See You at the Pole^TM
September 2002

Christian Legal Society's Center for Law and Religious Freedom is pleased to support See You at the Pole^TM ("SYATP") by answering legal questions bearing upon the movement and intervening where necessary in legal disputes. The following discussion answers the most frequently-asked questions; however, you may direct additional inquiries to the Center by e-mail (clrf@clsnet.org) or telephone (703) 642-1070 x 3504.

The constitutional principles at stake in SYATP gatherings, including equal access to public property and liberty of conscience and religious speech, are critical ones; however, our experience is that most objections to meetings can be handled through telephone calls and letters designed to educate administrative officials concerning the First Amendment. Timely action is important. The protections against discriminatory treatment have never been stronger.

Guidelines for Religious Expression in Public Schools

The legal support that CLS has provided to SYATP began in the earliest days of the movement. Among the more important results of this advocacy is the following statement in Guidelines for Religious Expression in Public Schools (see link below), an influential publication of the U. S. Department of Education, succinctly summarizing the First Amendment rights of students in public schools:

The Establishment Clause of the First Amendment does not prohibit purely private speech by students. Students therefore have the same right to engage in individual or group prayer and religious discussion during the school day as they do to engage in other comparable activity. . . . Local school authorities possess substantial discretion to impose rules of order and other pedagogical restrictions on student activities, but they may not structure or administer such rules to discriminate against religious activity or speech.

Generally, students may pray in a nondisruptive manner when not engaged in school activities or instruction, and subject to the rules that normally pertain in the applicable setting. . . .

Students may also participate in before or after school events with religious content, such as "see you at the flag pole" gatherings, on the same terms as they may participate in other noncurriculum activities on school premises. School officials may neither discourage nor encourage participation in such an event.

In short, the U.S. Department of Education has declared in the Guidelines its understanding of constitutional jurisprudence that students have the right to gather at flagpoles before or after school to pray in a non-disruptive manner, as long as the school sponsors other non-curriculum activities on school premises. This speech is subject only to neutral, generally applicable rules (i.e., rules that do not discriminate against religion). However, school officials may not prevent students from praying if other forms of private speech are permitted in the same location on the same terms.

The key is that gatherings for prayer on school premises can be treated no less favorably than gatherings for other types of private speech.

Frequently Asked Questions and Answers

SYATP for Students

1. Do Students Have the Right to Participate in SYATP?
   
   As set forth above, students may gather at the flagpole before or after school to pray in a non-disruptive manner, as long as the school sponsors other non-curriculum activities on school premises.



2. May School Officials Regulate SYATP?
   
   School officials may legitimately enforce only neutral, generally applicable rules impacting SYATP. Therefore, if a school has a rule that students may not be on school grounds more than 15 minutes before school begins, the school may prevent students from gathering around the flagpole more than 15 minutes before the start of the school day. The School may not enforce or adopt rules designed to treat SYATP participants and activities differently than participants in other non-curricular events on campus.

SYATP for Non-Students

1. May teachers or school administrators be present at SYATP?
   
   Teachers and school officials may be present, but they may not lead SYATP. A teacher may attend but should not be there in his/her official capacity as a school employee, unless the school requires that a teacher serve as a monitor. This is particularly true if "clock" time or "contract" time has started for the teacher. If a teacher has an assigned post where he/she is supposed to be (e.g., hall monitor or his/her classroom), then the teacher should not neglect his/her assigned post. It may be preferable for teachers to meet with other teachers at a location other than the flagpole to avoid the appearance of school sponsorship.



2. May parents attend SYATP?
   
   Yes, parents may attend SYATP, subject to any neutral, generally applicable rules. For example, if the school requires visitors to the campus, including parents, to check in at the school office, then parents should comply with this rule.



3. May pastors or youth pastors attend SYATP?
   
   Yes, pastors may attend SYATP, subject to any neutral, generally applicable rules. A rule specifically excluding pastors is not neutral with respect to religion and would violate the First Amendment.



4. May teachers meet with other teachers on the day of SYATP?
   
   Teachers may gather for prayer, for example in the teachers' lounge or a classroom, in the same manner that they might gather to discuss politics or a recent movie. However, their meeting should not be held to promote student participation at SYATP.

SYATP for Elementary-Age Students

1. May elementary students meet outside for SYATP?
   
   Elementary students have the same rights as other students to express themselves, subject to neutral, generally applicable rules. One such neutral rule, more common in the urban elementary setting than others, prevents students from gathering outside on school grounds because of safety concerns. If your school has such a rule, a group of parents may offer to be chaperones or guardians for SYATP. The school may agree, but it is not obligated to accept your offer, unless it authorizes this in other circumstances. Another common rule in elementary schools prevents students from participating in before-school or after-school events without parental permission slips. This ensures against religious coercion.



2. May elementary students meet inside on SYATP day?
   
   Elementary students through their parents may ask to meet in a safe location, such as the school gymnasium, before or after school. School authorities are obliged to grant this request to the extent other community groups have the same right of access.

Advertising SYATP

1. How may you promote attendance at SYATP?
   
   Advertising SYATP through school media (e.g., posters, flyers, bulletin boards, literature table, announcements, take-home folders, and newsletter) is permitted to the extent the school allows students or community organizations to promote other non-curriculum-related events through the same media venue. Schools may not treat you any differently than the school treats other non-curriculum groups, but can impose upon SYATP sponsors the same requirements that they impose upon others. Neutrality and equality is the key.
   
   For instance, schools may allow only recognized student organizations to use such media to promote an activity. If your school has such a rule you may want to seek sponsorship by a student club; e.g., Fellowship of Christian Athletes, Youth for Christ, or Young Life. Schools may also confine all advertising by non-curriculum groups to a table, bulletin board, particular wall, or elsewhere. On the other hand, if the school seeks to treat SYATP literature more restrictively than the literature of other non-curricular groups, this is impermissible viewpoint discrimination.
   
   Schools are least able to restrict students from advertising SYATP on their clothing and by passing out flyers before and after school, because of the independent First Amendment rights students possess. In other words, even if a school generally confines advertisements by non-curricular groups to a bulletin board, the school may not ordinarily prevent individual students from handing-out literature on campus during non-instructional time in a non-disruptive manner. The rights of non-students to hand out literature may be more circumscribed, but not more limited than the rights of non-students affiliated with other non-curricular groups.



2. Does concern over church/state separation or the Establishment Clause give a school cause to deny use of the public address (PA) system or TV monitors to announce SYATP? No. Separation of church and state does not require a school to discriminate against religious speech. The same rules that apply to other students or other noncurriculum-related events must apply to SYATP. However, if a school limits announcements to school-recognized organizations, then an announcement for SYATP should come from a school-recognized club. If a school limits announcements to official communications, then SYATP may not be announced.



3. May students use a PA system at SYATP?
   
   Schools may permit use of a PA system, but they are not obligated to provide one or even allow the use of a system brought by students unless they do so in similar non-curriculum-related events. Once again, neutral rules applied to all students or student organizations are applicable to PA systems.

Other Legal Resources

RELIGION IN THE PUBLIC SCHOOLS: A JOINT STATEMENT OF CURRENT LAW (1995).

CENTER FOR LAW AND RELIGIOUS FREEDOM, TEACHERS & RELIGION IN PUBLIC SCHOOLS (2000).
Available for purchase from Christian Legal Society,

U.S. DEPT. OF EDUCATION, GUIDELINES FOR RELIGIOUS EXPRESSION IN PUBLIC SCHOOLS (May 30, 1998)