LEGAL FACT SHEET
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"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
> 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
(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.
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