President reissues guidelines on student religious activity in public schools

Thursday, June 4, 1998

To help public school teachers and administrators understand the proper role of religion in school, President Clinton has issued revised guidelines to send to every school district in the country.

Despite claims by some religious advocacy groups that the U.S. Supreme Court has handed down decisions mandating the removal of all religious expression from public schools, Clinton's “Religious Expression in Public Schools” released during his radio address on Saturday, reveals and details the wide range of permissible student religious activities.

The guidelines, which are based on U.S. Supreme Court precedent, were not actually written by the Clinton administration. Two non profit organizations, the American Jewish Congress and the Christian Legal Society, drafted the statements of law in 1995 with the help of 33 other religious and civil rights groups.

Steve McFarland, director of the Christian Legal Society, said that shortly after the guidelines were completed, President Clinton “saw a great political issue” and asked his secretary of education to adopt the guidelines and distribute them to school districts.

“Our groups did not have the ability to get the guidelines to all the school districts and we appreciate the fact the president has done so,” he said.

Those guidelines were altered slightly to take into account the demise of the Religious Freedom Restoration Act of 1993. Specifically, material was changed regarding student excusal from religiously objectionable schoolwork and students' right to wear clothing displaying religious statements.

RFRA was struck down last year by the U.S. Supreme Court as an unconstitutional act by Congress. The bill would have required all courts, state and federal, to use a strict legal standard when determining whether a law of general applicability violated a person's First Amendment right to the free exercise of religion.

The demise of RFRA, which supporters and opponents agree would have provided greater rights for religious persons to escape almost any conceivable law, affected two areas of the president's guidelines.

First, the guidelines note that “students generally do not have a Federal right to be excused from lessons that may be inconsistent with their religious beliefs or practices.” If RFRA had remained law, a high school student who for religious reasons objected to reading Vladimir Nabokov's Lolita or Henry Miller's Tropic of Cancer, could have evoked RFRA to get out of reading the classic novels.

The revised guidelines also state that students “generally have no Federal right to be exempted from religiously-neutral and generally applicable school dress rules based on their religious beliefs or practices; however, schools may not single out religious attire in general, or attire of a particular religion, for prohibition or regulation.”

But McFarland says these two changes misstate the law.

“The statements regarding the excusals of students and religious clothing are wrong,” McFarland said. “Under the free exercise clause [of the First Amendment], according to a 1990 Supreme Court decision, parents continue to have a right to have their children excused from religiously objectionable [curricula], unless the government can meet the strictest legal standard.”

In that decision, Employment Div., v. Smith, the Supreme Court ruled that the government does not have to show a “compelling interest” in enforcing laws that may restrict religious practices but apply to everyone regardless of religion. The court, however, did hold that if a claim of a violation of the free exercise of religion were combined with another claim of a violation of a fundamental right, the government would be required by courts to show a “compelling interest” in the law.

“If a student is denied the right to opt out of a religiously objectionable class or assignment based on these revised guidelines, I hope they will call us, because we will be the first to provide legal representation,” McFarland said.

For the same reasons, the revised guidelines are wrong on religious garb, McFarland said. The wearing of religious clothing combines two fundamental rights — right to free speech and right to practice religion without government involvement — that are also subject to the compelling-interest test, he said.

McFarland said the misstatements were pointed out, to no avail, to the Justice Department.

“They have misinformed 16,000 school districts on two areas that are extremely litigious,” McFarland concluded.

Except for these two areas, the guidelines remain unchanged from their first issuance in 1995. U.S. Secretary of Education Richard Riley said the guidelines were created and sent to all public school districts to help “end much of the confusion regarding religious expression in our nation's public schools that had developed over more than 30 years since the U.S. Supreme Court decision in 1962 regarding state-sponsored prayer.”

Riley said the guidelines have been used by school districts throughout the country to help avoid contentious battles that often arise when religious beliefs and practices of children are infringed upon or offended by secular teaching.

The education secretary noted that last year U.S. District Judge Ira DeMent ordered a county school district in Alabama to keep on file in every school library a copy of the president's guidelines. DeMent's order was in response to a lawsuit filed against the school district for aiding and abetting unconstitutional religious practices in the public schools. Riley also said school districts in Utah and Missouri have quelled potential legal disputes after implementing policies based on the presidential guidelines.

The guidelines follow Supreme Court decisions which hold that school officials may not forbid “students acting on their own from expressing their personal religious views or beliefs solely because they are of a religious nature,” Riley said. “Schools may not discriminate against private religious expression by students, but must instead give students the same right to engage in religious activity and discussion as they have to engage in other comparable activity.”

Nonetheless, those decisions, reached in the 1960s, apparently created confusion among public school teachers throughout the nation. Some public school officials have construed the decisions to bar any student speaking, writing or other actions having anything to do with religion.

“It is fair to say that those 1960s decisions were misinterpreted by some public school teachers as meaning that students cannot privately express religious beliefs,” Ira Lupu, a constitutional law scholar and professor at George Washington University, said.

What those decisions actually meant, Riley said, is that “schools may not endorse religious activity or doctrine, nor may they coerce participation in religious activity.”

Charles Haynes, senior scholar at the Freedom Forum's First Amendment Center, praised the guidelines as a positive step toward helping public school teachers and officials protect and respect religious diversity, consistent with First Amendment principles, in the nation's classrooms. Haynes directs the forum's religious liberty programs, which, in part, help school districts throughout the nation adopt curricula and programs consistent with First Amendment principles.

“The president's guidelines have made a significant difference in school districts around the nation,” Haynes said. “Since they were released three years ago, there have been fewer lawsuits and conflicts in many of the states where we work. Though we still have a long way to go, growing numbers of administrators have a better understanding of the constitutional role for religion in the public schools.

“Now that the revised guidelines are being sent to all school districts, we have a new opportunity to urge more districts to develop policies and practices that are consistent with the First Amendment,” Haynes said.

Barry Lynn, executive director of the Washington, D.C.-based Americans United for Separation of Church and State, said the guidelines show that the 1960s Supreme Court decisions were not the supposed harbinger of secularism.

“No one can read these guidelines and still buy the religious-right line that God has been expelled from the public schools,” he said.

McFarland questioned Lynn's assertion regarding conservative groups' understanding of the 1960s prayer cases.

“For starters I don't know too many organizations on the religious right that object” to those rulings, he said. “It is just false to suggest that people are trying to reverse those decisions.”