Beyond the Wall of Separation: Church-State Concerns in Public Schools: Religion Has Been One of the Most Contentious Issues in Public Schools, and There Are No Signs That the Disputes Will Disappear. Educators Must Know Which Activities Are Prohibited and Which Are Protected by Law

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Few controversies involving public schools have been more volatile than those pertaining to religious issues. Since the mid-20th century, schools have been the setting for some major church-state decisions rendered by the U.S. Supreme Court.

The First Amendment to the U.S. Constitution states in part that "Congress shall make no law respecting an establishment of religion" (Establishment Clause) "or prohibiting the free exercise thereof" (Free Exercise Clause). Our nation was unique in including a constitutional provision prohibiting religious establishment. The Supreme Court's first significant Establishment Clause decision in 1947 involved state aid to religious schools and introduced Thomas Jefferson's metaphor of a wall of separation between church and state. (1) This metaphor became prominent in church-state litigation for more than 30 years, though references to the wall have been noticeably missing in recent Supreme Court decisions.

Most education cases have involved claims under the Establishment Clause, but some lawsuits have asserted that neutral government policies abridge the Free Exercise Clause by placing a burden on the exercise of religious beliefs without an overriding justification. In the leading free exercise case involving schools, Wisconsin v. Yoder, the Supreme Court ruled that there was no compelling interest for the state to place a burden on the dictates of the Amish faith by requiring Amish youth to attend school beyond 8th grade. (2)

In the early 1960s, the Supreme Court rendered two seminal decisions in which it prohibited public schools from sponsoring daily prayer and Bible reading, concluding that such activities advanced religion in violation of the Establishment Clause. (3) Students' voluntary participation in the religious activities was irrelevant; school sponsorship of the devotional activities was sufficient to abridge the First Amendment. These decisions have generated a half century of subsequent litigation, legislative reactions, and efforts to amend the U.S. Constitution to authorize school prayer.

From 1971 until 1992, the Supreme Court consistently applied a stringent standard, referred to as the Lemon test, under which the challenged government action could satisfy the First Amendment only if it had a secular purpose, neither advanced nor impeded religion, and avoided excessive government entanglement with religion. (4) Recently, the Court has seemed more inclined to assess whether an objective observer would view the challenged action as endorsing religion, and on occasion the Court has required evidence of religious coercion to find an Establishment Clause violation.

Applying the Establishment Clause, the Supreme Court has continued to strike down school-sponsored religious activities, such as posting the Ten Commandments in classrooms, having clergy deliver graduation prayers, and holding student elections to authorize student-led prayers at sporting events. (5) But the Court also has emphasized that private religious expression does not abridge the Establishment Clause and that the Free Speech Clause requires the equal treatment of private religious and secular expression. (6) Not only has the Supreme Court recognized this principle under the First Amendment, but also the Equal Access Act (EAA), adopted by Congress in 1984, has augmented the constitutional standard. The EAA specifies that if secondary schools receiving federal aid create a forum for student expression during noninstructional time, student groups cannot be denied access based on the religious, political, or philosophical content of their expression. (7) The concepts of equal access for religious groups and equal treatment of religious expression seem to have replaced the metaphor of a wall of separation between church and state.

Church-state disputes involving schools often divide communities, and there are no signs of these controversies dissipating in the near future. …

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