Attorney: Students have broad religious freedoms in school

PLANO—As a new school year begins, how much freedom do public school students and teachers have to express their religious viewpoints or even share their faith?

A great deal, says Hiram Sasser, director of litigation for the Plano-based Liberty Institute, a non-profit organization that promotes traditional values and helps protect religious freedoms.

“In most parts of the country, students enjoy broad First Amendment protection and are allowed to engage in religious speech amongst the students and amongst their friends certainly during all non-instructional time and during all other time as long as it does not cause a material and substantial disruption to the educational activities at the school,” Sasser, an attorney, told the TEXAN.

The standard for “material and substantial disruption” is quite high, he added. Offending people, hurting their feelings or even motivating them to protest does not qualify speech as out of bounds in public schools, Sasser emphasized.

Applying that standard to religious speech allows teachers and students to express their faith in a variety of ways.

PRAYER
Students are free to pray alone and with one another during recess, in the cafeteria, on playing fields and during any other designated free time in the school day, Sasser said.
“Students can pray all that they want to as long as they’re not causing a material and substantial disruption to the school activities,” he said.

Similarly, teachers may pray together as much as they desire during non-instructional time. That includes time in the teachers’ lounge and before and after school.

Teachers are prohibited from leading students in prayer only during instructional time. Once instructional time has ended and teachers are not acting as representatives of the government, they may pray with students, Sasser said.

“A teacher may be constitutionally prohibited from leading a group of school children in prayer in her classroom at 1:59 p.m. and at 2:01 p.m. a school district may be constitutionally prohibited from stopping the same teacher from leading the same group of school children in prayer in her classroom,” he wrote in an article on religious speech in public schools.

EVANGELISM
A similar standard applies to evangelism, Sasser said. Students may share their faith with one another whenever such witnessing does not interfere with instructional time, and teachers may witness among fellow teachers, he said.

“The only issue that would raise an Establishment Clause concern at all would be if teachers were actively sharing their faith with their students in their role as a teacher for the public schools. That would create an issue,” Sasser said.

“It wouldn’t be a problem if those same students happened to be in the teacher’s Sunday School class at the church. Obviously she can evangelize there all she wants. Just by virtue of her being a teacher she is not forever prohibited from evangelizing people, 24-7. She is just simply [prohibited] in her role as a teacher because she’s a representative of the government at that point.”

STUDENT-LED GROUPS
If a school allows other non-curricular clubs to meet on campus, then it must grant the same privilege to a Christian club, Sasser said.

“If they have no non-curricular clubs at a school, then they don’t have to allow a religious club, a Bible club or whatever,” he said. “But if they do have a non-curricular club at school, just one—like the chess club, the crime stoppers club, the dance squad or whatever—if they’ve got something like that, they have to allow the Bible club or the religious club. They have to allow them, and they don’t actually have a choice. That’s a federal statute that was passed almost 20 years ago now.”

A Christian club also must be granted the same access to school resources enjoyed by other non-curricular groups, like making announcements over the loud speaker or using a school bulletin board, Sasser noted.

OUTSIDE GROUPS
Outside groups, like churches, have no fundamental right of access to students during school. However, if a school allows one outside group to access the campus, it must grant the same privileges to all outside groups—provided they are not lewd, vulgar or age-inappropriate, Sasser said.

“If they allow Pepsi Corporation to come in and distribute free Pepsis and Pepsi promotional literature, then certainly the Gideons could show up and distribute free Bibles,” he said. “But if the school said, ‘We’re not going to allow the Gideons or Pepsi,’ then the Gideons would have no right to show up to distribute their Bibles.”

PARENTS
While parents have no special rights to address students during the school day, their right to discuss religion with students on campus is not restricted after school. And parents are always free to talk about religion with other parents—on and off campus, Sasser said.

“There’s no special power associated with the geography of the school. … As long as you’re not interfering with its educational function, you’re fine,” he said.
Additionally, if a school opens its campus for some parents to address students during the day, it must do the same for all, he said.

RIGHTS VIOLATIONS
Sasser cautioned that students in Texas may be especially prone to have their free speech rights restricted due to unusual rulings by the Fifth Circuit Court of Appeals, the federal appeals court governing Texas, Louisiana and Mississippi. More than any other district in the country, the Fifth Circuit gives schools leeway to restrict speech based on its content, Sasser said.

However, the Fifth Circuit’s unusual standards should be overturned if they are ever appealed to the U.S. Supreme Court, he said.

If teachers or students find that public schools violate any of their rights, Sasser recommended a process of appeal: First go to the school district directly; then if necessary, take the case to court.

While Christians have no duty to use the court system when their rights are violated, Sasser said there is biblical precedent for it.

When rights violations occur, believers “should do what Paul did when his rights as a Roman citizen were being violated when he was trying to engage in religious speech: He appealed his case through the government process that had been set up to govern over him. He appealed his case to Caesar,” Sasser said.

“And I think if that was good enough for Paul, then that’s the appropriate answer for the rest of us too. And fortunately we live in a free country where we have access to courts.”