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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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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

Francisco M. Negrón, Jr.Associate Executive Director andGeneral CounselNational School Boards [email protected]

Public Dollars for Private , Religious Tuition?

    • Arizona Christian School Tuition Organization v. Winn, No. 09-987 (U.S. Apr. 4, 2011).
  • What Kinds of Policies are Permissible?
    • Christian Legal Society v. Martinez(June 28, 2010).
  • Who’s Speech is Protected?
    • Johnson v. Poway Unified School District, No. 07cv783BEN (NLS) (S.D. Calif. Feb. 25, 2010).
  • What About Classroom Speech?
    • Morgan v. Swanson, No. 09-40373 (5th Cir., en banc review granted, Dec. 17, 2010).

Beginning at the beginning…

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.


This trend is evident at the Supreme Court…

  • This is a conservative 5-4 court.
  • Justice Alito is a great defender of the First Amendment, particularly the Free Exercise Clause.
    • He is becoming the spokesperson for the conservative wing’s Free Exercise perspective.
    • Rulings from 3rd Circuit strongly indicated this view.
    • Concurrence in Morse v. Frederick points to how far he will go in balancing expression with other rights.
  • Justice Kennedy, the swing vote in many cases, has sided with Scalia in church/state issues in the past.
  • Upshot: More to come in the Culture Wars.

Arizona Christian School Tuition Organization v. Winn, No. 09-987 (U.S. Apr. 4, 2011).

  • At issue was the Arizona law that gave taxpayers $500-$1000 tax credits for direct contributions to School Tuition Organizations.
  • The STO’s in turn allocated scholarships to students attending nonpublic schools.
  • The STO’s had no limitation on funding sectarian schools.
  • In fact, most of the scholarships funded by the STO went to religious schools --Arizona’s three largest STOs restrict scholarship use to religious schools.
the lawsuit
The lawsuit…
  • Arizona taxpayers sued arguing that the tax credit scheme violates the Establishment Clause because it deprives parents of a genuine choice between selecting scholarships to private secular schools or religious ones.

….and no surprise…

  • The Ninth Circuit agreed with the taxpayers noting, among other things, that 85 percent of the scholarship money is available only for use at religious schools.

The Ninth Circuit relied on Supreme Court precedent to determine when “vouchers” are permissible…

  • Zelman set out the standard for the expenditure of pubic dollars towards private schools.
  • Religious school funding is permissible if it is part of a broader, comprehensive system of school choice that includes sectarian, private secular and public schools.
  • The key is not the kind of targeted “as applied” result that was created in Arizona.
a supreme twist
A supreme twist…
  • But, the issue before the Supremes was NOT whether the Arizona tax credit violated the Establishment Clause.
  • In fact, the Court didn’t even reach the merits of the Establishment Clause claim.

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.

  • No Case & Controversy permitting federal justiciability.
  • No injury to the individual that allowed a challenge to government taxing scheme. (Court precedent set out the conditions when an individual can sue the government around its taxing programs).
both the court and dissent had to deal with the court s four decade old decision in flast v cohen
Both the Court and dissent had to deal with the Court’s four-decade old decision in Flast v. Cohen.
  • Flast said an individual can sue the government for violating the Establishment Clause.
  • But, in order to sue the taxpayers has to show a connection or “nexus” between the taxpayer and the constitutional infringement.
  • The government “using tax proceeds to aid religion” means there is such a connection.
but the majority read flast very narrowly
But, the majority read Flast very narrowly.
  • First, the Court says Flast is a narrow exception.
  • Second, the Court says Flast allows taxpayer standing when he/she suffers “a particular injury “by means of the “taxing and spending power” of the government through its treasury to a “sectarian entity.”
  • The root of the injury is the extraction and spendingof tax money to aid religion.
  • A tax credit is neither an extraction nor a spending of tax monies.
both the court and the dissent turn to historical perspectives to explain their conclusions
Both the Court and the Dissent turn to historical perspectives to explain their conclusions.

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.

  • But, if a tax is not “extracted and spent” by the government, then there has been no compulsion.
  • A tax credit is in the view of the majority akin to the government declining to impose a tax.
  • And, in fact, allows citizens to retain control over their own funds.
  • “The tax credit system is implemented by private action and with not state intervention
  • The Wall Street Journal agrees.
justice kagan in her first major dissent comes out swinging
Justice Kagan in her first major dissent comes out swinging…
  • The tax credit vs. Extract and Spend?
  • HOGWASH, she says…
    • “This novel distinction in standing law between appropriations and tax expenditures has as little basis in principle as it has in our precedent.”
    • “From now on, the government need follow one simple rule---subsidize through the tax system---to preclude taxpayer challenges to state funding of religion.”
a rose by any other name is still a tax subsidy
A rose by any other name is still a tax subsidy…
  • Court’s action is arbitrary and disingenuous she argues, because it ignores 4 decades of precedent that says a tax subsidy is a tax subsidy is a tax subsidy.
  • Tax credits, exemptions, etc. all advance some sort of government interests she says.
  • “Our taxpayer standing cases have declined to distinguish between appropriations and tax expenditures for a simple reason: …the distinction is one in search of a difference.”
the end
The End?
  • Not by a long shot.
  • Legislation is already cropping up in Legislatures around the country, i.e., Okalhoma.
  • Roadmap to diversion of public dollars may follow as Kagan predicts.
  • Possibly with even higher stakes, because the real money is in the granting of tax credits to businesses and corporations. Arizona already has a corporate tax credit.
christian legal society v martinez june 28 2010
Christian Legal Society v. Martinez(June 28, 2010).
  • Issue: Whether a public university can constitutionally require all student groups to adhere to its nondiscrimination policy as a condition for granting official recognition and the benefits that accompany that status.


  • As a condition for the Hastings College of Law granting “Registered Student Organization” (RSO) status, a student group must include in its constitution Hastings’ nondiscrimination statement which prohibits, among other things, discrimination on the basis of religion and sexual orientation.
  • The Christian Legal Society (CLS) required voting club members to affirm a Statement of Faith, which states that “unrepentant participation in or advocacy of a sexually immoral lifestyle is inconsistent with an affirmation of the Statement of Faith.”

The law school denied the CLS Registered Student Organization (RSO) status, concluding that its constitution violates the law school’s nondiscrimination policy.

  • CLS sued, claiming a variety of First Amendment violations including free speech, free exercise and the right to assemble.
  • The Ninth Circuit ruled in favor of the law school.

But, if this is a higher education case, why does NSBA care? Aren’t law students adults, for the most part?

NSBA Position:

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.


NSBA also argued that school districts:

    • should be able to recognize only those student clubs that comply with non-discrimination policies that are viewpoint neutral and reasonable and
    • should not be placed in the position of drawing lines to determine whether a particular student group is entitled to an exemption from the policy.

Schools have a special need to protect young, emotionally vulnerable students, particularly around harmful discrimination.

  • In the K-12 school context this special need trumps freedom of association claims of clubs that want to exclude students. Exclusion is particularly invidious in K-12 because extra curricular activities, including clubs teach valuable social/civic skills, i.e., leadership; democratic participation---part of the educational mission of schools.

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.


Justice Ginsburg wrote the policy was reasonable because:

  • (1) it ensures that no student is forced (through activity fees) to fund a group that would reject her as a member;
  • (2) it helps the school police the written terms of its non-discrimination policy without inquiring into motivation for membership restrictions;
  • (3) it encourages diversity and tolerance and/or conflict resolution skills; and
  • (4) it incorporates state-law prohibitions on discrimination.

Recognition of the how the Culture Wars play out in public schools:

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.


But still some question about pretext…

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.


Strong dissent claims set-back for freedom of expression.

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.”

take aways
Take aways:
  • Schools can require their clubs and student organizations to follow the district’s non-discrimination policies.
  • Characteristics of constitutional policies:
    • They Prevent Student Harm: Avoiding exclusion
    • They Are Content Neutral: Focusing on the exclusion ACT and not the reason for the exclusion
    • They Have an Educational Objective: Encourage diversity and tolerance and/or conflict resolution skills; and
    • They Are Supported by State Law: Incorporate state-law prohibitions on discrimination.
can teachers proselytize in the classroom
Can teachers proselytize in the classroom?

Does the First Amendment protect teacher free speech rights in the classroom?


Johnson v. Poway Unified School District,

No. 07cv783BEN (NLS) (S.D. Calif. Feb. 25, 2010).

  • Issue: When can school districts regulate teacher classroom expression without violating the First Amendment?

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.


“The Thomas More Law Center is the Christian response to the ACLU.”

  • TMLC is “inspired by the recognition that the issues of the culture warbeing waged across America--issues such as … school prayer, and the removal of the Ten Command-ments from municipal and school buildings--are not being decided by elected legislatures, but by the courts.” (Emphasis in the original).

Mr. Johnson sued the school district, claiming his First Amendment rights had been violated. The district court, agreed with him.

  • The court said the classroom walls are a limited public forum for teacher speech in this case because the school district allowed teachers to post non-curricular messages on their classroom walls.

So, while instructing Mr. Johnson to remove his banners, the district allowed other teachers’ “religious” messages to remain:

    • 35 to 40 foot string of Tibetan prayer flags with images of Buddha; 
    • a poster with the lyrics from John Lennon\'s song "Imagine," which starts off, Imagine there\'s no Heaven;
    • a poster with Hindu leader Mahatma Gandhi\'s "7 Social Sins;"
    • a poster of Muslim leader Malcolm X, and a poster of Buddhist leader Dali Lama.

Any restrictions on speech in a limited public forum must be viewpoint neutral.

  • Restricting Johnson’s “Judeo-Christian” speech was not viewpoint neutral where the district allowed other teachers to display materials promoting other religious perspectives and anti-religious viewpoints.

NSBA’s position:

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.


The policy consequence:

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.


Take Aways:

  • Ensure your policies are viewpoint neutral and in line with your educational mission.
  • Implement and enforce the policies consistently!!! Otherwise you risk the charge that you are creating a Limited Public Forum.
  • Train, train, train staff on the policies. Turnover, pressures of day-to-day operations, teaching, etc., mean that these are perishable skills.

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).



  • Plano Independent School District was sued by four students after their children were not permitted to distribute religious-themed items as part of a goodie bag exchange during winter break parties.
  • The items included candy cane pens with a card stating the "J" shape of a candy cane stands for "Jesus" or the staff of the "good shepherd," and the three stripes symbolize Jesus\' blood or the Trinity. Some pencils read, "Jesus is the reason for the season."

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 school officials’ request for review by the entire Fifth Circuit (en banc) was granted in January 2011.

NSBA’s position:

-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.

  • For example, in a Third Circuit case in which NSBA recently participated, Busch v. Marple, the school administrator was sued for refusing to allow a parent to read passages from the Bible to her son’s elementary school classmates as part of a curricular activity.

Significantly, at least two other cases have been litigated recently where school districts have kept students’ religious messages out of the classroom.

  • In one case, the court concluded the school district’s restrictions were constitutional. In the other case, the court concluded they were not but granted school officials immunity based on the lack of clarity of the law.

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:

    • One recognizes a student’s right to freedom of religion, while the other prohibits state establishment of religion.
  • In this context it makes little sense to hold administrators personally liable for the kinds of legal hair-splitting in which even courts and lawyers disagree.