School Board Posts 17 Legal Talking Points for Limiting Religious Liberty

December 8, 2013 - 3:26 PM

Last week, CNSNews reported that a Georgia school in Bulloch County decided to confiscate the Christmas cards that were posted along the hallways over the Thanksgiving break.  Traditionally, the school always had Christmas cards posted, but school administrators decided to un-deck the halls.

The Bulloch County Board of Education has even posted on its website under "Press Releases" (12/3/13) seventeen "Case Law Talking Points" on why it has the power to ruin the holidays by banning free speech:

1.      With regards to the issue or religion, the First Amendment provides that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof...." The provisions of the First Amendment are also applicable to state and local entities, including local school districts. Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290, 301, 120 S. Ct. 2266, 2275, 147 L. Ed. 2d 295 (2000).

2.      The part of the First Amendment which prevents the establishment of religion by a governmental entity is often referred to as the Establishment Clause.

3.      As a practical matter, the requirement that a governmental entity refrain from establishing religion or inhibiting the free exercise of religion is a requirement that such entity adopt a position of neutrality as to religion.

4.      If a governmental entity acts with the purpose of advancing religion, it violates the Establishment Clause in that the entity is no longer acting in a neutral capacity. McCreary County, Kentucky v. Am. Civil Liberties Union of Kentucky, 545 U.S. 844, 125 S. Ct. 2722, 162 L. Ed. 2d 729 (2005).

5.      As a local school district cannot speak for itself, it communicates and interacts with the public through its elected board of education, superintendent, teacher and other employees.

6.      Given their responsibility to educate students and the inherent authority that accompanies this task, in many situations a teacher's speech can be taken as directly and deliberately representative of the school. Bishop v. Aronov, 926 F.2d 1066 (11th Cir. 1991).

7.      Accordingly, religious speech by a teacher in his or her official capacity can pose a potential Establishment Clause issue for a local school district, the result of which can be a lawsuit brought by a third party to address the alleged Establishment Clause violation.

8.      Although a teacher does not give up all of his or her rights to free exercise of religion as a condition of employment, Courts have repeatedly emphasized that the rights of teachers in the public schools are not automatically coextensive with the rights of adults in other settings. Roberts v. Madigan, 921 F.2d 1047, 1056 (10th Cir. 1990).

9.      In contrast, student initiated and student led religious speech, in the absence of governmental involvement, is private speech that is protected by the free exercise clause of the First Amendment. Chandler v. Siegelman, 230 F.3d 1313 (11th Cir. 2000).

10.  The reason for the differing treatment of student speech and the speech of a school district employee during the course of his or her employment is inherent distinction between government speech endorsing religion, which the Establishment Clause forbids, and private speech endorsing religion, which the Free Speech and Free Exercise Clauses protect. Board of Education of Westside Community Schools v. Mergens, 496 U.S. 226, 250, 110 S. Ct. 2356 (1990).

11.  A local school district, together with its employees, is not permitted to do indirectly what it cannot do directly, by requesting or recruiting other individuals or entities to pray or deliver religious messages at school events. Under such circumstances, the actions of the local school district would most likely be viewed as support and promotion of the religious communications. County of Allegheny v. American Civil Liberties Union Greater Pittsburgh Chapter, 492 U.S. 573, 600, 109 S. Ct. 3086 (1989).

12.  If the free exercise rights of a school district employee come into conflict with the prohibitions of the Establishment Clause, the Establishment Clause concerns of the local school district take precedence. Berger v. Rensselaer Cent. Sch. Corp., 982 F.2d 1160 (7th Cir. 1993); Lee v. Weisman, 505 U.S. 577, 587, 112 S. Ct. 2649 (1992).

13.  Although private student religious speech is protected by the First Amendment, this protection does not extend to student speech that is sponsored by the school district. Student speech is deemed to be school sponsored when students, parents or members of the public can reasonably believe that the speech has the approval of the school district. Bannon v. School District of Palm Beach County, 387 F.3d 1208. (11th Cir. 2004); Holloman ex rel. Holloman v. Harland, 370 F.3d 1252 (11th Cir. 2004).

14.  In reviewing student religious speech, Courts will attempt to determine if the school encouraged, facilitated or in any way conducted the speech. In order to avoid the appearance of school district support, student religious speech must be without district involvement and be subject only to the same reasonable time, place, and manner restrictions as all other student speech in school. Holloman ex rel.Holloman v. Harland, 370 F.3d 1252 (11th Cir. 2004).

15.  When acting in their official capacities as representatives of a local school district, teachers, school administrators, and other school employees are prohibited by the Establishment Clause from encouraging or discouraging prayer, and from actively participating in such activity with students. Grossman v. South Shore Public School District, 507 F.3d. 1097 (7th Cir. 2007).

16.  In analyzing a situation to determine if conduct by a school district or its employee constitutes an impermissible endorsement of religion, Courts will typically attempt to determine how a reasonable person with knowledge of the past conduct of the school district would view the situation. The Court will not focus on the intention of the school district in taking the action in question but will instead focus upon how the action is perceived by a reasonable person witnessing the action or speech. Borden v. Sch. Dist. of Twp. of E. Brunswick, 523 F.3d 153 (3d Cir. 2008).

17.  One of the recent issues that has confronted the Bulloch County School District involves teacher e-mail accounts and the propriety of including and religious messages or scriptures is the signature lines of e-mails emanating from these accounts. Although teachers are assigned e-mail accounts that include some portion of the teacher's name or initials, these accounts are provided by and remain the property of the Bulloch County School District. The Bulloch County School District Employee Handbook states on page 48 that "ALL electronic communication from staff to student or parent should be written as a professional representing BCS. This includes word choices, tone, grammar and subject matter that model the standards and integrity of a BCS professional." The employee handbook explicitly states that, with regards to all electronic communications between an employee and a student or parent, the employee is representing the District in his or her professional capacity. Given the District ownership of the e-mail account and the policies of the District, it would be difficult to assert that e-mails from employees with religious messages do not constitute an endorsement of religion or at least entangle the District in the subject.

Talk about overkill.