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Recent Developments in First Amendment Law Karen Haase Harding & Shultz (402) 434-3000 khaase@hslegalfirm.com H & S School Law @KarenHaase


Religion Clause  Establishment Clause: “Congress shall make no law respecting an establishment of religion…”  Free Exercise Clause: “… or prohibiting the free exercise thereof …”


The Lemon Test  Purpose Prong: the public school’s action must have a primary secular purpose  Effect Prong: the primary or principal effect of the public school action must be one that neither advances nor inhibits religion.  Entanglement Prong: the public school action must not result in an excessive entanglement of government with religion.


There is no “when in doubt” choice  Make the ACLU Happy: Exclude Religious Music  Make the Ministerial Alliance Happy: Focus on Religious Music  Keep you job: Defer to the Principal, Superintendent or School Board


Performing Religious Music


Skarin v. Woodbine Cmty Sch  High School Choir singing Lord’s Prayer at graduation  Ct: “Whether receipted or sung “prayer by its very nature is undeniably a religious exercise”  Principal effect was to advance the Christian religion


Nurre v. Whitehead  Wind ensemble selected to play at graduation • •

Kids voted unanimously to play “Ave Maria” Superintendent vetoed

 Senior member of wind ensemble sued  Ct: • • •

Music is speech School did censor Censorship was permissible here (Lemon)


S.D. v. St. Johns Co. Sch.  3rd graders assigned to sing “In God We Still Trust” at end-of-year assembly • •

Song played in class and practiced Kids told if they objected they didn’t have to sing, but wouldn’t be able to attend assembly

 Parents sued  Ct: •

“Song fails to pass constitutional muster under any of the established tests”


S.D. v. St. Johns Co. Sch.  School argued it was just like Doe v. Duncanville Indep. Sch. Dist. (5th Cir. 1995)  Ct: No • Age of kids • 3rd grade music not elective • Choirs vs. classes • Quality of music


Observation of Holidays


Stratechuk v. Bd. of Ed.  Parents objected to • •

“Christmas Sing Along December Concerts

 Board adopted policy prohibiting religious music  Parent sued  Ct: • •

First Amendment does not compel school to include religious holiday music No record of hostility toward religion


Morgan v. Swanson  Elementary students suing Plano, TX sch.  Alleged First Amendment Violations • • • • •

No Christmas parties allowed References to Christian holidays banned Cards to solders censored Goodie bags searched and confiscated Tickets to church play banned and confiscated • Birthday treats censored • After-school distribution prohibited as well


Morgan v. Swanson  School’s Defense • Constitution does not prohibit viewpoint discrimination against religious speech in elementary schools • restrictions were on student-to-student distribution of non-curricular materials by elementary school students to their classmates


Morgan v. Swanson  5th Circuit: no qualified immunity for school staff • Elementary school students have a First Amendment right to be free from religious-viewpoint discrimination while at school • Remanded for trial  Supreme Court denied certiorari denied June 2012


Students’ Religious Expression


Dominguez v. Grossmont Union Sch. Dist.  Student had conversion experience over Christmas break  Teacher directed him to stop bringing Bible to school and evangelizing  Seized Bible when he did not comply  Told student he was violating “separation of church and state:”  Student suspended for 2 days


Dominguez v. Grossmont Union Sch. Dist.  Case filed March 24, 2011  Answer filed April 26, 2011  Case settled and dismissed May 6, 2011


Teachers’ Religious Expression


Borden v. Sch. Dist.  School policy prohibited coaches from participating in student prayer  Coach sued  District Ct: nothing wrong with coach participating so long has he did not lead  Appellate Ct: no First Amend. right to pray in employee’s role as public employee  U.S. Supreme Court: denied cert


What to do?


What to do?  Walk the straight and narrow  Seek qualified legal advice • Not from board • Not from patron • Not from advocacy group • Not from law books • Not from your buddy • Don’t use common sense


What to do?  Protect students’ right to free expression  Unless disruptive under Tinker


What about FCA, pregame prayers, Vet’s Day, etc.?  All of these activities must be studentled  Teacher-sponsor must be “nonparticipatory” • Can’t pray • Can’t organize • Can’t lead  But school must not hinder students’ personal faith expressions


National Anthem  Proposed Indiana Statute


Recent Developments in First Amendment Law Karen Haase Harding & Shultz (402) 434-3000 khaase@hslegalfirm.com H & S School Law @KarenHaase


NMEA 2012 First Amendment