As a state in the “Bible Belt,” it is not uncommon to hear of a North Carolina public school being involved with religion to some degree, whether it be a teacher helping young students pray in class, a teacher participating in a See You at the Pole™ event, or school board members seeking to incorporate prayer at board meetings. Public schools are extensions of the state government and actions by school teachers and personnel may be considered government acts. While the United States Supreme Court case Tinker v. Des Moines Independent Community School District stood for a proposition that students and public school teachers do not shed their First Amendment rights when coming into the school, it is also known that students and teachers are not guaranteed the right to express their views at all times and places.
Litigation concerning student religious expression has become less common as the law has shown that such expression, in most school contexts, does not pose Establishment Clause issues. In an interview with the Campbell Law Observer, Brian Shaw, a partner at the Raleigh-based education law firm of Schwartz & Shaw, spoke about student speech concerning religion: “Looking back 10 – 15 years, there has been a decrease in objections to student religious organizations, as people become more used to the concept that student religious speech and activity is permissible and not a violation of the Establishment Clause as long as religious speech is treated on a neutral basis with other speech.” However, the same cannot be said for speech by public school teachers.
The line between a teacher’s actions in their official capacity versus actions in their private citizen capacity can be thin. Is mere attendance by a teacher at a religious event on campus considered participation? Or must the teacher actively engage in the event, such as by praying, singing, or addressing an audience, to be considered a participant? How should a teacher arrive at a See You at the Pole™ event to indicate he or she is attending as a private citizen? Like many areas of the law, there is not always a bright line in determining the answers to these questions.
The inherent tension between the Free Exercise Clause, which may require accommodations for religion, and the Establishment Clause, which prohibits favoring religion over nonreligion (or one sect over another), presents a quandary for schools. In the landmark case of Lemon v. Kurtzman, the United States Supreme Court outlined the elements that a law or government action must meet in order to be valid under the Establishment Clause: (1) it must have a secular purpose; (2) its primary effect must be one that neither advances nor inhibits religion; and (3) it must not foster an excessive government entanglement with religion.
East Bladen High School’s See You at the Pole™ (SYATP) event, presents a good case for application of the Lemontest. The article states that during the event “students, parents, staff and local church leaders participated . . . [and] students had a time of prayer and worship.” The article goes on to describe the participation of at least one teacher: “Mr. Ron Warren, a teacher at the school helped with music and East Bladen students spoke, sang, and prayed.” The teacher’s active participation in the SYATP event would certainly pose Establishment Clause concerns if a First Amendment action was brought against the school district.
The first prong of the Lemon test, that the action has a secular purpose, may be satisfied because the Free Exercise Clause would allow the teacher to exercise his religious beliefs as a private citizen. However, if the event was held within a time the teacher is required to be at school, meaning the teacher would be acting in his official capacity, his actions could be seen as having a religious purpose. If in his official capacity, the second element would likely fail because the teacher’s actions could reasonably be seen as advancing a religious cause. Through his musical support and participation, a reasonable observer could view the teacher’s actions as having the effect of advancing the Christian values of SYATP. The third prong, whether the teacher’s actions fostered excessive government entanglement, could be argued both ways, depending on whether the teacher was viewed as acting in his private citizen capacity or official capacity. Such an analysis would need more facts.
School administrators must also be cognizant of the Equal Access Act (EAA), which supplements the Establishment Clause in regulating what is considered permissible teacher participation in religious events. The Act only applies to secondary schools and allows school employees to be present at student-initiated religious meetings or events in a “nonparticipatory capacity.” Although the Act does not define “nonparticipatory capacity,” in Board of Educ. of Westside Community Schools v. Mergens the United States Supreme Court held that this language prohibits teachers from actively participating in noncurricular religious meetings or events on public school property. Thus, the Act only allows a teacher to attend religious meetings or events in a supervisory capacity rather than to help facilitate or actively engage in the event.
When viewing the East Bladen SYATP event in light of the EAA, the teacher’s participation was not part of a supervisory role, rather he actively engaged in the facilitation of the event by playing an instrument—a violation of the EAA. Had the teacher chosen to attend rather than actively engage, his attendance likely would not be seen as a violation. However, any definitive analysis would depend on whether the teacher was viewed as acting in his private citizen capacity or official capacity.
In Wilson County, Nancy Boykin, school counselor at Hunt High School, “headed up” the Fellowship of Christian Athletes (FCA) club for over a decade. The article does not discuss her duties or extent of her involvement, but teacher supervision of religious clubs on school grounds would be appropriate involvement in a “nonparticipatory capacity” and constitutional under the EAA.
Teachers are not always representing the school though and thus their speech cannot always be seen as a representation of the government. The Court in Mergens addressed this factor, stating that “there is a crucial difference between government speech endorsing religion, which the Establishment Clause forbids, and private speech endorsing religion, which the Free Speech and Free Exercise Clauses protect.” Teachers acting in their official capacities would be held to the test set forth in Lemon regarding a violation of the Establishment Clause. Even when teachers are at school, they are not always in their official capacity. In their private citizen capacity, teachers have First Amendment protection of their speech like everyone else.
Case Law Guidance for North Carolina Schools Handling Issues on Religion
School boards looking for guidance on teacher participation in religious events can look to the case of Doe v. Wilson County School System, heard by the U.S. District Court for the Middle District of Tennessee. The analysis in the opinion serves as a relevant guide due to its geographical relation to North Carolina. In Wilson, teachers at a local elementary school attended the See You at the Pole™ event outside the school to supervise but also participated by bowing their heads when prayers were offered. The Court held that the teachers’ actions crossed the line from permissible supervision, to the endorsement of a religious event.
The Court in Wilsonapplied the Endorsement Test and stated that “young students and their parents understandably could have thought that the teachers . . . were present as representatives of the school and as such their actions were an endorsement of the religious event.” This case indicates that active participation in the form of something as small as bowing one’s head has been seen as endorsing religion, which in turn created an Establishment Clause violation.
The Endorsement Test, first outlined in Justice O’Connor’s concurrence in the 1984 Supreme Court case of Lynch v. Donnelly, is essentially a refinement of the second element of the Lemon test. It can be applied as a stand-alone test in place of the LemonTest, in which a court looks to see if the governmental action (by a public school in our case) would be viewed by a reasonable person as an endorsement of religion. In Mellen v. Bunting, the Fourth Circuit of the United States Court of Appeals ruled that a teacher’s actions while at school must not be viewed as an endorsement of religion. The Court did apply the three-part Lemon test, but its analysis used the Endorsement Test in looking at the Lemon’s second element.
A recent example in which the Endorsement Test was applied comes from the Seventh Circuit of the United States Court of Appeals in the case of Freedom From Religion Foundation v. Concord Community Schools. The case involved a public high school’s “Christmas Spectacular” play. It involved secular scenes as well as religious scenes encompassing a variety of religions. The Court held that the play did not violate the Establishment Clause because a reasonable observer would not have viewed the play as an endorsement of a religious message.
Due to the lack of case law coming out of the Fourth Circuit or North Carolina regarding the Establishment Clause, public school boards could look at Concord for guidance or clarity. Many cases concerning Establishment Clause issues are fact-specific. However, the court in Concord took a mathematical approach in looking at the ratio of religious to secular scenes throughout the 90-minute play. There was no story about the birth of Jesus and the nativity scene was displayed for only one song in the play. Moreover, the entire first half of the play included secular scenes of a winter wonderland and Santa Clause.
Schools considering a performance or play involving religion must consider the voluntariness of participation in performing or attending. The play in Concord was voluntary and not during school hours. If the play had been during school hours and student attendance was required, the Court would have likely analyzed the case differently due to its compelling nature.
Furthermore, schools must be careful about religious speech at events that require student attendance or events such as graduations that essentially compel attendance. During our interview, Mr. Shaw addressed the most common issues that he deals with concerning religion, including graduations: “The issues I have dealt with most in the past two or so years have involved accommodation of religious practices for Muslim students, religion-based objections to student dress codes, signage for religious services by religious organizations renting school property, and student religious speech at graduations or student forums such as newspapers.”
North Carolina Law Regarding Teacher Participation in Religious Events
North Carolina has codified regulations pertaining to school personnel involved in religious activities in N.C.Gen. Stat. §115C-407.32(b) (“subsection (b)”). Subsection (b) states that “boards of education may not prohibit school personnel from participating in religious activities . . . initiated by students at reasonable times before or after the instructional day so long as such activities . . . do not conflict with the responsibilities or assignments of such personnel.” Subsection (b) appears to conflict with the holding from Mergens, which only allows teachers to participate in a “nonparticipatory capacity,” according to the Equal Access Act (EAA).
Holding a religious club or event after school when students have left the building would have a higher chance of succeeding under the Establishment Clause. The likelihood of success is based on the fact that the audience would be voluntary, the event would not be during the school day, and there would be little to no exposure of religion to outside students who were not part of the meeting. Regarding teacher participation, if a teacher was only present to supervise, there would likely be no violation because this would hold true to the “nonparticipatory” role as stated in the EAA.
If a teacher was adamant about testing the outer boundaries between their rights as a citizen and the potential conflict with their role as a teacher, then they would look at subsection (b). The religious event would need to be at a “reasonable” time before or after school. A teacher should proceed with caution if the event is held before school. Even if we were to presume that an hour before school is a “reasonable” time for such an event, teachers should consider if other students are already present or beginning to arrive. Other considerations for schools and teachers should include whether the event is held outside or in plain view of students, whether nonparticipating students will be exposed to such an event, and to what extent teachers will participate.