Teachers’ religious liberties

By David L. Hudson Jr., First Amendment Scholar

September 16, 2002

The U.S. Supreme Court stated in its famous 1969 opinion in Tinker v. Des Moines Independent Community School District that “it can hardly be argued that neither students nor teachers shed their constitutional rights to freedom of speech and expression at the schoolhouse gate.” The Court articulated that public school teachers, as public employees, do not forfeit all of their First Amendment freedoms when they come to school.

But what religious-liberty rights do teachers enjoy?

Jim Henderson, senior counsel with the American Center for Law and Justice, says that “the promise of Tinker finds no fulfillment regarding individual teachers’ right to assert a free-exercise right or a free-speech right to express her or his religious views against the school district’s position that it is entitled to require a teacher to communicate material consistent with the curriculum.”

School districts limit teachers’ religious expression in order to avoid violating the establishment clause, which requires separation between church and state. When teachers speak to their classes, they represent the school and the school board. Teachers, as agents of the government, may not inculcate students in religious matters. Otherwise, they run afoul of the establishment clause.

However, this does not mean that teachers can never speak about religion, for religion is an important part of history, culture and current events. A social studies class would likely need to include a discussion of religion. For instance, no complete study of the Crusades could occur without some discussion of Christianity and Islam. The 10th U.S. Circuit Court of Appeals pointed out inRoberts v. Madigan (1990) that there is a “difference between teaching about religion, which is acceptable, and teaching religion, which is not.”

The confusion about permissible and impermissible religious expression by teachers has led to disciplinary action and even lawsuits. Many times these lawsuits pit a teacher’s free-exercise and free-speech claims against a school’s establishment-clause defense. The teachers claim they have a free-speech and free-exercise of religion right to express their religious views; after all, the First Amendment was adopted in part to ensure individual religious freedom. The schools counter that they must silence teachers’ religious expression on school grounds to avoid establishment-clause violations. The schools claim that if a teacher conveys his religious views to a student, a reasonable observer would view that as the state endorsing religion.

The cases outlined here feature the clash between teachers and school officials over teachers’ religious liberty. Federal courts have often sided with school officials, recognizing that public schools, as arms of the government, must take care not to appear to indoctrinate students in religious matters.

The courts have been clear that public school teachers cannot teach religion to their students or read the Bible to the class as a way of promoting their faith. (See Breen v. Runkel, 1985, and Fink v. Board of Education, 1982.) “It is clear that teachers cannot distribute religious material to students, lead students in prayer, join students in Bible readings and encourage students to attend the teachers’ church,” says Jeremy Leaming, spokesman for Americans United for Separation of Church and State. “In the classroom, the job of a teacher is to teach secular subjects.”

In its 1999 decision Marchi v. Board of Cooperative Educational Services, the 2nd Circuit ruled that school officials could order a special education teacher to refrain from using religious references in his instructional programs. Dan Marchi, who converted to Christianity, had modified his teaching program to discuss subjects like God, forgiveness and reconciliation.

“For his part, the employee must accept that he does not retain the full extent of free exercise rights that he would enjoy as private citizen,” the 2nd Circuit wrote. “A school risks violation of the Establishment Clause if any of its teachers’ activities gives the impression that the school endorses religion.”

In Downing v. West Haven Board of Education (2001), a federal district court determined that high school administrators did not violate the First Amendment rights of teacher Ella Downing when they ordered her to remove or cover up a T-shirt reading “JESUS 2000 — J2K.”

“In short, whatever First Amendment rights were implicated by Downing wearing her T-shirt must give way to the defendants’ legitimate concerns about a potential Establishment Clause violation in a public school,” the court wrote.

In Helland v. South Bend Community School Corp. (1996), the 7th Circuit ruled that school officials did not violate the First Amendment rights of a substitute teacher who proselytized in elementary school classrooms. The teacher claimed that school officials removed him from the substitute-teaching list because of his religious beliefs. School officials countered that they had a right to remove the teacher to avoid establishment-clause problems.

The 7th Circuit sided with the school officials: “A school can direct a teacher to refrain from expressions of religious viewpoints in the classroom and like settings.”

A more controversial case is Roberts v. Madigan. In that 1990 decision, the 10th Circuit ruled that a school district could constitutionally require teacher Kenneth Roberts to remove two religious books from his fifth-grade classroom and to quit his silent reading of his Bible during a silent reading period.

Roberts, along with some parents and students, sued school officials, claiming that they had violated the establishment clause by showing hostility toward religion. They also alleged that the school officials violated the teacher’s rights of free speech and academic freedom.

A three-judge panel of the 10th Circuit ruled 2-1 in favor of the school district. The majority determined that the district did not violate the establishment clause and did not show hostility toward religion. “The removal of materials from the classroom is acceptable when it is determined that the materials are being used in a manner that violates Establishment Clause guarantees,” the court wrote. The majority reasoned that the school district acted properly in preventing a teacher from promoting Christianity.

The majority also rejected Roberts’ free-speech claim, finding that under theTinker standard the teacher was infringing on the rights of his students by promoting religion. “The censored conduct therefore substantially infringed on the rights of Mr. Roberts’ students,” the court wrote.

There is not a large body of case law involving teachers’ religious-liberty rights. But some religious-liberty advocates claim that many teachers won’t broach the subject of religion for fear of discipline by the school or lawsuits. “There are many more incidents of censorship of teachers’ religious-liberty rights than the reported cases would indicate,” says Mathew Staver of the Liberty Institute, a Florida-based religious-liberty group. “The majority sentiment that I see among discussion groups of teachers is that many teachers are fearful of talking about religion at all in order to avoid an establishment-clause lawsuit. Thus, they eliminate religion. It becomes a situation where they are not neutral toward religion. Out of an overabundance of caution, they are showing hostility toward the subject matter of religion.”

Leaming questions whether there is a climate of censorship regarding the religious-liberty rights of teachers. “If teachers would take a step back,” he said, “and educate themselves about U.S. Supreme Court precedents, teachers would realize that public schools are not religion-free zones and are not hostile to religion. Rather, they are places where [students and teachers] can and do engage in religious discussion.”

Staver, for instance, says that the Roberts case that required a teacher to remove two Christian books from his classroom “elevates the establishment clause beyond reasonableness and shows a hostility toward religion.”

He also says that teachers should have the right to talk about their religious faith when students ask them direct questions. “For instance, if a student asks a teacher how he or she is coping with Sept. 11 or the (Columbia space) shuttle disaster, the teacher should be able to say that ‘my personal faith in God is helping bring me through these tough times.’”

Leaming adds, “The teacher must make such comments in the context that this is a personal belief and that she is not representing the beliefs of school administrators. Teachers must remember that they are there to educate, not indoctrinate.”