Lemon v. Kurtzman (1971) – from “Have To” History

July 27, 2022June 4, 2023 ~ Blue Cereal

NOTE: This is an excerpt from “Have To” History: A Wall of Education. In the 50+ years since this decision was issued, the “Lemon Test” has been clarified, narrowed, reinforced, and finally all but discarded by an evolving Supreme Court. (The recent decision in Kennedy v. Bremerton references it several dozen times – mostly negatively.)

That’s unfortunate, in my opinion, because it was for several decades one of the most straightforward and balanced approaches to avoiding “establishment” problems without overly hindering “free exercise.” The case is still important, however – not only because of the issues involved and the “test” which resulted, but for the erudite arguments and genuine efforts to remain pragmatic without sacrificing fundamental liberties on either side. The majority opinion by Chief Justice Warren Burger is one of the best on this topic in the entire history of the Court.

Lemon v. Kurtzman (1971): Because Nuns Are Gonna Be Nuns

Three Big Things:

1. Lemon v. Kurtzman addressed the question of whether state financial support for the teaching of secular subjects within religious schools violated the Establishment Clause of the First Amendment. (It did.)

2. Direct State support of religious schools was determined to be unconstitutional because faculty, unlike textbooks or equipment, cannot be reasonably expected to turn their faith “on” or “off” based on the subject they’re assigned that period. Religious schools are by their nature religious, even when teaching non-religious subjects.

3. This case is best known for establishing the “Lemon Test,” a three-part checklist often used to determine whether or not a given government action violates church-state separation.

Background: A Wall of Separation

In Everson v. Board of Education (1947), the Court decided it was perfectly acceptable for the state to reimburse parents for transportation costs of getting their children to school, whether public or private, sectarian or secular.

A decade and a half later, in Engel v. Vitale (1962), the Court made clear that the state could not require – or even promote – prayer in public schools as part of the school day, no matter how generic the prayer. This was followed closely by Abington v. Schempp (1963) in which the same was applied to the reading of Bible verses or the recitation of the Lord’s Prayer.

In Board of Education v. Allen (1968), the court determined it was perfectly acceptable for New York to provide textbooks free of charge to all secondary students (grades 7–12), including those in private schools. Much like the busses in Everson, textbooks were considered of general benefit to all students. For the government to make it more difficult for students in religious schools to learn Algebra or Science would, in fact, violate the “free exercise” clause.

In none of these cases was the goal to drive faith out of public education. The Court’s concern, rather, was to prevent either the power of government or the foibles of politicians from unduly interfering in man’s reach for the Almighty. Or, at least, that was how it interpreted the Framers’ concerns as expressed in the First Amendment, applicable to the states via the Fourteenth – a judicial philosophy known as “incorporation.”

The Abington decision included a little checklist by which interested parties could determine whether or not something violated the “wall of separation” established by the First Amendment. That checklist was refined less than a decade later when the Court heard Lemon v. Kurtzman (1971).

Give Me That Part-Time Religion

As of 1969, both Pennsylvania and Rhode Island had plethoras of private schools, the vast majority of which were Roman Catholic. Then, as now, most private schools operated on tight budgets. The average per-pupil expenditure was lower than public schools in the same area – even when numbers were adjusted to reflect only “secular education.” In other words, students in many private Catholic schools weren’t benefitting from the same resources as kids in public schools, even when learning science, math, or other non-religious subjects.

Both states passed legislation to provide supplemental support for these private schools, as long as the extra funds were used only for the teaching of secular subjects and buying non-religious materials. In some cases, this included help with teacher salaries. There were parents in both states, however, who complained that this diverted resources from public schools to support sectarian institutions, thus violating the First Amendment.

It presented an interesting dilemma: Was modest financial assistance for a sectarian school more like including a little prayer and some Bible verses in Engel or Abington, or supplying bus fare and textbooks in Everson or Allen? Does state assistance constitute “establishment,” or would eliminating that assistance violate “free exercise”?

Walz v. Tax Commission of the City of New York (1970)

Only a year before, the Court had addressed a similar dilemma in Walz v. Tax Commission of the City of New York. It wasn’t a public school case, but many of the issues were comparable.

The city of New York had granted property tax exemptions to religious organizations when the property in question was used exclusively for religious worship – putting them in the same general category as schools or charities, who claimed similar tax exemptions on their properties. Some property owners who did pay taxes argued this violated the Establishment Clause.

The Court determined that while government certainly had no business promoting religion, these tax exemptions didn’t actually do that – not quite. They merely allowed the “free exercise” of groups serving the public good by allowing the same tax benefits as any non-religious non-profit serving a similar function. They weren’t “establishing,” the Court said – they were stepping back and letting faithy people do faithy stuff.

The majority opinion in Walz, written by Chief Justice Warren Burger, cited a number of prior cases by way of illumination – many of them involving public schools. In turn, Walz would be cited in subsequent school-related church-state cases. Several of his more salient points, in fact, could have just as easily been prompted by Engel, Allen or Lemon:

The Establishment and Free Exercise Clauses of the First Amendment are not the most precisely drawn portions of the Constitution. The sweep of the absolute prohibitions in the Religion Clauses may have been calculated, but the purpose was to state an objective, not to write a statute…

In other words, that Separation of Church and State thing is an ideal, a goal – not a clear set of rules for every situation.

The Court has struggled to find a neutral course between the two Religion Clauses, both of which are cast in absolute terms, and either of which, if expanded to a logical extreme, would tend to clash with the other…

The Court thus recognized that the best application of First Amendment values wasn’t necessarily obvious in each and every case. Sometimes, protecting the rights of everyone concerned is an imperfect balancing act.

The First Amendment, however, does not say that, in every and all respects, there shall be a separation of Church and State. We sponsor an attitude on the part of government that shows no partiality to any one group, and that lets each flourish according to the zeal of its adherents and the appeal of its dogma…
The course of constitutional neutrality in this area cannot be an absolutely straight line; rigidity could well defeat the basic purpose of these provisions, which is to insure that no religion be sponsored or favored, none commanded, and none inhibited…

Justice Burger was suggesting that the best way to remain faithful to the ideal is to remain flexible with the specifics. Pragmatic, yet poetic.

Short of those expressly proscribed governmental acts, there is room for play in the joints productive of a benevolent neutrality which will permit religious exercise to exist without sponsorship and without interference…

Once one successfully navigates “there is room for play in the joints productive of a benevolent neutrality,” this is either a doggedly practical or maddeningly evasive approach. Burger seems to be confessing a certain degree of “figuring it out as we go” by the Court – although in this case, that “figuring” includes fifteen pages of detailed analysis and historical background.

The Lemon Decision

As with Walz, Chief Justice Burger wrote the majority opinion. He again acknowledged the difficulty of neither promoting nor hindering religion, but this time laid out what would become known as “The Lemon Test” – one of the most enduring bits of jurisprudence from the Burger Court. (Also, it’s fun to say “Burger Court” and mean something totally for real and serious.)

Every analysis in this area must begin with consideration of the cumulative criteria developed by the Court over many years. Three such tests may be gleaned from our cases. First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion… finally, the statute must not foster “an excessive government entanglement with religion” …

Or, rephrased to apply more specifically to the case at hand:

In order to determine whether the government entanglement with religion is excessive, we must examine the character and purposes of the institutions that are benefited, the nature of the aid that the State provides, and the resulting relationship between the government and the religious authority…

Justice Burger went on to explain how very clearly religious these private schools were. Most were located on the same grounds or in close proximity to associated churches. Religious symbols pervaded each campus. Roughly two-thirds of the instructors were nuns. To cap it all off, the Catholic faith was pretty explicit about the fact that a large part of the reason they had parochial schools to begin with was to spread their faith. So were they religious?

Well… yeah.

But what about Allen a few years prior?

In Allen, the Court refused to make assumptions, on a meager record, about the religious content of the textbooks that the State would be asked to provide. We cannot, however, refuse here to recognize that teachers have a substantially different ideological character from books.

Good to know someone realized that. If only he’d added “or online coursework.”

In terms of potential for involving some aspect of faith or morals in secular subjects, a textbook’s content is ascertainable, but a teacher’s handling of a subject is not. We cannot ignore the danger that a teacher under religious control and discipline poses to the separation of the religious from the purely secular aspects of pre-college education. The conflict of functions inheres in the situation.

Despite several more pages of explanation, that pretty much sums it up. The balance between pushing religion and punishing it is a tricky one, yes – but in this specific situation, the Court decided, the state had some seriously conflicted inhering going on.

It wasn’t malicious. It simply wasn’t fair to expect teachers to completely separate their spiritual function from their secular labors.

We need not and do not assume that teachers in parochial schools will be guilty of bad faith or any conscious design to evade the limitations imposed by the statute and the First Amendment. We simply recognize that a dedicated religious person, teaching in a school affiliated with his or her faith and operated to inculcate its tenets, will inevitably experience great difficulty in remaining religiously neutral.
Doctrines and faith are not inculcated or advanced by neutrals. With the best of intentions, such a teacher would find it hard to make a total separation between secular teaching and religious doctrine…

Finally, expecting the state to supervise or punish violations of this unattainable “total separation” created the exact sort of entanglement the First Amendment hoped to circumvent. It made the government into the theology police.

To ensure that no trespass occurs, the State has therefore carefully conditioned its aid with pervasive restrictions…
Unlike a book, a teacher cannot be inspected once so as to determine the extent and intent of his or her personal beliefs and subjective acceptance of the limitations imposed by the First Amendment. These prophylactic contacts will involve excessive and enduring entanglement between state and church.

In other words, the unacceptable entanglement between state and church starts with a well-intentioned effort to protect both from unconstitutional interaction. That said, one can’t help but wonder whether it was Justice Berger himself or some smirking law clerk who thought “prophylactic contacts” was a great way to express this. Then again, perhaps when it comes to phrasing we should allow written opinions a little play in the joints.

The Aftermath

So, bus fare and math books are OK. Government-led prayer or devotional readings are not. And, after Lemon, direct support to sectarian schools – under whatever formula – was out as well (at least for the next half-century). There would be other church-state cases in subsequent years, but those coming closest to the issues in Lemon involved questions of “school choice” and “vouchers.” Because the aid in question is primarily intended for parents and students, proponents argue these options are entirely constitutional – just like in Allen or Everson. Opponents insist that the intent and actual impact of such programs hurts public schools in favor of sectarian institutions, which seems like it must violate something in the “Lemon Test,” and is in any case has the state once again inching towards entanglement without the appropriate prophylactics.

In short, the “Lemon Test” brought some much-needed clarity to issues involving the separation of church and state. Shortly thereafter, people found a way to complicate it again.

Excerpts from Lemon v. Kurtzman (1971), Majority Opinion by Chief Justice Warren Burger {Edited for Readability}

In Everson v. Board of Education (1947), this Court upheld a state statute that reimbursed the parents of parochial school children for bus transportation expenses. There, Mr. Justice Black, writing for the majority, suggested that the decision carried to “the verge” of forbidden territory under the Religion Clauses. Candor compels acknowledgment, moreover, that we can only dimly perceive the lines of demarcation in this extraordinarily sensitive area of constitutional law.
The language of the Religion Clauses of the First Amendment is, at best, opaque, particularly when compared with other portions of the Amendment. Its authors did not simply prohibit the establishment of a state church or a state religion, an area history shows they regarded as very important and fraught with great dangers. Instead, they commanded that there should be “no law respecting an establishment of religion” … A given law might not establish a state religion, but nevertheless be one “respecting” that end in the sense of being a step that could lead to such establishment, and hence offend the First Amendment.
In the absence of precisely stated constitutional prohibitions, we must draw lines with reference to the three main evils against which the Establishment Clause was intended to afford protection: “sponsorship, financial support, and active involvement of the sovereign in religious activity” (Walz v. Tax Commission, 1970).
Every analysis in this area must begin with consideration of the cumulative criteria developed by the Court over many years… First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion (Board of Education v. Allen, 1968); finally, the statute must not foster “an excessive government entanglement with religion” (Walz).
Inquiry into the legislative purposes of the Pennsylvania and Rhode Island statutes affords no basis for a conclusion that the legislative intent was to advance religion. On the contrary, the statutes themselves clearly state that they are intended to enhance the quality of the secular education in all schools covered by the compulsory attendance laws. There is no reason to believe the legislatures meant anything else. A State always has a legitimate concern for maintaining minimum standards in all schools it allows to operate…
The two legislatures, however, have also recognized that church-related elementary and secondary schools have a significant religious mission, and that a substantial portion of their activities is religiously oriented. They have therefore sought to create statutory restrictions designed to guarantee the separation between secular and religious educational functions… We need not decide whether these legislative precautions restrict the principal or primary effect of the programs to the point where they do not offend the Religion Clauses, for we conclude that the cumulative impact of the entire relationship arising under the statutes in each State involves excessive entanglement between government and religion…
Our prior holdings do not call for total separation between church and state; total separation is not possible in an absolute sense. Some relationship between government and religious organizations is inevitable… Fire inspections, building and zoning regulations, and state requirements under compulsory school attendance laws are examples of necessary and permissible contacts. Indeed, under the statutory exemption before us in Walz, the State had a continuing burden to ascertain that the exempt property was, in fact, being used for religious worship. Judicial caveats against entanglement must recognize that the line of separation, far from being a “wall,” is a blurred, indistinct, and variable barrier depending on all the circumstances of a particular relationship…
The church schools involved in the {Rhode Island} program are located close to parish churches… The school buildings contain identifying religious symbols such as crosses on the exterior and crucifixes, and religious paintings and statues either in the classrooms or hallways. Although only approximately 30 minutes a day are devoted to direct religious instruction, there are religiously oriented extracurricular activities. Approximately two-thirds of the teachers in these schools are nuns of various religious orders. Their dedicated efforts provide an atmosphere in which religious instruction and religious vocations are natural and proper parts of life in such schools…
On the basis of these findings, the District Court concluded that the parochial schools constituted “an integral part of the religious mission of the Catholic Church.” The various characteristics of the schools make them “a powerful vehicle for transmitting the Catholic faith to the next generation.” This process of inculcating religious doctrine is, of course, enhanced by the impressionable age of the pupils, in primary schools particularly. In short, parochial schools involve substantial religious activity and purpose…
In Allen, the Court refused to make assumptions, on a meager record, about the religious content of the textbooks that the State would be asked to provide. We cannot, however, refuse here to recognize that teachers have a substantially different ideological character from books. In terms of potential for involving some aspect of faith or morals in secular subjects, a textbook’s content is ascertainable, but a teacher’s handling of a subject is not. We cannot ignore the danger that a teacher under religious control and discipline poses to the separation of the religious from the purely secular aspects of pre-college education. The conflict of functions inheres in the situation…
The teacher is employed by a religious organization, subject to the direction and discipline of religious authorities, and works in a system dedicated to rearing children in a particular faith. These controls are not lessened by the fact that most of the lay teachers are of the Catholic faith. Inevitably, some of a teacher’s responsibilities hover on the border between secular and religious orientation.
We need not and do not assume that teachers in parochial schools will be guilty of bad faith or any conscious design to evade the limitations imposed by the statute and the First Amendment. We simply recognize that a dedicated religious person, teaching in a school affiliated with his or her faith and operated to inculcate its tenets, will inevitably experience great difficulty in remaining religiously neutral. Doctrines and faith are not inculcated or advanced by neutrals. With the best of intentions, such a teacher would find it hard to make a total separation between secular teaching and religious doctrine…
A comprehensive, discriminating, and continuing state surveillance will inevitably be required to ensure that these restrictions are obeyed and the First Amendment otherwise respected. Unlike a book, a teacher cannot be inspected once so as to determine the extent and intent of his or her personal beliefs and subjective acceptance of the limitations imposed by the First Amendment. These prophylactic contacts will involve excessive and enduring entanglement between state and church…
Finally, nothing we have said can be construed to disparage the role of church-related elementary and secondary schools in our national life… The sole question is whether state aid to these schools can be squared with the dictates of the Religion Clauses… The Constitution decrees that religion must be a private matter for the individual, the family, and the institutions of private choice, and that, while some involvement and entanglement are inevitable, lines must be drawn.

A Wall of Separation – Bown v. Gwinnett County School District (1997)

February 8, 2017June 4, 2023 ~ Blue Cereal

Two cases in the early 1960s largely eliminated state-sponsored prayer from public schooling. Engel v. Vitale (1962) and Abington v. Schempp (1963) are to this day touted by the far right as responsible for having kicked God out of schools – leading inevitably to sex, drugs, violence, rock’n’roll, corduroy, divorce, the pill, AIDS, the Clintons, terrorism, and a Kenyan sleeper-cell Mooslim illegitimately seizing the White House for eight long, painful years.

The solution, of course, is to get God back IN our schools by requiring regimented recitation of state-approved chants. He LOVES those! Do this, we are assured, and America’s problems will vanish faster than you can say “civil liberties!”

Alabama led the way in the 1980s with a series of legislation which eventually led to Wallace v. Jaffree (1985), the only “Moment of Silence” case to reach the Supreme Court to date. The Court determined that the state could mandate a “moment of silence” during the school day, but could not lead or even encourage prayer during that time.

The goals of Alabama’s legislation were no secret – state legislators ran on promises to get prayer back into schools, or as close as they could get it. That’s largely what stifled further establishment in Alabama – the Court refused to pretend the history and rhetoric associated with legislation didn’t exist while considering its constitutionality.

Legislative leaders in other states took note and began exercising greater caution as they argued for moments of silence of their own. Suddenly this 60-second period would promote non-violence and academic reflection and gluten-free living and all sorts of things.

A decade after Wallace, Georgia passed its own version of a “moment of silence.” It was challenged by a classroom teacher and ended up in the Eleventh Circuit Court of Appeals as Bown v. Gwinnett County School District (1997). The Court determined that the Moment of Quiet Reflection in Schools Act did NOT violate the Establishment Clause.

The Court’s written opinion is unremarkable, but includes some details of note, such as this bit from what they call the Act’s “uncodified preamble”:

The General Assembly finds that in today’s hectic society, all too few of our citizens are able to experience even a moment of quiet reflection before plunging headlong into the day’s activities. Our young citizens are particularly affected by this absence of an opportunity for a moment of quiet reflection. The General Assembly finds that our young, and society as a whole, would be well served if students were afforded a moment of quiet reflection at the beginning of each day in the public schools.

It’s an absurd bit of glossy nonsense, but it’s constitutional nonsense. We could all probably benefit from drinking more water as well, but I notice no one’s mandating a moment of refreshing hydration each morning. I’m just saying.

Also in the ‘History of the Case’:

Senator David Scott, the primary sponsor of the Act… represented an urban district in Atlanta, Georgia. He was the Chairman of the Senate Education Committee… and a member of the State Violence Task Force Committee to prevent violence in schools. Senator Scott introduced {the Moment of Silence bill} as a part of a package of legislation aimed at reducing violence among Georgia’s youths.

I realize I’m a bit cynical, but 60 seconds of mandatory head-bowing seems a poor substitute for addressing poverty, mental health, drug addiction, sexual abuse, etc. But perhaps I assume too much.

Senator Scott had observed that after several killings on school campuses, students came together to have a moment of silent reflection. Noting that this moment of silence seemed to be beneficial and calming, Senator Scott believed that providing students with an opportunity for silent introspection at the beginning of each school day would help to combat violence among Georgia’s students.

I guess we’re lucky Georgia didn’t mandate a daily mock funeral ceremony using the same reasoning.

During debates over the bill, some state legislators liked it specifically because it was a step towards school prayer. Others opposed it for the same reason. Wisely, many in favor of the bill went on record arguing that it didn’t promote school prayer or have any religious purpose at all. That gave the Court enough cover as to the purpose of the bill that they could in good conscience consider it “religiously neutral.”

The teacher who initiated the case, Brian Brown, argued that the law violated the Establishment Clause and cited the “Lemon Test” to prove it. No surprise, then, that the 11th Circuit uses Lemon to respond.

The first prong of the Lemon test requires that the challenged statute have a “clearly secular purpose” … However, the statute’s purpose need not be exclusively secular… A statute violates the Establishment Clause if it is “entirely motivated by a purpose to advance religion” …
To ascertain a statute’s purpose, it is, of course, necessary to examine the language of the statute on its face… It is also appropriate to consider the legislative history of the statute and the specific sequence of events leading up to the adoption of the statute.

The Court cites both the law itself and its context and presentation by way of establishing that the law explicitly avoids promoting religious activities during this magical minute. At the same time, should a child choose to bow their head or clutch their rosary beads during the moment of life-altering, the state may not discourage them from so doing.

The Court specifically addresses the difference in dynamics between this situation and Wallace. It’s largely a matter of what was said in debates leading up to passage, and surrounding legislation with similar goals.

I cannot emphasize this enough. All subsequent efforts to nudge religious rituals back into government schooling will be made with an awareness that public arguments and discussions may be factored in to any resulting constitutional challenges. Lawmakers are essentially encouraged to be disingenuous if they wish to pass judicial muster.

In Jaffree, the primary sponsor of the Alabama statute and the Governor of Alabama both explicitly conceded that the purpose of the Alabama statute was to return prayer to the Alabama schools, and Alabama failed to present any evidence of a secular purpose… In contrast, in this case, the primary sponsor of the Act indicated that the Act had a secular purpose.
It is true, as Bown argues, that some legislators expressed the desire to return prayer to Georgia’s schools and supported the Act for this reason. However, it is also true that other legislators felt that the Act did not involve school prayer…

You get the idea.

Under the second prong of the Lemon test, a statute violates the Establishment Clause if its primary effect is to advance or inhibit religion…
The announcement made over the school intercom by Principal Hendrix indicated only that there would be a moment of silence to reflect on the day’s activities. This announcement in no way suggested that students should or should not pray silently during the moment of quiet reflection…
There is no indication in this case that any teacher encouraged prayer in violation of the guidelines stated in the Administrative Bulletin. There is no evidence in this case that any students were exhorted to pray, favored for praying, or disfavored for not praying…

The Court then contrasts this dynamic with situations in which students may feel indirectly, if not explicitly, coerced, such as in Lee v. Weisman (1992) and finds they’re not at all similar. There’s no advancement of religion here.

The third prong of the Lemon test dictates that the statute must not foster an excessive government entanglement with religion…
We conclude that there is no excessive entanglement in this case.

Yeah, that was going to be a tough sell at best.

All that the Act requires is that the students and the teacher in charge remain silent during the moment of quiet reflection. Teachers are not required to participate in or lead prayers, nor are they required to review the content of prayers during the moment of quiet reflection…

They’re not only “not required;” they’re specifically prohibited from so doing.

The fact that a teacher must stop a student who prays audibly or otherwise makes noise during the moment of quiet reflection does not result in excessive government entanglement with religion. There are many times during any given school day when teachers tell their students to be quiet and when audible activity of any kind is not permitted. The fact that this particular period of silence is mandated statewide does not create entanglement problems.

A few short years later, Virginia took their turn. The resulting case, Brown v. Gilmore (2001), was heard and decided by the Fourth Circuit Court of Appeals and the outcome was basically the same. Several others have produced comparable results in other federal courts. They each have their own quirks, but the pattern is clear.

With the recent lurch of all three branches to the right, and away from even token concern with civil liberties or sincere belief, it’s hard to guess what may come next. But for now, the “moment of silence” – a pointless exercise designed only to allow legislators to walk right up to that line separating church and state and kick dirt on its trousers – is on solid constitutional ground.

It remains to be seen whether the practice is sufficient to roll back forty years of decadence and cultural decline. We might have to up it to two minutes.

Wall of Separation (Supreme Court Cases & Such) – Updated

January 14, 2017June 4, 2023 ~ Blue Cereal

A few months ago, I started blogging about Supreme Court cases delineating the relationships between religion and public schooling. In order to use some of the case summaries in class, I started editing and reformatting them afterwards. Then I figured since the work was already being done, and this effort at providing classroom resources in PDF format was already underway… why not just post them as I go?

Here’s my in-progress summary of cases involving church/state issues in relation to public schooling – and a few which aren’t.

Building A “Wall of Separation” (Faith & School) – Brief background to the First Amendment and the Bill of Rights and Jefferson’s Letter to the Danbury Baptists which introduced the phrase “a wall of separation between Church & State.”

Everson v. Board of Education (1947) – It’s OK for the state to reimburse parents for transportation costs of getting their children to school, whether public or private, sectarian or secular.

McCollum v. Board of Education of School District (1948) – The use of public school facilities by religious organizations to give religious instruction to school children violates the Establishment Clause of the First Amendment. This does not prohibit teaching about religion, or schools allowing religious groups to use their facilities outside of school ours (as long as they do so equitably). It does prohibit coercing students into religious instruction as part of the school day.

Engel v. Vitale (1962) – The state can NOT require – or even promote – prayer in public schools as part of the school day.

Abington v. Schempp (1963) – The state can NOT require or promote the reading of Bible verses or recitation of the Lord’s Prayer as stand-alone activities during the school day. (Studying the Bible or the Christian religion as part of history, literature, etc., still perfectly appropriate.)

Board of Education v. Allen (1968) – It’s OK for the state to provide textbooks free of charge to all secondary students (Grades 7 – 12), including those in private schools. An important part of the Court’s reasoning in this case was that the textbooks constituted aid directly to students, rather than institutions.

Walz v. Tax Commission of the City of New York (1970) – Not specifically a ‘religion in schools’ case. It’s OK for states to offer property tax exemptions for groups serving the public good – even if they’re religious in nature.

Lemon v. Kurtzman (1971) – State aid to sectarian institutions such as private Catholic schools violates the Establishment Clause and is unconstitutional. This case also established “The Lemon Test” – “Three such tests may be gleaned from our cases. First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion… finally, the statute must not foster ‘an excessive government entanglement with religion’…”

Wisconsin v. Yoder (1972) – The state’s interest in an educated citizenry is outweighed by the right of the Amish to maintain their faith and their communities. Parents may pull their children out of public schooling for religious reasons once they turn 16 – especially given the Amish track record for becoming productive, well-behaved members of society. The Court had previously attempted to distinguish between regulating beliefs and regulating behavior – in this case, the two were the inseparable. They instead introduced the idea of “balanced interests’ – the state’s interest in an educated populace vs. the parents’ or individual’ interest in pursuing their faith as they see fit.

Meek v. Pittenger (1975) – It’s unconstitutional for the state to provide materials and equipment for non-public schools, or to pay for support services for students at those schools. As in Allen, however, textbooks (for traditional subjects) were fine.

Stone v. Graham (1980) – State cannot require schools to post the Ten Commandments in public school classrooms, even if paid for by private money.

Mueller v. Allen (1983) – It’s OK for the state to let parents deduct expenses related to “tuition, textbooks, and transportation” for their children, regardless of whether their child attends public or private school, even if sectarian. Significantly, the Court determined that as long as the intent is secular, it’s OK for the effect to significantly favor parents sending their kids to religious schools. This case is considered one of the three foundational cases leading up to vouchers.

Wallace v. Jaffree (1985) – While a “moment of silence” is fine, any nudging towards prayer, especially with teacher participation, is unconstitutional. This issue will come up again.

Aguilar v. Felton (1985)– A NYC program sending public school teachers into parochial schools to provide extra help for disadvantaged children was ruled an unconstitutional “entanglement” of church and state, thus violating the Establishment Clause. This ruling was overturned a decade later in Agostini v. Felton (1997).

Witters v. Washington Department of Services for the Blind (1986) – A state agency which provided assistance to blind students pursuing education or job training may continue to do so even if the education/profession being pursued is religious in nature. This case didn’t involve public education, but did nudge along an understanding of the law which certainly does. This case is considered one of the three foundational cases leading up to vouchers.

Hazelwood v. Kuhlmeier (1988) – Students produced two articles for the school newspaper which dealt with teenage pregnancy and in which students at the schools shared their firsthand experiences, including various conflicts involving their families. The school principal determined the subject matter to be inappropriate and efforts to protect the girls’ identities insufficient, and the stories were pulled. Students protested that their First Amendment rights were being violated. The Supreme Court eventually ruled 5-3 that the principal had the right to make this decision because the newspaper was a product of the school and created as part of a journalism class, for which students were receiving credit and a grade.

Lee v. Weisman (1992) – It’s unconstitutional for schools to have clergymen offering prayers at graduation ceremonies, no matter how general or brief the prayers. Even if not technically ‘required’, or even on school property, participation is still coerced and thus a violation of the “establishment clause.”

Zobrest v. Catalina Foothills School District (1993) – Students attending private sectarian schools are still entitled to support services from public schools – in this case, a sign-language interpreter for a deaf student. This case is considered one of the three foundational cases leading up to vouchers.

Agostini v. Felton (1997) – Overturned Aguilar v. Felton (1985). It was no longer considered a violation of the Establishment Clause for a state-sponsored education initiative to send public school teachers into religious schools, so long as reasonable steps were taken to minimize “entanglement.”

Santa Fe ISD v. Doe (2000), Part One: Overview – Background to landmark Supreme Court Case in which the Court decided that organized prayer during school events using school resources was unconstitional – even if students “voted” on it.

Santa Fe ISD v. Doe (2000) – Part Two: If She Weighs The Same As A Duck… – The impact of mingling church and state on dissenters. Spoiler: it gets ugly rather quickly.

Santa Fe ISD v. Doe (2000) – Part Three: A Little Leaven Leaveneth The Whole Lump – The impact of mixing church and state on the faith being “defended.” Spoiler: it gets ugly rather quickly.

Let’s Talk About Vouchers, Part One (What Happened In Cleveland?) – Background to Zelman v. Simmons-Harris (2002), a seminal Supreme Court Case in which the Court decided that efforts to improve education in Ohio – including the use of vouchers – did not violate the Establishment Clause.

Let’s Talk About Vouchers, Part Two (Zelman v. Simmons-Harris, 2002) – My brilliant breakdown of the decision itself.

Let’s Talk About Vouchers, Part Three (The Majority Opinion in Zelman) – Insights from the Majority Opinion.

Let’s Talk About Vouchers, Part Four (The Story So Far) – A summary of more recent court decisions at various levels dealing with vouchers and other “school choice” variations as of December 2016.

The Ten Commandments (Part One) – Background, the “Lemon Test,” some cases which made the news but not the Supreme Court Docket, and two that did – McCreary County v. ACLU of Kentucky (2005) and Van Orden v. Perry (2005).

The Ten Commandments (Part Two) – Recap of Part One, Pleasant Grove v. Summum (2009), Green v Haskell County Board of Commissioners (2009), and Felix v. Bloomfield (2014).

There will be more. I’m looking at “moment of silence” stuff, and will eventually follow up on other “school choice” cases. I’ll probably grab some quirky school-related cases not necessarily tied to “wall of separation” issues as well, in which case I’ll probably have to rename the next update. In any case, if you’re into that sort of thing, check back soon.

A Wall of Separation – The Story So Far…

November 13, 2016June 4, 2023 ~ Blue Cereal

Now that the elections are over and all that is good or true in the world has been destroyed, I’m trying to shift my focus back to educational stuff. You know, the things that at one time seemed important enough to shape the title of this blog?

A few months ago, I started by blogging about Supreme Court cases delineating the relationships between religion and public schooling. In order to use some of the case summaries in class, I started editing and reformatting them afterwards. Then I figured since the work was already being done, and this effort at providing classroom resources in PDF format was already underway… why not just post them as I go?

Here’s my in-progress summary of cases involving church/state issues in relation to public schooling – and a few which aren’t.

Everson v. Board of Education (1947) – It’s OK for the state to reimburse parents for transportation costs of getting their children to school, whether public or private, sectarian or secular.

Engel v. Vitale (1962) – The state can NOT require – or even promote – prayer in public schools as part of the school day.

Stone v. Graham (1980) – State cannot require schools to post the Ten Commandments in public school classrooms, even if paid for by private money.

Wallace v. Jaffree (1985) – While a “moment of silence” is fine, any nudging towards prayer, especially with teacher participation, is unconstitutional. This issue will come up again.

Zelman v. Simmons-Harris (2002) – Seminal Supreme Court Case in which education improvement efforts undertaken by the State of Ohio, and which included school vouchers as part of the while, were determined to be constitutional in terms of the Establishment Clause. I’ve written several posts about this one, starting with the background, the decision, and the majority opinion. I’ve also summarized more recent court decisions at various levels dealing with vouchers and other “school choice” variations.

The Ten Commandments (Part Two) – Recap of Part One, Pleasant Grove v. Summum (2009), Green v Haskell County Board of Commissioners (2009), and Felix v. Bloomfield (2014).

There will be more. I’m looking at “moment of silence” cases, some other “prayer in schools” situations, and of course that “vouchers” case I’ve been building up to for awhile. If you’re into that sort of thing, check back soon.

A Wall of Separation – Wallace v. Jaffree (1985)

September 23, 2016June 4, 2023 ~ Blue Cereal ~ 1 Comment

So far we’ve done a brief overview of the concept of a ‘Wall of Separation’ between church and state, and covered a few early Supreme Court Cases involving religion and public schools.

We looked at Everson v. Board of Education (1947) in which the Court determined it was perfectly acceptable for the state to reimburse parents for transportation costs of getting their children to school, whether public or private, sectarian or secular.

Then came Engel v. Vitale (1962), in which the Court made clear that the state could NOT require – or even promote – prayer in public schools as part of the school day. It was followed closely by Abington v. Schempp (1963) in which the same decision applied to the reading of Bible verses or the recitation of the Lord’s Prayer.

In both of these cases, the Court sought to prevent either the power of government or the foibles of politicians from unduly interfering in man’s reach for the Almighty. This was how they interpreted the Framers’ concerns as expressed in the First Amendment, applicable to the states via the Fourteenth.

In Lemon v. Kurtzman (1971), the Court established a “checklist” by which interested parties could determine whether or not something violated the “Establishment Clause” or the “Free Exercise Clause” of the First Amendment. While neither exclusive nor absolute, the “Lemon Test” is still regularly referenced today.

In Stone v. Graham (1980), the Court said boo to the required posting of the Ten Commandments in public school classrooms. The trend was clear – go easy on pushing your faith via mandatory common education.

But then Reagan took office, and a conservative revolution of sorts swept the nation. I don’t want to overstate the case – it’s not a Disney movie – but for those of you who weren’t there or don’t remember, the Reagan Era wasn’t just a presidential administration. It was a social movement, a political shift, a new dynamic comparable to Kennedy’s “Camelot” in impact – although very different in flavor.

Evangelicals were emboldened and the media and courts demonized as liberals – disgusting and dishonorable, both deceived and deceptive. They were dangers to the nation and everyone in it. Reagan wasn’t evil, at least by modern standards, but he did epitomize a sort of American Exceptionalism in Book-of-Revelation Sauce. The passion and self-righteousness of Ronnie and his adherents pre-empted reason, law, or precedent.

It was in this climate that Alabama decided that Jesus and His legacy simply could not survive much longer without their assistance.

They’d already passed a 1978 law providing for a “moment of silence” each school day “for meditation.” They weren’t the only ones to test this route. Many states or districts instituted some variation of the “moment of silence” after Vitale (1962) and Schempp (1963) made it clear that institutional prayer or other overt Biblization was a no-no.

The “moment of silence” was as much a symbolic move as anything – it served and serves no real purpose or function beyond stepping right up to the line of church-state separation and daring the courts to do something about it. The legislators sponsoring the bill had said as much from the floor; it wasn’t a secret – they were running on their efforts to get prayer back into public schools. Extra credit if you can tell me why that alone should have been enough to invalidate the idea. {Hint: it rhymes with “Women Vest.”}

Alabama took things a step further in 1981, legislating that the moment of silence was to be used “for mediation and voluntary prayer.” Their momentum building, they upped their game yet again in 1982 and instructed teachers to lead “willing students” in a state-written prayer.

Ishmael Jaffree had three kids in Mobile County Public Schools – two in second grade and one in kindergarten. He protested the state-designed prayer, and had plenty of established case law on his side. But that’s not what struck me about his complaint.

Jaffree’s concerns stemmed not from abstract constitutional issues, but from his kindergartener being targeted by other kids for not participating in the prayers. His five-year-old was essentially bullied for not falling into line with state-mandated religious activities.

He wasn’t alone. In a similar case going on in West Virginia at the same time, a Jewish student was challenged by peers for quietly reading during the “moment of silence.” He needed to pray, they told him, or he’d “go to hell with the rest of the Jews.”

Yes, the prayer was technically voluntary – but as anyone in education knows, “voluntary” can mean many different things. In this case, it was legal cover for bad law, an effort to create enough of a loophole to allow Alabama to belittle children for holding to their family’s religious beliefs in ways that didn’t harm or bother anyone, but without the state running afoul of those damned godless liberal judges.

And yes, there comes a time in life – even public school life – where students must be expected to grow up and accept that not everything works the way they want it to and not everyone is nice. We can’t and shouldn’t stop kids from ever saying an unkind word to one another.

That doesn’t mean, however, that the abuse has to be state-sanctioned. That doesn’t mean the state should throw the first pebble then disclaim responsibility when the very children it’s seeking to influence continue the work by throwing stones of their own.

In an interesting wrinkle, the federal district judge who heard this case as it worked its way through the system chose to ignore precedent and declared the laws perfectly constitutional, stating in his decision that “Alabama has the power to establish a State religion if it chooses to do so.” I’m all for waving your little flag at the tank as it rolls through the square, but this wasn’t the powerless standing up to the powerful – this was power trying to take more power.

And it wouldn’t have happened a decade before.

The South was ready to rise again through God, Guns, and the Gipper. Where’s that Confederate Flag and my 12-pack of Keystone?

I promise I’m not blaming every error of the modern world on Ronald Reagan – I was actually quite a fan. But he was wrong when early in his Presidency he proposed a constitutional amendment permitting organized prayer in public schools. He was wrong in his 1984 State of the Union when he asked why “freedom to acknowledge God” couldn’t “be enjoyed again by children in every schoolroom across this land?”

It’s always problematic when we use “freedom” to mean “giving me the power to force you to comply with my beliefs.” Students have always been free to acknowledge God in whatever schoolroom they happen to be. They’ve never been prohibited from praying at appropriate times or discussing their faith with other students, as long as we can have school along the way.

Imagine if President Clinton had insisted that school intercoms, choirs, and bands be used to broadcast, sing, and play Led Zeppelin exclusively, and at least once a day. Is that “bringing back freedom”?

It’s no dis on Zeppelin to suggest that some people much prefer Supertramp, or the Police, or even Etta James. Besides, you have to suspect that it wouldn’t be long before not just ANY Zeppelin would work. If your local Congressman is partial to the B-side of In Through The Out Door, then THAT becomes the only acceptable Zeppelin from here on out. You don’t even get “In The Evening” that way!

Of course you can disagree, but… why do you hate freedom? Are you a threat to our way of life? What are you, Disco?

On a personal note, I must confess that student liberties aside, I’m rather horrified by the use of the Christian faith as this sort of political tire iron. If the God they claim to serve is truly so helpless as to be somehow barred from hallways and classrooms of public schools around the nation, their efforts to facilitate his comeback are both tragic and unwise.

Surely the same Jesus who conquered Death and Hell isn’t lying around half-formed in a forest somewhere, waiting for Wormtail to bring him a few more ingredients for the Holy Cauldron or for Ms. Kravitz to read the right magic prayer out loud enough times.

It’s hard to imagine Paul the Apostle sitting along the road somewhere in Cyrprus, whining that he can’t preach the Gospel until some local legislature makes a rule requiring the Beatitudes be posted in the marketplace or mandating the 23rd Psalm be recited before any and all public lectures.

If your faith only works when government mandates that minors pay it hollow homage, you need a better faith.

But I should probably get back to the case…

While the Bible part and the praying part are consistently prohibited as violations of the Establishment Clause, the “Moment of Silence” has for the most part survived constitutional scrutiny, even while being acknowledged as an “accommodation” of faith – but not an “establishment” or “inhibitor” of faith.

That’s why in Oklahoma, every school day, students are given 5 – 7 seconds to “reflect, meditate, or pray” in any manner not disrupting or distracting those around them. I don’t know about you, but I feel MUCH closer to God as a result. If we were given, say… 12 seconds to work with, who knows what could happen?

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