Report No. 30-156 A
PRAYER AND RELIGION IN THE PUBLIC SCEOOLS: KHAT IS,
AND IS NOT, PERMITTED
David M. Ackerman
Legislative A t t o r n e y
American Law Division
J a n u a r y 2 8 , 1976
U ~ d a t e dS e ~ t e r n b e r 4, 1980
The Congressional Research Service works exclusively for
the Congress, conducting research, analyzing legislation, and
providing information at the request of committees, Members, and their staffs.
The Service makes such research available, without partisan bias, in many forms including studies, reports, compilations, digests, and background briefings. Upon request, CRS
assists committees in analyzing legislative proposals and
issues, and in assessing the possible effects of these proposals
and their alternatives. The Service's senior specialists and
subject analysts are also available for personal consultations
in their respective fields of expertise.
This report provides an overview of judicial decisions concerning
the constitutionality of State-sponsored religious activities in the
public schools. Particular attention is paid to the Supreme Court's
decisions regarding State-sponsored prayer and Bible reading and Statesponsored religious teaching in the public schools. The purpose of the
report is to clarify the distinction that has been established in the
courts between those State-sponsored activities regarding religion which
are constitutionally permissible and those which violate the First Amendment.
SUPREME COURT DECISIONS
(a) STATE-SPONSORED PRAYER AND BIBLE READING............,....,..l
STATE-SPONSORED RET+IGTOUS TEACHING,....................
THE SCOPE OF THE DECISIONS
WHAT IS CONSTITUTIONALLY PERMITTED.............,,...........8
(b) WHAT IS CONSTITUTIONALLY PROHIBITED
ISSUES NOT YET DEFINITIVELY RESOLVED..............,,.......13
PRAYER ANT RELIGION IN THE PUBLIC SCHOOLS:
WHAT IS, AND IS NOT, PERMITTED
Few areas of constitutional law have proven to be as controversial
and as subject to misinterpretation as that concerning the constitutionality
of government-sponsored religious activities in the public schools.
last three decades the Supreme Court in five decisions and the State arid lower
Federal courts in dozens of related decisions have attempted to articulate the
meaning of the religion clauses of the First ~mendment- for a variety of such
activities, including State-sponsored prayer, Bible reading, and religious
Notwithstanding continuing political controversy over many of these
decisions, they provide a fairly consistent interpretation and application of
the First Amendment.
The purpose of this report is to summarize the Supreme
Court's decisions in this area and their subsequent application in diverse
situations by State and lower Federal courts, to the end that a clear view may
be obtained regarding what government-sponsored activities regarding religion
are, and are not, constitutionally permissible in the public schools.
Supreme Court Decisions
State-Sponsored Prayer and Bible Reading:
In two decisions in 1962
and 1963 the Supreme Court held the establishment of religion clause of the
First Amendment to be violated by State sponsorship of such devotional activities
as prayer and Bible reading in the public schools. In Engel v. Vitale
1/ The First Amendment provides that "Congress shall make no law respecting
an establishment of religion, or prohibiting the free exercise thereof.. " The
Court has held these restrictions to apply
- - - to the States as well through
- the due
process clause of the Fourteenth Amendment. Cantwell v. Connecticut, 310 U.S.
296 (1941); Everson v. Board of Education, 330 U.S. 1 (1947).
2/ 370 U.S. 421 (1962).
C o u r t was c o n f r o n t e d w i t h a r e q u i r e m e n t of a l o c a l board of e d u c a t i o n i n New
York t h a t s t u d e n t s r e c i t e a t t h e b e g i n n i n g of e a c h s c h o o l day t h e f o l l o w i n g
p r a y e r , which had been composed and recommended by t h e New York S t a t e Board
o f Regents:
Almighty God, we acknowledge o u r dependence upon Thee, and we
beg Thy b l e s s i n g s upon u s , o u r p a r e n t s , o u r t e a c h e r s and o u r
The f o l l o w i n g y e a r i n Abington S c h o o l D i s t r i c t v. s c h e m p p (and i t s companion
c a s e of Murray v. C u r l e t t ) t h e C o u r t was c o n f r o n t e d w i t h S t a t e r e q u i r e m e n t s
t h a t e a c h s c h o o l day b e g i n w i t h r e a d i n g s from t h e B i b l e and t h e u n i s o n r e c i t a l
of t h e L o r d ' s P r a y e r .
I n e a c h c a s e t h e S t a t e s made p r o v i s i o n f o r t h e e x c u s a l
o r n o n p a r t i c i p a t i o n of s t u d e n t s , a t t h e i r r e q u e s t o r t h e r e q u e s t of a p a r e n t
o r guardian.
N o t w i t h s t a n d i n g t h e a p p a r e n t l y " v o l u n t a r y " n a t u r e of t h e e x e r c i s e s , t h e
C o u r t , by a 6-1 m a j o r i t y i n ~ n ~ e land
- a n 8-1 m a j o r i t y i n Schempp,
s t r u c k them
down a s v i o l a t i v e of t h e e s t a b l i s h m e n t c l a u s e of t h e F i r s t Amendment.
I n Engel
203 ( 1 9 6 3 ) .
4 1 It s h o u l d be n o t e d t h a t i n n e i t h e r c a s e d i d t h e Court make any f i n d i n g
w i t h r e s p e c t t o w h e t h e r p a r t i c i p a t i o n i n t h e e x e r c i s e s was i n f a c t v o l u n t a r y ,
b e c a u s e t h a t i s s u e was n o t m a t e r i a l t o i t s d e c i s i o n s . I t s u g g e s t e d , i n f a c t ,
t h a t b e c a u s e of compulsory s c h o o l i n g , p e e r p r e s s u r e , and t h e o f f i c i a l s a n c t i o n
g i v e n t h e e x e r c i s e s , " v o l u n t a r y " p a r t i c i p a t i o n might be a n i m p o s s i b i l i t y .
E n g e l v. V i t a l e , s u p r a , a t 431 and Abington School D i s t r i c t v. Schempp, s u p r a , a t
5 1 J o i n i n g i n J u s t i c e B l a c k ' s o p i n i o n f o r t h e Court were Chief J u s t i c e Warren
a n d ~ C s t i c e 'Douglas,
C l a r k , H a r l a n , and Brennan, w i t h J u s t i c e Douglas a u t h o r i z i n g
J u s t i c e Stewart authored a d i s s e n t i n g opinion.
a concuring opinion a s well.
J u s t i c e s F r a n k f u r t e r and White d i d n o t p a r t i c i p a t e .
6 / J o i n i n g i n J u s t i c e C l a r k ' s o p i n i o n f o r t h e Court were Chief J u s t i c e Warren
and ~ z s t i c e sB l a c k , Douglas, H a r l a n , Brennan, White, and Goldberg, w i t h J u s t i c e s
D o u g l a s , Brennan, and G o l d b e r g e a c h a u t h o r i n g a c o n c u r r i n g o p i n i o n a s w e l l . J u s t i c e
Stewart, a s i n Engel, submitted a d i s s e n t i n g opinion.
J u s t i c e Black concluded f o r t h e Court:
t h e c o n s t i t u t i o n a l p r o h i b i t i o n a g a i n s t laws r e s p e c t i n g an
e s t a b l i s h m e n t of r e l i g i o n must a t l e a s t mean t h a t i n t h i s
c o u n t r y i t i s no p a r t o f t h e b u s i n e s s of government t o compose
o f f i c i a l p r a y e r s f o r a n y g r o u p o f t h e American p e o p l e t o r e c i t e
a s a p a r t o f a r e l i g i o u s program c a r r i e d on by government.
.(G)overnment i n t h i s c o u n t r y , be i t s t a t e o r f e ? r r a l ,
w i t h o u t power t o p r e s c r i b e by l a w a n y p a r t i c u l a r form o f
w h i c h i s t o be u s e d a s a n o f f i c i a l p r a y e r i n c a r r y i n g on
program o f g o v e r n m e n t a l l y s p o n s o r e d r e l i g i o u s a c t i v i t y .
U.S. a t 425 and 4 3 0 .
S i m i l a r l y , i n Schempp J u s t i c e C l a r k c o n c l u d e d f o r t h e C o u r t :
[The B i h l e - r e a d i n g e x e r c i s e s ] a r e r e l i g i o u s e x e r c i s e s ,
r e q u i r e d by t h e S t a t e s i n v i o l a t i o n of t h e command o f
t h e F i r s t Amendment t h a t t h e Government m a i n t a i n s t r i c t
n e u t r a l i t y , n e i t h e r a i d i n g nor opposing r e l i g i o n .
374 U.S. 2 0 3 .
I n b o t h o p i n i o n s t h e C o u r t l o o k e d beyond t h e i m m e d i a t e words of t h e est a b l i s h m e n t c l a u s e t o d e t e r m i n e i t s meaning.
c o l o n i a l and p r e - c o n s t i t u t i o n a l
I n Engel J u s t i c e Black, canvassing
h i s t o r y , found two b r o a d p u r p o s e s b e h i n d r h e
I t s f i r s t and most i-mmediate p u r p o s e r e s t e d on t h e b e l i e f
t h a t a u n i o n o f govc-rnment and r e l i g i o n t e n d s t o d e s t r o y
government and t o dtagrade r e l i g i o n . . .The E s t a b l i s h m e n t
C l a u s e t h u s s t a n d s i ~ sa s e x p r e s s i o n of p r i n c i p l e on t h e
p a r t o f t h e F o u n d e r s of o u r C o n s t i t u t i o n t h a t r e l i g i o n
i s too personal, t o o s a c r e d , too holy, t o permit i t s
" u n h a l l o w e d p e r v e r s i o n " by a c i v i l m a g i s t r a t e .
The s e c o n d p u r p o s e , J u s t i c e B l a c k s a i d , " r e s t e d upon a n a w a r e n e s s o f t h e
h i s t o r i c a l f a c t t h a t g o v e r n m e n t a l l y e s t a b l i s h e d r e l i g i o n s and r e l i g i o u s p e r s e c u -
t i o n s g o h a n d i n hand":
I t was i n l a r g e p a r t t o g e t c o m p l e t e l y away f r o m
systematic religious persecution that the
F o u n d e r s b r o u g h t i n t o b e i n g o u r N a t i o n , o u r Const i t u t i o n , and o u r B i l l of R i g h t s w i t h i t s p r o h i b i t i o n
a g a i n s t any governmental e s t a b l i s h m e n t of r e l i g i o n .
Id . , a t 433.
Justice Clark in Schempp, agreeing with these conclusions, examined
the previous decisions of the Court concerning the establishment clause
and concluded that those decisions "rejected unequivocally the contention
that the Establishment Clause forbids only governmental preference of one
religion over another."
374 U.S. at 216.
Taken together with the free exer-
cise clause, he said, the establishment clause imposes on government a "wholesome neutr.alityW toward religion.
It can neither favor one sect over all others,
nor religion generally over non-religion, nor non-religion over religion.
Cyrstallizing the Court's decisions in this area into tests that can be applied
to particular legislative enactments, Justice C1,ark said:
The test m y be stated as follows: What are the
purpose and the primary effect of the enactment?
If either is the advancement or inhibition of religion the enactment exceeds the scope of legislative power as circumscribed by the Constitution.
That is to say that to withstand the strictures of
the ~stablishmentClause there must be a secular
legislative purpose and a primary effect that neither
advances nor inhibits relieion. 7 1 374 U.S. at 222.
In both cases the Court rejected the argument that the "voluntary" nature
of the prayer and Bible-reading exercises freed them from the strictures of
the establishment clause:
The Establishment Clause, unlike the Free Exercise
Clause, does not depend upon any showing of direct
governmental compulsion and is violated by the enactment of laws which establish an official religion
whether those laws operate directly to coerce nonobserving individuals or not. Engel v. Vitale,
supra, at 421.
71 In subsequent cases, the Court has continued to use the tests articulated
by ~usticeClark and has added a third test: whether the legislative enactment
leads to excessive government entanglement with religion. & v. Tax Commission of the City of New York, 397 U.S. 664 (1970).
It rejected as well the arguments that to deny States the power to prescribe
religious activities in the public schools indicates hostility toward religion,
that the encroachments on the First Amendment made by state-prescribed prayer
and Bible reading in the public schools are so minor and insignificant as to
be de minimis,
and that the exercises should be permitted as the free exercise
of religion by the majority.
In sum, then, by decisive majorities the Court in Engel and Schempp found
State sponsorship of prayer and Bible-reading in the public schools to constitute an establishment of religion and thus to be beyond government's constitutional power.
8 / Justice Black in Engel noted that those who led the fight for religious
freedom were themselves religious men and that the First Amendment grew out
of "an awareness that governments of the past had shackled men's tongues to
make them speak and to pray only to the God that government wanted them to
pray to." Thus, he concluded:
It is neither sacrilegious nor antireligious to say
that each separate government in this country should
stay out of the business of writing or sanctioning official prayers and leave that purely religious function
to the people themselves and to those the people choose
to look to for religious guidance. 370 U.S. at 421.
Justice Clark said:
The breach of neutrality that is today a trickling stream
may all too soon become a raging torrent and, in the
words of Madison, "it is proper to take alarm at the
first experiment on our liberties." 374 U.S. at 225.
Justice Clark said:
While the Free Exercise Clause clearly prohibits the
use of state action to deny the rights of free exercise
to anyone, it has never meant that a majority could
use the machinery of the State to practice its beliefs.
374 U.S. at 226.
State-Sponsored Religious Teaching:
In three decisions the Court
has also held that the First Amendment is violated by State sponsorship of
religious teaching in the public schools, in whatever form, but that
it is constitutionally permissible for the schools to accommodate private
programs of religious instruction given off the school grounds. In the
first case of McCollum v . Board of ducat ion- the Court held unconstitutional,
a "shared time" program in which religion teachers employed by private
religious groups were permitted to come into the public schools each week to
teach religion to consenting students:
but cooperated closely with the program.
The schools did not employ the teachers
The teachers were subject to the
approval and supervision of the superintendent of schools; reports of students'
attendance at the classes were made to the school; non-participating students
were required to go elsewhere in the school building.
The Court found the
program to constitute "a utilization of the tax-established and tax-supported
public school system to aid religious groups to spread their faith."
such, the Court said, "...it
falls squarely under the ban of the First
a state cannot consistently with the First and Fourteenth
Amendments utilize its public school system to aid any or all
religious faiths or sects in the dissemination of their doctrines and ideals....333 U.S. at 211.
Five years later in Zorach v. Clausen,
the Court upheld, 6-3,
1 2 1 Justice Black authored the opinion of the Court, in which Chief
Vinson and Justices Douglas, Murphy, Rutledge, and Burton joined.
Justices Frankfurter and Jackson authored concurring opinions, in the
former of which Justices Jackson, Rutledge, and Burton joined. Justice
343 U.S. 306 (1952).
141 Justice Douglas authored the opinion of the Court, in which Chief
~ u s t i Vinson
and Justices Reed, Burton, Clark, and Minton joined. Justices
Black, Frankfurter, and Jackson each authored dissents.
constitutionality of "released" or "dismissed" time programs in which
public school students are permitted during the school day to leave
the school grounds in order to repair to nearby religious centers for
religious instruction or devotional exercises.
Writing for the Court,
Justice Douglas differentiated such programs from that struck down in
McCollum by stating:
In the McCollum case the classrooms were used for religious
instruction and the force of the public school was used to
promote that instruction. Here...the public schools do no
more than accommodate their schedules to a program of outside
religious instruction. 343 U.S. at 315.
The First Amendment, the Court stated, forbids any "concert or union or
dependency" between church and State, but it does not require that they
"be aliens to each other--hostile, suspicious, and even unfriendly."
oft-quoted dicta the Court concluded:
We are a religious people whose institutions presuppose a
Supreme Being. We guarantee the freedom to worship as one
chooses. We make room for as wide a variety of beliefs
and creeds as the spiritual needs of man deem necessary.
We sponsor an attitude on the part of government that shows
no partiality to any one group and that lets each flourish
according to the zeal of its adherents and the appeals of its
dogma. When the state encourages religious instruction or
cooperates with religious authorities by adjusting the schedule
of public events to sectarian needs, it follows the best of
our traditions. For it then respects the religious nature
of our people and accommodates the public service to their
spiritual needs. To hold that it may not would be to find
in the Constitution a requirement that the government show a
callous indifference to religious groups. 343 U.S. at 313-14.
Finally, in Epperson v. ~ r k a n s a s t h eCourt unanimously held unconstitutional a State statute which forbade teachers, upon pain of criminal penalty,
from teaching the Darwinian theory of evolution.
The statute was a variation
of the one involved in the famous Scopes trial in 1927,
and made it unlawful
393 U.S. 97 (1968).
161 Though Scopes' conviction was overturned by the Tennessee Supreme Court,
the statute was held constitutional. Scopes v. State, 154 Tenn. 105, 289 S.W.
for any teacher to teach or to use a textbook which taught "the theory
or doctrine that mankind ascended or descended from a lower order of
The Court found that "fundamentalist sectarian conviction was
and is the law's reason for existence," and because of that held the statute
to violate the First Amendment.
Writing for the Court, Justice Fortas stated:
Government in our democracy, state and national, must be
neutral in matters of religious theory, doctrine, and practice.
It may not be hostile to any religion or to the advocacy of
no-religion; and it may not aid, foster, or promote one religion or religious theory against another or even against
the militant opposite. The First Amendment mandates governmemtal neutrality between religion and religion, and between
T)he First Amendment does not
religion and nonreligion
permit the State to require that teaching and learning must
be tailored to the principles or prohibitions of any religious
sect or dogma. 393 U.S. at 103-104, 106.
The State might have acted in a religiously neutral manner, Justice Fortas
suggested, if it had simply excised from its curricula all discussion of
the origins of mankind.
But instead, he said, the State tried to blot out
a particular theory because of its "supposed conflict" with "a particular
interpretation of the Book of Genesis by a particular religious group."
That effort, he said, was "plainly" unconstitutional.
The Scope of the Decisions
What Is Constitutionally Permitted
The Supreme Court, despite several opportunities, has to date chosen to
review no further cases concerning the constitutionality of State-sponsored
religious activities in the public schools.
Nonetheless, the decisions sum-
marized above, coupled with dicta in the Court's opinions and related State
and lower Federal court decisions, make clear that not all State-sponsored
activities relating to religion in the public schools are constitutionally
The constitutional permissibility of "released" or "dismissed"
time programs, for instance, has in no way been diminished by subsequent
developments in the law.
Similarly, dicta in Supreme Court opinions
and related State and lower Federal court decisions have consistently
affirmed the constitutionality of a State requiring a moment of silence
at the beginning of the school day.
The courts have also affirmed
the constitutionality of the State sponsoring objective teaching about
religion and about the Bible as part of a secular program
171 Zorach v. Clauson, supra; Smith v. Smith, 391 F. Supp. 443
cert.den. 423 U.S.
(w.D.F~.), reversed, 523 F. 2d 121 (4th Cir. 1975), - v. Thompson, 66 Wis. 2d 659, 225 N.W. 2d
1073 (1976); State ex rel. Holt
678 (1975); Lanner v. 9-Wimmer 463 F. Supp. 867 (D. Utah 1978).
181 The Supreme Court has considered no case raising the issue of the
of a State-mandated moment of silence at the beginning
of each school day, but Justice Brennan, in oft-quoted language from a
concurring opinion in Abington, perceived no constitutional objection:
The second justification (for prayer and Bible reading
exercises) assumes that religious exercises at the start
of the school day may directly serve solely secular ends-for example, by fostering harmony and tolerance among the
pupils, enhanding the authority of the teacher, and inspiring
better discipline. To the extent that such benefits result
not from the content of the readings and recitation, but
simply from the holding of such a solemn exercise at the
opening assembly or the first class of the day, it would seem
that less sensitive materials might equally well serve the
It has not been shown that reading from the
speeches and messages of great Americans, for example, or
from the documents of our heritage
of liberty, daily recitation
of the Pledge of Allegiance, or even the observance of a moment
of reverent silence at the opening of class, may not adequately
serve the solely secular purposes of the devotional activities
without jeopardizing either the religious liberties of any
members of the community or the proper degree of separation
between the spheres of religion and government. Abington
School District v. Schempp, supra, at 280-81 (Bren~an,J.
concurring) (emphasis added).
See also Gaines v. Anderson, 421 F. Supp. 337 (D. Mass., 1976) (State statute
prescribing a moment of silence at the beginning of each school day for purposes of "meditation or prayer" held constitutional) and Opinion of the
Justices, 108 N.H. 97, 228 A. 2d 161 (1967) and Opinion of the Justices,
113 N.H. 297, 307 A. 2d 558 (1973) (advisory opinions affirming the constitutionality of proposed State statutes prescribing a period for silent
The courts have also uniformly upheld the inclusion
of invocations and benedictions in commencement ceremonies- and have
found constitutional objections to baccalaureate services to be insub21 /
Finally, the First Amendment has been consistently inter-
preted to pose no bar to States providing opportunities for students to
participate in ceremonial or patriotic exercises which incidentally involve
a profession of faith, such as the singing of the national anthem, the recital
In Engel the Court noted:
it might well be said that one's education is not
complete without a study of comparative religion or the
history of religion and its relationship to the advancement of civilization. It certainly may be said that the
Bible is worthy of study for its literary and historic
qualities. Nothing we have said here indicates that such
study of the Bible or of religion, when presented objectively as part of a secular program of education, may not be
effected consistently with the First Amendment. 374 U.S.
In Epperson it reiterated:
study of religions and of the Bible from a literary and
historic viewpoint, presented objectively as part of a secular
program of education, need not collide with the First Amend393 U.S. 97, 106.
See also Florey v. Sioux Falls School District 49-5, 619 F. 2d 1311 (8th
Cir. 1980) (school board regulation permitting observance of holidays
having both a religious and secular basis upheld); Calvary Presbyterian
Church v. University of Washington, 72 Wash. 2d 912, 436 P. 2d 189 (1967)
(constitutionality of college-level course entitled "The Bible As Literature"
~ranklin,474 F. Supp. 525 (E.D. Tenn. 1979) (constituaffirmed); Wiley
tionality of Bible as literature course taught by teachers with bachelor's
degrees in Biblical literature upheld); Todd v. Rochester Community Schools,
41 Mich. App. 320 200 N.W. 2d 90 (1972) (constitutionality of using book
containing religious references in literature course upheld).
20/ Wood v. Mt.Lebanon Tomship School District, 342 F. Supp. 1293 (W.D.Pa.
v. Deusebio, 380 F. Supp. 285 (E .D.Va. 1974);. Wiest v. Mt.
cert.den. 419 U.S.
Lebanon School District, 457 Pa. 166, 320 A. 2d 362, 967 (1974).
211 Goodwin v. Cross County School District No. 7, 394 F. Supp. 417
Dade County Board of Public Instruction, 171 So.
2d 535 (Fla. 1965).
1973); Chamberlin v.
of the pledge of allegiance, and the reading of historical documents
such as the Declaration of Independence.
What Is Constitutionally Prohibited
Nevertheless, the scope .of the limitations imposed by the First Amendment
The First Amendment denies government any power to conduct or
sponsor or prescribe religious teaching or devotional exercises in the public
schools, even though participation therein may be "voluntary."
not tailor the public school curriculum to the principles or prohibitions of
In Engel the Court noted:
There is of course nothing in the decision reached here that
is inconsistent with the fact that school children and
others are officially encouraged to express love for our
country by reciting historical documents such as the
Declaration of Independence which contain references to the
Deity or by singing officially espoused anthems which
include the composer's professions of faith in a Supreme
Being, or with the fact that there are many manifestations
in our public life of belief in God. Such patriotic or
ceremonial occasions bear no true resemblance to the unquestioned religious exercise that the State of New York
has sponsored in this instance. Engel v. Vitale, supra, at
421, ftnt. 21.
See also Sheldon v. 9-Fannin 221 F. Supp. 766 (D. Ariz. 1963) (singing of
national anthem in public schools held not to violate establishment clause);
Smith v. Denny, 280 F. Supp. 651 (E.D. Cal. 1968), appeal dism'd 417 F. 2d
614 (9th Cir. 1969) (requirement that students recite daily the pledge of
allegiance upheld); Opinion of the Justices, 113 N.H. 297, 307 A. 2d 558
(1973) (advisory opinion that statute empowering school districts to provide
for the voluntary daily recitation of pledge of allegiance would be constitutional).
It appears clear that student participation in exercises involving
incidental professions of faith or other affirmations of belief must be voluntary to comport with the First Amendment. West Virginia Board of Education v.
Barnette, 319 U.S. 624 (1943).
any particular sect or dogma.
It may not permit private teachers to
use the school premises for the purpose of giving religious instruction to
consenting students during the school day.
It may not sponsor or prescribe devotional exercises such as prayer and Bible reading as a regular
part of the school curriculum.
Finally, it may not permit the public
schools to be used as the medium for the distribution of such sectarian
231 Epperson v. Arkansas, supra; Wright v. Houston Independent School
~ i s t r G t ,366 F. Supp. 1208 (S.D. Tex. 1972), aff'd 486 F. 2d 137 (5th Cir.
1973), cert. den. -sub nom. Brown v. Houston Independent School District, 417
U.S. 969 (1974) (First Amendment held not to compel school districts to include
other theories regarding origins of man in addition to theory of evolution);
Daniel v. Waters, 515 F. 2d 485 (6th Cir.) -on remand, 399 F. Supp. 510
(M.D. Tenn. 1975) (statute prescribing inclusion of Genesis account in any
presentation of theories of the creation of man and the universe and exclusion
of all "occult or satanical" theories held unconstitutional); Smith v. State
of Mississippi, 242 So. 2d 692 (Miss. 1970) (same as Epperson); Malnak v. Yogi,
592 F. 2d 197 (2d Cir. 1979) (teaching Transcendental Meditation in public
schools held to violate establishment clause); Lanner v. Wimmer, 463 F. Supp.
867 (D. Utah 1978) (giving of course credit for Bible courses taught in "released"
time program held unconstitutional); Wiley v. Franklin, 468 F. Supp. 133
(E.D. Tenn. 1979) (public school Bible study course that was primarily religious
rather than of an historical, literary, or otherwise secular nature held
McCollum v. Board of Education, supra.
251 State and lower Federal court cases subsequent to Engel and Schemp
have zvolved forms of State-sponsored prayer and/or Bible reading identicalEto
those in Engel and Schempp and numerous variants. None, with the exception of
State ~rescriotionof a moment for silent meditation, has survived constitutional
scrutiny. See, e.g., Alabama Civil Liberties Union v. Wallace, 331 F. Supp.
966 (M.D. Ala. 1971), aff'd 456 F. 2d 1069 (5th Cir. 1972) (State statute prescribing
daily Bible reading held unconstitutional); Rent v. Commissioner of Education,
402 N.E. 2d 1340 (Mass. 1980) (State statute prescribing daily period of prayer
in public schools held unconstitutional); DeSpain v. DeKalb County School District,
225 F. Supp. 655 (N.D. Ill. 1966), reversed 384 F. 2d 936 (7th Cir. 1967),
cert. den. 390 U.S. 906 (1968) (teacher sponsorship of pre-snack verse of
thanks by kindergarten children held unconstitutional); State Board of Education
v. Board of Education of Netcong, New Jersey, 108 N.J. Sup. 564, 262 A. 2d 21
affirmed 57 N.J. 172, 270 A. 2d 412 (1970), cert.den. 401 U.S. 1013 (1971)
(school board sponsorship of daily "free exercise of religion" period during which
student read aloud prayers from the Congressional Record held unconstitutional);
Collins v. Chandler Unified School District, 470 F. Supp, 959 (D. Ariz. 1979)
(student council sponsorship of prayer by student at beginning of school assemblies
literature as Gideon Bibles to consenting school children.
Issues Not Yet Definitively Resolved
Contrary decisions have been rendered by State and lower Federal courts
on two matters in this area, however--(l)
whether the First Amendment permits
school officials to accommodate students who at their own initiative wish to
join together for devotional prayer and Bible reading on school premises during
the school day, and (2) whether it permits school officials to post the Ten
Commandments or other religious statements on classroom walls.
With respect to
the first issue, the courts have consistently held that at the elementary and
secondary school level it is within the discretionary authority of school
officials to bar all use of school facilities for student-initiated religious
In addition, two State appellate courts and one Federal district
court have gone further and held that the establishment clause requires that such
student-initiated activities on school property at the elementary and secondary
levels be barred, that is, that school officials are constitution all^ forbidden
from accommodating such student activities on school property.
At the college
level, however, contrary decisions have been rendered on this issue, one State
26/ Tudor v. Board of Education of Borough of Rutherford, 14 N.J. 31,
100 ~7-2d 857 (1953), cert.den. 348 U.S. 816 (1955); Brown v. Orange County
Board of Public Instruction, 128 So. 2d 181 (Fla. App. 1960), aff'd 155 So. 2d 371
(Fla. 1963); Goodwin v. Cross County School District No. 7, 394 F. Supp. 417
(E.D. Ark. 1973); Heltzer v. Board of Public Instruction of Orange County, Florida,
548 F. 2d 599 (5th Cir. 1977), on rehearing en banc, 577 F. 2d 311 (5th Cir. 1978),
cert. den. 439 U.S. 1089 (1979).
27/ Stein v. Oshinsky, 348 F. 2d 999 (2d Cir.), cert. den. 382 U.S. 957
(1965x Hunt v. Board of Education of Kanawha County, West Virginia, 321 F. Supp.
1263 (S.D. W. Va. 1971); Trietley v. Board of Education of City of Buffalo, 65
App. Div. 2d 1, 409 N.Y.S. 2d 912 (1978).
28/ Johnson v. Huntington Beach Union High School District, 137 Cal.
Rptr. 43,68 Cal. App. 3d 1, cert.den. 434 U.S. 877 (1977); Trietley v.
Board of Education of City of Buffalo, supra; Brandon v. Board of Education
of Guilderland Central School, 487 F. Supp. 1219 (N.D.N.Y. 1980).
supreme court holding that an even-handed policy permitting the religious use
of university space is permitted by the establishment clause and, perhaps, required
by the free exercise clause,
one Federal district court holding a university
policy forbidding the regular use of university space for worship by recognized
student groups to be required by the establishment clause.
the trend and weight of decisional authority on this issue suggests that studentinitiated use of school facilities for religious purposes implicates the State
in religious activity in violation of the establishment clause, particularly at
the elementary and secondary level, it may be premature to deem this issue
to be definitively resolved.
With respect to the second issue, the split in judicial authority is less onesided:
Two State supreme courts have upheld the constitutionality of the
State posting the Ten commandments- or plaques with the phrase "In God We Trust"
on the classroom walls, while one Federal district court has held the posting
of the Ten Commandments to violate the establishment clause.
Thus, on this
issue no trend of judicial decision would as yet appear evident.
29/ Keegan v. University of Delaware, 349 A. 2d 14 (Del. 1975), cert. den.
301 Chess v. Widmar, 480 F. Supp. 907 (W.D. Mo. 1979).
311 Stone v. Graham, 599 S. W. 2d 157 (Ky. 1980).
321 Opinion of the Justices, 108 N.H. 97, 228 A. 2d 161
331 Ring v. Grand Forks Public School District No. 1, 483 F. Supp. 272
Because both the establishment and free exercise clauses are worded
as absolutes, it is sometimes ambiguous whether governmental involvement in
a given activity is a permissible accommodation of religion or a forbidden
establishment of religion.
But the essential meaning of this part of the
First Amendment that has been elaborated by the courts over the last three
decades would appear to be that government must be neutral regarding religious
faith, serving neither as its agent or advocate nor as its adversary.
ticularly in its role as educator, government is required to be objective and
impartial about religion, not partisan.
The result of this interpretation of the First Amendment is that government
has been held to be constitutionally barred from using its authority to
inculcate or proselytize about, or to permit others to inculcate or proselytize
about, religious faith in the public school, whether by means of sponsorship of
prayer, Bible reading, sectarian instruction, or distribution of sectarian
On the other hand, governmental involvement in a number of activities
has been found to have neither the purpose nor a primary effect of advancing
religion and thus to be constitutionally permissible--teaching about religion
and religious literature as part of a secular program of instruction, sponsoring
religiously neutral moments of silence, prescribing ceremonial or patriotic
exercises which may incidentally involve professions of faith, and accommodating
private programs of religious instruction given off the school premises.
Whether accommodation of student-initiated religious groups on school
property or posting of wall plaques containing religious sentiments in class-
CRS- 1 6
rooms violates government's essential neutrality regarding religion has not yet
been definitively adjudicated.
But after three decades of litigation the general
thrust of the First Amendment in this area would appear to be clear:
public schools government must be neutral and objective regarding religion.