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We at the Witches' Voice are continually compiling a important reference documents, form letters that you can use in your local fight for YOUR freedom... Note: The Witches' Voice Inc. does not offer legal advice nor are we qualified to do so. This document does not constitute legal advice but is intended to be used in conjunction with the legal services of an attorney licensed to practice in your state. This document can be copied and distributed to your lawyer should you decide that you need the services of one.
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Prayer and Religious Instruction in Schools:|
Supreme Court Decisions pertaining to School and Student Issues:
Illinois vs. McCollum (1948).--The court ruled that allowing religious
teachers to come into public schools to give religious instruction violated the First Amendment's Establishment Clause, which prohibits government establishment of religion. The court said the policy tears down the wall" separating church and state -- a phrase coined by Thomas Jefferson in a letter to the Westbury Baptists after the Constitution had been written and ratified. Click for a full text version.
Zorach vs. Clauson (1952).--The court upheld a school policy that allowed students to leave public schools to receive religious training off campus. Click for a full text version.
Engel vs. Vitale (1962).--A strongly civil-libertarian court, headed by Chief Justice Earl Warren, ruled that reciting nondenominational prayers written by government officials violated the Establishment Clause. Click for a full text version.
The Board of Education of Union Free School District No. 9, New Hyde Park, New York, required students to recite a 22-word, nondenominational prayer every morning. Several parents sued claiming that this prayer requirement violated their children's freedom of religion. The United States Supreme Court ruled that the daily prayer ritual violated the First Amendment's Establishment Clause, even though students were given the opportunity not to participate. The Establishment Clause provides that "Congress shall make no law respecting an establishment of religion."
The Court wrote an unusual opinion, one that does not cite any cases, or rely on any prior case law, in support of its decision. Instead, the Court relied on the history of religion and its relationship with government and warned of the dangers of a union between church and state. The Court supported its position using historical examples, such as the notorious religious intolerance in 17th century England which contributed to the European migration to North America and the founding of the American colonies. The Court wrote:
"It is a matter of history that this very practice of establishing governmentally composed prayers for religious services was one of the reasons that caused many of our early colonists to leave England and seek religious freedom in America."
Abington School District vs. Schempp (1963).--The Warren court broadened its Engel ruling. The court found that while reading the Lord's Prayer was obviously not forcing a government-written prayer on students, the practice still violated the Constitution. That's because, said the court, its purpose was to promote religion. Click for a full text version.
Stone v. Graham, 449 U.S. 39 (1980)--A Kentucky statute (or law) required each public elementary school to have on its wall a copy of the Ten Commandments. The plaintiffs, a group of parents, filed suit to prevent the State of Kentucky from enforcing this statute. The parents claimed that the law violated the Establishment Clause of the First Amendment which states that "Congress shall make no law respecting an establishment of religion."
The Establishment Clause requires the government to be neutral in religious matters. Therefore, any action by the government which advances, promotes, or inhibits religion is prohibited by the First Amendment.
To determine whether a law violates the Establishment Clause, a court of law must first decide if a law, or any government action, has a secular (non-religious) purpose. In other words, was the law passed to promote a secular purpose or a religious purpose?
In the Stone case, the Kentucky Supreme Court turned down the parents' lawsuit and upheld the statute. The court decided that the law did have the secular purpose of fostering respect for our legal system which is partially based on the Ten Commandments. In fact, the Kentucky legislature, concerned that someone would file a suit challenging the law, had attempted to overcome an Establishment Clause challenge by inserting a small notation on each copy of the Ten Commandments which stated: "The secular application of the Ten Commandments is clearly seen it its adoption as the fundamental legal code of Western Civilization and the Common Law of the United States."
On appeal, the United States Supreme Court reversed the decision of the Kentucky Supreme Court and decided that the law violated the First Amendment. The U.S. Supreme Court determined that the posting of the Ten Commandments had "no secular purpose." The Court also held that "[t]he pre-eminent purpose for posting the
Ten Commandments on schoolroom walls is plainly religious in nature," noting that the Ten Commandments are the creed of the Christian and Jewish faiths.
Under the new guideline, a law, to survive constitutional challenge, must have a secular purpose, its primary effect must neither inhibit nor promote religion and it must not create excessive entanglement of government and religion.
The court ruled that the main reason the Kentucky Legislature passed the Ten Commandments law was to promote religion. Click for a full text version.
Murray v. Curtlett, 374 U.S. 203, 83 S.Ct. 1560 (1963)--The Board of School Commissioners of Baltimore City required students to recite the Lord's Prayer, or read from the Bible, every morning. The mother of one of the students, Madalyn Murray, sued the Board on behalf of her son, claiming that the daily prayer requirement violated his freedom of religion.
The United States Supreme Court agreed with the Murrays and prohibited the daily prayer. The Supreme Court wrote:
"In the relationship between man and religion, the State is firmly committed to a position of neutrality. Though the application of that rule requires interpretation of a delicate sort, the rule itself is clearly and concisely stated in the words of the First Amendment".
The Board of School Commissioners argued that the daily prayers and Bible readings had the non-religious purpose of promoting moral values. The Court disagreed, finding that the daily prayers and Bible readings clearly had a "religious character." Full Text: see Abington School District vs. Schempp (1963)
Marsh vs. Chambers (1983).--The court upheld the Nebraska Legislature's practice of opening each session with a prayer, citing the historical tradition of legislatures doing so since the Continental Congress. The justices said the long-held practice had not in fact established religion. Click for a full text version.
Lynch vs. Donnelly (1984).--The court ruled that a city display of a
nativity scene did not violate the Constitution as long as non-religious Christmas symbols, such as reindeer and images of Santa Claus, were included. Click for a full text version.
Wallace vs. Jaffree (1985).--The court struck down an Alabama law that allowed teachers to set aside time for meditation or voluntary prayer. The court noted that comments in the legislative record made it clear the Legislature had made no attempt to justify the law on non-religious grounds. Based on that and other evidence, the court ruled that the Legislature's only motive was to promote religion.
The State of Alabama passed a state law authorizing a "one-minute moment of silence for meditation" in its public schools. A parent brought suit on behalf of his children alleging that the moment of silence amounted to "religious indoctrination" in violation of the First Amendment.
The United States Supreme Court struck down the Alabama "moment of silence" law. The Court found that the "moment of silence" law had no secular (non-religious) purpose, but did in fact have a religious purpose which was to bring prayer into public schools. The Establishment Clause requires governmental neutrality toward religion. According to the Court, the State of Alabama was not neutral toward religion. The Court held that Alabama was promoting religion and infringing upon individuals' "freedom of conscience." Click for a full text version.
Westside Community Board of Education vs. Mergens (1990).-- The court upheld a federal law that gave equal access to student groups, including religious groups, to high school premises. Click for a full text version.
Lee vs. Weisman (1992).--The court ruled 5-4 that school-sponsored prayers at graduation and other official school functions violated the Establishment Clause. The court reaffirmed that, at a minimum, the Constitution guarantees that the government can not coerce anyone to support or participate in religion or its exercise."
A Rhode Island public junior high school allowed a rabbi to offer prayers at the spring graduation ceremonies. One parent brought a lawsuit claiming that the graduation prayers violated the Establishment Clause of the First Amendment. The United States Supreme Court agreed with the parent and disallowed prayers at public school graduations.
The U.S. Supreme Court acknowledged that the school officials' motives for having prayer were good ones. However, the Court warned of the dangers of school officials promoting religion, even when a majority of students desire the prayers. The Court again echoed its opinion that prayer is a subject properly left to the "private sphere"; that prayer is a private, individual matter that should not be forced on the public. The Court stated that "[t]he First Amendment Religion Clauses mean that religious beliefs and religious
expression are too precious to be either proscribed (prohibited) or prescribed (ordered) by the State."
The Court again found support in historical injustices inflicted on unpopular religious beliefs:
"The explanation lies in the lesson of history that was and is the inspiration for the Establishment Clause, the lesson that in the hands of government what might begin as a tolerant expression of religious views may end in a policy to indoctrinate and coerce. A state-created orthodoxy puts at grave risk that freedom of belief and conscience which are the sole assurance that religious faith is real, not imposed."
The Court also wrote that "the lessons of the First Amendment are as urgent in the modern world as in the18th century when it was written." Click for a full text version.
Board of Education of Westside Community Schools v. Mergens, 496 U.S. 226, (1990)--Several students at a public high school in Omaha, Nebraska, requested permission to form a student religious group. The school principal refused the students' requests. The principal believed that allowing students to organize a religious group would violate the Establishment Clause. The principal also feared that the school would be promoting religion if it allowed the club even though the club, like all "non-curriculum related student groups" met after school hours.
The students filed suit claiming that the school's actions violated the Equal Access Act. The Equal Access Act, passed in 1984, is a federal law designed to prohibit discrimination against religious speech, and other types of speech, in public schools. Specifically, the Equal Access Act provides:
"It shall be unlawful for any public secondary school which receives Federal financial assistance and which has a limited open forum to deny equal access or a fair opportunity to, or discriminate against, any students who wish to conduct a meeting within that limited open forum on the basis of the religious, political, philosophical, or other content of the speech at such meetings."
The United States Supreme Court decided that the school had violated the Equal Access Act by denying the students' request to form the religious club. In effect, the school had denied the students "equal access" to form a "non-curriculum student group" because of the message or purpose of their club. The Court decided this case on the basis of the Equal Access Act and not on First Amendment grounds.
BUT THAT WAS THEN AND THIS IS NOW
Tanford vs. Brand, 96-1894 (1997)-Court Turns Back Prayer Challenge
The Supreme Court rejected a challenge to Indiana University's custom of having a clergy member offer two prayers at the school's graduation ceremony each May. The court, without comment, turned away arguments that the state school's custom violates the constitutionally required separation of religion and government.
For 35 years, the nation's highest court has banned officially sponsored worship in public schools. In 1992, the court ruled that clergy members cannot lead invocations and benedictions at public grade school or high school graduation ceremonies. But that decision emphasized that the same rule might not apply to officially sponsored prayers at a university or city council meeting.
The 7th U.S. Circuit Court of Appeals, in upholding Indiana University's practice last January, drew a distinction between college graduates and younger students.
The appeals court added: ``The university's practice ... has prevailed for 155 years and is widespread throughout the nation. Rather than being in violation of the (Constitution) it is simply a tolerable acknowledgment of beliefs widely held among the people of this country.''
The graduation prayers had been challenged by James Tanford, a law professor at the university, and Joseph Urbanksi, a student. Tanford, a Roman Catholic, objects to nondenominational public prayer because he believes they trivialize and desanctify communication with God. Urbanski, who expects to graduate in May 1999, is an atheist.
They sued in an attempt to ban prayers from the university's 1995 graduation ceremony. A federal trial judge and the 7th Circuit court ruled against them.
In the appeal acted on today, Tanford and Urbanski argued that ``prayer has rarely been found to have a secular purpose because it is so quintessentially a religious activity.''
``Such prayers should not be justified on the ground that they are voluntary, nonsectarian, traditional or merely used to solemnize a secular occasion,'' the appeal said.
Lawyers for the university urged the justices to reject the appeal. ``Under any realistic view, (Tanford and Urbanski) are not coerced to participate in a religious exercise,'' they said. ``There is no evidence, and it is not credibly to be believed, that Indiana University's `real' purpose or intent is to promote religion.'' The case is Tanford vs. Brand, 96-1894.
Reported by By Richard Carelli-Associated Press Writer
Monday, October 6, 1997; 10:31 a.m. EDT-© Copyright 1997 The Associated Press
Other School Related issues:
FREEDOM OF SPEECH:
Hazelwood School District v. Kuhlmeier, 484 U.S. 260 (1988)--Students working on their high school newspaper prepared an issue about problems confronting teenagers. One story discussed teenage pregnancy, another story discussed the impact of divorces on teens. The pregnancy story quoted three high school students who discussed their sexual histories and related topics. The school principal read the stories before they were published. Believing the stories were inappropriate for a high school newspaper, he censored them. The student journalists took the school district to court, claiming that their First Amendment free-press rights had been denied by the school.
The United States Supreme Court decided that the school principal could properly censor the student newspaper. According to the Court, the principal had a "valid educational purpose" in censoring the stories on teenage pregnancy and divorce. The Court found that the school principal could reasonably believe that frank talk on matters of sexual history and childbirth was inappropriate for a publication that would be distributed to 14-year-olds. The Court also decided that the school principal was appropriately protecting his students from sensitive, controversial issues.
The Supreme Court in Hazelwood allowed much greater discretion to school officials regarding student expression than the Court did previously. The Hazelwood decision has been and is highly criticized as granting too much power to school officials and not adequately protecting the First Amendment freedoms of high school students. In fact, legislation (often called "Anti-Hazelwood " legislation) has been introduced in nearly 30 states to protect high school journalists. Six states (Arkansas, California, Colorado, Iowa, Massachusetts, and Nebraska) have passed such legislation. Click for a full text version.
Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969)--Two students planned to wear black armbands to their local high school to protest U.S. involvement in the Vietnam War. School officials learned about this upcoming protest and quickly introduced a new policy that prohibited students from wearing armbands. The students knew of the school policy, but wore the armbands anyway. These students were suspended from school.
The students filed a lawsuit claiming that wearing the armbands was a form of "symbolic speech" protected by the First Amendment. The U.S. Supreme Court agreed and wrote that students do not "shed their constitutional rights to freedom of speech or expression at the schoolhouse gate." The Court ruled that as long as there is not "substantial disruption of or material interference with school activities," the students' freedom to express themselves is protected by the First Amendment. Click for a full text version.
Board of Education, Island Trees Union Free School District No. 26 v. Pico, 457 U.S. 853 (1982)--The local school board overseeing Island Trees Union Junior High and High Schools in New York banned nine books from both school libraries. The Board found the books to be "objectionable." Some of these works were literary classics, such as Richard Wright's "Black Boy," and Kurt Vonnegut's "Slaughterhouse Five." Several students brought a lawsuit challenging the right of School Board officials to remove these books from the school's library.
The United States Supreme Court decided that the First Amendment places limitations upon school officials' discretion to ban books. The Court wrote that "the special characteristics of the school's library make that environment especially appropriate for the recognition of the First Amendment rights of students."
According to the Court, the key to reviewing official book banning is the motivation behind the removal of the books. For example, the Court determined that removing books on account of "vulgarity" was constitutional. On the other hand, removing books because of their ideas or themes was unconstitutional. The Court wrote:
"In brief, we hold that local school boards may not remove books from school library shelves simply because they dislike the ideas contained in these books and seek by their removal to prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion."
Click for a full text version.
Abrams v. United States, 250 U.S. 616 (1919)--Five individuals, most of them self-described "anarchists" and "revolutionaries," were convicted for conspiring to distribute literature highly critical of the U.S. government, particularly America's involvement in World War I and the government's hostility toward communism. One article was titled, "The Hypocrisy of the United States and her Allies."
The defendants were charged under the Espionage Act of 1917, which was passed by Congress during World War I to punish domestic political rebellion. The Espionage Act prohibited speech which intended "to cripple or hinder the United States in the prosecution of the War."
The Supreme Court affirmed the convictions of the defendants. The Court stated:
"The purpose of this [the articles critical of the government] was to persuade the persons to whom it was addressed to turn a deaf ear to patriotic appeals in behalf of the government of the United States and to cease to render it assistance in the prosecution of the war."
A majority of the Court believed that there was no First Amendment right to engage in extreme political dissent, particularly at a time when the nation was embroiled in a world war. However, a lone justice dissented from the majority opinion. In the dissent, Justice Oliver Wendell Holmes wrote a landmark opinion in which he argued that the First Amendment indeed protected the defendants in the exercise of their political speech. Holmes further articulated the "clear and present danger" test which he first announced in the similar case of Schenck v. U.S., 250 U.S. 616 (1919). Click for a full text version.
Holmes did not dissent from the majority opinion because he agreed with the so-called "anarchists." In fact, he steadfastly disagreed with their opinions. However, Justice Holmes recognized that the First Amendment must protect expressions of controversial political speech. Holmes wrote:
"I think we should be eternally vigilant against attempts to check the expression of opinions that we loathe and believe to be fraught with danger, unless they so imminently threaten immediate interference with the lawful and pressing purposes of the law that an immediate check is required to save the country....Only the emergency that makes it immediately dangerous to leave the correction of evil counsels to time warrants making any exception to the sweeping command, "Congress shall make no law abridging the freedom of speech."
Click for a full text version.
HATE SPEECH AND "FIGHTING WORDS":
Chaplinsky v. New Hampshire, 315 U.S. 568 (1942)--Walter Chaplinsky, a Jehovah's Witness, said to a city marshal: "You are a God-damned racketeer" and "a damned Fascist." Chaplinsky was convicted under a New Hampshire statute "designed to preserve the public peace." The statute read:
"No person shall address any offensive, derisive or annoying word to any other person who is lawfully in any street or other public place, nor call him by any offensive or derisive name, nor make any noise or exclamation in his presence and hearing with intent to deride, offend or annoy him, or to prevent him from pursuing his lawful business or occupation."
The U.S. Supreme Court upheld the conviction, finding that Chaplinsky's profane language constituted "fighting words." The Court defined fighting words as "those which by their very utterance inflict injury or tend to incite an immediate breach of the peace." According to the Court, fighting words are not essential to any expression of ideas and have very little social value as a step to the truth. The New Hampshire statute, as construed by the state's high court and affirmed by the U.S. Supreme Court, prohibited face-to-face words that "men of common intelligence would understand would be words likely to cause an average addressee to fight."
The Chaplinsky case is significant because in it the Court defined a category of speech which is not deserving of First Amendment protection, namely "hate specch". (See also: RAV v. St. Paul). Click for a full text version.
Bethel School District No. 403 v. Fraser, 478 U.S. 675 (1986)--A high school student delivered a speech to the student body nominating a fellow classmate for a student government office. The speech contained graphic sexual references which were offensive to many students in the audience. The student was suspended for violating the school's "disruptive-conduct rule." The student sued the school claiming that his suspension was a violation of his free speech rights under the First Amendment.
The United States Supreme Court disagreed and ruled in favor of the school district. The Court distinguished the sexual content of the speech in this case with the "political message" reviewed in previous cases (i.e., opposition to the Vietnam War). The Court pointed out that the sexual innuendo-filled speech in question was "unrelated to any political viewpoint." The Court wrote:
"The undoubted freedom to advocate unpopular and controversial views in schools and classrooms must be balanced against the society's countervailing interest in teaching students the boundaries of socially appropriate behavior."
Federal and state legislatures often cite "protection of minors" when passing laws which curtail constitutional freedoms. The Bethel case is a prime example. The Court stated that "[w]e have also recognized an interest in protecting minors from exposure to vulgar and offensive spoken language." Click for a full text version.
RAV v. St. Paul, 112 S.Ct. 2538 (1992)--In this case, a young white youth burned a cross in the yard of a neighboring African American family who had recently moved into the previously all-white neighborhood. The youth was charged under a St. Paul ordinance. The ordinance stated:
"Whoever places on public or private property a symbol, object, appellation, characterization or graffiti, including, but not limited to, a burning cross or Nazi swastika, which one knows or has reasonable grounds to know arouses anger, alarm or resentment in others on the basis of race, color, creed, religion, or gender commits disorderly conduct and shall be guilty of a misdemeanor."
The Supreme Court unanimously agreed that the St. Paul hate-speech law violated the First Amendment. Therefore, the youth's conviction was overturned. In reaching its decision, several Justices wrote concurring opinions. Concurring opinions agree with the result (guilty or not guilty, constitutional or unconstitutional), but use different reasoning to reach a decision. Writing for the Court, Justice Scalia held that the government cannot punish the use of some words or symbols that arouse anger, alarm and resentment, and not other words or symbols. The St. Paul ordinance was held unconstitutional because it was underinclusive, or only punished certain types of hateful conduct, and not all types. The Court majority wrote: "Let there be no mistake about our belief that burning a cross in someone's front yard is reprehensible. But St. Paul has sufficient means at its disposal to prevent such behavior without adding the First Amendment to the fire. This case represents a landmark decision in the hate speech area. It has been cited by other courts which have struck down similar hate speech rules, particularly college and university campus speech codes. Click for a full text version.
Sources: Constitutional Law, Horn Book Series, 5th Edition.
Findlaw is at:http://www.findlaw.com/
|Important Note: The Witches' Voice Inc. does not offer legal advice nor are we qualified to do so. This document does not constitute legal advice but is intended to be used in conjunction with the legal services of an attorney licensed to practice in your state. This document can be copied and distributed to your lawyer should you decide that you need the services of one.|
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