By: Lincoln Decoursey Re: ACLU: Establishment Fact Sheet LEGAL FACT SHEET . . . . . . . .

By: Lincoln Decoursey Re: ACLU: Establishment Fact Sheet LEGAL FACT SHEET . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." I. ESTABLISHMENT CLAUSE PRINCIPLES > The Constitution forbids not only state practices that "aid one religion...or prefer one religion over another," but also those practices that "aid all religions" and thus endorse or prefer religion over nonreligion. Everson v. Board of Education of Ewing, 330 U.S. 1, 15 (1947). > In determining whether a particular practice violates the Establishment Clause, courts must apply the three-pronged test established by the Supreme Court in Lemon v. Kurtzman, 403 U.S. 602 (1971). Where the government's action fails any one of the following three prongs, it is unconstitutional: (1) whether the government's action has a secular purpose; (2) whether the primary effect is to advance or endorse religion, and (3) whether the policy or practice fosters an excessive entanglement between government and religion. II. GRADUATION PRAYER > The Supreme Court has invalidated various forms of school sponsored prayer, including voluntary classroom prayers and scripture readings, School Dist. of Abington Township v. Schempp, 374 U.S. 203 (1963), moments of silence, Wallace v. Jaffree, 472 U.S . 38 (1985) and posting of the Ten Commandments, Stone v. Graham, 449 U.S. 39 (1980). > In 1992, the Supreme Court held in Lee v. Weisman, ___ U.S. ___, 112 S.Ct. 2649 (1992), that establishing a period for prayer at public school graduation ceremonies violated the Establishment Clause. Although the Fifth Circuit Court of Appeals has all owed graduation prayer where a majority of graduating seniors requested that a prayer be given by a student volunteer, Jones v. Clear Creek Indep. Sch. Dist., 977 F.2d 963 (5th Cir. 1992), cert. denied, ___ U.S. ___, 113 S.Ct. 2950 (1993), that ruling is inconsistent with Lee and only applies within the three states comprising the Fifth Circuit (Texas, Louisiana and Mississippi). > Federal courts in Iowa, New Jersey and Virginia have held that student-initiated prayers of the type at issue in Jones are forbidden by the Establishment Clause. See ACLU v. Blackhorse Pike Reg. Bd. of Educ., Dkt. No. 93-5368 (3rd Cir. June 25, 1993); Friedmann v. Sheldon Community Sch. Dist., Dkt. No. C93-4052 (N.D. Iowa, May 28, 1993) vacated on standing grounds, Dkt. No. 93-2375 (8th Cir. May 28, 1993); Gearon v. Loudon County Sch. Bd., Dkt. No.93-730-A (E.D. Va. June 21, 1993), stayed pending appe al, Dkt. No. 93-1770 (4th Cir. June 23, 1993). Contra Harris v. Joint School District No. 241, 821 F. Supp. 638 (D.Idaho 1993), appeal docketed, No. 93-35839 (9th Cir. June 15, 1993). III. BIBLE DISTRIBUTION > Although the Supreme Court has not ruled on the constitutionality of Bible distribution on public school grounds during school hours, the Court of Appeals for the Seventh Circuit has ruled that such activities violate the Establishment Clause. Berger v. Rensselaer Central School Corp., 982 F.2d 1160 (7th Cir.), cert. denied, ___ U.S. ___, 113 S.Ct. 2344 (1993). IV. EQUAL ACCESS TO SCHOOL FACILITIES > Once a school district opens its facilities for use by students or members of the community during non-school hours, the Free Speech Clause of the First Amendment prohibits the school district from discriminating against groups seeking access, including religious groups, based on the viewpoint the groups wish to express. Lamb's Chapel v. Center Moriches School District, ___U.S. ___, 113 S.Ct. 2141 (1993). > School district officials may not supervise or participate in the delivery of a religious message. Furthermore, any request by a religious group for special privileges -- including access that is significantly different in either quality or quantity from the access granted to other student or community groups -- would raise serious Establishment Clause problems. See, Texas Monthly, Inc. v. Bullock, 489 U.S. 1, 17 (1989). V. RELIGIOUS HOLIDAY PARTIES > The Supreme Court has held that displays of religious symbols such as nativity scenes on public property violate the Establishment Clause if they convey a message that is primarily religious rather than secular. See County of Allegheny v. ACLU Greater Pittsburgh Chapter, 492 U.S. 573 (1989); Lynch v. Donnelly, 465 U.S. 668 (1984). > Although the Supreme Court has not ruled on the issue of public school observances of religious holidays, the Court has been vigilant in the public school context to ensure that schools do not engage in practices that convey a religious message or imply an endorsement of religion. Holiday observances that focus on the religious significance of Christmas to Christians, rather than on those aspects of the holiday that have become part of our secular culture, are impermissible. ACLU * ACLU * ACLU * ACLU * ACLU * ACLU * ACLU * ACLU * ACLU NEWS RELEASE * NEWS RELEASE * NEWS RELEASE * NEWS RELEASE ACLU Endorses Joint Statement on Religion & Public Schools Statement of Diann Rust-Tierney, Associate Director, Washington National Office American Civil Liberties Union For IMMEDIATE RELEASE April 13, 1995 WASHINGTON, April 13 -- The American Civil Liberties Union is pleased to be here today to join with a wide array of other religious and secular organizations in releasing this important and timely joint statement of current law regarding religion in our public schools. For all of its 75 years, the ACLU has been one of this nationţs strongest defenders of religious liberty. We defend both religion clauses of the First Amendment and strongly believe that there is no need for a constitutional amendment or for new legislation in this area. As the joint statement we release today shows, there is already significant protection for religious liberty enshrined in our nationţs laws. To tinker with that would be to change the foundation that has allowed this country to become one of the most faithful and religiously diverse in the world while avoiding the religious strife that has plagued many other continents. The release of this joint statement gives us reason for cautious optimism as we face the prospect of yet another round of battles in Congress over organized school prayer. We hope that the American people will see us gathered here today in support of religious liberty and understand that Congress must not allow the more radical elements of religious community to force its hand on this basic American principle. The bottom line is that students and teachers already have the right to pray individually in school -- it is called the First Amendment. We are proud to stand here in reaffirmation of one of our nation's most basic principles surrounded by such a diverse group of friends and allies. --end-- [The statement may be found in the Spotlight section of the Free Reading Room.] ACLU * ACLU * ACLU * ACLU * ACLU * ACLU * ACLU * ACLU * ACLU NEWS RELEASE * NEWS RELEASE * NEWS RELEASE * NEWS RELEASE ACLU Releases Video, Legal Bulletin on Religion in Public Schools; Intensifies Campaign to Counter Misleading Assertions by Far Right For IMMEDIATE RELEASE November 12, 1993 NEW YORK -- Intensifying its national campaign to preserve religious liberty in America, the American Civil Liberties Union today distributed a new legal bulletin to more than 16,000 school superintendents around the country and announced the release of a new 35-minute video titled "America's Constitutional Heritage: Religion and Our Public Schools." The video, the first ever produced by the ACLU, is a direct response to a video, "America's Godly Heritage," being distributed by several organizations on the far right. That video, which was produced by Wallbuilders, a Texas company, argues that the United States was founded to be a Christian nation. Ira Glasser, ACLU Executive Director, said the far right's increased attempts should deeply concern all Americans who care about religious freedom. "In many parts of the country, school administrators and school board members are coming under increasingly intense pressure from organized groups to sacrifice the nation's commitment to religious liberty," he said. "Our legal bulletin and video are designed to give administrators and parents the information they need to make the best possible choices for their schools, their children and their communities." The Legal Bulletin, "The Establishment Clause and Public Schools," was prepared by the ACLU's Legal staff to help school administrators who are being pressured to permit graduation prayer, Bible distribution in public schools, displays of religious symbols and observance of religious holidays. The Bulletin also clarifies religious groups' right to equal access to schools and the free speech rights of religious groups and individuals. The video -- narrated by Rev. W.W. Finlator, the former pastor of Pullen Memorial Baptist Church in Raleigh, N.C. -- features the stories of several courageous families who challenged religious practices in their public schools as well as additional information from a renowned constitutional law scholar and Jonathan Kozol, the author of the landmark book, Savage Inequalities. In the video's introductory section, Rev. Finlator expresses agreement with many Americans who are concerned about the crisis of values in our society, and concurs with those who believe that the best way to strengthen values in our country is to reach out to the next generation. But he warns against allowing the public schools to usurp what has long been a parental right and responsibility: "Some people, however, want to take that right and responsibility away from parents," he says. "They want to bring religion to our children in another way. Not through parents at home, or in church, but through the public schools." As a companion to the video, the ACLU will soon release a new installment in its popular educational briefing series titled "Ask Sybil Liberty." The new "briefer" will focus on a student's right to religious liberty. "We recognize that the First Amendment's protections for religion in America are not widely understood," Glasser said. "This has led to the mistaken belief that the Founder's demand for separation of church and state were motivated by hostility toward religion, when, in fact, they sought to guarantee true religious liberty." The bulletin and video are part of the ACLU's continuing effort to combat misleading information being distributed by Pat Robertson's American Center for Law and Justice. Robertson's group and others on the far right have mailed several letters to school administrators around the country arguing that certain religious practices, including graduation prayer, are constitutionally permissible. In his letter to school superintendents, the ACLU's Glasser said that he recognizes that school administrators are confronting difficult decisions involving the complex issues that relate to religion and the public schools. Urging superintendents and other school leaders to contact the ACLU if they need additional assistance, Glasser says, "an environment in our public schools that is hospitable to religious diversity, and that fosters respect for the Constitution, is in the best interest of us all." ACLU * ACLU * ACLU * ACLU * ACLU * ACLU * ACLU * ACLU * ACLU NEWS RELEASE * NEWS RELEASE * NEWS RELEASE * NEWS RELEASE ACLU Warns Schools Over Graduation Prayer; Sends 15,000 Letters to Counter Misleading Legal Advice For IMMEDIATE RELEASE May 5, 1993 NEW YORK -- In a letter distributed nationally to 15,000 public school superintendents, the American Civil Liberties Union has rejected assertions by some in the religious right that recent court decisions allow student-sponsored prayer during official graduation ceremonies. The letter, which was mailed in the last week, seeks to respond to misleading information circulated by Pat Robertson's American Center for Law and Justice. The Robertson organization has mailed at least two letters to school superintendents around the country arguing that students can vote to allow prayer during graduation ceremonies. "In his zeal to force all Americans to follow his beliefs, Pat Robertson is seriously distorting the law and sending a dangerous message to the nation's students and educators," said Ira Glasser, ACLU Executive Director. ACLU affiliates around the country have received numerous complaints about planned prayers during graduation ceremonies from students and their parents. Glasser said the ACLU took the extraordinary step of distributing its letter nationally because of the rising tide of complaints. Last year, in the closely watched ACLU case of Lee v. Weisman, the Supreme Court ruled that religious exercises at public school graduation ceremonies violate the Constitution. In a decision written by Justice Anthony Kennedy, the Court said that holding prayers during a graduation ceremony gives any objecting student "a reasonable perception that she is being forced by the State to pray in a manner her conscience will not allow." In his letters to school superintendents, Robertson's group ignores the central holding of the Lee decision and instead bases its advice on a case decided by the Fifth Circuit Court of Appeals, which covers only the states of Texas, Louisiana and Mississippi. The ACLU believes the case, Jones v. Clear Creek Independent School District, was wrongly decided; the U.S. Supreme Court has already been asked to review the Fifth Circuit decision. The ACLU letter, distributed by mail in the last week, says that among other fundamental errors, the Jones decision unconstitutionally permits a student election to decide whether there will be a prayer at graduation and allows school officials to approve the prayer and designate a time for it during the official ceremonies. "Constitutional rights would be meaningless if they could be overruled by a vote," said Robert S. Peck, legislative counsel in the ACLU's Washington Office. "It is important to understand that when we prohibit government from taking sides in a religious dispute, we are protecting religion from government control." In its letter and supporting materials, the ACLU made clear that students and their parents can organize prayer ceremonies before or after graduation programs. To meet the Constitution's strict requirements about the separation of church and state, however, the ACLU said that the ceremonies must meet the following conditions to be constitutional: > They must be held off school grounds. > Attendance must be entirely voluntary. > School officials cannot assist in the organization of such events or participate in them in their official capacity. The bottom line, the ACLU said in quoting the Supreme Court, is that when school officials include prayers in graduation, whether or not student-initiated, they violate the Constitution "because the State has in every practical sense compelled attendance and participation in an explicit religious exercise at an event of singular importance to every student." "Turning down a request from students to designate a time for prayer during graduation does not prevent those who wish to pray from doing so," the ACLU letter concluded. "It merely indicates that they must do it on their own and not use the machinery of government for that purpose, or in a way that imposes their religious desires upon others." ============================================================= ACLU Free Reading Room | A publications and information resource of the gopher://aclu.org:6601 | American Civil Liberties Union National Office ftp://aclu.org | mailto:infoaclu@aclu.org | "Eternal vigilance is the price of liberty"