Religion and public schools: A forty year retrospective

Religion and Education

Volumn 30, Issue 2, 2003, Pages 1-22

  Russo, Charles J ^a  

^a NONE

Author keywords

[No Author keywords available]

Indexed keywords

EID: 85007850993     PISSN: 15507394     EISSN: 19498381     Source Type: Journal    
DOI: 10.1080/15507394.2003.10012323     Document Type: Article

References (106)

1. Society of Sisters 330 U.S. 1 (1947).
2. See Pierce v. Society of Sisters, 268 U.S. 510 (1925) (striking down Oregon’s compulsory attendance law which would have required all students to attend public schools)
3. Cochran v. Louisiana State Bd. of Educ., 281 U.S. 370 (1930) (upholding a state law providing textbooks to students in non-public schools).
4. Board of Educ. v. Allen, 392 U.S. 236 (1968) (upholding a New York State law which required school boards to loan textbooks for secular subjects to all students regardless of whether they attended public or nonpublic schools).
5. Board of Educ. v. Allen, 509 U.S. 1 (1993).
6. The Court’s attitude began to transform in Witters v. Washington Department of Services for the Blind, 474 U.S. 481 (1986) (holding that the First Amendment did not preclude a state from extending aid under vocational rehabilitation assistance program to blind student who chose to study at Christian college to become a pastor, missionary, or youth director on the basis that the help was generally available without regard for a school’s sectarian or non-sectarian nature), rehearing denied
7. Witters v. Washington Dept of Servs. for the Blind, 475 U.S. 1091 (1986).
8. Witters v. State Comm’n for the Blind, 771 P.2d 1119 (Wash. 1989), cert. denied sub nom.
9. Witters v. Washington Dept. of Servs. for the Blind, 493 U.S. 850 (1989) later posited that language in the state constitution prohibited the use of public funds for religious instruction. The Court faces a similar issue during the 2003-2004 term, in reviewing the that the Ninth Circuit’s upholding of the constitutionality of a state-funded scholarship program from Washington under which a post-secondary student pursued a theology degree Davey v. Locke, 299 F.3d 748 (9th Cir. 2002), cert. granted, 123 S. Ct. 2075 (2003).
10. Witters v. Washington Dept. of Servs. for the Blind 521 U.S. 203 (1997).
11. Witters v. Washington Dept. of Servs. for the Blind 536 U.S. 639 (2002). Davey, supra note 5, presents a similar issue in higher education.
12. The metaphor of the “wall of separation” comes from Thomas Jefferson’s letter of January 1, 1802 to Nehemiah Dodge, Ephraim Robbins, and Stephen S. Nelson, A Committee of the Danbury Baptist Association. 16 Writings of Thomas Jefferson 281 (Andrew A., ed. 1903). Jefferson wrote: Believing with you that religion is a matter which lies solely between man and his God. I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should “make no law respecting an establishment of religion, or prohibiting the free exercise thereof,” thus building a wall of separation between church and state. The Supreme Court first used the term in.
13. Reynolds v. United States, 98 U.S. 145-164 (1879) (rejecting a Free Exercise Clause challenge to a federal polygamy statute).
14. Reynolds v. United States 370 U.S. 421-422 (1962).
15. Although still a separationist, Justice Breyer has shown some flexibility, concurring in permitting aid in Mitchell v. Helms, 530 U.S.793 (2000) and permitting a religious group access to school facilities in Good News Club v. Milford Cent. Sch., 533 U.S. 98 (2001), discussed infra at note 83 and accompanying text.
16. Milford Cent. Sch 505 U.S. 577 (1992).
17. Milford Cent. Sch 530 U.S. 290 (2000).
18. Milford Cent. Sch Good News, supra note 10.
19. Milford Cent. Sch Engel, supra note 9 at 422.
20. Milford Cent. Sch Id.
21. Milford Cent. Sch 374 U.S. 203 (1963).Christians of various denominations refer to the same prayer by different names as Protestants tend to speak of the Lord’s Prayer while Catholics typically speak of the Our Father.
22. The school provided only copies of the King James Bible. Even so, students used the Douay and Standard versions as well as Jewish Scriptures. Schempp, supra note 16 at 207 (1963).
23. Schempp, supra note 16 at Id. at 222
24. Schempp, supra note 16 at Id. at 225
25. Schempp, supra note 16 at 403 U.S. 602 (1971).
26. Schempp, supra note 16 at Id. at 610.
27. Schempp, supra note 16 at 397 U.S. 664 (1970) (upholding New York State’s practice of providing state property tax exemptions for church property that is used in worship services).
28. Addressing entanglement and state aid to institutions that are religiously affiliated, the Court took three additional factors into consideration: “we must examine the character and purposes of the institutions that are benefitted, the nature of the aid that the State provides, and the resulting relationship between the government and religious authority.” Lemon, supra note 21 at 615.
29. we must examine the character and purposes of the institutions that are benefitted, the nature of the aid that the State provides, and the resulting relationship between the government and religious authority Id. at 612-613 (internal citations omitted).
30. we must examine the character and purposes of the institutions that are benefitted, the nature of the aid that the State provides, and the resulting relationship between the government and religious authority Supra note 6.
31. we must examine the character and purposes of the institutions that are benefitted, the nature of the aid that the State provides, and the resulting relationship between the government and religious authority 465 U.S. 668 (1984).
32. we must examine the character and purposes of the institutions that are benefitted, the nature of the aid that the State provides, and the resulting relationship between the government and religious authority Id. at 687-688. (O’Connor concurring) (internal citations omitted).
33. we must examine the character and purposes of the institutions that are benefitted, the nature of the aid that the State provides, and the resulting relationship between the government and religious authority Id. at 690.
34. See, e.g., Edwards v. Aguillard, 482 U.S. 578 (1982) (striking down a state law requiring balanced treatment of creation science and evolution as violating the Establishment Clause)
35. Wallace v. Jaffree, 472 U.S. 38 (1985), infra at note 65 and accompanying text. See also the discussion of Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290 (2000), infra at note 54 and accompanying text.
36. Three years earlier, the Court refused to hear an appeal from the Eleventh Circuit banning prayer prior to the start of public school football games, Jager v. Douglas County Sch. Dist., 862 F.2d 824 (11th Cir. 1989), cert. denied, 490 U.S. 1090 (1989).
37. Douglas County Sch. Dist Lee, supra note 11.
38. Douglas County Sch. Dist Rabbi Gutterman’s prayers were
39. Weisman v. Lee, 728 Douglas County Sch. Dist F. Supp. 68 (D.R.I. 1990).
40. Weisman v. Lee, 908 Douglas County Sch. Dist F.2d 1090 (1st Cir. 1990).
41. Lee, supra, note 11 at 586. Douglas County Sch. Dist
42. Douglas County Sch. Dist Id. at 577.
43. Douglas County Sch. Dist Id.
44. For apparently the only recorded post-Lee case involving the related matter of baccalaureate services, see Shumway v. Albany County Sch. Dist. No. 11, 826 F. Supp 1320 (D. Wyo. 1993) (holding that a board violated the First Amendment rights of a group of students and parents in refusing to rent them a school gymnasium to conduct a privately sponsored baccalaureate service that would have been open to the public and all students who wished to participate).
45. Lee, supra note 11 at 636 (Scalia, J., dissenting). Justice Scalia penned
46. Justice Scalia penned Id. at 638.
47. Engel, supra note 9. Justice Scalia penned
48. Schempp, supra note 16. Justice Scalia penned
49. Jones v. Clear Creek Indep. Sch. Dist., 930 F.2d 416 (5th Cir.1991), cert. granted, vacated, and remanded, 505 U.S. 1215 (1992).
50. Jones v. Clear Creek Indep. Sch. Dist., 977 F.2d 963 (5th Cir.1992), reh’g denied, 983 F.2d 234 (5th Cir. 1992), cert. denied, 508 U.S. 967 (1993).
51. Harris v. Joint Sch. Dist. No. 241, 41 F.3d 447 (9th Cir.1994).
52. cert. granted, and judgment vacated with directions to dismiss as moot, 515 U.S. 1154 (1995).
53. Ingebretsen v. Jackson Pub. Sch. Dist., 83 F.3d 274 (5th Cir. 1996), cert. denied sub nom. Moore v. Ingebretsen, 519 U.S. 965 (1996).
54. American Civil Liberties Union of New Jersey v. Black Horse Pike Reg’l Bd. of Educ., 84 F.3d 1471 (3rd Cir.1996).
55. Doe v. Madison Sch. Dist. No. 321, 147 F.3d 832 (9th Cir.1998).
56. rehearing granted, opinion withdrawn, 165 F.3d 1265 (9th Cir. 1989), vacated, 177 F.3d 789 (9th Cir.1999).
57. Cole v. Oroville Union High Sch. Dist., 228 F.3d 1092 (9th Cir.2000), cert. denied sub nom.
58. Niemeyer v. Oroville Union High Sch. Dist., 532 U.S. 905 (2001);
59. Lassonde v. Pleasanton Unified Sch. Dist., 320 F.3d 979 (9th Cir. 2003).
60. Santa Fe Indep. Sch. Dist. v. Doe, 168 F.3d 806 (5th Cir. 1999).
61. Santa Fe Indep. Sch. Dist. v. Doe 530 U.S. 290 (2000).
62. Santa Fe Indep. Sch. Dist. v. Doe Id. at 318 (Rehnquist, C.J., dissenting)
63. Chandler v. James, 180 F.3d 1254 (11th Cir.1999), request for en banc rehearing denied, 198 F.3d 265 (11th Cir.1999), cert. granted, judgment vacated and remanded sub nom.
64. Chandler v. Siegelman, 530 U.S. 1256 (2000).
65. Chandler v. Siegelman, 230 F.3d 1313 (11th Cir.2000), suggestion for rehearing en banc denied
66. Chandler v. Siegelman, 248 F.3d 1032 (11th Cir.2001). cert. denied sub nom. Chandler ex rel.
67. Chandler v. Siegelman, 533 U.S. 916 (2001).
68. Adler v. Duval County Sch. Bd., 174 F.3d 1236 (11th Cir.1999).
69. Adler v. Duval County Sch. Bd., 206 F.3d 1070 (11th Cir.2000).
70. Adler v. Duval County Sch. Bd., 531 U.S. 801 (2000). On remand, opinion reinstated
71. Adler v. Duval County Sch. Bd., 250 F.3d 1330, cert. denied, 534 U.S.1065 (2001).
72. Doe v. School Bd. of Ouachita Parish, 274 F.3d 289 (5th Cir. 2001).
73. Lassonde v. Pleasanton Unified Sch. Dist., 320 F.3d 979 (9th Cir. 2003).
74. Pleasanton Unified Sch. Dist 472 U.S. 38 (1985).
75. Pleasanton Unified Sch. Dist 484 U.S. 72 (1987).
76. Bown v. Gwinnett County Sch. Dist., 112 F.3d 1464 (11th Cir. 1997).
77. Brown v. Gilmore, 258 F.3d 265 (4th Cir.2001), cert. denied, 533 U.S. 1301 (2001).
78. Gilmore 454 U.S. 263 (1981).
79. Gilmore 20 U.S.C.A. §§ 4071 et seq.
80. Gilmore 496 U.S. 226 (1990).
81. See, e.g., Rosenberger v. Rectors and Visitors of Univ of Va., 515 U.S. 819(1995).
82. Hsu v. Roslyn Union Free Sch. Dist., 85 F.3d 839 (2nd Cir. 1996), cert. denied, 519 U.S. 1040 (1996).
83. Ceniceros v. Board of Trustees of the San Diego Unified Sch. Dist., 106 F.3d 878 (9th Cir. 1997).
84. Prince v. Jacoby, Board of Trustees of the San Diego Unified Sch. Dist 303 F.3d 1074 (9th Cir. 2002).
85. Donovan v. Punxsutawney Area Sch. Bd., 336 F.3d 211 (3rd Cir. 2003)
86. Colin Ex. Rel. Colin v. Orange Unified Sch. Dist., 83 F. Supp 2d.1135 (C.D. Cal. 2000); East High Gay/Straight Alliance v Board of Educ., 81 F Supp.2d 1166 (D. Utah 1999), 81 F. Supp.2d 1199 (D. Utah 1999);
87. East High Sch. Prism Club v. Seidel, 95 F. Supp 2d 1239 (D. Utah 2000).
88. Herdahal v Pontotoc County Sch. Dist., 933 F. Supp 582 (N.D. Miss. 1996).
89. Lamb’s Chapel v. Center Moriches Union Free Sch. Dist., 770 F. Supp 91 (E.D.N.Y. 1991), aff’d, 959 F.2d 381 (2nd Cir. 1992)
90. Lamb’s Chapel v. Center Moriches Union Free Sch. Dist 508 U.S. 384 (1993); on remand, 17 F.3d 1425 (2nd Cir. 1994).
91. F. Supp. 2 d 147 (N.D.N.Y.1998), aff’d 202 F.3d 502 (2nd Cir.2000).
92. Good News/Good Sports Club v. School Dist. of the City of Ladue, 28 F.3d 1501 (8th Cir.1994), cert. denied, 515 U.S. 1173 (1995).
93. Good News, supra note 10.
94. For a similar result in a long-ranging dispute, see Bronx Household of Faith v. Board of Educ. of the City of N.Y., 226 F. Supp. 401 (S.D.N.Y. 2002).
95. Bronx Household of Faith v. Board of Educ Rosenberger, supra note 72.
96. Good News, supra note 10 at 133 (Stevens, J., dissenting).
97. Newdow v. U.S. Congress, 292 F.3d 597 (9th Cir. 2002), 328 F.3d 466 (9th Cir. 2003), cert. granted sub nom. Elk Grove Unified Sch. Dist. v.
98. Newdow, Elk Grove Unified Sch. Dist. v 71 U.S.L.W. 3724 (U.S. Oct 14, 2003).
99. In an interesting case wherein it permitted members of a religious club to distribute candy canes with religious messages during non-instructional time prior to the start of the school’s “Winter breaks” between 2000 and 2002, the federal trial court in Massachusetts reprimanded the principal for not knowing the law in deeming that he described the student messages as “offensive”in not refusing to respond to their claim that he characterized them in this manner. Westfield High School L.I.F.E. Club v. City of Westfield, 249 F. Supp 2 d 98 (D. Mass. 2003)
100. For example, until at least until the time of the Revolutionary War, “[T] here… were established churches in at least eight of the thirteen former colonies and established religions in at least four of the other five.” Engel, supra note 9 at 428, note 5.
101. In Good News, supra note 10 at 118, Justice Thomas made just this point in warning that the Court is unwilling “ to employ Establishment Clause jurisprudence using a modified heckler’s veto, in which a group’s religious activity can be proscribed on the basis of what members of the audience might misperceive.”
102. Newdow, supra note 87.
103. C.H. exrel. Z.H. v. Oliva, 226 F.3d 198 (3d Cir.2000), cert. denied sub nom. Hood v. Medford Township Bd. of Educ., 533 U.S. 915 (2001).
104. Walz v. Egg Harbor Township Bd. of Educ., 342 F.3d 271 (3rd Cir. 2002). But see Westfield, supra note 88
105. See, e.g., United States Congress, An Act to reaffirm the reference to one Nation Under God in the Pledge of Allegiance.” PL 107-293, 2002 S 2690, 116 Stat. 2057 (2002); Mark Walsh (2003, March 12). “Supreme Court is Next Stop for Pledge Ban.” Education Week, p. 3.
106. See Newdow, supra note 87. For a discussion of this controversy, see Charles J. Russo (2003). “The Pledge of Allegiance: Patriotic Duty or Unconstitutional Establishment of Religion?” School Business Affairs, Vol. 69, No. 7, 22-27.