The following is legal guidance provided to Kentucky Public Schools by the Kentucky Department of Education and the Kentucky School Board Association on the subject of religion in schools in response to the ACLU threat of litigation:
Legal guidance on religion in schools:
In light of the recent increase in news stories as well as district inquiries regarding Bible distribution/recent ACLU letter to districts, we provided the legal analysis below to KSBA for distribution to local board counsel. We want you to be aware of this guidance to ensure the public schools of our state are following the federal law and respecting the rights of all students. Please contact Amy Peabody,[email protected]with any questions.
Guidance provided to KSBA
As you know, the U.S. Constitution forbids public school officials from directing or favoring prayer, and the U.S. Supreme Court has repeatedly held that the Establishment Clause requires public school officials to be neutral in their treatment of religion, showing neither favoritism toward nor hostility against religious expression such as prayer.Accordingly, the Establishment Clause forbids religious activity that is sponsored by the government, but protects religious activity that is initiated by private individuals, such as students.The Kentucky Constitution also includes similar provisions.
The Kentucky Department of Education (KDE) bases its recommendations regarding religion in the classroom on the U.S. Supreme Court’s decisions regarding the Establishment Clause of the U. S. Constitution that limits the conduct of public school officials as it relates to religious activity, including prayer. Recent U.S. Supreme Court decisions in this area, including decisions by the 6thCircuit (specifically applying to Kentucky schools) are very clear thatpublic school officials may not endorse religion when acting in their official capacities and during school activities or during school sponsored events.
School officials who persist in allowing or sanctioning religious activities that are not allowable under the directives of the U.S. Constitution or that mirror specific U.S. Supreme Court cases run the risk of exposing their school districts to costly litigation.
Regarding distribution of religious material:
School district administrators, principals and teachers should not participate in the distribution of religious materials, including permitting religious groups to have classroom time to distribute materials. Students are generally permitted to distribute religious materials so long as it is done between classes, at recess, or during free time and so long as the students aren’t simply acting as agents for adults in doing so.While the distribution of Gideon Bibles in classrooms by either Gideon members or school officials was once commonplace in schools throughout the country, the practice has been ruled unconstitutional by multiple federal courts and is generally accepted to be an unconstitutional practice.If a district wants to consider allowing the distribution of religious material by outside groups to students while at school, this should be done in consultation with board counsel upon thorough research of the federal law on this issue and with the understanding thatthepolicy will result in the mandated allowance of the distribution of all religious groups’ material to students and no discretion or denial of a request to distribute can occur.The KDE therefore strongly recommends and advises school districts to adhere to the complete prohibition on the distribution of religious material to students at public schools (or during ingress or egress from school)to ensure adherence to the federal law’s requirements and to reduce the likelihood of costly litigation.
Regarding prayer:
Teachers and other public school officials may not lead their classes in prayer, devotional readings from the Bible or other religious activities. They also are prohibited from encouraging or discouraging prayer, from “witnessing” and from actively participating in such activities with students. Prohibitions also extend to local board of education meetings and other public forums such as sporting events. Such conduct is "attributable to the State" and thus violates the Establishment Clause.
School officials may not mandate or organize prayer at graduation or other school-sponsored events or select speakers for such events in a manner that favors religious speech such as prayer. School officials may not mandate or organize religious ceremonies.
As an example, inSanta Fe Independent School District v. Doe, the Supreme Court invalidated a school's football game speaker policy on the ground that it was designed by school officials to result in pregame prayer, thus favoring religious expression over secular expression.
Nothing in the Constitution prohibits any public school student from voluntarily praying at any time before, during or after the school day, and students may pray with fellow students during the school day on the same terms and conditions that they may engage in other conversation or speech. If a school has a "minute of silence" or other quiet periods during the school day, students are free to pray silently, or not to pray, during these periods of time. Students may express their beliefs about religion in homework, artwork and other written and oral assignments free from discrimination based on the religious content of their submissions.
Students also may organize prayer groups, religious clubs and "see you at the pole" gatherings before school to the same extent that students are permitted to organize other non-curricular student activities groups.
More information regarding the boundaries of religious speech and schools can be found on the U.S. Department of Education’s website athttp://www.ed.gov/policy/gen/guid/religionandschools/prayer_guidance.html, which states regarding this issue:
Teachers, Administrators, and other School Employees
When acting in their official capacities as representatives of the state, teachers, school administrators, and other school employees are prohibited by the Establishment Clause from encouraging or discouraging prayer, and from actively participating in such activity with students. Teachers may, however, take part in religious activities where the overall context makesclear that they are not participating in their official capacities. Before school or during lunch, for example, teachers may meet with other teachers for prayer or Bible study to the same extent that they may engage in other conversation or nonreligious activities. Similarly, teachers may participate in their personal capacities in privately sponsored baccalaureate ceremonies.”
Regarding prayer at a meeting of the local board of education, a 1999 6thCircuit court case,Coles v. Cleveland Board of Education, 171 F.3d 369 (6thCir. 1999), the practice of opening a school board meeting with a prayer was held to violate the Establishment Clause.