have recognized certain circumstances, however, in which the government may display the Ten Commandments on public property. Whether the display is constitutional depends on its context: why the government erected it, and how it appears to a reasonable observer.
First, the government's purpose for displaying the Commandments must be secular. To determine purpose, courts look to a variety of factors — the display's history, including government officials' statements in approving or unveiling the display; the contents and character of items on display along with the Commandments; and the facts surrounding the placement of the other items. The Supreme Court struck down Ten Commandments displays in two county courthouses, for example, even though other, secular items were posted alongside the Commandments, because of the displays' histories: the counties had initially posted the Commandments alone, during a ceremony that included a speech by a religious official; then after being sued, they posted other documents with religious references in them; and finally, the counties replaced the other documents with historical ones that lacked a clear unifying theme. Based on this context, the Supreme Court concluded that the final displays — which were entitled "Foundations of American Law" and included many historical documents along with the Ten Commandments — were still intended to promote a religious code and therefore were unconstitutional.
Second, a display including the Ten Commandments is constitutional only if a reasonable observer would conclude that the government is neither endorsing nor promoting religion with it. In applying this rule, courts look to the same contextual factors used to assess a display's purpose. They consider, among other things, whether a secular theme, such as law or history, unites the Ten Commandments with other items on display, thus communicating a genuinely secular message. And the courts consider whether the display is longstanding and thus has historical significance, and whether the display's physical setting lends itself to reverence of the Commandments as a sacred item. Thus, the Supreme Court upheld a 40-year-old Ten Commandments monument on the Texas state capitol's grounds because, when viewed in context with the thirty-seven other, historical monuments on the grounds, it conveyed a secular message, and its physical setting did not lend itself to religious activity. Based on this context, the Court concluded, a reasonable observer would conclude that the State was not endorsing the Commandments' religious aspects. That the monument prominently acknowledged its private donor further distanced the State from the religious aspect of the Commandments' message, although the Court cautioned that this fact alone would not render the monument constitutional.
In sum, whether a Ten Commandments display is constitutional depends on a complex array of factors, so determining whether a display is constitutional can be difficult.
If after reading this description of the law, you continue to suspect a constitutional violation, please contact us and provide us with answers to the following questions:
- Describe the display about which you are concerned: size, material, complete contents, appearance, etc.
- Where, specifically, is the display? Please tell us whether it is indoors or outdoors; where it is located within the building, park, or other venue relative to entry points and other landmarks; its overall setting, etc.
- Are other items displayed in the Ten Commandments' vicinity? If so, please describe their contents, size, location, etc.
- If you know, tell us who placed the Ten Commandments on display. Was there any unveiling ceremony or other official action when the Commandments display was posted or erected? Has the display changed over time? If so, how?
- Public Funding of Religion: Can government money and resources be used to support religious institutions?
When it comes to governmental aid to religious institutions, the law is complicated. We therefore explain only three general rules. If, after reading them, you still have questions about whether a particular instance of governmental aid to religious institutions is lawful, please do not hesitate to contact us. The three general rules are:
- The government (federal, state, and local) may not give aid in the form of money to institutions that are "pervasively sectarian." An institution is pervasively sectarian if religion is interwoven in all aspects of the institution's operations, such that secular activities cannot be separated from religious ones.
- The government may not give aid of any kind — money, supplies, equipment, personnel, etc. — to any institution (whether or not pervasively sectarian) if the aid will support religious activities, such as religious worship or instruction. For example, the government may not give money or equipment for the construction of a religious chapel, nor may it provide school supplies to be used in religious classes. There is an exception to this rule, however, for aid programs involving "true private choice," in which the aid is given to a broad class of citizens who, in turn, are free to direct it to any one of a wide array of secular and religious institutions. School-voucher programs fall into this category, and they are discussed under FAQ: School Vouchers.
- Whenever the government gives any kind of aid to a religious institution, it must have in place a system of safeguards and monitoring to ensure that the aid is not used for religious activities. But the law is not entirely clear on what kind of safeguards and monitoring are adequate, and what a court will find to be adequate will also depend on the type of aid at issue and other facts specific to the particular case.
If you think that you may have encountered unconstitutional governmental aid to a religious institution, please contact us. Please provide as much of the following information as possible:
- What kind of aid is being provided and in what amount?
- What governmental entity provides the aid, and what institution receives it?
- Is the aid also made available to secular institutions?
- What are the terms of the program or grant through which the aid is being provided?
- How is the receiving institution using the aid?
- Has the institution received government aid in the past?
- Public Venues: Can churches and other religious groups use public facilities?
The U.S. Constitution allows governments (federal, state, and local) to open up their public facilities — such as public-school buildings and public libraries — for use by religious groups. But governments must give religious and secular groups access to those facilities on equal terms. For example, a public school may permit religious groups to hold meetings in its building after school hours, but it may not allow those groups to use the building for free while charging a fee to secular groups, and vice versa.
Whether governments may refuse to give religious groups access to public facilities is a more complicated question. The legal rule is that governments, in granting access to public facilities such as schools and libraries, may discriminate on the basis of subject matter but not on the basis of viewpoint. This means that governments may reserve the use of their facilities for certain kinds of groups or for the discussion of certain topics, but may not exclude groups simply because they are religious or because they discuss approved topics from a religious perspective. In practice, it can be difficult to determine whether a religious group is lawfully being excluded on the basis of subject matter or unlawfully on the basis of viewpoint. For example, the U.S. Supreme Court has ruled that where a public school allowed its building to be used by any group promoting "the moral and character development of children," the school could not deny access to a club that taught children to memorize Bible verses, read Bible stories to them, and concluded its sessions with a prayer. The Court reasoned that the club sought to teach morals and character to children — thus addressing a permitted subject matter — and that the religious nature of the club's teachings simply reflected the club's viewpoint, just as another group could teach morals and character from a secular perspective. On the other hand, a different court has ruled that where a public library allowed its meeting rooms to be used for events "of educational, cultural or community interest," the library lawfully excluded a group that conducted pure religious worship services, on the ground that religious worship was not a viewpoint but rather its own subject matter, on which no secular viewpoints existed.
Finally, we note that the law is different when the public facility at issue is a traditional public forum such as a public street or park, or other property that the government has made widely available to all comers. In such a case the government may not even be allowed to discriminate on the basis of subject matter, which effectively means that it cannot deny access to any religious (or secular) group.
Because this is a difficult area of the law, we welcome you to contact us if you have any questions about whether your government has lawfully granted or denied a religious group access to a public facility. Also, please contact us if you think you know of an instance where the government may have violated the law in this area. Please provide as much of the following information as possible:
- What public facility is at issue, and what government (federal, state, or local) owns it?
- What is the government's policy for allowing outside groups to use the facility?
- What religious group is being granted or denied access to the facility, and what activities are performed and what topics are discussed at the group's meetings?
- If a religious group is being granted access to the facility, how are the terms of that access different from the terms that apply to secular groups?
- If a religious group is being denied access to the facility, what is the reason for that denial, and what other groups (religious and secular) are being granted access to it?
- School Vouchers: Can the government fund religious schools through school-voucher programs?
A school-voucher program is permissible under the U.S. Constitution only if the families who receive the vouchers are genuinely free to use them at any one of a wide array of secular and religious schools, and the government does not encourage attendance at parochial schools over secular options or otherwise design the program to favor religious schools or families whose children attend those schools. Nor may government make it more attractive for religious schools than for secular schools to participate in the voucher program.
Even if a school-voucher program is permissible under the U.S. Constitution, however, it may well violate the constitution of the state in which the program operates. Thirty-seven of the fifty state constitutions contain stricter limits on aid to religious schools than the federal constitution does, and many states have constitutional provisions that may forbid school-voucher programs altogether. Courts in Arizona, Colorado, Florida, and Vermont have already struck down school-voucher programs because they violated those states' constitutions, even though the programs would not have violated the U.S. Constitution.
Finally, while the U.S. Constitution and some state constitutions may permit the government to provide vouchers that may be used at religious schools, there is no requirement that the government do so. The government has some discretion in deciding whether to exclude religious education from school-voucher programs, although courts have disagreed to some extent about how much discretion the government has.
If, after reading this summary of the law, you think that you have encountered an illegal voucher program, please contact us. Please provide as much of the following information as possible:
- Which governmental entity (e.g., the state, the county, or the city) runs the voucher program?
- Which groups of students or parents are eligible to receive vouchers?
- At what kinds of schools, and towards what kinds of expenses, may the vouchers be used?
- What proportion of schools participating in the voucher program are religious schools, and what proportion of participating students use the vouchers to attend religious schools?
- Do religious schools or students at religious schools receive preferential treatment in the awarding of vouchers? If so, how?
- Religious Assemblies: Can religious organizations perform at public-school assemblies?
A religious organization, like any other outside group, may be allowed to perform at public-school assemblies, but the religious organization may not use the opportunity to present or distribute religious messages. A public school violates the Constitution if it allows an invited group to offer a prayer, to speak about its religious beliefs, to play religious music, to display religious symbols or art, to promote a sectarian event, or to otherwise advance a religious viewpoint.
If a religious organization was invited to your public school and used that opportunity to proselytize or advance its religious beliefs, please contact Americans United for assistance. Please tell us:
- When was the assembly? Was it during the school day?
- Were students required to attend?
- How old were the students who attended?
- What religious group was invited?
- What was the purpose of the assembly?
- In what ways did the group advance its religious message during the assembly?
- Is the group scheduled to participate in future assemblies?
- Did the group or any teacher, administrator, or other school official invite students to attend other programs after school hours or off school grounds? If so, please describe the event(s) to which the students were invited, giving as much detail as possible.
- Prayer in Athletics: Can public-school sports teams pray together, can coaches pray with students, and can public schools have prayers at athletic events?
Student athletes have a free-exercise-of-religion right to engage in prayer alone or with teammates, as long as the prayers are genuinely voluntary, student initiated, and student led. But the Establishment Clause of the First Amendment to the U.S. Constitution prohibits school officials or their invited guests (e.g., a member of the clergy) from participating in the prayers. If any aspect of the prayer practice suggests that the school endorses or promotes the prayer, the practice very likely violates the Establishment Clause. Thus, school employees may not become involved in any aspect of a team prayer, whether by leading it, by participating in it, or by encouraging or facilitating students' participation. Because the Establishment Clause applies only to governmental entities, however, private- and parochial-school coaches may organize and facilitate team prayers without restriction.
If you attend a public school and any one of the following statements is true, your team's prayer practice may be unconstitutional:
- Team prayers are a mandatory part of membership on my team.
- Though not mandatory, my coach pressures or encourages me to participate in prayers.
- My coach favors or rewards students who choose to participate in prayers.
- My coach leads team prayers.
- My coach selects students to lead team prayers.
- My school recruits local clergy or other individuals to lead team prayers.
- My coach participates in prayers by bowing his or her head, taking a knee, standing in the prayer circle, etc.
- My coach or school held a vote to determine whether there will be prayers or to select a prayergiver.
- My school provides special services, such as use of the stadium loudspeaker, to facilitate prayers, even if the prayers themselves are led by students.
Additionally, your school may be violating your free-exercise rights if it prohibits or interferes with student-organized, student-led, genuinely voluntary prayers, although prayers that disrupt classes or interfere with ordinary school functions are not protected.
If you are concerned about a team-prayer practice, please contact Americans United. Please tell us:
- Who initiates the prayers?
- Who delivers the prayers?
- Are students required or pressured to participate in the prayers?
- Are school officials involved in any way with the prayer practice?
- Church Venues: Can public schools hold events in churches?
A public school may hold school activities in a religious building, if at all, only if the venue is effectively secularized so as not to associate the school with religion. That generally means that religious iconography (e.g., religious artwork or symbols) and texts must be covered or removed. Furthermore, at least one federal court has concluded that it is always unconstitutional for a public high school to hold its graduation ceremony in a church, even if there is no visible iconography. Any constitutional violations will be compounded if there is a suitable secular location where the event could have been held instead.
If your public school has selected a religious venue for a school-sponsored event, ask the school to find a secular location, or contact Americans United. If your school is planning to host an event, or has hosted a past, recurring event, in a house of worship, please provide any information you have about that event, including:
- What type of event is it?
- Where and when will the event be held?
- Are there alternate secular venues in the area that could accommodate the audience?
- If it is a recurring event (such as an annual assembly), please provide a detailed description of the venue, as well as pictures or videos from past events if you have them.
- Religious Music in Schools: Can public-school groups and classes perform religious music?
Public-school teachers may not assign religious songs because of their religious content. But courts have recognized that some religious-music selections can be included in school performances when the pieces are selected for their secular merit. If religious songs are included, a mix of secular selections should be chosen as well. If, for example, at a Christmas concert a school selects "Silent Night" or "Joy to the World," then it should also select "Silver Bells" or "White Christmas."
Furthermore, schools must make certain that performances do not essentially become church services. To that end, some courts have ruled that prayers (such as the Lord's Prayer) set to music are always impermissible because a prayer is a religious exercise, and that is so even when the prayer is sung rather than recited. Moreover, some courts have prevented performances of contemporary popular music with explicitly religious lyrics. Recently, a federal court halted a third grade class's assembly performance of a country-music song called "In God We Still Trust" because of the distinctly religious content of the song.
If religious songs are included in a music class, teachers should allow students to opt out of performing those songs — with no reduction in grade or other penalty. Otherwise, the school risks coercing the practice of religion by students.
If after reading this description of the law, you continue to suspect a constitutional violation, please contact us and provide us with answers to the following questions:
- If possible, please provide a full list of songs that have been or will be played or sung.
- Do students receive credit for participating in this music group?
- When does the group practice?
- Who leads the group?
- Are students given the opportunity to opt out of singing religious songs, and are they penalized for doing so?
- Released-Time Programs: Can public schools allows students to attend religious programs off-campus during the school day?
Public schools can accommodate students' religious needs by releasing them from the school campus during the day to receive religious instruction (so-called "released-time" programs). But the following conditions must be satisfied:
- The religious instruction must be conducted off the school campus. Not only may the released-time classes not be held inside the school building, but courts have ruled that they may not be held in private buses or trailers standing in front of the school building or in the school's parking lot (even if technically not on school property).
- The released-time instructors — not the school — must bear the burden and expense of recruiting and transporting students who wish to receive religious instruction. Released-time instructors should not be allowed to enter a school's classrooms to recruit students, as that would create the appearance that the school endorses religious instruction.
- School officials, including teachers, may not encourage or coerce students to participate in the released-time program. Nor may school officials promote the released-time program to students or parents. Public schools may, however, perform limited, necessary administrative tasks relating to releasing students to the program.
If, after reading this summary of the law, you think you have encountered an unconstitutional released-time program at a public school, please contact us. Please provide as much of the following information as possible:
- What church or organization is providing the released-time classes?
- Where are the released-time classes conducted, and how are participating students transported there?
- Do school employees encourage or coerce students to participate in the released-time program, or do any of them promote the program to students or parents?
- Does the school use its own resources (money, labor, equipment) to facilitate the religious instruction in any way?
- What administrative tasks (such as scheduling, providing attendance slips, making announcements) does the school perform in relation to the released-time program?
- Does the school award academic credit for the completion of released-time classes?
- See You at the Pole: Can public-school students and teachers participate in See You at the Pole events?
"See You At The Pole" is an event where students gather at their school's flagpole on a designated day (usually the fourth Wednesday of September) and at a designated time (usually before the beginning of the school day) to pray. The event is generally evangelical and Christian in nature. Ordinarily, See You At The Pole events are organized as student-run activities and follow the same general rules as those for student-run religious clubs (see the FAQ entry on religious clubs in public schools). Thus, teachers may not participate in the religious aspects of the event, although they may be present to supervise the behavior of students in order to ensure, for example, that no student is hurt and no school property is damaged.
Alternatively, See You At The Pole events may be organized and run by local clergy or by some other outside group. If so, then they should follow the general rules for use of public property by religious groups (see the FAQ entry on use of public facilities by religious groups). Outside persons who come onto school property for a See You At The Pole event should not communicate religious messages to students who do not participate in the See You At The Pole activity.
- Who organized the event? Who ran the event?
- How was the event advertised?
- Who was present at the event? How did they participate at the event?
- Religious School-Clubs: Can students in public schools form religious clubs?
Public high schools are required by the federal Equal Access Act to permit student-run religious clubs to use school facilities before or after school on the same terms as other noncurricular student clubs. (Curricular clubs — such as the French club, if French is taught as a normal class — may, in contrast, lawfully be afforded greater access than noncurricular clubs.) If, for example, a school allows a student chess club to meet, it must allow the formation of a student-run religious club and it must provide both clubs with the same access to school facilities and equipment and the same privileges and benefits.
There is, however, one exception to this rule. While other student-run clubs may have teachers act as sponsors and participate in club activities, teacher participation in religious clubs is more restricted. During the school day and at other times when the employee is acting on contract time, teachers or other public-school employees may be present at club meetings to supervise and monitor student behavior, and to ensure student safety, but they may not engage in worship, study, singing, or other activities with the club members; nor may they endorse any religious club or encourage students to participate in religious clubs or activities. School employees may only participate in the religious activities of religious clubs if they are attending as a private citizen outside of contract time, and do not hold themselves out as representing the school employer.
Although the federal Equal Access Act applies solely to public high schools, similar equal-access rules apply to elementary schools, middle schools, and even to colleges and universities. In elementary schools, however, the age of the students makes it unlikely that a club would be truly student run, thus raising a greater likelihood that school employees may be impermissibly involved. On occasion, non-school personnel run religious clubs, such as “Good News Clubs,” in the elementary schools. These clubs must be given the same access to school facilities and means of communication that are available to other privately run gatherings (see FAQ entries on “Public Venues” and “Religious Flyers” for more detailed information).
- Is the club run by students or sponsored by an outside organization?
- When and where does the club meet?
- Does the school have a policy governing student organizations? If so, please include a copy of the policy, if possible.
- Are any faculty members involved with the club? Who are they and how do they participate in the club?
- Are non-religious clubs given the same access and privileges that are provided to the religious clubs?
- Teaching of Religion: Can religion or religious materials be incorporated into the curriculum in public schools?
The Establishment Clause of the U.S. Constitution requires the government to be neutral with respect to religion, and courts are especially diligent in upholding this requirement in the context of public elementary and secondary schools, as students are legally required to attend school and school children are more impressionable than adults.
- Bible courses: Because the Bible has considerable significance in Western literature and history, it may be incorporated into a public-school curriculum. But any course focused on the Bible must be taught from a secular, objective perspective, and must use materials written from a secular, objective perspective. This means, for example, that a public school may not teach students that what is written in the Bible is the truth, or that those who follow the Bible's teachings will be saved or are superior to others. The courts have found many Bible courses to be unconstitutional, and they have been particularly skeptical of Bible courses that were developed by private religious organizations with the intent of spreading the Christian faith (such as the National Council on Bible Curriculum in Public Schools).
- Creationism and intelligent design: Religious theories on the origins of life — such as creationism, "creation science," and "intelligent design" — may not be taught in public schools, not even as alternatives to the scientific theory of evolution. Encouraging students to explore evolutionary theory critically, while offering a religious theory as the only alternative to evolution, is sufficient to send an unconstitutional message of religious endorsement.
- Religious assignments and instruction generally: Religion may be studied as the subject of a secular, objective, and academic inquiry. It may not, however, be incorporated into public-school curricula for the purpose of moral instruction. Moreover, teachers may not give assignments or make comments that create the impression that the teacher, or the school at large, endorses religion or favors a particular religion over others.
If, after reading this summary of the law, you think you have encountered an instance of unconstitutional religious instruction in a public school, please contact us. Please provide as much of the following information as possible:
- What kind of religious instruction occurred, and what educational materials were used as part of that instruction?
- Was the instruction part of the school's official curriculum, or did it occur on the teacher's own initiative?
- Was this the first time the school or the teacher gave religious instruction? If not, were complaints previously made to the principal, the superintendent or any other official?
- Aside from religious instruction, are there other signs that the teacher or the school endorses a particular faith (such as religious posters on the classroom walls, Bibles on the teacher's desk, or religious holiday celebrations in the school)?
- Religious Flyers: Can school officials, students, or outside groups distribute religious materials to public-school students?
The law about distribution of religious materials in public schools is complicated, because it implicates both the constitutional free speech rights of the persons distributing the materials and the U.S. Constitution's Establishment Clause, which prohibits government (including public schools) from endorsing religion. If, after reading this short summary, you still have questions about the constitutionality of a particular distribution or restriction on distribution, please do not hesitate to contact us.
- Distribution by outside groups: Public schools may not allow outside groups to enter school grounds to distribute Bibles or other religious materials to students. Nor may schools assist such groups in distributing religious materials to students off school grounds. But many courts have allowed schools to pass along to their students flyers and announcements from religious groups, provided the schools do so as part of a system that applies equally to flyers from secular groups, and provided they do not endorse the religious groups' flyers. (Some courts have also looked at whether the religious groups' flyers contain proselytizing language.) Courts have thus allowed schools to include religious groups' announcements in students' so-called "Friday folders" — folders given to students in class at the end of the week containing all announcements from community groups for students to take home with them. Indeed, if schools generally pass along outside groups' materials to students, they must allow religious groups to be included, provided the materials relate to a permissible subject matter (e.g., "community events").
- Distribution by school personnel: Aside from passing along materials from outside religious groups as part of a neutral distribution system (discussed above), teachers, administrators, and other personnel of public schools may not distribute religious materials to students, just as they may not proselytize or endorse religion to students in other ways.
- Distribution by students: Whether a public school may allow a student to distribute religious materials to other students on school grounds depends on the context in which the distribution occurs. If the student wants to distribute such materials during non-instructional time (such as during recess or lunch, or in between or after classes), the school may prohibit or limit the distribution only if it would substantially interfere with the work of the school or impinge upon the rights of other students. On the other hand, if the student wants to distribute religious materials in class or during some other part of the school's curriculum, the distribution is more likely to be viewed as having been approved by the school, which means that the school has much greater latitude in prohibiting or limiting the distribution — the school only has to show that its restrictions were "reasonably related to legitimate pedagogical concerns." For example, a court has ruled that where a school created a simulated marketplace in its gymnasium as part of the fifth grade's curriculum, the school was permitted to prevent a student from selling to his fellow students candy canes to which he had attached cards bearing a religious message. Generally, the younger the students are, the more leeway a school has in restricting their distribution of materials to others.
If you think you may have encountered an unconstitutional distribution of religious materials in a public school, or a public school's unconstitutional restriction on a distribution of religious materials, please contact us. Please provide as much of the following information as possible:
- Who distributed or sought to distribute the materials?
- What kind of materials were they, and did they contain proselytizing language?
- When and where were the materials distributed (or are to be distributed) — in the classroom, as part of the school's curriculum, or during non-instructional time?
- How old were the students for whom the materials were intended? And if the person distributing the materials was a student, how old was he or she?
- What is the school's policy on distribution of materials on school grounds?
- If the school restricted the distribution of religious materials, what restrictions were imposed?