Tag Archives: Religion

SCOTUS Signals OK on Vouchers for Religious Schools

Let’s assume that a few years from now the Texas legislature enacts a voucher scheme whereby parents can take public money and use it at a private school. Let’s assume that the scheme allows that public money to be spent at any private school—including a religious one.  Let’s further assume that someone challenges the constitutionality of that scheme and takes it to the U.S. Supreme Court.  Based on its latest ruling on a similar issue, I’m predicting SCOTUS rules that religious schools cannot be blocked from the program.

The case of Trinity Lutheran Church of Columbia, Inc. v. Comer was about recycled tires used to pave the playground at the church, which operates a school and daycare.  Missouri made grant funding available for these new and improved playgrounds, and Trinity Lutheran applied. Its application was a good one. SCOTUS noted that it “would have received one, but for the fact that Trinity Lutheran is a church.”   Missouri—like Texas—has a state constitutional provision that prohibits the use of any public money for the benefit of a religious institution. Based on that provision, Missouri rejected the church’s application.  Kids continued to scrape their little Lutheran knees on a pea gravel surface, rather than harmlessly bouncing off the recycled tires.

SCOTUS held that Missouri violated the Free Exercise Clause of the First Amendment.  Chief Justice Roberts cites an earlier SCOTUS case that holds that the U.S. Constitution takes precedence over the state version:

“the state interest asserted here—in achieving greater separation of church and State than is already ensured under the Establishment Clause of the Federal Constitution—is limited by the Free Exercise Clause.”  [Taken from Widmar v. Vincent, 454 U.S. 263 (1981).

The Chief’s opinion concludes strongly:

But the exclusion of Trinity Lutheran from a public benefit for which it is otherwise qualified, solely because it is a church, is odious to our Constitution…and cannot stand.

Suppose the “public benefit” is participation in a voucher program.  If a private school is prohibited from participating in that program because it is religious, and only because it is religious, how do you think Justice Roberts would rule?  I predict he rules in favor of the religious school.  You can count on Alito, Thomas and Gorsuch ruling the same way.  And Justices Kennedy and Kagan sided with Roberts on this one.  So there are at least four SCOTUS votes in favor of vouchers for religious schools, and possibly as many as six.

We shall see.

The case of Trinity Lutheran Church of Columbia, Inc. v. Comer was decided by the Supreme Court on June 26, 2017.  Seven justices ruled for Trinity Lutheran with two dissenting.


File this one under:  RELIGION

Tomorrow: the 5th Circuit gets its first opportunity to interpret the “new” FAPE standard.

Your school board meetings: more like the state legislature? Or a football game?

This being Good Friday, I thought it would be a good time to revisit the issue of prayer at school board meetings.  Fortunately, we have a brand new 5th Circuit decision on the issue.

Background: two circuits (the 3rd and the 6th) have struck down prayer at school board meetings.  However, both of those cases pre-dated the Supreme Court’s decision in Town of Greece v. Galloway.  In that case SCOTUS considered the constitutionality of prayer at a city council meeting.  The Court held that the “legislative prayer” exception applied.  Therefore, just as ceremonial prayer is acceptable in Congress and in state legislatures, it is acceptable at a city council meeting.

That still left school board meetings in legal limbo. But not anymore, thanks to American Humanist Association v. Birdville ISD.

Since 1997 Birdville has opened its board meetings with presentations from two students.  The practice has been for the first student to lead the Pledge of Allegiance and the Texas pledge, while the second student delivers a statement, which might include a prayer.  That second student is given only one minute for his or her remarks. School officials do not direct the student on what to say, except to point out that the remarks must be relevant to a school board meeting and not obscene or inappropriate.

The American Humanist Association (AHA) alleged that these one-minute statements usually involve a prayer, and that those prayers are often overtly Christian, using phrases such as “in the name of Jesus.”  Moreover, the AHA alleged that board members have sometimes asked the audience to “stand for the prayer” or “bow your heads.”

The district tweaked the process in three ways in 2015, apparently in response to concerns expressed by the AHA. First, the district began referring to this one-minute presentation as a “student expression” rather than an “invocation.”  This reflected the fact that not all students used their time to deliver a prayer.  Some read a poem, or a secular reading.  Second, the district started providing a disclaimer, making it clear that the words spoken were the student’s—not the school’s.  Third, the district began selecting students on a random, rotational basis among student leaders who had volunteered, rather than having students selected on the basis of merit.

None of those changes satisfied the AHA.  The organization continued to assert that this was a thinly disguised scheme to allow prayer at the school board meeting.  The AHA and a former student from Birdville sued in federal district court, alleging that the district’s practices were unconstitutional.  The suit named the district as a defendant, along with all seven school board members who were sued in their individual capacity.

The federal district court granted a Motion for Summary Judgment in favor of BISD.  Now, the 5th Circuit has affirmed that decision. With the ruling that the district has not violated the Constitution, the board members are also relieved of liability concerns.

In its analysis, the court noted that several prior court cases have struck down “school prayer” at various school activities, such as football games and graduations.  On the other hand, there are also cases that allow prayer in the context of legislative activities at the federal or state level. So the court framed the issue this way:

The key question, then, is whether this case is essentially more a legislative-prayer case or a school-prayer matter.  Like Galloway, this dispute is about the constitutionality of permitting religious invocations at the opening, ceremonial phase of a local deliberative body’s public meetings. But like Santa Fe, this case is about school district sanctioned invocations delivered by students on district property.

The court concluded that “a school board is more like a legislature than a school classroom or event.” Thus the “legislative prayer” cases controlled the outcome. The district’s practices fit well within that framework.   The court cited Town of Greece v. Galloway as the primary basis for its ruling.

The district had a back-up argument prepared for the court—that even if the one-minute was used for the delivery of a sectarian prayer, it would be the student’s speech, not the school’s.  But by relying on the legislative prayer exception, the court did not reach that issue.

The case of American Humanist Association v. Birdville ISD was decided by the 5th  Circuit on March 20, 2017.  I’m proud to report that attorneys Craig Wood and Katie Payne from our firm’s San Antonio office represented the district in this case.


File this one under: RELIGION

Have a good weekend, Readers! See you next week.

Freedom from Religion Foundation wins $1.00 in lawsuit

People sometimes wonder what advocacy organizations get when they win a lawsuit.  The recent case of Freedom from Religion Foundation v. Concord Community Schools provides a good example.  The FFRF won its case.  It obtained an order from the judge that declared the school’s past Christmas programs to be unconstitutional.  They judge did not grant the permanent injunction that FFRF sought. But the Foundation did recover damages—all of $1.00.  The court’s order says nothing about the recovery of attorneys’ fees, but I expect that the court will award fees to the FFRF due to their success in the case.

FFRF, like other advocacy organizations, pursues litigation not to recover damages, but to make a point.  In this case, the point made is that governmental entities cannot endorse religion.  The court concluded that the “Christmas Spectacular” programs that the high school produced were unconstitutional. Here’s the takeaway quote:

As the Court has previously emphasized, the portrayal of a living nativity scene in and of itself does not render the performance unconstitutional.  But the manner in which the living nativity scene was presented and its context within the show combined to create an impermissible message of endorsement.

The case was decided on March 6, 2017 by Judge Jon Deguilio of the Northern District of Indiana.  We found it at 2017 WL 879848.

I wrote up this case in more detail on October 31, 2016.  If you want a copy of that entry from the blog, just send me an email. I’d be happy to send it to you.


File this one under: RELIGION

Tomorrow: HB 218 deserves your attention….

Strong opinions make for interesting cases….

I’ve known a lot of football coaches in my time.  As a general rule, I like these guys. They are hard working, fun loving, competitive, dedicated and often are very positive influences for students.  They also, seems to me, frequently hold strong opinions.  Have you noticed?  The word “stubborn” comes to mind, although I expect the coaches would prefer “firm.”

So when you get a coach at odds with his school district over an issue that stirs the blood, you have the makings of a very interesting court case.  Such is the case of Borden v. School District of the Township of East Brunswick.

 The case is about school prayer and the proper role for school officials when the students wish to pray.  The football team had a custom of reciting a prayer at their pre-game meal, and then again, on one knee in the locker room right before kickoff.  When a parent complained about this practice, the superintendent got the school lawyer involved, who laid out some guidelines, largely based on a decision from our 5th Circuit, Doe v. Duncanville ISD, 70 F.3d 402 (5th Cir. 1995).  The coach was instructed not to lead, initiate, mandate or even participate in student prayer.

Rather than comply with these restrictions, the coach quit. This was in October—right in the middle of football season.  Less than two weeks later, the coach rescinded his resignation, came back to work and promised to abide by the school’s guidelines.  I’m guessing there was a lot of hoo hah in the community between the resignation and the rescission.

Just six weeks later, (perhaps right after the final game?) the coach filed suit against the district, claiming that it had infringed on his constitutional rights.  In the suit, the coach was very specific.  He understood that he could not lead, initiate or mandate prayer. He understood that he’d been ordered not to “participate.” But all he wanted to do was to show respect for his players and their prayers by 1) bowing his head during grace; and 2) taking a knee with them in the locker room.

This generated a 24-page opinion from the 3rd Circuit Court of Appeals. All three judges ruled for the school district on this one, holding that the restrictions on the coach were not only constitutional—they were mandated if the school was to avoid violating the Establishment Clause.

Cases like this drive a lot of people crazy.  I’m guessing that the majority of people, and almost all football coaches, would agree with the coach that his silent gestures only signaled respect—not endorsement of religion.  The judges saw it otherwise, although you can tell from their opinions (all three had something to say) that it was a close call, and at least one of them did not much like the outcome.

These arguments continue.  Many of you probably read about the Christmas-oriented Charlie Brown poster that landed Killeen ISD in court right before Christmas.  As long as we have freedom of religion along with a prohibition of government endorsing religion we are going to have some tension around these issues.

The Borden case was decided by the 3rd Circuit Court of Appeals on April 15, 2008. We found it at 523 F.3d 153.


 File this one under: RELIGION

Tomorrow: an important case about the Public Information Act

Dear Dawg: We’ve got a small but growing number of Muslim students…..

Dear Dawg: We’ve got a small but growing number of Muslim students entering our schools, and so some issues are coming up about how to accommodate some of their religious practices.  Do you know of any good resources on this subject?  I KNOW THE BASICS….I THINK.

DEAR I KNOW THE BASICS:  Well, I suspect you do know the basics.  All students are welcome in our public schools, and all are to be treated with respect, dignity and non-discrimination.  Non-discrimination often involves making accommodations and/or exceptions from your general rules, as long as this does not create a major problem.  Issues may arise involving clothing, dietary restrictions, holidays, classroom assignments, mixing of the sexes, and prayer during the school day.

Here are two good resources:  first, An Educator’s Guide to Islamic Religious Practices https://www.cair.com/images/pdf/educators_guide.pdf.

Second, for the lawyers who are members of the Council of School Attorneys, the June 2016 issue of Inquiry and Analysis: https://cdn-files.nsba.org/s3fs-public/reports/0616_InquiryAnalysis.pdf?F6S7R2.mWsv2EwZu3jCK21.9alNwbyZf

Questions about the proper boundary line between a proper accommodation and an improper one are tricky and require specific legal advice. But these publications will get you off to a good start.


 File this one under: RELIGION


Happy Halloween!! Can Christmas be Far Behind?

Here’s hoping you get through this day with no scary clowns to deal with, and just some good natured fun in your school. Halloween marks the beginning of the “holiday season,” two months that seem to move a lot faster than the other ten. Thanksgiving is on the horizon and Christmas catalogs are already clogging the mailbox.

So we thought you might want to hear about the litigation going on over the annual CHRISTMAS SPECTACULAR presented each year by Concord High School in Elkhart, Indiana. This program is a holiday tradition going back to the 1970s when the high school marching band attended the Radio City Christmas Spectacular in New York.

I’m sure that the Radio City program is impressive, but those Yankees got nothin’ on these Hoosiers. Concord High produces a program that involves two string orchestras, a symphony orchestra, a concert band, two jazz bands, five choirs, and small chamber groups. That’s just the music. The program also includes dance teams and drama department players. Throw in the stage technicians and crew, and you have 600 of the high school’s 1700 students involved in this 90-minute production. I expect there is a partridge in a pear tree as well.

Until the litigious Doe family got involved, the program was exclusively about Christmas. Oh, there were secular songs, like Jingle Bells and White Christmas, but there was no mention of other faiths and their winter celebrations. Moreover, the program concluded with “The Story of Christmas” which included readings taken directly from the Gospels. This was accompanied by a live nativity scene, with students in costumes portraying Mary, Joseph, angels, shepherds and the three wise men.

The Doe family, supported by the Freedom from Religion Foundation, filed suit, seeking to force changes in the program for 2014. In response, the school immediately offered to make some changes. They dropped the Gospel readings, and added songs pertaining to Chanukah and Kwanzaa. These holidays, along with Christmas, would be introduced in the program with a short reading about the cultural significance of each holiday. But the nativity scene was still in the program. And the “Story of Christmas” portion was to last 20 minutes, compared to three or four minutes honoring the other traditions.

The federal district court in Indiana ruled that this did not go far enough. The court held that the program, as proposed by the school, would still amount to a governmental endorsement of religion, in violation of the First Amendment.

So the school made additional changes for the 2015 program. The Doe Family continued to object, but the court found the 2015 program to be significantly different from previous Christmas Spectaculars. Those differences were enough for the program to pass muster. Key Quote:

The portrayal of the nativity scene in the 2015 show was very different. As just noted, the nativity scene was on stage for less than two minutes. It did not span multiple performances, either, as it was only on stage for the conclusion of the show. The scene was also less elaborate than in previous years. Previous shows included almost twenty student actors as part of the living nativity scene. Mary and Joseph stood inside the stable behind a manger, with three students on each side dressed in white robes, depicting angels. Students dressed as the three wise men would then walk onto the stage and take their place in front of the nativity scene. In addition, multiple students were spread to the sides dressed as shepherds. The nativity scene that was actually presented in 2015, though, included only Mary, Joseph, and three wise men, each situated inside the stable set and depicted by mannequins instead of students.

When presented in that limited manner, the nativity scene did not stand out from any other portion of the show, during which almost every performance was accompanied by some sort of visual complement in order to make the show visually as well as musically pleasing and engaging.

We expect this is not the last we will hear about this case. Furthermore, it’s a reminder of the fine line public schools have to walk when celebrating holidays that have religious origins. Public schools are not expected to ignore the role of religion, or the religious roots of some of our holidays. But neither are they to endorse the majority view.

The case is Freedom from Religion Foundation v. Concord Community Schools, decided by the federal district court for the Northern Division of Indiana on September 14, 2016. We found it at 2016 WL 4798964.


File this one under: RELIGION

Prayer at Board Meetings: Another Opportunity for the 5th Circuit

The 5th Circuit has not given us a definitive ruling on the issue of prayer at school board meetings. However, they now have the opportunity to do so. The issue arose in Birdville ISD where the American Humanist Association challenged the practice. The federal district court ruled in favor of the school district and the case is now on appeal to the 5th Circuit.

The district court judge observed that the “determinative issue” was whether school board meetings were more akin to legislative sessions, or to high school graduations. In support of that line of thinking, the court noted earlier Supreme Court decisions that have held that prayer at the start of a legislative session is constitutional, whereas prayer at a graduation ceremony is generally not. In the Birdville case the court said:

The court is persuaded, as in Tangipahoa, [an earlier district court decision from Louisiana] that a school board is more like a legislature than a school classroom or event. Thus, the mere fact that school board meetings may open with a prayer does not violate the Establishment Clause. However, use of such prayers to exploit or proselytize Christianity is improper.

Stay tuned for this one. The decision of the 5th Circuit will give us a binding legal precedent concerning this very common practice.

The case is American Humanist Association v. Birdville ISD, decided by Judge John McBryde of the Northern District of Texas on August 1, 2016.


File this one under: RELIGION

Tomorrow is Toolbox Tuesday! Stay Tuned!!

After School Programs: Boy Scouts! Girl Scouts! The Good News Club! And now…The After School Satan Club!

Does your school have a Good News Club that meets after school?  If so, you may be given the opportunity to also host The After School Satan Club.  According to the FAQs on its website, the After School Satan Clubs “incorporate games, projects, and thinking exercises that help children understand how we know what we know about our world and our universe.”

The Satanic Temple, which operates the clubs, is very upfront about its purpose:  “Please keep in mind that The Satanic Temple is not interested in operating After School Satan Clubs in school districts that are not already hosting the Good News Club. However, the Satanic Temple ultimately intends to have After School Satan Clubs operating in every school district where the Good News Club is represented.”

As of August 8, 2016, TST’s website lists only nine schools where they have a club. None are in Texas. The group claims to be in one school in each of the following locations:  Atlanta, Los Angeles, Pensacola, Portland (Oregon), Seattle, Springfield (Missouri), Tucson, Washington D.C., and Salt Lake City (Salt Lake City???).

Of course all of this is about equal access and the avoidance of viewpoint discrimination.  The After School Satan Clubs are targeting the Good News Club, and yet, they are relying on the legal victory of the Good News Clubs in Good News Club v. Milford Central School. That’s the case where the U.S. Supreme Court held that a school’s policy regarding community use of facilities may create a “limited public forum.” If that be the case, then the district cannot discriminate on the basis of the religious viewpoint of the organization.

Good luck explaining this to the pastor of First Baptist.


File this one under: RELIGION

Tomorrow: 38 kids miss the prom. Lawsuit!!

It’s Throwback Thursday! What about religion?

There are several potential Golden Oldies when it comes to religion and the public schools. My favorite candidate is School District of Abington v. Schempp, a Supreme Court case from 1963. This case involved a Pennsylvania law that required the reading of 10 Bible verses in every public school each day. The law was challenged by a family that belonged to the Unitarian Church and rejected some of the teachings of the Bible.

The lawyer representing the school district understood that he could not justify teaching specific religious beliefs in a public school. That had already been decided. So his position was that the reading of the Bible verses was not “religious” instruction, but only “moral” instruction. Teaching kids right from wrong, teaching moral principles was perfectly OK. So the argument was that this was “moral” instruction that used a common, widely recognized source for moral instruction—the Bible. Moreover, the lawyer emphasized that the Bible was part of our religious heritage and tradition.

The reference to “tradition” opened the door for the Schempp’s lawyer to make this observation:

I think tradition is not to be scoffed at. But let me say this very candidly. I think it is the final arrogance to talk constantly about “our religious tradition” in this country and equate it with this Bible. Sure, religious tradition. Whose religious tradition? It isn’t any part of the religious tradition of a substantial number of Americans…and it’s just to me a little bit easy and I say arrogant to keep talking about “our religious tradition.” It suggests that the public schools, at least of Pennsylvania, are a kind of Protestant institution to which others are cordially invited.

The Court struck down the Pennsylvania statute in an opinion written by the only justice of the U.S. Supreme Court who graduated from the UT School of Law—Tom Clark.

Not much has changed since then as far as the law. Our country has become far more diverse than it was in 1963, but the legal principles have not budged. Schools can teach about religion, but cannot teach religious doctrine, or endorse religious beliefs.

What about teachers as individuals? Well, of course as individuals all school employees have the same constitutional rights as any other citizen. But those rights are restricted when on the job. This came up in Doe v. Duncanville ISD, a 1995 decision from the 5th Circuit. DISD argued that it could not restrict teachers and coaches from praying with the kids while at school. The 5th Circuit said, in effect, “Yes you can. And you must.”

The other side of the coin is the right of students to express their religious viewpoints to the same extent that they are free to talk about politics, music or anything else. In Morgan v. Swanson (2011) the 5th Circuit affirmed this principle, that “religious speech” is also “free speech.”

There are many strongly held opinions in our country about these issues, which is why we routinely recommend recitation of the Serenity Prayer—seeking the ability to peacefully accept what we cannot change; the courage to change what we can; and the wisdom to discern the difference.


File this one under: RELIGION


It ain’t over in Kountze!

CheerleaderGate is not over!  The cheerleaders in Kountze have been displaying overtly Christian messages on the banners that the team runs through at the beginning of the game.  Litigation has been going on for years.  But then the school board tried to end all the fun and games by adopting a resolution that effectively allowed the cheerleaders to express their religious messages on school banners. “Moot!” cried the school district lawyers.  “Your claim is moot because we have given you what you want—so go away now.”

The Court of Appeals agreed with that, but the Texas Supreme Court did not.  The Supremes declared that the case was not moot because the school board might very well reinstate a ban on religious messages on school banners.

Thus it continues.

If this goes on much longer, we are afraid that the cheerleaders are going to switch from the comparatively tame verses they now cite (“I can do all things through Christ, which strengthens me” Philippians 4:13) to the darker Hebrew Scriptures.  This is particularly likely if the team continues to lose as they did in 2015, going 2-8.

Let’s remember: this is football, people! Let’s get away from the namby pamby in Philippians and go with some smashmouth Hebrew Scriptures.  How ‘bout this one from Deuteronomy 28:31:   “Thine [donkey] shall be violently taken away from before thy face and shall not be restored to thee.”

The Scriptures actually don’t use the word “donkey.” They use another word, and I’m confident that you know what it is. But I also know that using that word will cause some of your filters to block the Dawg from entering your space. So we say “donkey” but you know what we mean.

Stuff like that might get the Kountze Lions back in the playoffs.