Church & State

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• Announcements/Que stions • Finish Torts • Oral Argument • Religion & Government • Equal Access Act
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Oral Argument Preparation Time

Photocredits: Laughing S

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Oral Argument Robertson v. Lieberman County School District, No. 413

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Religion & Government: A Tenuous Balance
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise There are TWO thereof . . .
Constitutional Clauses in Regard to Religion, and they are Constantly in

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The Free Exercise Clause
• The First Amendment, in the Free Exercise Clause, makes Religion a PROTECTED CLASS! • The court will balance the state interest in limiting religion against the individual interest in the free exercise thereof, however, even if the state interest outweighs the individual interest, the state must show a COMPELLING INTEREST to regulate, and the state regulation must be NARROWLY EDL 628 School Law and

The Establishment Clause

• The clause against the establishment of religion by law was intended to erect “a wall of separation between church and state.” – Thomas Jefferson
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• Lemon Test

The Establishment Clause Tests of the Constitutionality of a Government Policy
– Have a secular purpose – Neither advance nor impede religion – Excessive Entanglement

• Endorsement Test
– Primary effect neither endorse nor disapprove religion

• Coercion Test
– Direct or Indirect Government Coercion to
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Practical Effect of the Tests
• Answer: Constitutional or Unconstitutional • Proselytization in the Classroom • Always Unconstitutional
• Religious materials in the classroom must have nonreligious purpose.

• Religious Holidays • Sometimes.
• If large historical & cultural significance, observing a holiday that is religious can be fine even if some religious byproducts result – such as the symbols surrounding Christmas and Easter. But, officials should attempt to minimize the religious exposure.

• Religious Displays?

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Case Summary
McCreary Cty. v. ACLU of Kentucky

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• Engle v. Vitale (1962)

More U.S. Supreme Court Cases on Prayer

• Lee v. Weisman (1992)
Private devotionals, initiated by students, are • Santa Fe Independent School Dist. v. usually(2000) Doe fine (and constitutionally protected) at school. However, anything school initiated or even school sponsored, is probably unconstitutional as a violation of the Establishment Clause.
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School Attendance
• What occurs when secondary schooling substantially interferes with the religious development of children?

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Wisconsin v. Yoder (1972)
• In Yoder, secondary school interfered with the religious development of Amish children. • The U.S. Supreme Court held that the state cannot compel Amish children to attend public high school.

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Private Schools
• No Church & State Issues if no Public Funding • Public Funding of Private Schools
– Student Services
• Depends on the service and how closely it relates to the religious mission of the school.

• Vouchers
– Religious schools can participate in state funded vouchers programs under the Federal Constitution, but not some state constitutions. – Funding must go to parent as a conduit and can not go directly to the private school.
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• Questions on Free Exercise Clause or Establishment Clause?
Church, State &

Southern Baptists (Audio – 5:03)

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Equal Access Act Scenario
• The Sons of Confederate Veterans, a student-led club, wants to meet after school. The school already permits several non-curriculum groups to meet. The principal refused to let this club meet because of the groups connection to racism and political extremism. Any ideas? • Use your EAA Statutes to EDL 628

School Law and

Equal Access Act
If a federally assisted public secondary school provides a limited open forum for noncurriculum student groups to meet during noninstructional time, “equal access” must be granted regardless of religious, political, or philosophical content of the speech.

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