Understanding the Legal Protections and Limitations upon Religion and Spiritual Expression on Campus
Lowery, John Wesley, College Student Affairs Journal
When considering the issues associated with addressing faith, spirituality, and religion on campus, it is important for student affairs professionals, especially those at public colleges and universities, to be cognizant of the associated legal issues. The Constitution protects the freedom of religious exercise and against the establishment of religion by the government or its agents. Common issues faced by student affairs professionals include those associated with prayer on campus as well as the official recognition of student religious groups and their access to university resources.
It is impossible to examine the issues surrounding religion in higher education, particularly public higher education, without examining the legal issues involved. O'Neil (1997) observed, "Religious expression on the public campus has been persistently troublesome and may become more so as the aspirations of student religious organizations intensify" (p. xv). The primary reason that legal issues are so significant is the provisions of the First Amendment to the Constitution. The First Amendment states:
Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
The two most important clauses of the First Amendment with respect to religion and higher education are the Free Exercise and the Establishment Clauses. However, a number of recent cases have also drawn upon the freedom of speech and assembly clauses as well.
Kaplin and Lee (1995) articulated the demands that the Establishment Clause of the First Amendment places on public institutions of higher education:
Under the Establishment Clause of the First Amendment, public institutions must maintain a neutral stance regarding religious beliefs and activities; they must, in other words, maintain religious neutrality. Public institutions cannot favor or support one religion over another, and they cannot favor or support religion over nonreligion. (p. 56)
While most higher education administrators understand that they cannot endorse a particular religious practice, they often fail to understand fully that public institutions of higher education also cannot favor or support nonreligion over religion. The neutrality demanded by the Court does not mean that institutions can prohibit all religious activities on campus or silence all discussion of the topic. It seems that many in the academy believe that the First Amendment's mandate of the separation of church and state demands that religion be entirely removed from public higher education. Clark (2001) described many student affairs professionals as hesitant to address religion and spirituality on campus noting they were "unaware of or confused about the legal issues involved in religion and spirituality on the college campus" (p. 3H). Without a better understanding of the limitations and protections of spiritual expression on campus, our institutions cannot fully and effectively address this important aspect of the lives of students, faculty, and staff.
The Constitution and Religion
Tn order to understand the place of religion in student life today, it is vital to understand the Constitution's protection of the free exercise of religion and prohibition against the establishment of religion by the government, set forth in the First Amendment (Lowery, 2000). Often the courts are forced to balance these two competing fundamental rights against one another in deciding cases involving education.
Establishment of Religion
The Supreme Court has established a three prong test for determining whether a governmental program violates the establishment of religion clause of the First Amendment in two cases decided by the Court in 1971, Lemon v. Kurtzman and Tilton v. Richardson. …