[Congressional Record Volume 141, Number 86 (Tuesday, May 23, 1995)]
[Senate]
[Pages S7261-S7263]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]


                          RELIGION IN SCHOOLS

 Mr. SIMON. Mr. President, on May 17 the Christian Coalition 
announced its ``Contract With the American Family,'' a cornerstone of 
which is a constitutional amendment to allow ``communal prayer in 
public places, such as schools, high school graduation ceremonies, and 
courthouses.''
  The coalition's ``communal prayer'' proposal will surely provide the 
basis for some spirited debate in Congress in the upcoming months. 
Before this debate begins, however, I think it is crucial for people on 
both sides of these issues to understand fully the current state of the 
law regarding prayer in schools and other public places. Only by 
understanding what is and is not allowed under current Supreme Court 
cases involving the Constitution's religion clauses and under other 
laws regarding religion can we intelligently determine whether the 
proposed changes to these laws make sense.
  In the hopes of beginning this educational process, I will ask to 
have printed in the Record a short report entitled ``Religion in the 
Public Schools: A Joint Statement of Current Law.'' This publication, 
prepared with the endorsements of 35 organizations, sets forth in a 
detailed and clear way the state of the law regarding numerous 
religion/school issues: from the question of what types of student 
prayer are constitutionally protected, to the question of whether 
students may be exempted from wearing particular types of gym clothing 
that they regard, on religious grounds, as immodest.
  As the preface to this report states: ``On some of the issues 
discussed in this summary, some of the organizations, have urged the 
courts to reach positions different than they did.'' However, the 35 
organizations that have issued this report agree that the statements on 
the law included in the report provide an accurate overview of the law 
regarding religion in schools. Given this agreement, the report 
provides a valuable service to those of us striving to understand these 
important and highly charged issues.
  At the outset of the debate, I have heard a lot about how our courts 
have kept and continue to keep religion out of our schools. It is my 
hope that this report will help demonstrate that the relationship 
between religion and education is in fact a far more complex one that 
cannot be described in absolute terms. Religion and education coexist 
today in a delicate balance, and if we choose to disrupt this balance, 
we should understand exactly what we are doing. This report is an 
important step in the direction of understanding, and I urge each of my 
colleagues to devote some time to it in the upcoming weeks.
  I ask that the report be printed in the Record.
  The report follows:
Religion in the Public Schools: A Joint Statement of Current Law, April 
                                  1995

       The Constitution permits much private religious activity in 
     and about the public schools. Unfortunately, this aspect of 
     constitutional law is not as well known as it should be. Some 
     say that the Supreme Court has declared the public schools 
     ``religion-free zones'' or that the law is so murky that 
     school officials cannot know what is legally permissible. The 
     former claim is simply wrong. And as to the latter, while 
     there are some difficult issues, much has been settled. It is 
     also unfortunately true that public school officials, due to 
     their busy schedules, may not be as fully aware of this body 
     of law as they could be. As a result, in some school 
     districts some of these rights are not being 
     observed. [[Page S7262]] 
       The organizations whose names appear below span the 
     ideological, religious and political spectrum. They 
     nevertheless share a commitment both to the freedom of 
     religious practice and to the separation of church and state 
     such freedom requires. In that spirit, we offer this 
     statement of consensus on current law as an aid to parents, 
     educators and students.
       Many of the organizations listed below are actively 
     involved in litigation about religion in the schools. On some 
     of the issues discussed in this summary, some of the 
     organizations have urged the courts to reach positions 
     different than they did. Though there are signatories on both 
     sides which have and will press for different constitutional 
     treatments of some of the topics discussed below, they all 
     agree that the following is an accurate statement of what the 
     law currently is.


                            student prayers

       1. Students have the right to pray individually or in 
     groups or to discuss their religious views with their peers 
     so long as they are not disruptive. Because the Establishment 
     Clause does not apply to purely private speech, students 
     enjoy the right to read their bibles or other scriptures, say 
     grace before meals, pray before tests, and discuss religion 
     with other willing student listeners. In the classroom 
     students have the right to pray quietly except when required 
     to be actively engaged in school activities (e.g., students 
     may not decide to pray just as a teacher calls on them). In 
     informal settings, such as the cafeteria or in the halls, 
     students may pray either audibly or silently, subject to the 
     same rules of order as apply to other speech in these 
     locations. However, the right to engage in voluntary prayer 
     does not include, for example, the right to have a captive 
     audience listen or to compel other students to participate.
                  Graduation Prayer and Baccalaureates

       2. School officials may not mandate or organize prayer at 
     graduation, nor may they organize a religious baccalaureate 
     ceremony. If the school generally rents out its facilities to 
     private groups, it must rent them out on the same terms, and 
     on a first-come first-served basis, to organizers of 
     privately sponsored religious baccalaureate services, 
     provided that the school does not extend preferential 
     treatment to the baccalaureate ceremony and the school 
     disclaims official endorsement of the program.
       3. The courts have reached conflicting conclusions under 
     the federal Constitution on student-initiated prayer at 
     graduation. Until the issue is authoritively resolved, 
     schools should ask their lawyers what rules apply in their 
     area.


     Official Participation or Encouragement of Religious Activity

       4. Teachers and school administrators, when acting in those 
     capacities, are representatives of the state, and, in those 
     capacities, are themselves prohibited from encouraging or 
     soliciting student religious or anti-religious activity. 
     Similarly, when acting in their official capacities, teachers 
     may not engage in religious activities with their students. 
     However, teachers may engage in private religious activity in 
     faculty lounges.


                        Teaching About Religion

       5. Students may be taught about religion, but public 
     schools may not teach religion. As the U.S. Supreme Court has 
     repeatedly said, ``[i]t might well be said that one's 
     education is not complete without a study of comparative 
     religion, or the history of religion and its relationship to 
     the advancement of civilization.'' It would be difficult to 
     teach art, music, literature and most social studies without 
     considering religious influences.
       The history of religion, comparative religion, the Bible 
     (or other scripture)-as-literature (either as a separate 
     course or within some other existing course), are all 
     permissible public school subjects. It is both permissible 
     and desirable to teach objectively about the role of religion 
     in the history of the United States and other countries. One 
     can teach that the Pilgrims came to this country with a 
     particular religious vision, that Catholics and others have 
     been subject to persecution or that many of those 
     participating in the abolitionist, women's suffrage and civil 
     rights movements had religious motivations.
       6. These same rules apply to the recurring controversy 
     surrounding theories of evolution. Schools may teach about 
     explanations of life on earth, including religious ones (such 
     as ``creationism''), in comparative religion or social 
     studies classes. In science class, however, they may present 
     only genuinely scientific critiques of, or evidence for, any 
     explanation of life on earth, but not religious critiques 
     (beliefs unverifiable by scientific methodology). Schools may 
     not refuse to teach evolutionary theory in order to avoid 
     giving offense to religion nor may they circumvent these 
     rules by labeling as science an article of religious faith. 
     Public schools must not teach as scientific fact or theory 
     any religious doctrine, including ``creationism,'' although 
     any genuinely scientific evidence for or against any 
     explanation of life may be taught. Just as they may neither 
     advance nor inhibit any religious doctrine, teachers should 
     not ridicule, for example, a student's religious explanation 
     for life on earth.


                    student assignments and religion

       7. Students may express their religious beliefs in the form 
     of reports, homework and artwork, and such expressions are 
     constitutionally protected. Teachers may not reject or 
     correct such submissions simply because they include a 
     religious symbol or address religious themes. Likewise, 
     teachers may not require students to modify, include or 
     excise religious views in their assignments, if germane. 
     These assignments should be judged by ordinary academic 
     standards of substance, relevance, appearance and grammar.
       8. Somewhat more problematic from a legal point of view are 
     other public expressions of religious views in the classroom. 
     Unfortunately for school officials, there are traps on either 
     side of this issue, and it is possible that litigation will 
     result no matter what course is taken. It is easier to 
     describe the settled cases than to state clear rules of law. 
     Schools must carefully steer between the claims of student 
     speakers who assert a right to express themselves on 
     religious subjects and the asserted rights of student 
     listeners to be free of unwelcome religious persuasion in a 
     public school classroom.
       a. Religious or anti-religious remarks made in the ordinary 
     course of classroom discussion or student presentations are 
     permissible and constitute a protected right. If in a sex 
     education class a student remarks that abortion should be 
     illegal because God has prohibited it, a teacher should not 
     silence the remark, ridicule it, rule it out of bounds or 
     endorse it, any more than a teacher may silence a student's 
     religiously-based comment in favor of choice.
       b. If a class assignment calls for an oral presentation on 
     a subject of the student's choosing, and, for example, the 
     student responds by conducting a religious service, the 
     school has the right--as well as the duty--to prevent itself 
     from being used as a church. Other students are not 
     voluntarily in attendance and cannot be forced to become an 
     unwilling congregation.
       c. Teachers may rule out-of-order religious remarks that 
     are irrelevant to the subject at hand. In a discussion of 
     Hamlet's sanity, for example, a student may not interject 
     views on creationism.


                  distribution of religious literature

       9. Students have the right to distribute religious 
     literature to their schoolmates, subject to those reasonable 
     time, place, and manner or other constitutionally-acceptable 
     restrictions imposed on the distribution of all non-school 
     literature. Thus, a school may confine distribution of all 
     literature to a particular table at particular times. It may 
     not single out religious literature for burdensome 
     regulation.
       10. Outsiders may not be given access to the classroom to 
     distribute religious or anti-religious literature. No court 
     has yet considered whether, if all other community groups are 
     permitted to distribute literature in common areas of public 
     schools, religious groups must be allowed to do so on equal 
     terms subject to reasonable time, place and manner 
     restrictions.


                        ``see you at the pole''

       11. Student participation in before- or after-school 
     events, such as ``see you at the pole,'' is permissible. 
     School officials, acting in an official capacity, may neither 
     discourage nor encourage participation in such an event.


            religious persuasion versus religious harassment

       12. Students have the right to speak to, and attempt to 
     persuade, their peers about religious topics just as they do 
     with regard to political topics. But school officials should 
     intercede to stop student religious speech if it turns into 
     religious harassment aimed at a student or a small group of 
     students. While it is constitutionally permissible for a 
     student to approach another and issue an invitation to attend 
     church, repeated invitations in the face of a request to stop 
     constitute harassment. Where this line is to be drawn in 
     particular cases will depend on the age of the students and 
     other circumstances.
                            equal access act

       13. Student religious clubs in secondary schools must be 
     permitted to meet and to have equal access to campus media to 
     announce their meetings, if a school receives federal funds 
     and permits any student non-curricular club to meet during 
     non-instructional time. This is the command of the Equal 
     Access Act. A non-curricular club is any club not related 
     directly to a subject taught or soon-to-be taught in the 
     school. Although schools have the right to ban all non-
     curriculum clubs, they may not dodge the law's requirement by 
     the expedient of declaring all clubs curriculum-related. On 
     the other hand, teachers may not actively participate in club 
     activities and ``non-school persons'' may not control or 
     regularly attend club meeting.
       The Act's constitutionality has been upheld by the Supreme 
     Court, rejecting claims that the Act violates the 
     Establishment Clause. The Act's requirements are described in 
     more detail in The Equal Access Act and the Public Schools: 
     Questions and Answers on the Equal Access Act*, a pamphlet 
     published by a broad spectrum of religious and civil 
     liberties groups.


                           religious holidays

       14. Generally, public schools may teach about religious 
     holidays, and may celebrate the secular aspects of the 
     holiday and objectively teach about their religious aspects. 
     They may not observe the holidays as religious events. 
     Schools should generally excuse students who do not wish to 
     participate in holiday events. Those interested in further 
     details should see Religious Holidays in [[Page S7263]] the 
     Public Schools: Questions and Answers*, a pamphlet published 
     by a broad spectrum of religious and civil liberties groups.


             excusal from religiously-objectionable lessons

       15.Schools enjoy substantial discretion to excuse 
     individual students from lessons which are objectionable to 
     that student or to his or her parent on the basis of 
     religion. Schools can exercise that authority in ways which 
     would defuse many conflicts over curriculum content. If it is 
     proved that particular lessons substantially burden a 
     student's free exercise of religion and if the school cannot 
     prove a compelling interest in requiring attendance the 
     school would be legally required to excuse the student.
                            teaching values

       16. Schools may teach civic virtues, including honesty, 
     good citizenship, sportsmanship, courage, respect for the 
     rights and freedoms of others, respect for persons and their 
     property, civility, the dual virtues of moral conviction and 
     tolerance and hard work. Subject to whatever rights of 
     excusal exist (see para.15 above) under the federal 
     Constitution and state law, schools may teach sexual 
     abstinence and contraception; whether and how schools teach 
     these sensitive subjects is a matter of educational policy. 
     However, these may not be taught as religious tenets. The 
     mere fact that most, if not all, religions also teach these 
     values does not make it unlawful to teach them.


                              student garb

       17. Religious messages on T-shirts and the like may not be 
     singled out for suppression. Students may wear religious 
     attire, such as yarmulkes and head scarves, and they may not 
     be forced to wear gym clothes that they regard, on religious 
     grounds, as immodest.


                             released time

       18. Schools have the discretion to dismiss students to off-
     premises religious instruction, provided that schools do not 
     encourage or discourage participation or penalize those who 
     do not attend. Schools may not allow religious instruction by 
     outsiders on premises during the school day.
     

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