The Constitutional Principle: Separation of Church and State
Welcome Contents What's New Search this site
View Our Stats
Visitors since 7/15/1998
Links   Guest Book Contact Us
This site is eye friendly: Use your browser's view options to increase or decrease font size

Religion in the Public Schools: Joint Statement of Current Law

The Joint Statement of Current Law is a collaborative document undersigned by over 30 religious and civil rights groups that outlines the religious rights of students in the public schools. Most of these organizations are separationist in philosophy and practice, some of them (eg., ACLU, Americans United for Separation of Church and State) aggressively so.

The document lays to rest the myth that prayer and other types of religious expression are banned in the public schools. On the contrary, religious expression generally enjoys the same protection as other forms of speech. This document forms the basis of President Clinton's guidelines for religious expression in the public schools. A copy of these guidelines were sent to all public school districts in the United States in September of 1995.

                Religion In The Public Schools:
                A Joint Statement Of Current Law

     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.

     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 authoritatively 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

     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 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

                           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 #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

                             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.=20
     Schools may not allow  religious instruction by outsiders on
     premises during the school day.


*  Copies may be obtained from any of the undersigned organizations.


              Organizational Contacts for
            "Religion in the Public Schools:
           A Joint Statement of Current Law"

American Civil Liberties Union
     Beth Orsoff, William J. Brennan Fellow
     202/544-1681 (x306)

American Ethical Union
     Herbert Blinder, Director, Washington Ethical Action Office

American Humanist Association
     Frederick Edwords, Executive Director

American Jewish Committee
     Richard Foltin, Legislative Director/Counsel

American Jewish Congress
     Marc D. Stern, Co-Director, Commission on
     Law and Social Action

American Muslim Council
     Abdurahman M. Alamoudi, Executive Director

Americans for Religious Liberty
     Edd Doerr, Executive Director

Americans United for Seperation of Church and State
     Steve Green, Legal Director

Anti-Defamation League
     Michael Lieberman, Associate Director/Counsel,
     Washington Office

Baptist Joint Committee
     J. Brent Walker, General Counsel

B'nai B'rith
     Reva Price, Director, Political Action Network

Christian Legal Society
     Steven T. McFarland, Director,
     Center for Law and Religious Freedom

Christian Science Church
     Philip G. Davis, Federal Representative

Church of the Brethren, Washington Office
     Timothy A. McElwee, Director

Church of Scientology International
     Susan L. Taylor, Public Affairs Director, Washington Office

Evangelical Lutheran Church in America,
Lutheran Office for Governmental Affairs
     Kay S. Dowhower, Director

Federation of Reconstructionist Congregations and Havurot
     Rabbi Mordechai Liebling, Executive Director

Friends Committee on National Legislation
     Ruth Flower, Legislative Secretary/Legislative
     Education Secretary

General Conference of Seventh-day Adventists
     Gary M. Ross, Congressional Liaison

Guru Gobind Singh Foundation
     Rajwant Singh, Secretary

Interfaith Alliance
     Jill Hanauer, Executive Director

Interfaith Impact for Justice and Peace
     James M. Bell, Executive Director

National Association of Evangelicals
     Forest Montgomery, Counsel, Office of Public Affairs

National Council of Churches
     Oliver S. Thomas, Special Counsel for
     Religious and Civil Liberties

National Council of Jewish Women
     Deena Margolis, Legislative Assistant

National Jewish Community Relations Advisory Council (NJCRAC)
     Jerome Chanes, Director, Domestic Concerns

National Ministries, American Baptist Churches, USA
     Rene Ladue, Program Assistant,
     Office of Government Relations

National Sikh Center
     Chatter Saini, President

North American Council for Muslim Women
     Sharifa Alkhateeh, Vice-President

People for the American Way
     Elliot Mincberg, Legal Director

Presbyterian Church (USA)
     Eleonora Giddings Ivory, Director, Washington Office

Reorganized Church of Jesus Christ of Latter Day Saints
     W. Grant McMurray, First Presidency

Union of American Hebrew Congregations 
     Rabbi David Saperstein, Director, Religious Action Center

Unitarian Universalist Association of Congregations
     Robert Alpern, Director, Washington Office

United Church of Christ, Office for Church in Society
     Patrick Conover, Acting Head of Office,  Washington Office
Nedstat Counter