Religion in Schools


Edited by: Charles J. Russo & Allan G. Osborne Jr.

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    Charles J. Russo, University of Dayton

    Allan G. Osborne, Jr., Principal (Retired), Snug Harbor Community School, Quincy, Massachusetts

    Volume Editor

    Charles J. Russo, University of Dayton

    Advisory Board

    Francine DeFranco, Homer Babbidge Library, University of Connecticut

    Ralph D. Mawdsley, Cleveland State University

    Martha M. McCarthy, Loyola Marymount University and Indiana University

    Mark E. Shelton, Monroe C. Gutman Education Library, Harvard University


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    About the Editors-in-Chief

    Charles J. Russo, JD, EdD, is the Joseph Panzer Chair in Education in the School of Education and Allied Professions and adjunct professor in the School of Law at the University of Dayton. He was the 1998–1999 president of the Education Law Association and 2002 recipient of its McGhehey (Achievement) Award. He has authored or coauthored more than 200 articles in peer-reviewed journals; has authored, coauthored, edited, or coedited 40 books; and has in excess of 800 publications. Russo also speaks extensively on issues in education law in the United States and abroad.

    Along with having spoken in 33 states and 25 nations on 6 continents, Russo has taught summer courses in England, Spain, and Thailand; he also has served as a visiting professor at Queensland University of Technology in Brisbane and the University of Newcastle, Australia; the University of Sarajevo, Bosnia and Herzegovina; South East European University, Macedonia; the Potchefstroom Campus of North-West University in Potchefstroom, South Africa; the University of Malaya in Kuala Lumpur, Malaysia; and the University of São Paulo, Brazil. He regularly serves as a visiting professor at the Potchefstroom Campus of North-West University.

    Before joining the faculty at the University of Dayton as professor and chair of the Department of Educational Administration in July 1996, Russo taught at the University of Kentucky in Lexington from August 1992 to July 1996 and at Fordham University in his native New York City from September 1989 to July 1992. He taught high school for 8½ years before and after graduation from law school. He received a BA (classical civilization) in 1972, a JD in 1983, and an EdD (educational administration and supervision) in 1989 from St. John's University in New York City. He also received a master of divinity degree from the Seminary of the Immaculate Conception in Huntington, New York, in 1978, as well as a PhD Honoris Causa from the Potchefstroom Campus of North-West University, South Africa, in May 2004 for his contributions to the field of education law.

    Russo and his wife, a preschool teacher who provides invaluable assistance proofreading and editing, travel regularly both nationally and internationally to Russo's many speaking and teaching engagements.

    Allan G. Osborne, Jr. is the retired principal of the Snug Harbor Community School in Quincy, Massachusetts, a nationally recognized Blue Ribbon School of Excellence. During his 34 years in public education, he served as a special education teacher, a director of special education, an assistant principal, and a principal. He has also served as an adjunct professor of special education and education law at several colleges, including Bridgewater State University and American International University.

    Osborne earned an EdD in educational leadership from Boston College and an MEd in special education from Fitchburg State College (now Fitchburg State University) in Massachusetts. He received a BA in psychology from the University of Massachusetts.

    Osborne has authored or coauthored numerous peer-reviewed journal articles, book chapters, monographs, and textbooks on legal issues in education, along with textbooks on other aspects of education. Although he writes and presents in several areas of educational law, he specializes in legal and policy issues in special education. He is the coauthor, with Charles J. Russo, of five texts published by Corwin, a SAGE company.

    A past president of the Education Law Association (ELA), Osborne has been an attendee and presenter at most ELA conferences since 1991. He has also written a chapter now titled “Students With Disabilities” for the Yearbook of Education Law, published by ELA, since 1990. He is on the editorial advisory committee of West's Education Law Reporter and is coeditor of the “Education Law Into Practice” section of that journal, which is sponsored by ELA. He is also on the editorial boards of several other education journals.

    In recognition of his contributions to the field of education law, Osborne was presented with the McGhehey Award by ELA in 2008, the highest award given by the organization. He is also the recipient of the City of Quincy Human Rights Award, the Financial Executives Institute of Massachusetts Principals Award, the Junior Achievement of Massachusetts Principals Award, and several community service awards.

    Osborne spends his time in retirement writing, editing, and working on his hobbies, genealogy and photography. He and his wife Debbie, a retired elementary school teacher, enjoy gardening, traveling, attending theater and musical performances, and volunteering at the Dana Farber Cancer Institute in Boston.

    About the Volume Editor

    Charles J. Russo, JD, EdD, is the Joseph Panzer Chair in Education in the School of Education and Allied Professions and adjunct professor in the School of Law at the University of Dayton. He has authored or coauthored more than 200 articles in peer-reviewed journals; authored, coauthored, edited, or coed-ited 40 books; and has more than 800 publications.

    Before joining the faculty at the University of Dayton as professor and chair of the Department of Educational Administration in July 1996, Russo taught at the University of Kentucky in Lexington and at Fordham University in New York City. He earned a BA degree in classical civilization in 1972, a JD degree in 1983, and an EdD degree in educational administration and supervision in 1989, all from St. John's University in New York City. He also earned a master of divinity degree from the Seminary of the Immaculate Conception in Huntington, New York, in 1978.

    About the Contributors

    Aaron Cooley received his PhD from the University of North Carolina at Chapel Hill. He teaches public policy at New England College. His work has been published in the Southern California Interdisciplinary Law Journal, Law and Politics Book Review, Educational Studies, and Journal of Educational Policy.

    Amanda Harmon Cooley is an assistant professor of law at South Texas College of Law. She earned her JD and BA from the University of North Carolina at Chapel Hill.

    Luke M. Cornelius is an associate professor of educational leadership at the University of North Florida. He teaches and researches in the areas of education law, school finance, educational policy and politics, and sports law.

    Allison S. Fetter-Harrott is an assistant professor of political science at Franklin College, in Franklin, Indiana. Her research interests include public school anti-harassment measures, free speech, and the interplay between public schools and the First Amendment's religion clauses.

    Michelle Gough McKeown is the assistant director of legal affairs at the Indiana Department of Education. She is currently at the dissertation stage of her graduate coursework in education policy and leadership at Indiana University School of Education. She earned her JD from Indiana University– Bloomington Maurer School of Law in 2006 and her BA in English literature from DePauw University in 2003. She has practiced education law at the law firm of Deatherage, Myers & Lackey in Hopkinsville, Kentucky.

    Courtney Hagele graduated from The Ohio State University. In 2010 she received a JD from the University of Dayton School of Law. Hagele began her legal career at WilmerHale and continued on to practice law in Columbus, Ohio.

    Adam C. Hyde is an educator from the School District of Osceola County, Florida. He received his BA from Southeastern University in Lakeland, Florida, and his MEd from the University of Dayton in Dayton, Ohio. In his spare time, he enjoys studying education law and politics.

    William Jeynes, senior fellow at the Witherspoon Institute in Princeton, New Jersey, and professor of education at California State University, Long Beach, graduated first in his class from Harvard University. He has spoken for the G. W. Bush and Obama administrations and several government departments. He was the architect of the economic and education stimulus package that passed the Korean parliament to recover from the 1997–1998 Asian economic crisis. He has more than 100 academic publications.

    Brenda Kallio is currently an associate professor at the University of North Dakota where she teaches courses in public school law and special education law. Her research interests include legal/ethical decision making, the legal knowledge base of school administrators, and the First Amendment as it applies to teacher freedoms.

    James L. Mawdsley received his BA from Yale University, an MA in English from Kent State University, and a JD from Cleveland-Marshall School of Law. He currently is an English instructor at Stark State College. He is a member of the Education Law Association and the Australia and New Zealand Education Law Association. He has authored or coauthored numerous publications, including the “Employees” chapter of the Yearbook of Education Law.

    Ralph D. Mawdsley holds a JD from the University of Illinois and a PhD from the University of Minnesota. He has authored over 500 publications on the subject of education law. Mawdsley was president of the Education Law Association in 2001 and was awarded that organization's Marion A. McChehey Award in 2004. He has received two Fulbright Awards, one to South Africa and one to Australia.

    Martha McCarthy is a professor in the School of Education at Loyola Marymount University and was former Chancellor's Professor and chair of the Educational Leadership and Policy Studies Department at Indiana University, specializing in educational law and policy. She has served as president of the Education Law Association (ELA) and the University Council for Educational Administration (UCEA) and as vice president for Division A of the American Educational Research Association. She has received ELA's McGhehey Award for Contributions to School Law and UCEA's Campbell Lifetime Achievement Award.

    Debra Miretzky is an assistant professor in the Educational and Interdisciplinary Studies Department at Western Illinois University in Macomb, Illinois. She teaches education law and policy and social foundations courses for teacher candidates, and she is interested in the impact of such courses on teachers and their work in the classroom.

    Jane P. Novick is a January 2012 graduate of the University of Dayton School of Law. Prior to entering law school she earned a BA from Barnard College and an MA in international affairs from Columbia University. She worked as an economist at the Federal Reserve Bank on New York. For the past 25 years, she has been an advocate for the disabled.

    Ally Ostrowski is the director of institutional research and assessment at Rocky Mountain College of Art + Design (RMCAD) in Denver, Colorado. She is also an adjunct instructor of world belief systems as well as social psychology for the Department of Liberal Arts at RMCAD.

    Emily Richardson is a PhD candidate in education policy at Indiana University–Bloomington School of Education. She received her JD from Indiana University Maurer School of Law.

    Robert J. Safransky is adjunct professor of school law and American government at Nova Southeastern University. He received a BA from St. Francis, an MA from Stetson University, and a PhD from Florida State University. He has worked as a high school teacher, junior high school and adult vocational school principal, and central office administrator.

    Maureen Bridget Sexton is coordinator of integrated learning and living and a lecturer in the Department of English at the University of Dayton, where she is also pursuing her doctorate in educational leadership. She taught high school for Miamisburg City Schools for 9 years, where she acted as the theater director.

    Kathryn Shields began her legal career at the University of Dayton School of Law. In November 2010, she was admitted to practice law in the state of Illinois.

    Amy Steketee is an attorney at Baker & Daniels in South Bend, Indiana, where she practices school law as well as labor and employment law. Steketee has authored or coauthored numerous articles on school law topics. Prior to working as an attorney, Steketee was a high school teacher and guidance counselor. She earned her MEd and her JD from Indiana University.

    Kiera M. Sullivan has earned a BS in business administration from the University of Dayton and a JD from the University of Dayton School of Law. She is employed as an attorney at Elsass, Wallace, Evans, Schnelle & Co., LPA in Sidney, Ohio.

    Lindsey Swanson is an associate attorney at Haller and Colvin, PC. Prior to working as an attorney, she was the judicial law clerk to Judge Nancy E. Boyer and Judge David J. Avery in the Allen County Superior Court in Fort Wayne, Indiana.

    William E. Thro is university counsel and associate professor of constitutional studies at Christopher Newport University, a public liberal arts university in Newport News, Virginia. In addition to serving as solicitor general of Virginia from 2004 to 2008, he has written extensively on constitutional law in educational contexts.

    Mario S. Torres, Jr., is an associate professor in educational administration at Texas A&M University. He earned his PhD in educational administration from Penn State University and specializes in education law and policy. Torres has published in the field's premier journals including Educational Administration Quarterly and Journal of Educational Administration.

    Regina R. Umpstead is an assistant professor at Central Michigan University where she teaches K–12 and higher education law. Her research interests are in K–12 law and policy and have included work on federal education funding, special education, charter schools, and teacher employment practices.

    James Van Patten served as professor of education at Central Missouri State University, Warrensburg, and the University of Arkansas, Fayetteville, and adjunct at Florida Atlantic University. Currently an independent scholar, he has authored and coauthored a number of books and has published many articles in educational periodicals.


    The opening 16 words of the First Amendment to the Constitution have generated more litigation involving elementary and secondary schools, whether public or nonpublic, than any other words in the Constitution. According to the opening two provisions in the First Amendment, known as the Establishment and Free Exercise Clauses, respectively, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof….” The Supreme Court eventually applied the Free Exercise Clause to the states through the Fourteenth Amendment in Cantwell v. Connecticut (1940), wherein it invalidated the convictions of Jehovah's Witnesses who violated a state statute against soliciting funds for religious, charitable, or philanthropic purposes unless they had the prior approval of public officials. The Court subsequently extended the Establishment Clause to the states in Everson v. Board of Education (1947), a case that is discussed below.

    As simple and straightforward as the words of the First Amendment Religion Clauses—as they are also often referred to—appear to be, the vast amount of litigation that they have spawned demonstrates that they are anything but clear. Further, turning to history for answers by reviewing the attitudes of the Founding Fathers is less than helpful because their attitudes ran the gamut. An intellectually diverse group of thinkers, the Founders included a range of views among their ranks. One group of Founders supported state aid to religious institutions as long as the nation did not establish a national church as in England. The other main group of Founders shared the perspective expressed in a metaphor made popular by Thomas Jefferson when he called for the erection of a “wall of separation,” words that are not in the Constitution, between church and state in a private letter to the Danbury Baptist Convention in 1802. His association with this metaphor notwithstanding, Jefferson never challenged his native Virginia's practice of providing public funding for churches during his lifetime.

    The Supreme Court, the final arbiter of all things constitutional in the United States, has often adopted the Jeffersonian perspective when dealing with matters of state-sponsored prayer and religious activities in public schools, issues occupying a prominent role in this volume. Yet, the Court has adopted a more flexible approach when examining cases involving aid to students who attend religiously affiliated nonpublic schools, the subject of the first two debates in this book and other essays scattered throughout this 10-volume set.

    In its early opinions—most notably its first-ever case on religion and education under the Establishment Clause, Everson v. Board of Education (1947), involving transportation for students in nonpublic schools, an issue discussed below; and People of the State of Illinois ex rel. McCollum v. Board of Education of School District No. 71, Champaign County (1948), a controversy over religious instruction in public schools, subject of another debate in this volume—the Supreme Court chose not to develop precise judicial tests. Instead, the Court preferred to speak broadly of not permitting preferences in favor of or opposed to religion. However, as the Court continued to examine disagreements associated with religion and schools, it has typically applied one of three tests, the first of which stands out most prominently.

    Under the test that the Supreme Court enunciated in Lemon v. Kurtzman (1971), a dispute involving government aid to religiously affiliated nonpublic schools,

    Every analysis in this area must begin with consideration of the cumulative criteria developed by the Court over many years. Three such tests may be gleaned from our cases. First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion; finally, the statute must not foster “an excessive government entanglement with religion.” (pp. 612–613)

    Although Lemon has been applied in well over two dozen Supreme Court cases, and a vast array of lower court judgments, it has created no end of controversy because its first two parts, or prongs, as they are typically called, were developed in a very different context from the third. The first two prongs of the Lemon test emerged in companion cases from Pennsylvania and Maryland, respectively, forbidding prayer and Bible reading in public schools (School District of Abington Township v. Schempp and Murray v. Curlett, 1963). The third prong of the Lemon test emerged in a nonschool dispute upholding New York's practice of granting state property tax exemptions for church property that was used in worship services (Walz v. Tax Commission of New York City, 1970). However, the Lemon test has been less than effective in many cases involving schools, not fitting squarely with the facts in disputes because, as school officials and legislators learned to develop policies and laws that can get past its first two prongs, they were often tripped up by its malleable third prong.

    As the Lemon test became increasingly unworkable, the Supreme Court developed two other standards for use in cases involving religion. In Lynch v. Donnelly (1984), a nonschool case from Rhode Island upholding the inclusion of a nativity scene in a Christmas display on public property, a plurality of the Court—meaning that insofar as a majority of judges failed to agree on the same rationale, it is not binding precedent that must be followed in all cases—discussed what is known as the endorsement test when dealing with religious activity in public settings. This test considers whether governmental actions endorse or approve religion or religious activities. Later, in Lee v. Weisman (1992), another case from Rhode Island, this one prohibiting prayer at public school graduation ceremonies, the Court enunciated the psychological coercion test when addressing prayer in schools. Under this test, the actions of school officials can be invalidated if they coerce others, either directly or indirectly, to be exposed to or participate in religious activities.

    Against this brief overview of the expansive issues involving religion and education in elementary and secondary schools, the debates in this volume can be grouped into five broad categories, the first of which focuses on aid to students in religiously affiliated nonpublic schools. The remaining four categories of debates examine issues of importance in public schools, especially in light of how they are becoming increasingly religiously diversified; these debates deal with prayer and devotional concerns, curricular and instructional questions, controversies surrounding access to facilities and the distribution of religious materials in schools, and religious dress by students and faculty.

    Issues Involving Religion and Education
    Aid for Students in Religiously Affiliated Nonpublic Schools

    Since the Supreme Court's first case on the merits of the relationship between the Establishment Clause and education involved state aid to students who attended religiously affiliated nonpublic schools, an examination of its parameters serves as a fitting start to a volume of debates about the relationship between religion and education. The first debate examines the controversy originating in Everson v. Board of Education (1947), a case from New Jersey. In upholding a state statute that permitted local school boards to develop policies to reimburse parents for the costs of transporting their children to religiously affiliated nonpublic schools, the Court created what is commonly referred to as the child benefit test, a legal construct. According to this test, aid is permissible because it flows to the students (and their parents), not their religiously affiliated nonpublic schools. Interestingly, Justice Black's majority opinion introduced the “wall of separation” metaphor as a kind of Trojan Horse because even though the Court upheld the program, this Jeffersonian reference has since been applied in a multitude of cases either denying aid to religiously affiliated nonpublic schools or forbidding what courts have identified as state-sponsored religious activities in educational settings.

    Thirty years later, the Supreme Court addressed the related question of transportation for school field trips. In Wolman v. Walter (1977), the Court struck down a law from Ohio that allowed public funds to be used to provide transportation for field trips for children who attended religiously affiliated nonpublic schools. The Court was of the view that insofar as field trips were curricular in nature, they impermissibly focused on instruction, a matter that went to the heart of the missions of the religious schools, rather than the non-ideological secular service of transportation to and from school.

    The debates on transportation adopt opposite positions on whether public funds should be used to help children travel to their religiously affiliated non-public schools. The point essay, in favor of transportation, maintains that in light of the value that religious schools have provided to the United States over the years, their students should continue to receive publicly funded transportation. The counterpoint essay relies on judicial analyses and public policy positions in arguing that providing transportation violates the Establishment Clause while placing unnecessary financial burdens on public school budgets.

    Textbooks and Instructional Materials

    Twenty-one years after Everson, the Supreme Court again relied on the child benefit test in Board of Education v. Allen (1968). Here the Court upheld the constitutionality of a law from New York that required local school boards to loan books used in instruction about secular subjects to children in grades 7 to 12 who attended religiously affiliated nonpublic schools. The Court subsequently upheld similar laws in Meek v. Pittenger (1975) and Wolman v. Walter (1977), cases from Pennsylvania and Ohio, respectively. Later, in a case from Louisiana, a plurality in Mitchell v. Helms (2000a) explicitly struck provisions in Meek and Wolman that had declared unconstitutional loans of various instructional materials such as library books.

    The point essay argues that insofar as the Constitution does not bar such loans, coupled with the fact that programs of this type help reduce crowding in public schools while enhancing school choice, they should be permitted to remain in effect. Conversely, the counterpoint essay takes the position that allowing the use of public funds in this way should be discouraged because it assists in the religious missions of these nonpublic schools.

    Prayer and Other Religious Activities in Public Schools

    The remaining debates in this book address an array of contentious topics with regard to religion that have been litigated in connection with disputes in public schools.

    Prayer-Devotional Issues
    Student Prayer at Graduations

    A controversial, but unresolved, topic that remains even after the Supreme Court prohibited school-sponsored graduation prayer in Lee v. Weisman (1992) is whether students can select individuals to pray at their public school graduation ceremonies. Later, a case from Texas involved a dispute over a policy that allowed prayer both at graduation and prior to the start of high school football games. Without explaining why, the Court declined the opportunity to resolve the lack of clarity about graduation prayer in Doe v. Santa Fe Independent School District (2000). Yet, the Court did invalidate prayer prior to the start of high school football games and, by extension, other school-related activities.

    The point essay asserts that insofar as a great deal of the anti-prayer jurisprudence evidences hostility toward religion, it amounts to little more than public endorsement of disrespect and intolerance. This essay comments that completely removing student-initiated prayer from graduation ceremonies results in the total separation of public schools from their historic connection to religion with the message that religion is of no consequence. The counterpoint essay replies that insofar as the Establishment Clause prohibits religious influences in public schools, vulnerable students should not be made to feel uncomfortable or torn between adhering to their own beliefs and participating in activities where prayers are from faiths other than those which they profess. It would be better, the counterpoint concludes, for students to exercise their rights by freely practicing their faiths outside of public schools.

    Teacher Prayer

    Absent a controlling precedent from the Supreme Court, the next set of debates spars over whether teachers should be able to pray in public schools. The point essay contends that insofar as there are no constitutional prohibitions against teacher prayer, it is sound public policy to permit teachers to pray in their schools as a means of helping foster a sense of appreciation for religious diversity. The counterpoint essay retorts that in light of the Court's having largely adopted the Jeffersonian metaphor calling for a wall of separation between church and state in public schools, teacher prayer both violates the First Amendment and may coerce students to accept religious beliefs with which they do not agree.

    Moments of Silence

    In its only case on the merits of the issue, Wallace v. Jaffree (1985), the Supreme Court invalidated a statute from Alabama calling for a period of silence at the start of the school day for meditation or voluntary prayer on the basis that it lacked a secular legislative purpose. However, four federal circuit courts have since upheld laws calling for moments of silence because they were able to avoid placing too much emphasis on prayer in their provisions.

    With both sides of the debate essentially having relied on the same cases, the point essay is satisfied that carefully crafted moment of silence laws should be permitted because they are valid secular activities that have passed Establishment Clause analysis in serving legitimate secular purposes in helping to prepare students for their school days. At the heart of its response, the counterpoint essay declares that moments of silence should not be permitted because they are more likely to be legal or political statements rather than activities designed to enhance the quality of public education.

    Teacher Bible or Sacred Text Reading in Schools

    In the only reported case of its kind to date, the Tenth Circuit, in Roberts v. Madigan (1990), affirmed that a public school teacher in Colorado had to refrain from silently reading his Bible as he walked around his classroom while his students were quietly reading their own materials. In a debate that is expanded to include the Bible and other sacred texts, the point essay argues that public school teachers should be free to read the Bible or other sacred texts in their public schools as long as they are doing so of their own free will. Conversely, the counterpoint essay indicates that public school teachers should not be allowed to read their sacred texts in the presence of students because their doing so runs the risk of coercing children to share their beliefs in violation of the First Amendment.

    Religious or Sacred Music and Celebrations in Public Schools

    A potentially explosive topic that has generated a fair amount of litigation but has yet to reach the Supreme Court concerns whether officials in public schools can use religious or sacred music and celebrations in public schools. The point essay opines that religious or sacred music should be allowed in public schools because it can contribute a great deal to their secular educational mission by helping students learn valuable lessons about significant historical periods and events as well as about different cultural and national groups. On the other hand, the counterpoint essay rejects the use of religious music. This essay maintains that using religious music would protect the rights of students of minority religions while not devoting valuable time for religious rather than academic purposes, thereby making schools more inviting for all, regardless of their religious beliefs or lack thereof.

    Religious Symbols in Public Schools

    In its only case directly involving schools, Stone v. Graham (1981), the Supreme Court employed Establishment Clause analysis to invalidate Kentucky's practice of displaying the Ten Commandments in all public schools in the commonwealth. The Court subsequently reached mixed results in nonschool cases even as lower courts continue to struggle with this issue.

    The point essay supports the position that officials in public schools should be able to allow displays of religious symbols because they can have the legitimate secular goal of promoting respect for diverse cultures. Yet, the counterpoint essay posits that such displays should be prohibited because they violate the Establishment Clause by typically advancing the beliefs of the majority religions without taking the values of minority faiths or nonbelievers into consideration.

    “Under God” in the Pledge of Allegiance

    Controversy over whether students should be required to participate in the Pledge of Allegiance to the flag, without the words “under God,” made its way to the Supreme Court twice. In a third case, the Court sidestepped the merits of whether students can be expected to participate if they or their parents object to the inclusion of the words “under God.”

    In Minersville School District v. Gobitis (1940), the Supreme Court initially upheld a school board in Pennsylvania's punishment of students who refused to participate in the Pledge because doing so violated their beliefs as Jehovah's Witnesses. However, 3 years later, in another case involving Jehovah's Witnesses, West Virginia State Board of Education v. Barnette (1943), the Court upheld an injunction prohibiting the board from enforcing a state statute requiring all students to participate in the recitation of the Pledge in interpreting as preventing the state from requiring citizens to do so. After the words “under God” were introduced into the Pledge, a series of cases that reached mixed results led to the Supreme Court's ruling Elk Grove Unified School District v. Newdow (2004). In Elk Grove, the Court avoided the Constitutional question in finding that insofar as a non-father lacked standing, or the ability to file suit under California law, to make educational decisions for his daughter, his case could not proceed. The Ninth Circuit, from whence Elk Grove originated, has since joined other federal courts in upholding the constitutionality of the disputed words, apparently placing the legal controversy to rest for the present (Newdow v. Rio Linda Union School District, 2010).

    The fact that the courts seem to have agreed about the constitutionality of the words “under God” in the Pledge does not mean that controversies ended in school settings. The point essay thus posits that insofar as the inclusion of the words “under God” in the Pledge is not an assertion of faith in God or religion, students should participate in its recitations as part of their American heritage. The counterpoint essay answers that the mandatory daily recitation of the Pledge of Allegiance violates the First Amendment rights of students such that they should be free not to participate in its recitation if they object on religious or other grounds.

    Curricular-Instructional Issues
    Released Time for Religious Instruction

    In its first case directly involving religious activity in public schools, People of the State of Illinois ex rel. McCollum v. Board of Education of School District No. 71, Champaign County (1948), the Supreme Court invalidated a local school board's practice of allowing Roman Catholic priests, Protestant ministers, and Jewish rabbis to enter public schools to provide religious instruction for children whose parents consented to having their children attend such classes. The Court ruled that this practice violated the Establishment Clause because allowing tax-supported public school buildings to be used to disseminate religious doctrine impermissibly gave religious groups invaluable aid in violation of the Establishment Clause.

    The point essay maintains that insofar as Americans are a religious people, public school boards should accommodate the wishes of parents by allowing their children to be released from classes so that they could have the opportunity to receive religious instruction. Echoing McCollum, the counterpoint essay disagrees in contending that the practice of released time should be forbidden because it violates the Establishment Clause not only by entangling public schools with religion but also by aiding in its advancement.

    Bible and Other Sacred Texts as Literature

    In School District of Abington Township v. Schempp and Murray v. Curlett (1963), the Supreme Court forbade educational officials from starting school days with Bible readings and prayer. Yet, even as it prohibited Bible reading, in nonbinding dicta the Court left the door open for later controversy in conceding that

    [i]t certainly may be said that the Bible is worthy of study for its literary and historic qualities. Nothing we have said here indicates that such study of the Bible or of religion, when presented objectively as part of a secular program of education may not be effected consistently with the First Amendment. (p. 225)

    As could have been expected, the Supreme Court's remark led to additional litigation, the subject of which is the topic of this debate over whether public school boards should be able to offer courses on the Bible and other sacred texts as literature. The point essay focuses almost exclusively on the Bible because it has been in the topic of all but one of the cases on this issue, taking the position that school boards should be free to offer such classes. In acknowledging that many of its arguments could be used to justify teaching about other sacred texts, the point observes that given its influential place in history, one cannot be considered well educated or well-rounded without knowledge of the Bible that could be gained from such classes. Conversely, in a largely legal response, the counterpoint essay notes that in addition to the weight of litigation forbidding teaching of the Bible and other sacred texts, related concerns can arise over such issues as teacher certification and course content. The counterpoint essay contends that these legal issues, plus concerns for students whose faiths were not studied, should lead to the result that public school boards not be allowed to offer classes on the Bible or other sacred texts as literature.

    Evolution—Creation Science/Intelligent Design

    A dispute that has generated litigation since Scopes v. State (1925), otherwise known as the Scopes Monkey Trial in Dayton, Tennessee, the question of the origins of humankind has twice made its way to the Supreme Court. In Epperson v. Arkansas (1968), the Court invalidated a state statute because it failed to comply with the recently created judicial test from Abington, which not only required the state to avoid any practice that aids or opposes any religion but also cautions it to avoid any enactment that has a purpose and primary effect that neither advances nor inhibits religion. Of course, these points became the first two prongs of the Lemon test. Subsequently, in Edwards v. Aguillard (1987), the Court struck down a law from Louisiana that forbade the teaching of “evolution-science” in public elementary and secondary schools unless accompanied by instruction on “creation-science.” The Court reasoned that the law was unconstitutional because it violated the first prong of the Lemon test insofar as it lacked a secular purpose. Even after these cases were litigated, controversy about the origins of humankind continues.

    Faced with this ongoing controversy about human origins, the point essay writes that as long as the goals of public education include teaching students to be open-minded and exposing them to a variety of perspectives, then teachers should be able to present competing theories about the origins of humankind. The point essay argues that educators should allow students to think for themselves and make up their own minds.

    The counterpoint essay takes the opposite position, relying on two points. First, the essay acknowledges that case law has long interpreted such teaching as violating the Establishment Clause as a form of religious belief. Second, the essay points out that insofar as creation science and intelligent design are not science, teaching these theories would undercut strong science and technology pedagogy in schools.

    School Calendars and Religious Holidays

    An issue that has generated some litigation and that is likely to become increasingly contentious as the United States becomes more religiously diverse is whether school systems accommodate the requests of parents of minority religions to modify their academic calendars to allow their children to celebrate the religious holidays of their faiths.

    Mixed results in litigation give rise to differing perspectives in these debates. The point essay asserts that as long as educational officials can demonstrate that taking religious holidays into account in developing school calendars is in response to legitimate secular purposes such as addressing religious diversity, then they should be able to do so under Establishment Clause analysis. Conversely, the counterpoint essay is of the view that in light of their duty to focus on students’ educational needs, combined with the chance that taking some, but not all, religions into account when setting school calendars can lead to strife, educators should ignore religious holidays when devising school calendars.

    Access to and Distribution of Literature in Public Schools
    Access by Religious Clubs

    In Board of Education of Westside Community Schools v. Mergens (1990), a case from Nebraska, the Supreme Court resolved the split between the federal circuit courts and upheld the constitutionality of the Equal Access Act. Under this act, student-sponsored religious clubs are free to meet in public secondary schools that receive federal financial aid during noninstructional time but that they are subject to an array of limitations, such as being nondisruptive and limiting the involvement of adults from outside of their schools. Even so, controversy remains over the issue of access by religious groups.

    The point essay takes the position that insofar as the act is working as it was designed to, in granting religious clubs equal, but not greater, access to public facilities than other organizations, it should not be changed. Conversely, the counterpoint essay examines the gaps in the Equal Access Act, suggesting that it has, in fact, significantly limited the access right of religious clubs to public school facilities.

    Access by Nonschool Religious Groups

    An issue that has led to two Supreme Court cases in elementary and secondary school settings is whether nonschool religious groups should be allowed to use public school facilities. In two cases from New York, Lamb's Chapel v. Center Moriches Union Free School District (1993, 1994), which involved a group that sought to rent facilities to show a religious film series, and Good News Club v.Milford Central School (2001), wherein a mother started a religious club for students after school hours had ended, the Court held that officials could not deny them access to facilities on the same basis as other groups.

    The point essay agrees with the Supreme Court's position in these cases, explaining that granting such access is pedagogically important and constitutionally required because it helps demonstrate that religious believers, including students, are not second-class citizens. The counterpoint essay responds that pursuant to constitutional principles, board officials must be careful not to appear to sanction religious activities lest they find themselves embroiled in controversies from critics on both sides of the issue.

    Distribution of Religious Materials

    In addition to access to facilities, as reflected by the two debates in this chapter (Chapter 16), litigation has raged over whether religious groups can distribute their materials in public schools. The point essay maintains that the religious speech contained in the materials that groups wish to distribute on campuses should be entitled to the same protection as other kinds of speech. The counterpoint essay responds that insofar as school officials should focus on their duty to educate their students rather than allow them to be treated as captive audiences for those wishing to distribute religious materials, this practice should be forbidden.

    Religious Dress
    Should Students be Allowed to Wear Distinctive Religious Garb in Public Schools?

    In the first of two sides of the same coin over distinctive religious garb in public schools, the point essay posits that students should be able to express their religious faiths in what they wear to their public schools. The essay remarks that students should be free to dress as they wish because allowing them to do so would be consistent with the constitutional rights to freedom of religion and speech that go to the heart of what it means to be American.

    The counterpoint essay begins by noting that American schools have not always been welcoming to religions other than Christianity. Aware of this situation, coupled with the need to avoid religious intolerance that can lead to strife, the essay maintains that public schools should be religion-free zones to help ensure student safety, and thus students should not be able to wear distinctively religious garb to their schools.

    Should Teachers be Allowed to Wear Distinctive Religious Garb in Public Schools?

    As to whether school personnel ought to be permitted to wear distinctively religious garb to public schools, the point essay maintains that teachers should have the right to do so. This essay concedes that statutes and case law forbidding teachers from wearing religious garb in public schools have a noble purpose, namely, protecting children from indoctrination while encouraging religious neutrality. Even so, the debate questions whether these prohibitions really accomplish their goals absent evidence to the contrary, concluding that teachers should be free to dress as they wish.

    The counterpoint essay responds that the need for school boards to preserve religious neutrality and nonendorsement, meaning that they should neither favor one religion over another nor seek to endorse one as the official religion, restricts public school teachers, such that school boards can forbid teachers to wear distinctively religious garb. According to this essay, since public employment is a privilege and not a right, and since teachers lack the same range of rights as children, teachers cannot use their positions to interfere with the rights of their students by engaging in activities that may evangelize or proselytize specific faiths.


    As with so many topics involving constitutional questions, disputes over the relationship between religion and education, particularly concerning aid to religiously affiliated nonpublic schools and religious activities in public schools, are likely to continue to multiply as the United States becomes an increasingly religiously diversified nation. Of course, it should not be surprising that many seek to avoid conflict and controversy to establish schools as relatively tranquil places where students can learn. Yet, as reflected by the central role that religion played, and continues to play, in the history and development of the United States and the American people, some conflict on such a core national value is inevitable. Still, the topics that are debated in this volume and other volumes in the Debating Issues in American Education series reflect one of the many strengths of the American way of life, namely, that members of various communities may disagree strongly with one another on an array of topics, with this volume focusing on the role of religion in schools, and often make their way to court to seek redress. Yet, as strongly as individuals and communities may disagree over these crucial questions, they ultimately follow the rule of law to resolve their differences. As legal controversies over the place, if any, that religion might occupy in public education are bound to continue, perhaps the only certainty is that litigation is unlikely to abate on this important topic in the foreseeable future.

    Charles J.RussoUniversity of Dayton
    Further Readings and Resources
    Mawdsley, R. D. (2004). Access to public school facilities for religious expression by students, student groups and community organizations: Extending the reach of the Free Speech Clause. Brigham Young University Education and Law Journal, 2004(2), 269–299.
    Mawdsley, R. D. (2005). The profane, the offensive, and the religious: The use of Hazel-wood to prohibit religious activity in public schools. Education Law Reporter, 195, 425–441.
    Mawdsley, R. D. (2009). The rise and fall of constitutionally protected religious speech in the United States. International Journal of Law and Education, 14, 71–91.
    McCarthy, M. M. (2000). Religion and education: Whither the Establishment Clause?Indiana Law Journal, 75, 123–166.
    McCarthy, M. M. (2001). Preserving the Establishment Clause: One step forward and two steps back. Brigham Young University Education and Law Journal, 2001(2), 271–298.
    McCarthy, M. M. (2004). Religious influences in public schools: The winding path toward accommodation. St. Louis University Public Law Review, 23, 565–596.
    Russo, C. J. (2000). Prayer and public school activities: An enduring controversy. Religion & Education, 27(1), 46–52.
    Russo, C. J. (2006). Of Baby Jesus and the Easter Bunny: Does Christianity still have a place in the educational marketplace of ideas in the United States?Education and Law Journal, 16(1), 61–81.
    Russo, C. J. (2008). Judicial “hostility to all things religious in public life” or healthy separation of religion and public education?Religion & Education, 35(2), 78–94.
    Court Cases and Statutes

    Board of Education of Westside Community Schools v. Mergens, 496 U.S. 226 (1990).

    Board of Education v. Allen, 392 U.S. 236 (1968).

    Cantwell v. Connecticut, 310 U.S. 296 (1940).

    Doe v. Santa Fe Independent School District, 530 U.S. 290 (2000).

    Edwards v. Aguillard, 482 U.S. 578 (1987).

    Elk Grove Unified School District v. Newdow, 542 U.S. 1 (2004).

    Epperson v. Arkansas, 393 U.S. 97 (1968).

    Everson v. Board of Education, 330 U.S. 1 (1947), reh'g denied, 330 U.S. 855 (1947).

    Good News Club v. Milford Central School, 533 U.S. 98 (2001).

    Lamb's Chapel v. Center Moriches Union Free School District, 508 U.S. 384 (1993), on remand, 17 F.3d 1425 (2d Cir. 1994).

    Lee v. Weisman, 505 U.S. 577 (1992).

    Lemon v. Kurtzman, 403 U.S. 602 (1971).

    Lynch v. Donnelly, 465 U.S. 668 (1984).

    Meek v. Pittenger, 421 U.S. 349 (1975).

    Minersville School District v. Gobitis, 310 U.S. 586 (1940).

    Mitchell v. Helms, 530 U.S. 793 (2000a), reh'g denied, 530 U.S. 1296 (2000b), on remand sub nom. Helms v. Picard, 229 F.3d 467 (5th Cir. 2000c).

    Newdow v. Rio Linda Union School District, 597 F.3d 1007 (9th Cir. 2010).

    People of the State of Illinois ex rel. McCollum v. Board of Education of School District No. 71, Champaign County, 333 U.S. 203 (1948).

    Roberts v. Madigan, 921 F.2d 1047 (10th Cir. 1990), cert. denied, 505 U.S. 1218 (1992).

    School District of Abington Township v. Schempp and Murray v. Curlett, 374 U.S. 203 (1963).

    Scopes v. State, 289 S.W. 363 (Tenn. 1925).

    Stone v. Graham, 449 U.S. 39 (1981).

    Wallace v. Jaffree, 472 U.S. 38 (1985).

    Walz v. Tax Commission of New York City, 397 U.S. 664 (1970).

    West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943).

    Wolman v. Walter, 433 U.S. 229 (1977).

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