EQUAL ACCESS TO PUBLIC ELEMENTARY SCHOOLS

1. SETTING THE SCENE
   
   

   America is more dedicated to religious liberty than any nation on earth. The earliest English settlers left their homeland to escape religious persecution. After winning their independence from the English king, the founding fathers enshrined religious freedom in our foundational legal document, the Constitution. They understood that God alone is Lord of the conscience, and that government may not abridge our unalienable rights. In the Bill of Rights, the framers declared that government "shall make no law respecting an establishment of religion or prohibiting the free exercise thereof."

   In the more than 200 years since the birth of our nation, Americans have grappled with the role of religion in public life. That struggle has become more intense and more complex in the past few decades, as America has become more religiously and philosophically diverse and the courts have become more involved in controversies over religion.

   Certain voices in our cultural conversation believe that religious devotion is a purely private matter and, therefore, should be excluded from civic life. Others believe that religion simply divides people, and must be restrained to preserve civic peace. Still others believe that there is no such thing as religious or moral truth and, thus, that efforts to evangelize are impolite at best, illegal at worst. Others believe that the role of the courts is to protect religious minorities from the majority.

   Public education provides the arena for many disputes about the relationship between church and state. Although most agree that schools should inculcate truth, it is tricky business in a religiously pluralistic country. Likewise, assisting with the moral formation of youth is difficult- some say impossible - to divorce from religious convictions.

   This is the broader context of the particular questions that arise when organizations like Child Evangelism Fellowship, Young Life, and others minister in public elementary schools. It is not surprising that ministry staff face opposition, inconsistency, and confusion. Some school officials respect the law and understand the contribution of religious ministries to the community, even if they do not believe in Christ. Others feel unconstrained by legal principle and act on their personal hostility towards religion, especially evangelical Christianity. Still others act out of fear, hoping to avoid controversy and prevent lawsuits by completely excluding all things religious from public schools.

   The purpose of this document is to identify and answer some of the questions that those ministering in elementary schools may have regarding their relationships with the administration and school district. It is not intended to provide specific legal advice. After you read this if you still have unanswered questions or believe that you could benefit from legal representation, please contact the Center for Law and Religious Freedom.

2. ACCESS TO MEETING SPACE IN PUBLIC ELEMENTARY SCHOOLS
   
   

   Public elementary schools are often excellent places to hold Bible clubs and other meetings. Elementary schools usually have adequate meeting facilities and working parents frequently appreciate a community group willing to take care of their kids for an additional hour after school lets out.

   Whenever a religious ministry asks a public school district for permission to meet in an elementary school after-hours, a number of legal principles come into play. Understanding those various legal rules will help you deal more effectively with public school officials, especially those who are hesitant to provide access.

   Whether a religious ministry has a legally enforceable right to meet after hours in a public elementary school usually hinges on whether other secular community-oriented groups such as Boy Scouts, Girl Scouts, 4-H, Campfire Girls, and YMCA meet after-hours on campus. If so, the First Amendment guarantees religious ministries an equal right to meet.

   1. The Right to Equal Treatment
      
      

      Does a religious ministry have a legal right to use meeting space in public elementary schools? It depends. Citizens do not have an automatic right to use meeting space in public schools. The government has the power to decide whether it will allow school facilities to be used at all for non-school activities. However, if a school allows its facilities to be used by secular community groups, it must permit religious groups to use them on equal terms.

      1. The Legal Basis
         
         

         The Free Speech Clause of the First Amendment provides that "Congress shall make no law . . . abridging the freedom of speech." Its restrictions apply not only to Congress, but also to state and local government entities (e.g., school boards).

         The Free Speech Clause generally forbids the government from treating religious speech differently from non-religious speech. Therefore, a school board cannot legally enforce a policy welcoming all community groups to use school facilities, except religious community groups. Religious groups are always entitled to equal treatment.

         The courts have repeatedly held that government officials violate the Free Speech Clause when they discriminate against speakers with a religious message. Most recently, the U.S. Supreme Court held in Good News Club v. Milford Central School, __ U.S. __, 121 S.Ct. 2093 (2001) that an elementary school was engaging in unconstitutional viewpoint discrimination when it permitted groups like the Boy Scouts to use meeting space in schools after-hours, but not Child Evangelism Fellowship. The Supreme Court added that the school could not legitimately be concerned about coercion of "impressionable young minds" when students could participate in Bible clubs only with their parents' permission.

         Other cases finding that government violates the Free Speech Clause when it discriminates against religious speakers on account of the religious content or viewpoint of their speech include the following:

         • Rosenberger v. Rector of the Univ. of Virginia, 515 U.S. 819 (1995) (rules discriminating against use of student fees for religious student organization publication constituted viewpoint discrimination)
         
         
         
         • Capitol Square Review & Advisory Bd. v. Pinette, 515 U.S. 753 (1995) (state's refusal to allow display of religious symbol in public park is speech discrimination)
         
         
         
         • Lamb's Chapel v. Center Moriches Union Free Sch. Dist., 508 U.S. 384 (1993) (school district could not prevent after-hours showing of a film with a religious subject in public school)
         
         
         
         • Widmar v. Vincent, 454 U.S. 263 (1981) (disallowed restrictions on religious group using meeting space on university campus)
         
         
         
         • Culbertson v. Oakridge School District No. 76, 258 F.3d 1061 (9th Cir. 2001) (use of after-hours meeting space at elementary school constitutional)
         
         
         
         • Church on the Rock v. City of Albuquerque, 84 F.3d 1273 (10th Cir.), cert. denied, 117 S. Ct. 360 (1996) (use of publicly-funded senior center constitutional)
         
         
         
         • Shumway v. Albany County Sch. Dist. No. 1, 826 F. Supp. 1320 (D. Wyo. 1993) (use of school facilities constitutional)

         These cases and many others demonstrate that those ministering to public elementary students have a legal right to be treated the same as volunteers for secular community groups.

      2. What About the Equal Access Act?
         
         

         The Equal Access Act, 20 U.S.C. § 4071 et seq., became law in 1984. In essence, it requires public secondary schools to treat student religious groups the same as non-religious groups. Because it applies only to "secondary" schools, it typically will not help a religious group ministering in a public elementary school.

         However, the Equal Access Act is not the only source of a right to meet. As discussed above, the First Amendment itself will frequently give a religious group a legal right to meet in public elementary schools. School officials should not conclude that religious clubs are forbidden in public elementary schools simply because the Equal Access Act is limited to secondary schools.

      3. State Statutes and Local School District Policies
         
         

         State statutes and local school district policies may provide additional authority for treating religious and secular organizations equally. Many state legislatures have passed laws permitting or requiring local school boards to open school facilities to community groups for after-hours meetings. For example, the Oregon legislature adopted a statute permitting local school districts to open their facilities for "civic and recreational purposes." Or. Rev. Stat. § 332.172. Similarly, the Florida legislature enacted a provision allowing local school boards to "permit the use of educational facilities and groups for any legal assembly or for community use centers." Fla. Stat. Ann. § 235.02.

         Most local school boards exercise the authority given to them by the state legislature to open their facilities to community organizations. For example, the Oakridge (OR) School District adopted the following policy governing "Use of School Facilities":

         It is the opinion of the Board that the school district buildings shall be considered as a community center. With this philosophy in mind, the Board encourages the use of school buildings for community use, for educational and recreational purposes. The use of buildings may be available on a no cost basis for non-profit community activities.

         Policies like these are typical in states with statutes encouraging schools to open their facilities for use by community groups. In other states, school facility access policies may violate the First Amendment by treating religious ministries differently from other community groups. If a policy in the latter category discriminates against your religious ministry, please contact the Center for Law and Religious Freedom.

   2. Does "Separation of Church and State" Forbid a Religious Ministry From Meeting in Elementary Schools?
      
      

      School officials are sometimes reluctant to give a religious ministry meeting space in elementary schools due to: (1) fear of controversy; (2) fear of litigation; (3) personal hostility towards religion in general or Christianity in particular; and (4) fear of "the slippery slope" (i.e., that the school will have to allow Nazi or skinhead groups to meet if it allows a Good News Club). When confronted with such reluctance, school officials should be educated about the law in order to help pacify their fears.

      School officials' fear of litigation stems mainly from the "Establishment Clause" of the First Amendment to the U.S. Constitution. The Establishment Clause states that "Congress shall make no law respecting an establishment of religion." Because of various court decisions, this restriction applies to state and local governments, in addition to the federal Congress.

      Although there was uncertainty in the law until recently, it is now clear that a public school district does not violate the Establishment Clause by allowing a religious group to meet after-hours in an elementary school. In other words, concerns about "separation of church and state" do not "trump" the right to equal treatment.

      Again, the most relevant case reaching this conclusion is Good News Club v. Milford Central School, where the U.S. Supreme Court held that providing neutral access to elementary schools does not violate the Establishment Clause. The Court stated, "[T]he guarantee of neutrality is respected, not offended, when the government, following neutral criteria and evenhanded policies, extends benefits to recipients whose ideologies and viewpoints, including religious ones, are broad and diverse."

      Other decisions supporting this result include the following:

      • Agostini v. Felton, 521 U.S. 203 (1997) (providing publicly-funded remedial education to teachers on the premises of both religious and non-religious private schools does not violate the Establishment Clause)
      
      
      
      • Rosenberger v. Rector of the Univ. of Virginia, 515 U.S. 819 (1995) (equal funding of religious and non-religious student publications does not violate the Establishment Clause)
      
      
      
      • Capitol Square Review & Advisory Bd. v. Pinette, 515 U.S. 753 (1995) (equal access to public parks for display of religious symbol does not violate the Establishment Clause)
      
      
      
      • Zobrest v. Catalina Foothills Sch. Dist., 509 U.S. 1 (1993) (provision of publicly-funded deaf interpreter on the premises of both religious and non-religious private schools does not violate the Establishment Clause)
      
      
      
      • Lamb's Chapel v. Center Moriches Union Free Sch. Dist., 508 U.S. 384 (1993) (equal access to after-hours meeting space in public school constitutional)
      
      
      
      • Board of Educ. v. Mergens, 496 U.S. 226 (1990) (statute requiring public secondary schools to treat religious and non-religious student clubs the same [Equal Access Act] does not violate the Establishment Clause)
      
      
      
      • Widmar v. Vincent, 454 U.S. 263 (1981) (equal access to meeting space on university campus did not violate Establishment Clause)
      
      
      
      • Culbertson v. Oakridge School District No. 76, 258 F.3d 1061 (9^th Cir. 2001) (reasonable adult would not view neutral treatment as an endorsement of religion)
      
      
      
      • Sherman v. Community Consolidated Sch. Dist. No. 21, 8 F.3d 1160 (7th Cir. 1993) (school district did not violate the Establishment Clause by allowing the Scouts, termed a religious group by atheistic plaintiffs, to meet on the same terms as other community groups)
   
   
   
3. OTHER ISSUES
   
   
   1. School Distribution of Fliers and Permission Slips Advertising Religious Events
      
      

      Even if they allow a religious group to use meeting space, some school districts refuse to distribute parental permission slips and distribute or post flyers, despite their willingness to distribute or post literature for the Scouts and other secular community groups. Although particular circumstances are important, this kind of discrimination is also generally illegal. Cases so holding include Board of Education v. Mergens, 496 U.S. 226 (1990); Sherman v. Community Consol. Sch. Dist. No. 21, 8 F.3d 1160 (7th Cir. 1993). But see Culbertson v. Oakridge Sch. Dist. No. 76, 258 F.3d 1061 (9^th Cir. 2001) (concerning teacher distribution of flyers).

      Respondents in Mergens sought official recognition for their student club to gain formal access to facilities and the secondary school newspaper, bulletin boards, and the public address system. 496 U.S. at 247. Upholding their right to do so under the Equal Access Act, the U.S. Supreme Court emphasized that any risk of perceived state endorsement or coercion was largely self-imposed, "because the school itself has control over any impressions it gives its students." In other words, it is up to a school to make sure that parents and children understand it does not endorse any religious or non-religious group, but merely hands-out their literature neutrally. Since it is the school's responsibility to articulate clearly this neutral message, the school may not legitimately object there is a risk that some students will misunderstand the message as school endorsement of religion.

      The content of the literature to be distributed or posted is important. It is easier to convince school officials to distribute parental permission slips and invitations if they do not quote the Bible, encourage children to accept Christ, contain crosses, or have other religious content. While some may feel strongly about incorporating all of these into flyers, it is important to find an appropriate balance. Be judicious but not fearful when determining the content of invitations and fliers.

   2. Student Distribution of Religious Literature
      
      

      Some school officials have categorically forbidden students, as opposed to school officials, from distributing religious literature. This is almost certainly unconstitutional. Public school students do not "shed their constitutional rights to freedom of speech or expression at the schoolhouse gate." Tinker v. Des Moines Indep. Community Sch. Dist., 393 U.S. 503 (1969).

      Of course, school officials maintain the authority to prevent students from substantially disrupting the educational process or undermining the rights of others. Id.

      A large number of court cases show that "separation of church and state" does not justify muzzling student speech. These include Hedges v. Wauconda Community Sch. Dist., 9 F.3d 1295 (7th Cir. 1993); Johnston-Loehner v. O'Brien, 859 F. Supp. 575 (M.D. Fla. 1994); Clark v. Dallas Indep. Sch. Dist., 806 F. Supp. 116 (N.D. Tex. 1992); Slotterback v. Interboro Sch. Dist., 766 F. Supp. 280 (E.D. Pa. 1991); Nelson v. Moline Sch. Dist., 725 F. Supp. 965, 977 (C.D. Ill. 1989); Thompson v. Waynesboro Area Sch. Dist., 673 F. Supp. 1379 (M.D. Pa. 1987).

   3. Fees and Rent
      
      

      A school district generally has the power to charge non-school groups reasonable fees for using school facilities. However, many school districts around the country charge religious groups a higher fee than secular youth-oriented groups. They often point to state constitutional provisions forbidding them from subsidizing "sectarian" organizations. Although not as many cases address this claim, it is reasonably clear that the principle of neutrality vindicated under the Federal Constitution trumps any state laws allegedly justifying discriminatory fee policies.

      The key case finding discriminatory fee schedules unconstitutional is Fairfax Covenant Church v. Fairfax County School Bd., 17 F.3d 703 (4^th Cir. 1994). Fairfax County School had a policy of charging Scouts and other secular community groups no rent, but charged churches a rent escalating to commercial rates over five years. The school district did this to encourage churches to go elsewhere out of a concern for violating the Establishment Clause. The Court held, "The School Board's policy of rent discrimination against religious organizations moves the School Board into a non-neutral, anti-religion corner by burdening free speech and the free exercise of religion."

   4. Release Time
      
      

      Many school districts are willing to "release" students during the school day to receive religious instruction. Although such "release time" programs may not occur on campus, they are constitutionally sound if the religious instruction occurs off-premises.

      The federal Constitution does not require public schools to release students to religious instruction during the school day. Accordingly, a school district may choose not to have such a program without violating constitutional rights. However, that should not discourage a religious ministry or local church from asking school boards to institute release-time programs.

   5. Private Elementary Schools
      
      

      First Amendment law does not generally reach to private elementary schools, as opposed to public elementary schools. Therefore, private schools can discriminate against community groups interested in hosting activities on campus more easily than public schools. Although this can negatively impact religious ministries reaching out to private school students, the underlying reasons permit private religious schools to exclude community groups they consider offensive.

4. CONCLUSION
   
   

   Many public schools accommodate efforts by religious groups to serve elementary school-aged children. Those that do not usually raise barriers premised on mistaken, prejudicial, or outmoded interpretations of the law. The better view of constitutional law is that religious groups have the same rights as secular groups to serve students in public elementary schools.

   In many circumstances, you will need to consult with an organization like Christian Legal Society, which has experience in First Amendment law and which is able to deal with public school officials in an amicable but firm way. If you are experiencing religious discrimination, please contact the Center for Law and Religious Freedom at (703) 642-1070 or clrf@clsnet.org.