Religion and Public Schools
Separation of church and state, shaken
Should California schools favor a particular religion?
Our country’s political divisions are again raising basic questions about American values, including the separation of church and state. Religion and public education have long been kept separate in America, like oil and water. What are the rules about religious freedom and our schools?
- Should all students be required to say a prayer specified by the state?
- Can the Bible, Talmud, or Koran be mandated parts of the school curriculum?
- Should religious schools be funded by your tax dollars?
Controversy over religious freedom in America dates back to the founding of the United States. While we may think of religion in the colonies as mainly Protestant, there were many different religions.
Puritans, Quakers, Anglicans, Lutherans, Baptists, Congregationalists, Deists, Dutch Reformed, Catholics, Huguenots, Calvinists, Reformed Pietists, Jews, Muslims, and followers of indigenous American spiritual traditions.
The founders had an important question to answer: Should this new country favor a particular religion?
For the settlers fleeing religious persecution, the answer was a resounding NO. At the same time, the founders wanted to make it clear that while the government could not favor a particular religion, it also could not deny a person the right to practice a religion.
These principles were so important that the founders established them in the First Amendment of the US Constitution:
“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof….”
Historically, prohibiting establishment of religion meant “prohibiting state-sponsored churches, such as the Church of England”.
By adopting the Bill of Rights (the first ten amendments), America’s founders established a Jeffersonian “wall of separation between church and state” as a fundamental principle of American governance. The California Constitution proclaims similar values.
Religion and education
To further clarify that state governments could not fund religious education, in 1875 Congressman James G. Blaine proposed an amendment to the U.S. Constitution to expressly prohibit state governments from subsidizing religious schools with public money. The amendment was not ratified as part of the US Constitution, but Blaine amendments were adopted in the constitutions of 38 states, including California.
The California Constitution and education code contain clear guidelines about separation of church and state.
- No public money to support religion: Article XVI, Section 5
- No money for religious schools. No teaching religion in public schools: Article IX, Section 8
- Teaching religion is not permitted, though teaching about religion is. California education code 51511.
Pretty clear, right? So why are people arguing over whether Bibles and the Ten Commandments should be required in classrooms? Quick answer: The present Supreme Court has abandoned long standing precedents about how decisions are made regarding the establishment of religion. In some states, people are seeing how far they can push the envelope. More on this later.
Conflicting rules and views
While constitutions set out principles, they only matter if courts ultimately decide which rights are protected. In some cases, state and federal constitutional protections may conflict. In practice, what does it mean that there shall be no law respecting the establishment of religion or prohibiting the free exercise of religion?
The debate over private school tuition vouchers is an example.
Supporters of public schools tend to want a clear line that prohibits the government from giving public money to private and religious schools. In California, voters have consistently defeated ballot measures to fund private and religious schools with tax-funded vouchers. California lawmakers have voted down similar legislative proposals.
In contrast, some supporters of school choice favor a blurred line. In this view, it’s permissible to spend public taxes on religious and private schools. Mechanisms for these subsidies vary, including tax-funded vouchers, opportunity scholarships, tax credits, tax-funded scholarships, and education savings accounts.
The map below, using data collected by EdChoice.org, shows states with laws that have directed public money to private and religious schools, subsidizing them to varying degrees.
What was the Lemon test?
There have been many disputes over the separation of church and state. To help courts sort it out, in 1971 the US Supreme Court developed a three-part test in Lemon v. Kurtzman (403 U.S. 602 (1971) to determine whether a law violates the First Amendment's Establishment Clause.
Under the "Lemon" test (yes, really), the government can assist religion only if (1) the primary purpose of the assistance is secular (non-religious), (2) the assistance neither promotes nor inhibits religion, and (3) there is no excessive entanglement between church and state.
Yes. We really are getting down into the weeds. But it is important to know that even legal precedents that have stood for over 50 years — such as Roe v. Wade (1973) — can be overturned by a majority of Supreme Court justices with the stroke of a pen.
Just as the Supreme Court overturned Roe v. Wade, it also recently got rid of the Lemon Test. In Kennedy v. Bremerton School District (2022), the court held that a football coach could pray in the center of the field after a game, surrounded by players. Abandoning Lemon, the court created a new test based on the “original meaning and history of the Constitution.”
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The decision |
The dissent |
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The Free Exercise and Free Speech Clauses of the First Amendment protect an individual engaging in a personal religious observance from government reprisal; the Constitution neither mandates nor permits the government to suppress such religious expression. |
The dissent essentially says the Supreme Court now tips the scales of justice towards free expression of religion rather than protecting citizens from the establishment of a state religion. “This decision… calls into question decades of subsequent precedents… In the process, the Court rejects longstanding concerns surrounding government endorsement of religion and replaces the standard for reviewing such questions with a new ‘history and tradition’ test.” — Justice Sonia Sotomayor |
Significant Supreme Court decisions
Note: The decisions below were made before the Lemon test was abandoned. All of them remain the law of the land — for now, at least. They may be challenged in the future.
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Decisions in force today |
Background |
|---|---|
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School-sponsored prayer is unconstitutional. |
The Supreme Court drew a clear line prohibiting religious prayer in schools, holding that school-sponsored nondenominational prayer in public schools violates the Establishment Clause of the First Amendment. |
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School buses may transport private school students. |
“The State contributes no money to the schools. It does not support them. Its legislation, as applied, does no more than provide a general program to help parents get their children, regardless of their religion, safely and expeditiously to and from accredited schools.” |
|
School-sponsored Bible reading before class is unconstitutional. |
“The place of religion in our society is an exalted one, achieved through a long tradition of reliance on the home, the church and the inviolable citadel of the individual heart and mind. We have come to recognize through bitter experience that it is not within the power of government to invade that citadel, whether its purpose or effect be to aid or oppose, to advance or retard. In the relationship between man and religion, the State is firmly committed to a position of neutrality.” |
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Public schools may not prohibit student religious groups from meeting on school grounds after hours. |
“We think that secondary school students are mature enough and are likely to understand that a school does not endorse or support student speech that it merely permits on a nondiscriminatory basis.” |
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Students may not use a school's loudspeaker system to pray at football games. |
“The District's policy permitting student-led, student-initiated prayer at football games violates the Establishment Clause. The Constitution demands that schools not force on students the difficult choice between attending these games and avoiding personally offensive religious rituals.” |
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Certain school voucher programs are constitutional. |
“A state can create a program to give parents tuition vouchers that allow their children to attend a private or religious school of their choice, since the vouchers do not promote religious schools alone.” |
Recent Supreme Court decisions
Blurred lines?
Several recent supreme court decisions show a trend toward less separation between church and state.
Trinity Lutheran v. Comer (2017)
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State funding of a church preschool and daycare center as part of a playground resurfacing program is allowed. |
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|---|---|
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The decision |
The dissent |
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“The State in this case expressly requires Trinity Lutheran to renounce its religious character in order to participate in an otherwise generally available public benefit program, for which it is fully qualified. Our cases make clear that such a condition imposes a penalty on the free exercise of religion that must be subjected to the “most rigorous” scrutiny…The State has pursued its preferred policy to the point of expressly denying a qualified religious entity a public benefit solely because of its religious character.” |
“The Court today profoundly changes that relationship by holding, for the first time, that the Constitution requires the government to provide public funds directly to a church. Its decision slights both our precedents and our history, and its reasoning weakens this country’s longstanding commitment to a separation of church and state beneficial to both.” |
Espinoza et.al. v. Montana Department of Revenue (2020)
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Montana must provide funding for religious education as part of its school voucher tax credit program. |
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|---|---|
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The decision |
The dissent |
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“A State need not subsidize private education. But once a State decides to do so, it cannot disqualify some private schools solely because they are religious.” |
“If for 250 years, we have drawn a line at forcing taxpayers to pay the salaries of those who teach their faith from the pulpit, I do not see how we can today require Montana to adopt a different view respecting those who teach it in the classroom.” |
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Maine may not withhold tuition assistance to students attending a religious school. |
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|---|---|
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The decision |
The dissent |
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Since 1981, Maine had made limited tuition assistance payments to “nonsectarian” schools. |
“The First Amendment begins by forbidding the government from “mak[ing] [any] law respecting an establishment of religion.” It next forbids them to make any law “prohibiting the free exercise thereof.” The Court today pays almost no attention to the words in the first Clause while giving almost exclusive attention to the words in the second. … This Court continues to dismantle the wall of separation between church and state that the Framers fought to build.” |
Rules about religion in California public schools
With all of these changes and challenges afoot, perhaps a recap is in order.
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Rules about religion in California public schools |
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May public money be used to pay for religious schools? |
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May public schools promote a specific religion? |
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May charter schools provide a religious education? |
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May public schools teach about religions? |
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May schools require students to pledge allegiance? |
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May students be excused from school based on religious beliefs? |
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May students be excused from activities because of religious beliefs? |
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May students have a moment of silence for religious prayer? |
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May students form religious clubs? |
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May students wear religious clothing? |
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May a religious exercise be required at a graduation ceremony? |
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Carol Kocivar November 14, 2024 at 1:51 pm
https://www.aclu.org/press-releases/court-blocks-louisiana-law-requiring-public-schools-to-display-ten-commandments-in-every-classroom
Carol Kocivar November 13, 2024 at 11:49 am