School Employee Religious Expression

Rebecca Fleishman, Tharrington Smith, L.L.P.Wake County Public Schools Principals’

MeetingJune 18, 2015

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 a redress of grievances.

Establishment Clause: Separation of Church and State

As government entities, public schools cannot promote or denigrate one religion specifically or religion or nonreligion generally.

Staff members, when acting in their official capacities as school employees, must adhere to this principle.

Why?

On the other hand: Free Exercise

School employees don’t relinquish their private right to religious liberty just by being school employees.

CapacityOfficial capacity: A school employee acts in her official capacity

when she is exercising her responsibilities as a school employee.Teaching a classCoaching a school-sponsored sporting eventSupervising a school-sponsored activityEtc.

Individual capacity: A school employee acts in her individual capacity when she is acting purely as an individual citizen and not on behalf of the school system.At homeOn a break during the school dayNot supervising students or participating in school-sponsored

eventsEtc.

First General Rule

Neutrality: Whenever they are acting in their official capacities, either on or off campus, employees should neither favor nor disfavor religion.

Don’t:

Criticize religion or non-religion to students.Punish, stigmatize, or publicly malign

students for their faith or lack of faith.Express a preference for one religion or

another.Express a preference for religion or

nonreligion generally.

Second General Rule

No coercion: School systems and their employees may not “coerce anyone to support or participate in religion or its exercise.”

Don’t:Proselytize to students or pressure them to

participate in any religious exercise.Force religious views on others, including

adults, in a way that disrupts workplace harmony or the educational environment.

Take any actions intended to influence students in their religious convictions or actions.

Third General Rule

No endorsement: School employees acting in their official capacities should not “endorse” religious activities.

Don’t:Sponsor, organize, or encourage religious events

or activities involving students, including prayer, Bible study, or church attendance.

Lead, join, or otherwise participate in prayers or other religious activities with students.

Post religious materials in classrooms, locker rooms, or other school premises accessed by students.

Distribute religious materials to students or parents, including the use of religious “taglines” on school system email accounts.

Fourth General Rule

No waiver of rights as private individuals: Employees acting in their purely personal capacities in a way that could not reasonably be attributed to the school have the same religious liberties as any citizen.

Do (if you want to):Privately pray or read scripture.Meet with other employees for prayer or other

religious activities while not working with students.

Allow students to pray or otherwise engage in religious activities during non-instructional time.

Attend meetings of student religious clubs as supervisors only.

Join students and parents in prayer or other religious exercise outside of school and while acting in a purely personal capacity.

Consider this…

A student reports to you that several teachers have formed a prayer group and are praying at school.

Consider this…

You investigate and discover that the prayer group meets before school, in whatever empty classroom is available, before students are allowed to be in the classroom. They are not working with students or otherwise exercising any supervisory duties. You know and allow other groups of teachers meet during this time.

Consider this…For twenty years, your middle school basketball

team, either lead or joined by the coach, has recited the Lord’s Prayer at each practice, in the locker rooms before games, after games in the center of the court, and on the school bus travelling to and from games.

The parent of a player comes to you and complains. He admits that his daughter does not participate, but tells you that her non-participation draws attention from her fellow students and some staff.

Doe v. Duncanville Ind. Sch. Dist., 70 F.3d 402 (5th Cir. 1995)

A twistCan the coach who historically lead or verbally

participated in team prayer stop doing those things and, instead, take a knee and bow his head with the team while they pray?

Borden v. Sch. Dist. of Tp. of E. Brunswick, 523 F.3d 153 (3d Cir. 2008)

Consider this…A parent of a choir student, who receives academic

credit for her participation, comes to you and reports that the choir’s theme song is based on Christian text.

You investigate and learn that the choir students learn the theme song as part of their overall repertoire and conclude every Friday class and some performances and competitions with it. They also sing the song on the bus on the way home from performances.

The choir director tells you that the song is particularly useful in teaching students to sight read and sing a capella.

Doe v. Duncanville Ind. Sch. Dist., 70 F.3d 402 (5th Cir. 1995)

Consider this…

A teacher reports to you that he is offended by the small Star of David another teacher wears on a chain around her neck.

Consider this…One of your teachers has a fifteen minute “silent reading

period,” during which students are allowed to choose their own reading materials – from home, from the school library, or from the classroom library. To model behavior, the teacher also participates in silent reading during this period.

While observing this classroom, you notice that the teacher frequently reads from the Bible during this silent reading period. The teacher never reads it aloud, but always keeps the Bible on his desk.

A parent also complains to you that, during an open house, she noticed two Christian books in the teacher’s classroom library.

You know that the teacher also has books in the classroom library about Native American religions and Greek gods.

Roberts v. Madigan, 921 F.2d 1047, 1056-58 (10th Cir. 1990)

Consider this…A parent sends religious music to school with an

autistic student, saying it is useful to calm him. After having success with the music, the

student’s teacher sends a note home saying that the student had a good day and “I thank you and the LORD for the tape; it brings the Spirit of Peace to the classroom. Tomorrow is a teacher’s conference and dismissal is at 11:30. May God Bless you all richly!”

Marchi v. Bd. of Cooperative Educ. Servs. of Albany, 173 F.3d 469 (2d Cir. 1999)

When in doubtRemember the four general rules.Gather all the facts.Ask yourself:

Is the employee acting in her official or individual capacity?

Is the activity occurring during instructional time or in the presence of students?

Would the employee be allowed to engage in comparable nonreligious activity to the same extent? Is the activity disruptive?

Utilize your WCPSS resources! Call HR or your Area Superintendent, and they can seek help from our office.

Questions?