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New York City
June 2003

State of Religion in Public Schools
by Martha McCarthy

The federal No Child Left Behind (NCLB) Act, signed into law in 2002, is the most comprehensive reauthorization of the Elementary and Secondary Education Act of 1965. Among its many provisions, the NCLB Act requires school districts to certify to the state education agency that no school policy prevents participation in constitutionally protected prayer in public schools. The law also requires the U.S. Secretary of Education to issue guidance to school districts regarding permissible religious activities. For the first time, federal funds can be withheld from school districts that are not in compliance with the certification requirement.

States were given until April 15, 2003 to submit the initial list of local districts that had not filed the required certification, and such lists will have to be submitted by November 1st in subsequent years. Although a number of school districts and a few entire states had not certified their compliance by April 15th, the Department of Education attributes the delays to paperwork problems and does not anticipate withholding any federal funds.

In February, 2003, the Department issued its Guidance on Constitutionally Protected Prayer in Public Elementary and Secondary Schools, which tends to expansively interpret permissible religious activities in public schools. As a result, there are discrepancies between the Guidance and some judicial decisions.

For example, the Guidance stipulates that student speakers at extracurricular events, including sporting events, can express religious views, as long as neutral criteria are used to select the speakers. However, this position is difficult to reconcile with the Supreme Courtís ruling, Santa Fe Independent School District v. Doe, striking down student-led devotionals before public school football games. The Court in Santa Fe declared that student-led religious expression at a public school event on school property and representing the student body under the supervision of school personnel could not be considered private, constitutionally protected speech.

The Guidance also states that teachers and other school employees can participate in devotional meetings during non-instructional time (e.g., before school, during lunch), which conflicts with a Seventh Circuit ruling that faculty have no First Amendment right to hold prayer meetings in public schools before students arrive. Furthermore, according to the Guidance, students may express religious views in their homework, artwork, and other written and oral assignments. Yet, several courts have ruled that school personnel can censor student presentations to ensure that students are not proselytizing their classmates.

There are other potential conflicts between the Guidance and federal court rulings. Thus, rather than clarifying what religious activities are permissible in public schools, it is likely that the Guidance will actually trigger additional litigation as courts and legislative bodies struggle to identify the appropriate church/state relationship in public education. The balance between protecting private religious expression and guarding against government advancement of religion is a delicate one indeed.#

Martha McCarthy, Ph.D. is the Chancellor Professor, School of Education, Indiana University.

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