Learning About the First
Joy Choquette January/February 2009
In the few years since the writing of the First Amendment in 1791, a separation between church and state has become a constitutional given. The First Amendment states, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof . . . and to petition the government for a redress of grievances.” The founding fathers of the United States government, aware that many of their fellow colonists had fled religious persecution, were most likely thinking along the lines of forced religious practices.
Legal cases settled on the basis of this original amendment have shown further distinctions in the ongoing separation of religion and state practices. In more recent years Supreme Court determinations on this topic have elicited much interest in the real world, not just informing academic opinion.
Part of that ongoing debate concerns attorneys, school officials, parents. They have everyday school issues that involve separation of church and state. There is much discussion as to the exact meaning of the First Amendment and how that wording relates to the establishment clause. In 1962 the establishment clause was further defined in a Supreme Court case (Engel v. Vitale). The outcome of this suit gave further clarification to the role of religion within public school settings, when Court justices deemed that prayer led by administration in schools violated the establishment clause.
It can be a treacherous slope for public educational facilities—which must not step on the religious rights of students, nor promote religion on campus. How does one allow prayer in school without encouraging it? What is required of an administration in order to make sure it is meeting the needs of students who may come from a variety of religious backgrounds? And what exactly is the school’s role in working with religious groups on campus?
Middlebury Union High School (MUHS) in Middlebury, Vermont, came up against this particular issue in July 2007 when a lawsuit was filed by a student. The student, along with members of her Youth Alive group, a Christian-based club, had requested that the group be recognized by the school. They requested that the school extend the same status to the Youth Alive group that was given to other after-school groups on campus, such as the Outing Club, Arabic Club, and the Gay/Straight Organization. Each of these groups enjoys benefits offered by the school. Some of these benefits include advertisements in the school’s yearbook, monetary funds for supplies, and a staff member to oversee group meetings.
The student’s written request was denied. Shortly after this, the student contacted an attorney to file a lawsuit against the school.
Lee Sease, Addison Central Supervisory Union superintendent, stated that MUHS believed their obligations to the Youth Alive group had been met. The school was providing the Youth Alive students with access to the facility, without providing the additional benefits to members that the other groups were receiving. “We know from past practice and from the First Amendment, we have the obligation to neither establish religion, nor prohibit the free exercise thereof of religion. We thought we had positioned ourselves in the right spot,” said Sease. “We were trying to find out, ‘How do we live up to both of those requirements?’”
There is a fine line between establishing and restricting religious beliefs on a school campus. “Christian groups should not be penalized because of their religious beliefs,” states Josh Bolinger, litigation counsel with the Alliance Defense Fund (ADF). Bolinger was one of the attorneys who represented the MUHS student. “They’re entitled to the same rights and privileges as any other student group on campus. While the school permitted the group to meet, it denied the group access to benefits that other campus student organizations enjoyed, simply because the club’s purpose was religious.”
After notification of the lawsuit, the school’s insurance carrier became involved and hired an attorney to represent the school. This legal firm was different than the one MUHS originally consulted, according to Sease. The legal team came back to MUHS and stated that there was a problem with the school’s position. “They referred us to the Equal Access Act,” says Sease. The Federal Equal Access Act was enacted by Congress in 1984. The act, which applies only to secondary public schools, states that an extracurricular group that has at least one student-led member has the right to receive the same benefits and treatment as all other extracurricular groups. The group must be made up of students who are participating on a completely voluntary basis, must be student-initiated, and must not be disruptive. A faculty or staff member can be assigned to a group; however, they must not lead, promote, or participate in the club. Members of the community are not allowed to attend the group on an ongoing basis.
“What we stressed is that this is an opportunity around democracy, this is an opportunity to have a conversation about the First Amendment and to be respectful of all viewpoints.”
Along with these regulations are benefits that every extracurricular group should have equal access to. Groups should have access to meeting spaces and promotional tools (such as use of the PA system, bulletin boards, etc.). In addition, school officials have the right to monitor the group and can require the group to follow a certain standard of rules, schedule specific meeting times, and request that community members do not attend group activities on a steady basis. However, these rules and regulations must be consistent across the board for all extracurricular groups within the school.
The Federal Equal Access Act was heavily supported early on by conservative Christian groups, and there has been a large increase in Bible-based groups since its inception in the early 1980s. Ironically, given the original intent of the backers, because the Federal Equal Access Act allows for religious groups of all types to gather in an after-school setting, Wiccans, satanists, and neo-pagans are allowed to meet along with traditional Christian groups. But, of course, that is consistent with a religiously neutral state stance, which allows all religion or irreligion to flourish.
“Based on the Equal Access clause, the group [Youth Alive] was entitled to an advisor, paid by the school,” states Sease. The group was also entitled to status as an extracurricular activity. Sease points out that MUHS initially believed that there were no differences between cocurricular and extracurricular activities. The school learned that this was not true.
A cocurricular activity is one in which activities relate directly to the curriculum. Examples of this would include a math or French club. An extracurricular activity is an activity that is not related to the curriculum. The other noncurriculum-based clubs, such as the Arabic Club and the Outing Club, fall under this category. Therefore, the Youth Alive group was indeed eligible for extracurricular status, the same as the other groups that were not directly related to the school’s curriculum, but still used the school facilities, had a paid advisor, and were provided advertisement in school publications as well as supplies for their group. “Because we were extending those benefits to noncurricular activities,” states Sease, “a group like Youth Alive was entitled to the same benefits. When we found out that we had other obligations to the group, which we had not lived up to, we fulfilled those obligations.”
“From the beginning of the case, it was the school’s position that providing some access, but not equal access, was sufficient,” states Litigation Counsel Bolinger. “Unfortunately, the law requires that Christians have the same First Amendment rights as anyone, and certainly in the public school context, that is the case too. Singling the group out and not providing them with all of the benefits and privileges like they do with all of the other student clubs . . . which were given access and space in the yearbook, posted on the school’s Web site, etc., just because the Youth Alive club was religious, that club was singled out. So, really the general idea was that this club needs to be treated on the same, equal footing as the other clubs.” Sease, in retrospect, agrees. “While we were sued, we were really trying to find out ‘What were our obligations?’ and we were trying to live up to those obligations.”
Bolinger stated that there are many similar cases being handled by the ADF throughout the country. “I definitely think we’re seeing more and more,” states Bolinger. “It’s a fundamental aspect of constitutional law that religious speech is protected by the First Amendment, and that school officials can’t single out Christian groups or students for discrimination just based on their religious beliefs. But in spite of these well-settled principles, we are seeing a lot of discrimination taking place, and we’ve been able to come in and help these students out.”
Soon after the motion of preliminary injunction, in which the court was asked for temporary relief while the case continued, ADF was approached by the school with the possibility of settling the case. “We were able to work with the attorneys of the school towards settlement, and ultimately reached a settlement and ended the case by filing what’s called a ‘voluntary dismissal’ with the court,” says Bolinger.
The time period between filing of the initial complaint and resolution of the case was several months. According to Bolinger, once the school was made aware of the situation and the lawsuit, the school’s attorneys decided to recognize the First Amendment rights of the students.
When a lawsuit similar to this is filed, there are often mixed feelings from both school and community members. How did Sease and MUHS handle this situation? Sease says that while there has been some reaction from the community to the position that MUHS has taken, this group has not been terribly large or vocal.
“When this issue came up, it did create quite a stir within the school itself,” states Sease. “We’re talking about high school kids, and high school kids can be quite opinionated. They’re starting to find their own independence. What we stressed is that this is an opportunity around democracy, this is an opportunity to have a conversation about the First Amendment and to be respectful of all viewpoints.”
Learning about constitutional rights and the First Amendment in this way helps students to see what the legal system looks like in an up close and personal way. While it’s one thing to learn about law and the judicial system in thick history books, it’s quite another to do so in a firsthand setting. Sease says he is pleased with the outcome. “I think that anytime that you get clear guidance around what your responsibility is to the Constitution and to the law, I’m always pleased with that. Now we’ll know what to do the next time.”