This Letter Has Been Sent To Every School Superintendent in 15,000 School Districts throughout the United States

RE:  Religious Liberties on Public School Campuses

 Dear Superintendent and/or School Administrator:

             On June 19, 2000, the United States Supreme Court issued its ruling in Santa Fe Independent School District vs. Doe in which is held that the district's policy creating a venue as part of a government-initiated program for students to pray at football games was a violation of the Establishment Clause.  The gist of the Santa Fe decision is that it violates the Establishment Clause for a School District to take affirmative steps to create a vehicle for a prayer to be delivered at a school assembly.  The decision is limited in its scope as it is based on a unique sent of facts that existed in the Santa Fe school district.  Santa Fe slip.op.at 9,23 The undersigned legal organizations and attorneys, all specializing in First Amendment issues, are concerned as we have heard much confusion and many false conclusions about the Santa Fe decision.

The Supreme Court ruled as unconstitutional a school football game policy (1) of "government speech" (government initiated prayer), (2) that included the use of the word "invocation" so as to put prayer to a student majority vote, (3) in a forum specifically not open as to student expression, (4) in a district with an unquestionable history of promoting student challenged policy (same, single student delivers the message the entire season; policy confines content and topic of student's message; policy text encourages or suggests an "invocation"), the degree of school involvement in determining the election process, the context of the pregame message, past practice in the Santa Fe district, and the evolution of the school policy itself.  Id. Very few schools in the country would ever fit such an unusual situation.  The conclusion is that the vast majority of schools can continue what they have always done - allow and encourage student involvement, participation and speech in school programs and activities.

             Nothing in Santa Fe calls into question the right of students to engage in religious expression through Bible Clubs, one-on one discussions, literature distribution, student-initiated activities (e.g., "See You at the Pole"), and a myriad of other channels of communication.  Not otherwise already free (within broad parameters of relevance) to select the content and viewpoint of their expression (e.g., talent shows, class assignments, show-and-tell, oratorical competitions, message-bearing clothing or jewelry).

             The Court explicitly endorsed voluntary student prayer "at any time before, during, or after the school day," Santa Fe, slip op. At 21.  The Court stated, "[b]y no means do these commands [Establishment and Free Exercise Clauses of the First Amendment] impose a prohibition on all religious activity in our public schools." Id

             Free speech rights of students outside the context of school organized events are unaffected by the Santa Fe decision.  The conclusion is that the vast majority of schools can continue what they have always done- allow and encourage student involvement, participation and speech in school programs and activities.  For this reason, we have prepared this letter to state clearly what rights students continue to possess and enjoy on public school campuses.

The children in your schools still possess the constitutionally protected right to:

 §         Read their bibles or other scripture texts, individually or as a group

§         Say a prayer before meals or pray before a test, individually or as a group and even pray, individually or as a group before a school-sporting event.

§         Attempt to persuade, proselytize, their peers concerning religious topics, just as they do with regard to political topics/

§         Use religious themes; express their beliefs about religion, in their homework, artwork, or other written or oral assignments, with said work being judged by ordinary academic standards.

§         Distribute religious literature to their schoolmates during non-instructional times, before or after school, in between classes, or during any other non-instructional setting.

§         Be excused from lessons that are objectionable on religious or other conscientious grounds.

§         Wear clothing displaying religious themes or messages, which may not be singled out for suppression.

§         Form and participate in religious groups at public secondary schools that have the same right of access to school facilities as is enjoyed by other comparable student groups, and to exclude from these groups those who do not share the group's religious beliefs;

§         Meet together and conduct a prayer service or other worship exercise as well as jointly participate in Bible reading during said meeting and use the public address system, the school newspaper, and the school bulletin board to announce their meetings, on the same terms as other student groups.

 Westside Community schools vs. Mergens, 496 U.S. 226 (1990) tinder vs. Des Moines I.S.D. 393 U.S. 503 Religious Expression in Public Schools, U.S. Dept. of education Guidelines, Secretary Richard W. Riley, August 1995, Revised and Reissued, May 1008

             In short, public schools can and must allow religious, student speech to the extent that comparable secular speech is allowed.  What Santa Fe says is that public schools may not devise plans designed to perpetuate or initiate religious invocations.  That is what had happened in the Santa Fe school district and it was on that fact that the Supreme Court based its ruling.

             Santa Fe does not question the protected status of genuinely private student religious speech, Santa Fe slip op. At 10, 18, 21.  Thus, whenever a student speaker is otherwise free to control the content or viewpoint of a message, that freedom includes the use of religious speech.  Santa Fe, slip op. at 10, 18, 21.  Thus, whenever a student speaker is otherwise free to control the content or viewpoint of a message, that freedom includes the use of religious speech.  For example, a valedictory speaker who is free to thank parents can also thank God.  A class president who speaks on moral character development can also address the topic from a religious perspective.  A club representative at a club fair can recruit for a Bible Club to the same extent as for a Young Democrats Club. (If the school were to selectively restrict otherwise permissible student speech because of its religious dimension, this would violate the First Amendment under cases like Lamb's Chapel vs. Center Moriches Union Freess School Dist., 508 U.S. 819 [1995]. ) Importantly, no special policy is needed to allow students these rights!

             As stated, the Santa Fe Case does not have the broad application that some may attempt to confuse you into believing.  In fact, any reaction not supported by the text of Santa Fe will clearly result in litigation against schools for censoring student speech thereby subjecting the violating-employee and the district to liability.  It is our desire, and most likely yours also, to not have this decision misapplied in your district.  In fact, a misapplication of this decision beyond its holding may very well violate numerous constitutional rights of students and have a negative impact on religious expression in public schools.  Certainly this must, and can, be avoided.

             Each of the undersigned legal groups and attorneys stand ready to assist, free of charge, any school district or student seeking assistance regarding these important First Amendment freedoms.  It is our firm desire to ensure that every student's constitutional freedoms remain unimpaired.

             Thank you in advance for your attention to this very serious matter and for your distribution of this letter to every employee in the district.

 Sincerely Yours,

Matthew D. Staver                                         Stephen M. Crampton

Liberty Counsel                                             Chief Counsel

PO box 540774                                                AFA Center for Law & Policy

Orlando, FL  32854                                         P.O. Drawer 2440

(407) 875-2100                                                 Tupelo, MS  38803

                                                                          (662) 680-3886

Allan E. Parker. Jr.                                        George W. Dent   Jr

President and Chief Counsel                     Schott-van den Eynden Professor of Law

Texas Justice Foundation                           Case Western Reserve University School of Law 

8122 Datapoint Drive, suite 812                  11075 East Blvd.

San Antonio, TX 78229                                 Cleveland, OH 44106

(210) 614-7157                                               (216) 368-3311

Rick Nelson                                                        Kelly Shackelford

President and General Counsel                     Chief Counsel

American Liberties Institute                             Liberty Legal Institute

P.O. Box 547503                                                903 East 18^th Street, Suite 230

Orlando, Fl 32854-7503                                      Plano, TX 75074

(407) 786-7007                                                     (972) 423-8889

Steven W. Fitschen        

President

National Legal foundation

2224 Virginia Beach blvd.  Ste 204  

Home Phone: (865) 992-8639
Fax: (865) 992-1143