Education Law Publications
The firm publishes a monthly "Issue of the Month" on current issues or matters of interest in the education law area. If you want more information about our education law practice or a copy of any of our articles, contact David Duff at dduff@ddtwb.com SCHOOL LAW
"ISSUE OF THE MONTH"
July 2005 DISPLAYING THE TEN COMMANDMENTS IN PUBLIC SCHOOLS: When Thou Shalt and Shalt Not Last month, the United States Supreme Court handed down decisions in two cases involving displays of the Ten Commandments on public property. In Van Orden v. Perry , the Court held that a display that had been in place on the grounds of the Texas State Capitol for 40 years did not violate the Constitution’s “Establishment Clause,” which prohibits government entities from endorsing or promoting any particular religion. In the other case, McCreary County v. American Civil Liberties Union , the Court found that the installation of the Ten Commandments in Kentucky courthouses did violate the Establishment Clause. Neither case is likely to have a significant impact on the manner in which public schools handle religious issues, although the cases provide an interesting perspective on how the Supreme Court deals with Establishment Clause cases. The United States Constitution, particularly the Bill of Rights constituting the first ten Amendments, contains a series of restraints on governmental actions. These restraints were designed to protect the individual rights and liberties of citizens. The Constitution’s First Amendment prohibits government entities, including public school districts, from either promoting a particular religion or prohibiting free exercise of religion. Like all federal and state government entities, public school districts have an obligation to maintain neutrality in their handling of religious issues. In Van Orden , a Texas resident challenged the constitutionality of displaying the Ten Commandments in the form of one, among the many, stone monuments that long had been present in a 22-acre public park surrounding the Texas State Capitol. The Court found that the monument, which had been donated to the state by a civic group, did not violate the Establishment Clause because, although having “religious significance,” its presence on state property was “passive” and did not serve a “primarily religious purpose.” School districts should be aware that in reaching that conclusion, the Court distinguished the presence of a monument on public grounds from the posting of the Ten Commandments in public school classrooms, noting that the Court has “been particularly vigilant in monitoring compliance with the Establishment Clause in elementary and secondary schools.” In McCreary , two Kentucky counties prominently posted large framed copies of the Ten Commandments in high-traffic areas of their courthouses. No other such displays were installed, and the public officials responsible for the display referenced their “duty . . . to publicly acknowledge God as the source of America’s strength and direction.” The Court found that even after modifying the display to include references to the Ten Commandments’ influence on American government, because “the counties’ manifest objective” for the Ten Commandments display was to promote the Christian viewpoint, the installation violated the Establishment Clause. Notably, in both Van Orden and McCreary , the Court referenced its 1980 decision in Stone v. Graham as the applicable case in addressing the issue of religion in the public school setting. Nearly 25 years have passed since the Supreme Court decided Stone , a case involving a state law requiring the posting of the Ten Commandments to be posted in each of Kentucky’s public school classrooms. Although the posting was to be privately funded and included a notation regarding the secular application of the Ten Commandments, the Court in Stone found that the Kentucky statute violated the Establishment Clause. In reaching that conclusion, the Court reiterated the three-part test for determining whether a state statute is permissible under the Establishment Clause: 1) The statute or rule must have a secular purpose; 2) Its effect cannot advance or inhibit religion; and 3) The statute or rule cannot cause “excessive entanglement with religion” by the government. The Stone Court found that the challenged statute had no educational function and was enacted for religious purposes, including “to induce the school children to read, meditate upon, perhaps to venerate and obey, the Commandments.” However, the Court also recognized that “the Bible may constitutionally be used in an appropriate study of history, civilization, ethics, comparative religion or the like.” Thus, while there is no prohibition against schools teaching about religion as part of a secular program of education, public schools may not provide religious instruction or advocate any particular religious viewpoint. School officials should keep in mind that although the First Amendment forbids government-sponsored religious activity, it also protects religious activity that is initiated by private individuals, including students. According to the Supreme Court, "there is a crucial difference between government speech [and actions] endorsing religion, which the Establishment Clause forbids, and private speech [and actions] endorsing religion, which the Free Speech and Free Exercise Clauses protect.” For example, although teachers may not lead their students in prayer or require them to participate in religious activities, students have a right to pray or study religious materials to the same extent that they are permitted to engage in nonreligious activities. Also, while school districts may impose rules and restrictions on student activities, schools may not discriminate against student prayer or religious speech in applying those rules and restrictions. Finally, as districts prepare for the new school year, we remind you that South Carolina’s “Religion In Public Schools Act” (S.C. Code § 59-17-140) requires districts to conduct annual in-service training regarding religion and public school operations. The law contains a list of issues that must be addressed during this annual training. Teachers and administrators who have completed the training need only receive annual updates on new developments regarding religion in schools. If you have any questions or if you would like assistance in preparing or presenting your district’s in-service, please contact us at 1.800.639.1677. Past Issues of the Month may be accessed at www.ddtwb.com
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