The holiday season is upon us and questions often arise about how to sensitively and legally deal with the issue of religious holidays in the public schools. The strict wall of separation between church and state set out in Lemon v. Kurtzman (1971) 403 U.S. 602, has become blurred and given way to a more flexible approach based, in part, on recent Supreme Court opinions. We try to address some of the most common questions below.
What Do the Courts Say?
The Supreme Court has ruled that public schools may not sponsor religious practices but may teach about religion. (Engel v. Vitale (1962) 370 U.S. 421.) The study of religious holidays may be included in elementary and secondary curriculum as an opportunity for teaching about religion. This serves the academic goals of educating students about history and cultures, as well as the traditions of a particular religion. However, teachers must be alert to the distinction between teaching about religious holidays which is permissible, and celebrating religious holidays which is not.
May Religious Symbols Be Used in Public Schools?
The use of religious symbols, provided they are used only as examples of cultural and religious heritage is permissible as a teaching aid or resource. Religious symbols may be displayed only on a temporary basis as part of the academic program. Students may choose to create artwork with religious symbols, but teachers should not encourage or discourage this.
May Religious Music Be Used in Public Schools?
Sacred music may be sung or played as part of the academic study of music. School concerts may present a variety of selections that may include religious music. Concerts should avoid programs dominated by religious music, especially when they coincide with a particular religious holiday.
What About Christmas?
Decisions about what to do in December should begin with the understanding that public schools may not sponsor religious devotions or celebrations; study about religious holidays does not extend to religious worship or practice. Holiday concerts in December may appropriately include music related to Christmas and Hanukkah, but religious music should not dominate. Any dramatic productions should emphasize the cultural aspects of the holidays. Nativity pageants or plays portraying the Hanukkah experience are not appropriate in the public school setting. Holiday activities in December should not have the purpose or effect of either promoting or inhibiting religion.
What About Religious Objections To Some Holidays?
Students from certain religious traditions may ask to be excused from classroom discussions or activities related to particular holidays. Some holidays considered by many people to be secular, for example, Halloween and Valentine's Day, may be viewed by others as having religious overtones. Excusal requests may be especially common in the elementary grades, where holidays often include parties and similar non-academic activities. Such requests are routinely granted. However, school personnel must understand that a policy or practice of excusing students from a specific activity or discussion cannot be used as a rationale for school sponsorship of religious celebrations or worship for the remaining students.
May Students Be Absent For Religious Holidays?
Students should be allowed a reasonable number of excused absences, without penalties, to observe religious holidays within their traditions. Students may be asked to complete makeup assignments or examinations in conjunction with such absences.
In sum, schools may neither promote nor inhibit religious practices. School districts must develop policies about the treatment of religious holidays in the curriculum and inform parents of those policies.
Boy Scouts Can Discriminate
The California Supreme Court ruled that the Boy Scouts of American can exclude gay people, agnostics and atheists because it is a private membership group not covered by the state's civil rights law.
"The Boy Scouts is an expressive social organization whose primary function is the inculcation of values in its youth members," said the Court. The Scouts are not a business and may exclude anyone they wish because the state's civil rights laws only prohibit discrimination by businesses.
The Court determined that the Unruh Civil Rights Act (Civ. Code § 51) did not apply to the organization's membership decisions. Although there was evidence that the scouting organization had commercial dealings with non-members through its retail stores where it sold camping equipment, the Boy Scouts "did not sell the right to participate in the activities it offers to its members." For that reason, it was not operating as a business establishment within the meaning of the State's anti-discrimination laws.
The court did say that its ruling would not permit the scouts to discriminate on other grounds such as race. "The Unruh Civil Rights Act is not the only legislative measure that is aimed at curbing discrimination on the basis of race." An organization that engages in racial discrimination could have a variety of sanctions imposed including the denial of tax-exempts status.
Judge Werdegar said in her concurring opinion that past decisions by the Court had supported the argument that the Boy Scouts were subject to the Civil Rights Act. She concluded that the Court's decision in this case was due to the Legislature's failure to define the term "business establishment." She noted the potential for future litigation where "an organization may sell goods to the general public without becoming a business establishment."
Comment: The Court's decision creates an anomalous situation where the Boy Scouts may use criteria that discriminates against some individuals with regard to its membership policies. However, the organization is prohibited from discriminating in the business transactions it engages in with non-members at its retail stores. A New Jersey state court recently reached a different conclusion and ruled that its state laws against discrimination applied to the scouts. Ultimately this matter will be decided by the United States Supreme Court but until then the Curran and Randall rulings remain the law in California.
Curran v. Mount Diablo Council of the Boy Scouts (1998) ___Cal.___
Randall v. Orange County Council (1998) ___Cal.___
Graduation Prayers By Students Allowed
Student-led prayers are allowed at a high school graduation ceremony if voluntarily chosen by a student speaker, ruled the Ninth Circuit U.S. Court of Appeals. The court upheld a rural Idaho school district's policy of allowing students to address any subject of their choice.
Madison School District No. 321 located in Rexburg, Idaho, allowed the top four students in each high school graduating class to speak at commencement. The students were permitted to decide whether to include a prayer in their graduation speeches. Jane Doe challenged the graduation policy and argued that by allowing students to inject prayers and religious songs into the program it perpetuated officially sanctioned religious graduation ceremonies.
The District maintained that it did not mandate or direct that prayers be read at commencement and the policy could result in no prayer at all. It did not censor the style or content of the student presentations, and printed a disclaimer in every printed program that read:
Any presentation by participants of graduation exercises is the private expression of the individual participants and does not necessarily reflect any official position of Madison School District #321, its Board of Trustees, administration or employees or indicate the views of any other graduate.
Policy Not Religious Entanglement
The Ninth Circuit ruled that the District's policy didn't violate the First Amendment's establishment clause by allowing students to speak at graduation ceremonies on any subject of their choice, including religion. The policy neither advances nor inhibits religion held the court, rejecting Jane Doe's arguments.
The District's policy did not represent excessive entanglement with religion concluded the court. "The policy does not mandate or direct that prayers be read, and may or may not result in prayer at all. Even if a prayer is read, the policy does not make this an act of establishment of religion by the school district. " To the contrary, "the school would more likely become entangled with religion if it tired to eradicate all religious content from student presentations," said the court.
Comment: The Supreme Court ruled in 1992 that public schools could not require prayers at graduation ceremonies, saying students were under social pressure to attend graduation and could not be required to undergo government-led religious activity. (Lee v. Weisman, 505 U.S. 577.) The Ninth Circuit said that the key difference between the Supreme Court's 1992 ruling and this case was that the Idaho school district did not control the religious content of the graduation program because it was voluntarily chosen by the student speakers. Other courts have reached a different conclusion, in ACLU v. Black Horse Pike Regional Bd. of Educ., 84 F.3d 1471 (3d Cir. 1996), a federal court ruled that a school board could not allow students to decide by majority vote whether to have religious exercises at graduation.
Doe v. Madison School Dist. No. 321 (9th Cir. 1998) ___F.3d___
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