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12/1/2011 - December 2011 SLI Educational Update - A Reminder of Students' Religious Rights in Public Schools



 To:                  SLI Supporters                                  

Date:               December 2011  

 From:              A. Eric Johnston

 Re:                  A Reminder of Students’ Religious Rights in Public Schools

 It has been many years in Alabama since there have been complaints about prayer or religious activities at public schools.  However, the Freedom From Religion Foundation (an atheist/agnostic Wisconsin group) made demands in September to the Arab High School and in October to the Brooks High School (Lauderdale County), that prayer preceding public school football games be stopped.  With two demands made, it is probable others will be.  The purpose of this month’s Educational Update is to remind public school officials, parents, students and local religious leaders that it is not necessary to simply stop religious activities because someone complains.  Although the issue is not entirely settled in law, there are some significant guidelines which provide ideas on how these very important individual rights may be preserved.

There have been a number of federal cases on prayer and religious activities at public school football games, graduation ceremonies and in other contexts.  The issues are not settled.  The last significant case from the United States Supreme Court is Santa Fe Ind. Sch. Dist. v. Doe, 530 U.S. 290 (2000) which held that a Texas public school could not organize a student election to select a student to give an invocation before high school football games.  This is consistent with other cases dealing with graduation prayer for the general proposition that school officials cannot organize a religious activity.  In Jager v. Douglas County School Dist., 862 F.2d 824 (C.A. 11, 1989), the 11th Circuit Court of Appeals (the circuit Alabama is in) held that ministers could not give invocations at football games, but did not take into consideration student protected rights.  The secret to avoiding unconstitutional establishment of religion, as establishment is defined by federal courts, is to assure the activity is student initiated. 

Religious issues are based on the First Amendment to the United States Constitution:  “Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof . . . .”  This was applied to the states by Cantwell v. Connecticut, 310 U.S. 296 (1940) for the Free Exercise Clause and Everson v. Board of Education, 330 U.S. 1 (1947) for the Establishment Clause.  This is called the “Incorporation Doctrine,” which gives federal courts authority over state activity.  Many disagree this is a valid exercise of constitutional authority, but to this point remains the controlling legal precedent, and, therefore, must be followed.  After these two decisions, the U.S. Supreme Court  in Engel v. Vitale, 370 U.S. 421 (1962), and School Dist. Abington Twp. v. Schempp, 374 U.S. 203 (1963), removed prayer and Bible reading from public schools.  In Lemon v. Kurtzman, 403 U.S. 602 (1971) the Supreme Court adopted what is called the Lemon test which gives federal courts very subjective authority for applying the Establishment Clause.  The sum total of this, and later cases, was that the Establishment Clause had virtually obliterated the Free Exercise Clause, when trying to determine what religious activities are permitted in public places, including public schools.

In the 1980’s and into the 1990’s we were involved in much litigation to restore the proper “tension” between the two religion clauses.  In the 11th Circuit, we achieved a significant milestone in the cases of Chandler v. James, 180 F.3d 1254 (11th Cir. 1999) and Chandler v. Siegelman, 230 F.3d 1313 (11th Cir. 2000).  The court made it clear that student initiated religious activities in public schools are clearly protected as their First Amendment free exercise rights.  Although the Santa Fe case referenced above denied school organized prayer at a football game, it did not change the developing jurisprudence that student initiated activities are constitutionally protected.

It is not possible for us to adequately explain student protected rights in public schools within the confines of this Educational Update.  Our purpose is to inform those involved that there are many resources to be checked before simply giving in to the demands of atheist organizations.  SLI is available at no financial charge to any public school to provide its administrator, officials and lawyers direction and guidance on how to respond to a demand that a religious activity cease.  A simple demand should not be sufficient to terminate a constitutionally protected right.  We are also available to counsel any student, parent, pastor, or others on their rights and opportunities.

We realize that the economic impact of federal court litigation for schools can be great.  Schools have their own attorneys to pay and successful plaintiffs can recover attorneys’ fees from offending schools.  This impact can be diminished significantly.  First, for any school in Alabama who is willing to protect students’ rights, we will provide free legal services from the best constitutional attorneys in the country.  That means zero attorneys’ fees.  Secondly, although there is the potential for an attorneys’ fee award to plaintiffs, that can be diminished greatly by strategic planning and proper representation of the school.  Those organizations which are able to simply demand that prayer stop, and it stops, accomplish that with no expenditure of funds.  However, if the school handles the matter properly from the beginning, without the monetary incentive, the complaining organization will not file a lawsuit.  It will have no ability to recover any attorneys’ fees and the school will have no attorneys’ fees of its own.

 We encourage our readers to refer this document to any public school official, student, pastor or others who may benefit from it.  We are not trying to convince you in this short article that what you may be doing is constitutional.  We simply want you to know that there is advice and help available, without charge, and that if you are interested, to contact us.  Please call (205) 408-8893 or by email aej@southeastlawinstitute.org

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