By John E. Ferguson, Jr. and David L. Hudson, Jr.
Illustration By Don Stewart
In 1968 the U.S. Supreme Court ruled in Pickering v. Board of Education that public school teachers do not forfeit their First Amendment rights to engage in speech that their employer, the school district, might find disagreeable.1 The following year, in Tinker v. Des Moines Independent Community School District, the High Court wrote that students and teachers do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”2
These two seminal cases establish that public school teachers, as public employees, do not forfeit all of their First Amendment freedoms when they come to school. One area in which many believe teachers do forfeit their rights to free speech is religious expression. A common perception exists that schools are religion-free zones that teachers must respect.
Jim Henderson, senior counsel with the American Center for Law and Justice, says that “the promise of Tinker finds no fulfillment regarding individual teachers’ rights to assert a free-exercise right or a free-speech right to express their religious views against the school district’s position that it is entitled to require a teacher to communicate material consistent with the curriculum.”3
The free exercise clause of the First Amendment ensures that individuals have a right to practice their religious faith freely. However, public schools are governmental entities that must avoid establishment clause problems. Pupils at school are considered impressionable minors who must be taught academic subjects, not indoctrinated in any religious belief. The tension between the two clauses sometimes surfaces in disputes over teachers’ religious expression.
The problem, according to some observers, is a rigid, highly separationist interpretation of the establishment clause that renders any religious expression by teachers constitutionally impermissible and unnecessarily elevates the establishment clause over the free exercise clause. Others counter that schools must protect against religious indoctrination of impressionable young minds to ensure that schools properly protect the individual sphere of liberty and the central meaning of the First Amendment. The often emotionally charged debate over the appropriate balance in this area has led to protests, divided communities, and, frequently, lawsuits.
Why Limit Teachers’ Expression
School districts limit teachers’ religious expression in order to avoid the perception that the school is endorsing religion, which would be a violation of the establishment clause. Teachers, as agents of the government, may not indoctrinate students in religious matters.
To this end, a school district need not show that teacher speech actually violates the establishment clause in order to prohibit a teacher from engaging in religious expression. The U.S. Supreme Court has noted that “the interest of the state in avoiding an establishment clause violation ‘may be [a] compelling’ one justifying an abridgment of free speech otherwise protected by the First Amendment.”4 A recent federal appeals court decision explained: “In discharging its public functions, the governmental employer must be accorded some breathing space to regulate in this difficult context. For his part, the employee must accept that he does not retain the full extent of free exercise rights that he would employ as a private citizen.”5
Courts have always been fastidious in enforcing the establishment clause in public schools. The captive audience of impressionable children combined with teachers hired to represent the government creates a sensitive mix of compelling interests.
Obviously, when a government agent interacts with children, stringent protections should be in place. This is particularly true when the interaction is elicited through the enticement of a free education and enforced with truancy laws. The more nuanced argument involves the teacher’s representation of the government. This most clearly occurs when the educator is teaching in the classroom. But as any good teacher will quickly remind you, teaching is not confined to the front of the classroom. Educators send a message to students not only in what they say but in what they bring to class, what they wear, and how they conduct themselves in front of the students. This creates a situation in which all time spent in front of students, whether in the hall between classes or sitting at one’s desk during quiet reading times, is educational time.
Some separationist groups argue that schools should take the strictest possible approach, removing not only teacher expression that expressly proselytizes, such as a sermon or prayer with students, but also personal expressions of religion, such as the wearing of a hijab or yarmulke or not saying the pledge. Such strict separationists claim that public schools have long been a hotbed of religious indoctrination and that religious expression by teachers must be eradicated if schools are to balance the scales and achieve the neutrality the Supreme Court indicates is the appropriate environment for public schools.
Why Teachers Need More Protection
However, school districts’ desire to avoid establishment clause quandaries does not mean that teachers must never discuss religion. Religion is an important part of history, culture, social studies, and current events. U.S. Supreme Court justice Tom Clark wrote in the 1963 decision Abington Township v. Schempp that “it might well be said that one’s education is not complete without a study of comparative religion or the history of religion and its relationship to the advancement of civilization.”6 How could a history teacher effectively teach about the Crusades without some discussion of Christianity and Islam? As one federal appeals court wrote, there is a “difference between teaching about religion, which is acceptable, and teaching religion, which is not.”7
The published case law appears to favor school officials who show that they acted out of establishment clause concerns. For example, federal courts have sided with school officials who:
• Forbade teachers from leading students in prayer.8
• Ordered a teacher to remove a religious T-shirt.9
• Ordered a teacher to remove a Bible from his desk and two religious books from classroom bookshelves.10
• Prohibited teachers from wearing Muslim garb11 and Sikh clothing.12
Clearly, some of these situations closely follow U.S. Supreme Court guidance on the appropriate relationship between a state actor and the public. Teachers may not preach to their students, lead them in devotional Bible readings, or otherwise try to convert them to their religious faith. Instead, the Court requires neutrality of teachers on matters of religion, neither promoting nor disparaging any religion, or even nonreligion. But what if during a classroom discussion a student asks how the teacher deals with stressful conditions in the world, such as the Columbine massacre, the September 11 terrorist attacks, or the war with Iraq? Can the teacher truthfully state that her or his religious faith helps the teacher to cope with life’s difficulties?
There is not a large body of case law involving teachers’ religious liberty rights. But some religious liberty advocates say that many teachers won’t broach the subject of religion for fear of discipline by the school or lawsuits. “The majority sentiment that I see among discussion groups of teachers is that many teachers are fearful of talking about religion at all in order to avoid an establishment clause lawsuit,” says Mathew Staver of the Liberty Counsel, a Florida-based religious liberty group. “Thus, they eliminate religion. It becomes a situation where they are not neutral toward religion. Out of an overabundance of caution, they are showing hostility toward the subject matter of religion.”13
Staver, Henderson, and others cite the case of Roberts v. Madigan as an example of a federal court unnecessarily censoring a public school teacher’s religious expression and showing hostility, instead of neutrality, toward religion. In the case a school principal ordered a fifth-grade teacher to quit reading the Bible to himself during a “silent reading period.” The teacher also had a poster in his classroom stating “You have only to open your eyes to see the hand of God” and two books—The Bible in Pictures and The Life of Jesus—sitting on his bookshelves along with more than 200 other books. The principal ordered the removal of the poster, the two books, and even the Bible from the school library.
A federal district court sided with the principal on all counts except the removal of the Bible from the school library. A federal appeals court upheld the lower court’s decision, writing that “the removal of materials from the classroom is acceptable when it is determined that the materials are being used in a manner that violates establishment clause guarantees.”14 The court reasoned that many of the teacher’s students would think that there was government support for Christianity.
U.S. Department of Education to the Rescue?
With the more extreme elements of this debate firmly entrenched, and the confusions plaguing many of the more moderate advocates in this area, what is the appropriate balance when it comes to religious expression by public school teachers? While consensus is far from universal, there are signs that the smoke is clearing, just as it has on so many other religious liberty issues in public schools.
On February 7, 2003, the U.S. Department of Education released guidelines addressing some of the middle ground in this debate. Though controversial, the guidelines seem to generally abide by the various court rulings in the area of teachers’ expression.
“When acting in their official capacities as representatives of the state, 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. Teachers may, however, take part in religious activities where the overall context makes clear that they are not participating in their official capacities. Before school or during lunch, for example, teachers may meet with other teachers for prayer or Bible study to the same extent that they may engage in other conversation or nonreligious activities. Similarly, teachers may participate in their personal capacities in privately sponsored baccalaureate ceremonies.”
The guidelines are controversial in part because they require that schools implement policies that protect student religious speech, or risk losing federal funding. This raises the stakes for schools, particularly if the guidelines conflict with court rulings on the establishment clause. At the same time, the guidelines rekindle awareness about these issues. Such awareness often requires a lawsuit or parent complaint before action is taken. Now schools are required to enact proactive policies that provide guidance when controversies occur.
Some also argue that the positions taken in these guidelines represent disputed areas of law as settled and that sections are ambiguous.15 For example, the guidelines state that student religious speech at school-sponsored events is not attributable to the state. This appears to conflict with some recent rulings of the Ninth Circuit.16 In either event it should be clear that the ambiguities must be read in conjunction with court precedents, for that is the way courts must interpret the guidelines when lawsuits get filed over their application.
Another provision in the guidelines could affect public school teachers in the daily discharge of their duties. The provision provides that “students may express their beliefs about religion in their homework, artwork, and other written and oral assignments free from discrimination based on the religious content of their submissions.” It explains: “Thus, if a teacher’s assignment involves writing a poem, the work of a student who submits a poem in the form of a prayer (for example, a psalm) should be judged on the basis of academic standards (such as literary quality) and neither penalized nor rewarded on account of its religious content.” This provision creates “another area of uncertainty” and potentially conflicts with at least one federal appeals court opinion.17
Conclusion
While the new Department of Education guidelines will surely continue to create controversy, they will also require schools to address issues of religious liberty in the school. Inherent in any authentic self-evaluation by schools and their communities will be the need for schools to respond to their religious diversity, not only among the students but also the faculty. Such self-evaluations must occur in the most religiously diverse nation in the world. A teacher’s need to wear a yarmulke or explain the source of her comfort during a national disaster is peripheral to the bigger issue—whether schools foster classroom environments in which diversity is embraced. They must become places where all members of the school community feel comfortable enough to integrate their religious identity without threatening the religious integrity of others. As the guidelines and many court cases point out, expressions of personal devotion, such as a cross pendant or hijab, are generally acceptable in the public school, while overt acts of proselytizing, such as leading students in prayer or otherwise encouraging students toward religious acts, are not.
It is only when religious liberty and religious diversity are taken seriously that the public schools can fulfill one of their earliest missions, to become citizenship training grounds for the next generation of Americans. When this mission is fulfilled, no court will need to remind us that the constitutional rights of students and teachers are not lost at the schoolhouse gate. 
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John E. Ferguson, Jr. and David L. Hudson, Jr. are religious freedom attorneys with the First Amendment Center, Nashville, Tennessee
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1 391 U.S. 563 (1968).
2 393 U.S. 503, 507 (1969).
3 David L. Hudson, Jr., “Teachers’ Religious Liberties,” www.firstamendmentcenter.org, available online at www.firstamendmentcenter.org/rel_liberty/publicschools/topic.aspx?topic-teachers_liberties.
4 Lamb’s Chapel v. Center Moriches Union Free School District, 508 U.S. 384, 394 (1993).
5 Marchi v. Board of Cooperative Educational Services of Albany, 173 F.3d 469, 476 (Second Cir. 1999).
6 374 U.S. 203 (1963).
7 Roberts v. Madigan, 921 F.2d 1047, 1055 (Tenth Cir. 1990).
8 Breen v. Runkel, 614 F. Supp. 355 (W.D. Mich. 1985).
9 Downing v. West Haven Board of Education., 162 F. Supp. 2d 19 (2001).
10 Roberts.
11 United States v. Board of Education for the School District of Philadelphia, 911 F.2d 882 (Third Cir. 1990).
12 Cooper v. Eugene School District No. 45, 301 Oreg. 358, 723 P.2d 298 (1986).
13 Hudson.
14 Roberts.
15 See Thomas Hutton, “Sins of Omission: Federal Prayer Guidance May Cause Headaches for Schools,” Inquiry & Analysis (April 2003).
16 See Cole v. Oroville Union High School District, 228 F.3d 1092 (Ninth Cir. 2000).
17 Hutton, citing Settle v. Dickson County School Board., 53 F.3d 152 (Sixth Cir. 1995).
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