MODEL SCHOOL BOARD POLICY REGARDING RELIGION
By Mathew D. Staver, Esq.

Symbols, Music, Art, Drama, Literature

A. It is the intent of this policy to promote tolerance and understanding among students, faculty and staff. It is further the intent of this policy to neither promote nor to denigrate religion or religious practices. Students and staff members should be excused from participating in practices which are contrary to their religious beliefs unless there are compelling reasons that would prevent excusal.

1. The several holidays throughout the year which have a religious and secular basis may be observed in the public schools.

2. The historical and contemporary values and the origin of religious holidays may be explained in an unbiased and objective manner without sectarian indoctrination.

3. Music, art, drama, and literature having religious themes or bases are permitted as part of the curriculum for school-sponsored activities and programs if presented in a prudent and objective manner and as a traditional part of the cultural and religious heritage of the particular holiday.

4. The use of religious symbols such as a cross, menorah, crescent, Star of David, creche, symbols of Native American religions, or other symbols that are part of a religious holiday are permitted as a teaching aid or resource provided such symbols are displayed as an example of the cultural and religious heritage of the holiday and are temporary in nature. Among these holidays are included Christmas, Easter, Passover, Hanukkah, St. Valentines Day, St. Patricks Day, Thanksgiving and Halloween.

5. The districts calendar should be prepared so as to minimize conflicts with religious holidays of all faiths.  

B. Religious institutions and orientations are central to human experience, past and present. An education excluding such a significant aspect would be incomplete. It is essential that the teaching about and not of religion be conducted in a factual, objective and respectful manner.  

1. The School Board supports the inclusion of religious literature, music, drama, and the arts in the curriculum and in school activities provided it is intrinsic to the learning experience in the various fields of study and is presented objectively. The Bible or other religious literature may be used as an appropriate study of history, civilization, ethics, or comparative religions so long as it is presented in an objective manner without promoting belief or non-belief.

2. The emphasis on religious themes in the arts, literature and history should be only as extensive as necessary for a balanced and comprehensive study of these areas. Such studies should never foster any particular religious tenets or demean any religious beliefs.

3. Student-initiated expressions to questions or assignments which reflect their beliefs or non-beliefs about a religious theme shall be accommodated. Students are free to express religious belief or non-belief in compositions, art forms, music, speech and debate.  

Speech, Literature Distribution and Clothing

C. It is the intent of this policy to recognize the free speech rights of students in public school. Students on public school campuses have the right to express their ideas verbally and through the distribution of literature so long as their speech does not disrupt the ordinary operation of the school.

1. Students may verbally express their ideas during class so long as their verbal expressions are consistent with the subject matter being taught.

2. Students may verbally express their ideas to other students during noninstructional time so long as their speech is not disruptive to the ordinary operation of the school and does not infringe on the rights of other students.

3. Students may distribute literature during noninstructional time so long as the distribution is not disruptive to the ordinary operation of the school and does not infringe on the rights of other students.

4. Students may wear symbols or articles of clothing which contain written or symbolic expressions so long as such symbols or clothing is not obscene and does not infringe on the rights of other students.

5. As used in this section, the term "noninstructional time" means before or after school hours, between classes, during lunch or recess times.

6. As used in this section, the term "does not disrupt the ordinary operation of the school" means that the speaker be the initiator and cause of disruption. It does not mean that other students must agree with the speaker. Disruption by other students in response to the students expressions should not be construed to mean that the speaker is causing disruption. "Disruptive to the ordinary operation of the school" includes littering, forcing other students to listen by shouting or preventing passage, and engaging in speech activities during instructional time which is not consistent with the subject matter being taught.

7. As used in this section, the term "infringe on the rights of other students" means defamatory expressions against another student.  

Graduation Ceremonies

D. It is the intent of this policy to recognize the solemnity of graduation ceremonies. It is also the intent to recognize the delicate balance between free speech rights and establishment of religion concerns.

1. School officials shall not invite a clergyman for the specific purpose to pray at graduation, place the prayer on the agenda, and give the clergyman guidelines for saying the prayer.

2. School officials may use secular criteria to invite a speaker for the graduation ceremony, and if the speaker voluntarily chooses to pray, school officials should not prevent the prayer.

3. Schools may rent out their facilities to outside organizations to conduct graduation at which a clergyman or other person is invited to pray and where prayer is placed on the agenda so long as school officials do not organize, conduct, promote or prescribe the content of the graduation ceremony.

4. Schools may turn over part or all of the graduation ceremony to a parent and/or student committee to organize part or all of the ceremony at which the inclusion of prayer shall rest within the discretion of the graduating senior class. The prayer, if used, shall be given by a student or other person who is not an employee of the school.  

Alternative Section Regarding Graduation Ceremonies

1. The use of a brief opening and/or closing message, not to exceed two minutes, at high school graduation exercises shall rest within the discretion of the graduating senior class.

2. The opening and/or closing message shall be given by a student volunteer, in the graduating senior class, chosen by the graduating senior class as a whole.

3. If the graduating senior class chooses to use an opening and/or closing message, the content of that message shall be prepared by the student volunteer and shall not be monitored or otherwise reviewed by the school board, its officers or employees.  

Student Clubs

E. It is the intent of this policy to recognize noncurriculum-related student clubs as being a traditional and vital part of a students educational process within the public school system. It is further the intent to provide nondiscriminatory guidelines for the continued operation of student-initiated clubs.

1. Any public secondary school which receives federal financial assistance and which has a limited open forum shall not deny equal access or a fair opportunity to, or discriminate against, any students who wish to conduct a meeting within that limited open forum on the basis of the religious, political, philosophical, or the content of the speech at such meetings.

2. A public secondary school is a limited open forum whenever such school grants an offering to or opportunity for one or more noncurriculum-related student groups to meet on school premises during noninstructional time.

3. Schools shall be deemed to offer a fair opportunity to students who wish to conduct a meeting within its limited open forum if such school uniformly provides that--

(a) the meeting is voluntary and student-initiated;

(b) there is no sponsorship of the meeting by the school, the government, or its agents or employees;

(c) employees or agents of the school or government are present at religious meetings only in a nonparticipatory capacity;

(d) the meeting does not materially and substantially interfere with the orderly conduct of educational activities within the school; and

(e) nonschool persons may not direct, conduct, control, or regularly attend activities of student groups.

4. Nothing in this section shall be construed to limit the authority of the school, its agents or employees, to maintain order and discipline on school premises, to protect the well-being of students and faculty, and to assure that attendance of students at meetings is voluntary.

5. The term "sponsorship" includes the act of promoting, leading, or participating in a meeting. The assignment of a teacher, administrator, or other school employee to a meeting for custodial purposes does not constitute sponsorship of the meeting.

6. The term "meeting" includes those activities of student groups which are permitted under a schools limited open forum and are not directly related to the school curriculum.

7. The term "noninstructional time" means time set aside by the school before actual classroom instruction begins or after actual classroom instruction ends.  

Release Time

 

F. It is the intent of this policy to recognize that schools may offer a release time for students to leave the public school facilities for off-site instruction, including religious instruction.

1. Any school may provide a designated time during the school week for students to leave the public school facilities in order to obtain off-site instruction, which may include religious instruction.

2. Students shall not be required to attend off-site religious instruction, nor may students be required to leave the public school facilities during the designated time of this off-site instruction.

3. Any religious instruction that occurs during the release time shall not be on school premises, shall not be conducted by school personnel, and no academic credit shall be given for such instruction.  

Use of School Facilities

G. It is the intent of this policy to recognize that school facilities are often made available for noncurriculum-related purposes to students as well as to nonstudents, and it is further the intent of this policy that such use shall be offered on an equal and nondiscriminatory basis.

1. Any school which makes available use of its facilities to any nonstudent as a meeting place before or after the official school day shall offer use of the school facilities on an equal and nondiscriminatory basis without regard to the content of the requested meeting.

2. Any school which offers use of its facilities to any nonstudent may charge a rental or use fee so long as such rental or use fee is required for any meeting requested by any nonstudent on an equal and nondiscriminatory basis without regard to the content of the requested meeting.

3. Notwithstanding any use made available to any nonstudent, the school may prohibit continued use of the school as a meeting place to any nonstudent if there is particularized evidence to show that the nonstudent user has and will continue to cause disruption or violence to the ordinary operation of the school.

4. The request made by a student to use school facilities as a meeting place during school hours shall be governed by Section E of this policy relating to Student Clubs.  

Severability

F. If any provision of this policy or the application thereof to any person or circumstances is judicially determined to be invalid, the provisions of the remainder of the section and the application to other persons or circumstances shall not be affected thereby.  

SIGNIFICANT CASES SUPPORTING
SCHOOL BOARD POLICY
REGARDING RELIGION 

Symbols, Music, Art, Drama, and Literature

Sections A and B of the policy are taken verbatim from the Eighth Circuit Court of Appeals case of Florey v. Sioux Falls School District 49-5, 619 F.2d 1311 (8th Cir.), cert. denied 449 U.S. 987 (1980). This Eighth Circuit Court of Appeals case found that the policy as outlined in Sections A and B was constitutional. The United States Supreme Court denied review and therefore this case establishes the most authoritative ruling on this policy regarding symbols, music, art, drama, and literature. Sections A and B are also supported by the United States Supreme Court decision in School District of Abington Township v. Schempp, 374 U.S. 203 (1963).

 

Speech, Literature Distribution and Clothing

Section C is supported by several cases. Foremost is the United States Supreme Court decision in Tinker v. Des Moines Independent School District, 393 U.S. 503 (1969). This was the landmark decision regarding free speech rights on public school campuses. The test for limiting student free speech is taken almost verbatim from the Tinker case and is outlined in Section C2. As it relates to the distribution of religious literature, several federal court cases have been used to outline this portion of the policy. Rivera v. East Otero School District R-1, 721 F. Supp. 1189 (D. Colo. 1989) and Burch v. Barker, 861 F.2d 1149 (9th Cir. 1988).

 

Graduation Ceremonies

Section D pertaining to graduation ceremonies is based upon the United States Supreme Court ruling in Lee v. Weisman, 112 S. Ct. 2649 (1992). Section D1 essentially states the ruling of the Lee decision. The remainder of Section D is based upon the Fifth Circuit Court of Appeals decision in Jones v. Clear Creek Independent Schools, 977 F.2d 963 (5th Cir. 1992), cert. denied, 113 S. Ct. 2950 (1993). This case cites Lee v. Weisman and outlines an exception as it relates to student prayer. Section D also utilizes the case of Verbena United Methodist Church v. Chilton County Board of Education, 765 F. Supp. 704 (M.D. Ala. 1991). In this particular case involving the rental of school facilities to outside organizations for the purpose of conducting graduation services, there would be no constitutional concerns as raised in Lee v. Weisman. To prohibit such activities could be construed as a violation of free speech rights. The alternative section regarding graduation ceremonies is based on the cases of Harris v. Joint School District No. 241, 821 Supp. 638 (D. Idaho 1993) and Adler v. Duval County School Board, 851 F. Supp. 446 (M.D. Fla. 1994).  

Student Clubs

Section E deals with the federal law known as the Equal Access Act found at 20 U.S.C. 4071-74. The Equal Access Act was upheld by the United States Supreme Court in Board of Education v. Mergens, 110 S. Ct. 2356 (1990).  

Release Time

Section F pertaining to release time is governed by the United States Supreme Court decision in Zorach v. Clauson, 343 U.S. 306 (1952). Other cases used for this section include Lanner v. Wimmer, 662 F.2d 1349 (10th Cir. 1981), Doe v. Shenandoah County School Board, 737 F. Supp. 913 (W.D. Va. 1990), and Minnesota Federation of Teachers v. Nelson, 740 F. Supp. 694 (D. Minn. 1990).  

Use of School Facilities

Section G pertaining to use of public school facilities is governed by the United States Supreme Court decision in Lamb's Chapel v. Center Moriches Union Free School District, 113 S. Ct. 2141 (1993). This is the landmark United States Supreme Court case holding that use of school facilities must be offered on a nondiscriminatory basis even if the requester is a religious organization. The section dealing with rental value is governed by Fairfax Covenant Church v. Fairfax County School Board, 811 F. Supp. 1137 (E.D. Va. 1993), which ruled that a school may not require higher rent of a religious organization for use of its school facilities than as required of secular organizations.


The Information contained herein in not intended to render legal advice. Factual and legal issues may arise that must be considered in each circumstance. If legal advice is necessary, the services of a competent attorney should be sought.