Church and State

1
Church and State

• EDEA 630
• Chapter 5 notes

2
Wall of Separation

• Thomas Jefferson first called for a wall of
  separation between church and state. This
  doctrine first appeared in Reynolds v. the United
  States in 1879. The current Supreme Court has
  disputed this concept, calling it a metaphor
  based on bad history.

3
The First Amendment

• Congress shall make no law respecting an
  establishment of religion, or prohibiting the
  free exercise thereof or abridging the freedom
  of speech, or of the press or the right of the
  people peaceably to assemble, and to petition the
  Government for redress of grievances.

4
A Brief History

• The Establishment and Free Exercise clauses of
  the First Amendment were created in part because
  of the early religious history in the colonies.
  Although escape from religious intolerance led to
  the founding of the American colonies, there was
  considerable intolerance among various groups
  once the colonists settled here.

5
Religious Assessments

• In 1779, a bill was introduced into the Virginia
  Legislature calling for assessments (taxes) to
  support the practice of Christianity. Thomas
  Jefferson and James Madison strongly opposed such
  taxes.

6
For Discussion

• President Bush initiated a Faith-based Initiative
  Bill that provides tax monies to religious
  organizations that engage in social and
  charitable work. How do you think Jefferson and
  Madison would view these initiatives? What do
  you think are the advantages and disadvantages?

7
The Public School and Religion

• Education is to benefit the entire society and
  the legislature has the power to tax all for
  support
• Public education must be secular, however
  non-secular education can be supplemented with
  public funds
• The state can compel all parents to provide their
  children with a minimum secular education

8
Public Taxation for Religious Schools

• The child benefit concept has been applied to
  the use of public funds to support private
  schools. Two early cases were
• Cochran v. Louisiana State Bd. of Ed. (This was
  tested under the 14th Amendment)
• Everson v. Board of Education

9
The Lemon Test

• The 1968 decision in Board of Education of
  Central School District No. 1 v. Allen led to
  much controversy about the wall of separation
  concept. Note Justice Blacks dissent to that
  opinion on p. 167 of our text. This influenced
  the 1971 decision, Lemon v. Kurtzman, which drew
  the line between public and private funding with
  a three-pronged test.

10
The Three Prongs of the Lemon Test

• 1. The statute must have a secular legislative
  purpose
• 2. Its principle or primary effect must be one
  that neither advances nor prohibits religion
• 3. It must not foster excessive entanglement
  with religion

11
Lemon Test Crumbles

• Several cases have led to the demise of the Lemon
  Test in the past two decades
• Zobrest v. Catalina Foothills
• Agostini v. Felton
• Mitchell v. Helms

12
Aguilar v. Felton

• This 1985 case portended the beginning of the end
  for the Lemon Test, ruling that Title I funds
  could not be used within parochial schools. As
  the Supreme Court membership changed in the late
  1980s and early 1990s under the Reagan/Bush
  administrations, the Court returned to a more
  liberal application of the child benefit clause.

13
Zobrest v. Catalina Foothills

• This 1993 Supreme Court case found that providing
  special education (IDEA) services to students in
  parochial schools did not violate the
  Establishment Clause of the Constitution.

14
Agostini v. Felton

• This 1997 case virtually overturned Aguilar.
  Although Justice OConnor rendered the opinion,
  it reflected Justices Scalias opinion Like
  some ghoul in a late-night horror movie that
  repeatedly sits up in its grave and shuffles
  abroad, after being repeatedly killed and buried,
  Lemon stalks our Establishment Clause
  jurisprudence once again, frightening little
  children

15
Mitchell v. Helms

• This 2000 case found that providing funds to
  schools through Chapter 2 monies (for
  instructional and educational materials) to
  sectarian schools was not a violation of the
  Establishment Clause of the Constitution.

16
Theories of Church and State

• Strict separation
• Non-preferential subsidization
• Non-coercive subsidization

17
Strict Separation

• This is the highest wall theory, in the shadows
  of Jefferson and Madison. It basically maintains
  that strict separation of church and state
  protects the individuals liberty and freedom of
  conscience and free exercise of religion. It is
  not the operating theory of the current Supreme
  Court.

18
Non-preferential Subsidization

• Also called the neutrality theory, this holds
  that the government can neither endorse nor
  oppose the support of a particular religion. In
  other words, whether or not a school has a
  religious perspective shouldnt affect its
  ability to receive Federal categorical funding.

19
Non-coercive Subsidization

• In this theory, the state effectively embraces,
  funds, obliges, and accommodates religions
  presence in government. This theory is gaining
  support under the current Supreme Court. In
  other words, the government may actively support
  religious activities as long as it doesnt force
  anyone to participate.

20
Vouchers

• In 2002, the Supreme Court ruled in the Zelman v.
  Simmons case that an Ohio law permitting parents
  of parochial school children to use tax vouchers
  for tuition did not violate the Establishment
  clause of the Constitution. They found the
  program to be neutral because it offered a
  spectrum of services to children in both public
  and private schools.

21
Vouchers

• The Zelman ruling basically left the issues of
  vouchers up to the state. The trend lately is
  for states to turn down voucher laws, generally
  by a two to one margin. The most recent state to
  turn down a referendum for vouchers was Florida.

22
Establishment in Hawaii

• The Hawaii Supreme Court uses the strict
  separation theory in education funding. In the
  1968 case, Spears v. Honda, the Court issued an
  opinion strongly supporting the wall of
  separation between church and state.

23
Released Time for Religious Instruction

• The courts have found releasing students for
  religious instruction that takes place on school
  grounds unconstitutional.
• (Illinois ex. rel. McCollum v. SC 71)
• Releasing students to attend school off school
  grounds is constitutional, however.
• (Zorach v. Clauson)

24
Prayer and Bible Reading

• The Supreme Court has adopted a bifurcated
  standard on this issue, banning formal prayer and
  Bible reading (Weisman and Santa Fe) while
  allowing public funds to be spent in religious
  schools (Mueller, Zobrest, Agostini, Helms).

25
Silent Meditation

• In 1985, the Court held in Wallace v. Jaffree
  that mandating by law a formal period of prayer
  or silent meditation was unconstitutional because
  it violated the neutrality theory. They found it
  to be an endorsement of religion if children (or
  school districts) didnt have a choice not to
  participate.

26
Prayer

• Prayer in schools must be spontaneous,
  student-initiated and purely voluntary. This
  applies at ceremonies and extracurricular events
  as well. (Schempp,Weisman, Santa Fe)

27
The Equal Access Act

• This law was enacted in 1984 after, in Widmar v.
  Vincent, the Supreme Court ruled that students
  use of public university facilities for religious
  activities was allowable if students were also
  allowed to use facilities for other purposes.

28
Equal Access Act

• Congress passed this law to apply the Widmar
  decision to extracurricular activities in public
  schools. The Act stipulates that if a public
  secondary school allows extracurricular clubs to
  meet for any purpose, it has established a
  limited open forum.

29
Equal Access Act

• When a school has established a limited open
  forum, it must let students meet for any purpose,
  except those that are illegal. Appendix B, p.
  1023 of the text has a copy of the Equal Access
  Act.

30
Facilities

• If school districts allow their facilities to be
  used for any public purpose, they cannot deny the
  use to religious groups solely on the basis of
  the religious nature of the group. (Lambs
  Chapel)

31
Board of Ed. Westside v. Mergens

• This case challenged the constitutionality of the
  Equal Access Act and in 1990, the Supreme Court
  upheld it. The Court ruled that students
  attending secondary schools where there is a
  limited public forum have a right to organize
  their own groups, regardless of the political,
  religious, or philosophical perspective.

32
Facilities

• A school or school district may establish
  guidelines, including fees, for allowing the
  public use of facilities. (The DOE has a policy
  about this.)

33
Flag Salute

• In West Virginia State Board of Education v.
  Barnette, 1943, the Supreme Court ruled that
  forcing students to salute the flag is
  unconstitutional.