The Old Gray Mare Ain’t What She Used To Be: A Survey of Selected Separation of Church-State Issues VSBA School Law Conference Charlottesville, Virginia June 3, 2011.
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A Survey of Selected Separation of Church-State Issues
VSBA School Law Conference
June 3, 2011Francisco M. Negrón, Jr.Associate Executive Director andGeneral CounselNational School Boards [email protected]
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.
Inherent tension between government endorsement (separation of church & state) and free exercise of religion.
Growing trend away from separation towards free exercise.
Arizona Christian School Tuition Organization v. Winn, No. 09-987 (U.S. Apr. 4, 2011).
….and no surprise…
The Ninth Circuit relied on Supreme Court precedent to determine when “vouchers” are permissible…
By a 5-4 vote, the Court upheld the Arizona tax credit scheme, holding that there was no individual standing to bring a taxpayer action under Article III.
Heavy focus on James Madison’s 18th Century writings on separation of church and state.
Both look at Madison’s writing in a publication entitled Memorial and Remonstrance (1785?)
…the government should not “force a citizen to contribute three pence only of his property for the support of any one establishment.”
The majority says at the heart of Madison’s concern is the government compelling a taxpayer to pay money that violates his conscience.
The law school denied the CLS Registered Student Organization (RSO) status, concluding that its constitution violates the law school’s nondiscrimination policy.
But, if this is a higher education case, why does NSBA care? Aren’t law students adults, for the most part?
In the K-12 context the challenge is between the free association rights of students and maintaining a learning environment free of discrimination, which is in an of itself part of the academic mission of schools.
1. NSBA encouraged the Court to allow public school districts to deny recognition to clubs that do not comply with a district’s nondiscrimination policy even if the Court reaches the opposite conclusion regarding public colleges and universities.
Schools have a special need to protect young, emotionally vulnerable students, particularly around harmful discrimination.
What’s the rationale?
Holding: In a 5-4 vote, the Court affirmed the Ninth Circuit’s decision. (Justices Ginsburg, Stevens, Kennedy, Breyer and Sotomayor)
The majority decided that the open membership rule imposed by the public law school on all student groups seeking official recognition, which requires the groups to accept all comers even if those individuals disagree with the mission of the group, is viewpoint neutral and constitutionally reasonable.
Court saw the law school as, “caught in the crossfire between a group’s desire to exclude and...” the law school’s general prohibition against discrimination.
NSBA Victory!!! “All-comers” policies are viewpoint neutral,
because they are aimed at theactof rejecting would-be group members without reference to the reasons motivating that behavior.
To be resolved on Remand. The Ninth Circuit could consider, on remand, whether the policy was selectively enforced as a pretext for discrimination, to the extent the argument was preserved, noted the court.
Surprise, Surprise Surprise!
Justice Alitowrote the dissent joined by the usual suspects.
Alito, defender of the unpopular. He said that Supreme Court precedents protect the freedom to express “the thoughts that we hate."
Political Correctness. "Today’s decision," he opined "rests on a very different principle: no freedom for expression that offends prevailing standards of political correctness in our country’s institutions of higher learning.”
Does the First Amendment protect teacher free speech rights in the classroom?
No. 07cv783BEN (NLS) (S.D. Calif. Feb. 25, 2010).
The case was brought by Bradley Johnson, a high school math teacher, after he was asked to remove large banners that he had hung on his classroom walls expressing “famous national phrases” with religious undertones (“In God We Trust,” “God Shed His Grace on Thee,” etc.), after another teacher complained.
Mr. Johnson was represented by the Thomas More Law Center, “a not-for-profit public interest law firm dedicated to the defense and promotion of the religious freedom of Christians, time-honored family values, and the sanctity of human life.
Mr. Johnson sued the school district, claiming his First Amendment rights had been violated. The district court, agreed with him.
So, while instructing Mr. Johnson to remove his banners, the district allowed other teachers’ “religious” messages to remain:
Any restrictions on speech in a limited public forum must be viewpoint neutral.
The Supreme Court’s decision in Garcetti v. Ceballos dictates the outcome of this case in the school board’s favor.
Under Garcetti, the school district may regulate any work related speech by a teacher that takes place at school.
Don’t place schools in the untenable position of choosing between banning all teacher speech in the name of neutrality or allowing speech that is against the educational mission.
Particularly here, where the school district had a written policy disallowing advocating of religion in the classroom.
In this case, the entire U.S. Court of Appeals for the Fifth Circuit will decided whether two school principals should be protected from personal liability for prohibiting elementary school students from distributing items with religious messages at classroom parties.
Morgan v. Swanson, No. 09-40373 (5th Cir., en banc review granted, Dec. 17, 2010).
The Fifth Circuit three-judge panel concluded that the principals did not have qualified immunity “[b]ecause it has been clear for over a half a century that the First Amendment protects elementary school students from religious-viewpoint discrimination.”
-The students’ rights in this case were not clearly established because there is no on-point decision from the Supreme Court or the Fifth Circuit and,
-In fact, there is a lack of clarity of Supreme Court jurisprudence generally on religion in schools.
As a result, similar cases have been decided different ways by other federal circuit courts and recognize administrators must make determinations in widely varying factual contexts.
Significantly, at least two other cases have been litigated recently where school districts have kept students’ religious messages out of the classroom.
These cases are particularly difficult for school districts because they often require administrators to make on-the-spot decisions in the face of very unclear law.
The lack of clarity arises from the inherent tension between the First Amendment’s competing Free Exercise and Establishment Clauses: