The following is a a legal opinion letter, explaining why under the United States Constitution, teachers and elementary school students can participate in See You at the Pole.  If you would like to order a copy of this or other literature from the NLF, click here.

 

ELEMENTARY STUDENTS’ AND TEACHERS’ RIGHT TO PARTICIPATE IN SEE YOU AT THE POLE

Introduction

Students at schools all across America annually gather at their school’s flagpole to pray for their schools, friends, teachers, government, and nation. This national event, called See You at the Pole, is student-initiated, student-organized, and student-led.

In the early years of See You at the Pole, some schools apparently felt that allowing their students to gather for prayer on school property might violate the Establishment Clause.1    However, a broad consensus quickly developed within the legal and educational communities that See You at the Pole posed no constitutional problem. Two documents were instrumental in forging this consensus. First, Religion in the Public Schools: A Joint Statement of Current Law was issued. This document explicitly declared that "[s]tudent participation in before- or after-school events, such as ‘See You at the Pole,’ is permissible. School officials, acting in an official capacity, may neither discourage nor encourage participation in such an event." Religion in the Public Schools: A Joint Statement of Current Law, available at http://www.aclu.org/issues/religion/relig7.html (September 13, 2001).

Many of the signatories to this document are among those groups most likely to sue school districts over alleged Establishment Clause violations. Since these groups, such as the American Civil Liberties Union, People for the American Way, and Americans United for Separation of Church and State, have given See You at the Pole a clean bill of health, there has been very little litigation or threat of litigation.2     Perhaps because of this lack of threats, very few schools have opposed See You at the Pole.

The second document that helped forge the consensus was Religious Expression in Public Schools, United States Department of Education Guidelines. This document was distributed to every public school superintendent in the country by Richard Riley, Secretary of Education under President Clinton. This document contained almost the identical statement regarding See You at the Pole.

Thus, there has been very little question that See You at the Pole is constitutional. Indeed, for groups, like the National Legal Foundation, which stand ready to defend the religious rights of those who would like to participate in See You at the Pole, the only questions that are routinely asked are whether teachers may participate and whether elementary-aged children may participate.

Because these matters have not been litigated, the answer must be tentative. However, based upon general First Amendment principles, both elementary school children and teachers have a right to participate in See You at the Pole. The starting point for this analysis must be the general recognition of constitutional rights on school property. The United States Supreme Court put it well in the landmark case of Tinker v. Des Moines Independent School System, 393 U.S. 503, 506 (1969), when it wrote, "It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate. This has been the unmistakable holding of this Court for almost 50 years." Of course, another thirty years have come and gone since the Court wrote this statement.

It is true that courts often closely inspect the application of general Establishment Clause principles to situations involving teachers and young children. However, as the following analyses will show, schools may allow both of these groups to participate in See You at the Pole without violating the Establishment Clause.

Elementary students have a constitutional right to participate in See You at the Pole

Students in elementary, middle, and high schools can all participate in See You at the Pole. However, the age of the student may require additional safeguards to pass muster under Establishment Clause jurisprudence. The Supreme Court has held that high school students are mature enough to distinguish between school-sponsored speech and private speech. Bd. of Educ. Of Westside Community Sch. Dist. v. Mergens, 496 U.S. 226, 250-51 (1990) (plurality opinion). "Schools do not endorse everything they fail to censor." Id. The Seventh and Eighth Circuits have extended this analysis to junior high students. See Hedges v. Wauconda, 9 F. 3d 1295 (7th Cir. 1993); Good News/Good Sports Club v. Sch. Dist. of City of Ladue, 28 F. 3d 1501 (8th Cir. 1994) In Hedges, the court admonished the school "to educate the audience rather than to squelch the speaker." Hedges, 9 F.3d at 1299. The court further noted,

schools may explain that they do not endorse speech by permitting it. If pupils do not comprehend so simple a lesson, then one wonders whether the Wauconda schools can teach anything at all.

Id. at 1300.

This year the Supreme Court has declared that religious activity can occur during noninstructional time at elementary schools.

Establishment jurisprudence [does not] [] foreclose private religious conduct during nonschool hours merely because it takes place on school premises where elementary school children may be present.

Good News Club v. Milford Central Sch., 121 S. Ct. 2093, 2104 (2001). The Supreme Court focused on the parents’ perception of school sponsorship, rather than on the elementary students’ views, since the parents allow their children to attend the Bible Club. Id.3   The Court noted that the parents could not reasonably believe that the school was sponsoring the Bible Club. Id.

In order to prevent accusations of Establishment Clause violations in the elementary or middle school settings, parents should give the school their permission for their children to participate in See You at the Pole. A Bible Club’s requirement that junior high students obtain written parental consent before attending meetings dispels any need for the school to monitor if attendance is voluntary. Good News/Good Sports Club, 28 F.3d at 1510. A United States District Court has also recognized that parents’ informed written consent for kindergarten through sixth graders’ participation in religious activities dispels any presumptions of school sponsorship since

parent[s]’ maturity and ability to discern the difference between faculty supervision and implicit endorsement of the religious ideas expressed at the meeting is imputed to the child.

Herdahl v. Pontotoc County Sch. Dist., 933 F. Supp. 582, 590 (N.D. W.D. Miss. 1996).

The parental consent puts the elementary student on equal footing with high school students, who the United States Supreme Court has held "are mature enough to differentiate between sponsorship and mere custodial oversight." Id. (citing Bd. of Westside Community Sch. Dist. v. Mergens, 496 U.S. 226, 250 (1990)).4   Furthermore, parental consent creates an opt-in rather than an opt-out situation and thus, the appearance of school sponsorship is greatly diminished. Id.

Also, to avoid Establishment Clause claims, See You at the Pole should occur either before or after school, not during the normal school day hours. Sometimes those who oppose religious activities on school property have raised arguments based on when an event is held. These timing arguments center around state compulsory attendance laws. However, if See You at the Pole is held before or after school, then student attendance is not compelled and timing arguments will not survive. See Mergens, 496 U.S. at 250-51; see also Hedges, 9 F.3d at 1298. ("Nothing in the first amendment postpones the right of religious speech until high school, or draws a line between daylight and evening hours.").5

The United States Supreme Court will reject a school’s claim that in order to avoid the perception of sponsorship, a school may suppress religious speech such as See You at the Pole. Widmar v. Vincent, 454 U.S. 263, 271-73 (1981); Mergens, 496 U.S. at 247-52; Lamb’s Chapel v. Center Moriches Union Free Sch. Dist., 508 U.S. 384 (1993).

In addition to See You at the Pole passing muster under the Establishment Clause, it is also protected under the Free Exercise and Free Speech Clauses of the First Amendment. Students do not shed their constitutional rights, such as exercising their freedom of religion in participating in See You at the Pole, at the school house door. Tinker v. Des Moines Ind. Community Sch. Dist., 393 U.S. 503, 506 (1969). The Supreme Court held that students’ constitutional rights extend beyond the classroom—"in the cafeteria, on the playing field, or on the campus during authorized hours." Id. at 512-13. Therefore, the right to religious expression extends to the school’s flagpole. The only limitations on students’ right to religious expression are that the students participating in See You at the Pole not "materially and substantially interfere with the requirements of appropriate discipline in the operation of the school and [] [not]collid[e] with the rights of others." Id. To avoid interfering with the school’s discipline, the students should assemble peacefully and get the school’s permission for the See You at the Pole activity. Also, other students’ rights will not be collided since See You at the Pole will be an opt-in rather than opt-out activity. Furthermore, a heckler’s veto will not override the students’ right to freedom of religious expression at See You at the Pole. See Forsyth v. Nationalist Movement, 505 U.S. 123, 134 (1992). ("Listeners’ reaction to speech is not a content-neutral basis for regulation."); Cox v. Louisiana, 379 U.S. 536, 551 (1965). ("First Amendment rights are not subject to a heckler’s veto."). Regardless if students are in elementary6, middle, or high school, they should be permitted to express their freedom of religion by participating in See You at the Pole.

Furthermore, if a Bible Club is organizing and leading See You at the Pole, then the event will have statutory protection under the Equal Access Act, 42 U.S.C. 4071-74 (2000). Also, See You at the Pole may be protected under a state’s statute. For example, the Tennessee and Kansas legislatures have enacted statutes that protect the rights of students to express their religious beliefs (through prayer, witnessing, and communication with other believers), to the degree that students possess the right to express beliefs on other subjects. Tenn. Code. Ann. 49-6-2901 to 2902 (2000); Kan. Stat. Ann. 158.181-187 (2001). See You at the Pole should pass constitutional muster as one District Court has concluded that monthly prayer meetings at the school flag are permissible. See Daughtery v. Vanguard Charter Sch. Academy, 116 F. Supp. 2d 897, 910-11 (W.D. Mich. S.D. 2000).

Teachers can constitutionally participate in See You at the Pole

Like students, teachers do not shed their constitutional rights at the schoolhouse gate. Tinker, 393 U.S. at 506. However, teachers’ rights in the public school are not co-extensive with rights of adults in other settings. Roberts v. Madigan, 921 F.2d 1047, 1056 (10th Cir. 1990). Therefore, whether teachers can actively participate in See You at the Pole depends on whether they are acting in their official capacity or as a citizen.

When teachers acting in their official capacity seek to participate in religious activities, courts typically hold that their free exercise rights can be restricted. Students, parents, or other members of the public may perceive teacher participation as placing the state’s imprimatur on the event. Id. at 1057. A United States District Court found that teachers, in their official capacity, could be present at student prayer at the school flagpole as long as they are acting in a supervisory capacity, without participating in the prayer. Daughtery v. Vanguard Charter Sch. Academy, 116 F. Supp. 2d 897, 910-11 (W.D. Mich. S.D. 2000).

If teachers, however, are acting as citizens, then they can pray at See You at the Pole. The United States Supreme Court has held that teachers cannot be

compelled to relinquish the First Amendment rights they would otherwise enjoy as citizens to comment on matters of public interest in connection with operation of the public school in which they work.

Madison Sch. Dist. v. Wisconsin Emp. Comm’n, 429 U.S. 167, 175 (1976) (citing Pickering v. Bd. of Educ., 391 U.S. 563, 568 (1968)); see also Keyishian v. Bd. of Regents, 385 U.S. 589 (1967); Shelton v. Tucker, 364 U.S. 479 (1960); Wieman v. Upegraff, 344 U.S. 183 (1952).7   Praying for the nation and the school should be likened to commenting on matters of public interest. Where a State has opened a forum, such as a school, for direct citizen involvement, then teachers cannot be excluded. Madison Sch. Dist., 429 U.S. at 175. Therefore, if the school allows, for example, the Boy Scouts to meet at the school, it cannot stop a teacher, acting as a citizen, from praying at See You at the Pole.

It is imperative that teachers’ constitutional freedoms be protected. "The vigilant protection of constitutional freedoms is nowhere more vital than in the community of American schools." Tucker v. Shelton, 364 U.S. 479, 487 (1960).

By limiting power of the States to interfere with the freedom of speech and freedom of inquiry and freedom of association, the Fourteenth Amendment protects all persons, no matter what their calling. But, in view of the nature of the teacher’s relation to the effective exercise of rights which are safeguarded by the Bill of Rights, and by Fourteenth Amendment, inhibition of freedom of thought, and of action upon thought, in the case of teachers brings the safeguards of those amendments vividly into operation. Such unwarranted inhibition upon the free spirits of teachers . . . has an unmistakable tendency to chill that free play of the spirit which all teachers ought especially to cultivate and practice; it makes for caution and timidity in associations by potential teachers.

Wieman v. Updegraff, 344 U.S. 183, 195 (1952) (concurring opinion).

Some states may also provide statutory protection for teachers. For example, the Tennessee legislature has recognized the constitutional rights of teachers and passed an act that protects the rights of school employees to read the Bible, pray quietly, meet with other employees to pray, and wear religious garb. Tenn. Code Ann. 49-6-8001 to 8005 (2000).

Teachers have two options when it comes to their presence at See You at the Pole. Teachers can either be non-participating state actors, by acting in a supervisory capacity, or can participate and pray while acting as a non-state actor in their citizen capacity. Teachers must make sure not to blur the lines between their official capacity and their citizen capacity. Those teachers who want to be perceived as non-state actors should not volunteer to supervise the event, personally announce the event in their classrooms, or encourage or discourage students’ participation. In order to maintain the line between their citizen capacity and their official capacity, teachers should walk to the flagpole from off campus as opposed to exiting from the school building and should not address school-related activities or assignments during the See You at the Pole event.

Conclusion

Generally, See You at the Pole has not been challenged. Following the guidelines set forth in this memorandum should enable younger students and teachers to participate in See You at the Pole. The National Legal Foundation is available to assist students, parents, teachers, and school officials with questions concerning See You at the Pole.


1     For example, in 1992, at the request of school officials, police detained a Metropolis, Illinois, high school student for her participation in the event. Proposing an Amendment to the Constitution Restoring Religious Freedom H.J. Res. 78: Hearing Before the Subcomm. on the Const. of the House Comm. on the Judiciary, 103rd Cong. (1997) (testimony of James Matthew Henderson, counsel for the American Center for Law and Justice), at http://www.house.gov/judiciary/22317.htm.

2    The complete list of signatories is as follows: American Civil Liberties Union; American Ethical Union; American Humanist Association; American Jewish Committee; American Jewish Congress; American Muslim Council; Americans for Religious Liberty; Americans United for Separation of Church and State; Anti-Defamation League; Baptist Joint Committee; B'nai B'rith; Christian Legal Society; Christian Science Church; Church of Scientology International; Evangelical Lutheran Church in America, Lutheran Office for Governmental Affairs; Federation of Reconstructionist Congregations and Havurot; Friends Committee on National Legislation; General Conference of Seventh-day Adventists; Guru Gobind Singh Foundation; Interfaith Alliance; Interfaith Impact for Justice and Peace; National Association of Evangelicals; National Council of Churches; National Council of Jewish Women; National Jewish Community Relations Advisory Council (NJCRAC); National Ministries, American Baptist Churches, USA; National Sikh Center; North American Council for Muslim Women; People for the American Way; Presbyterian Church (USA); Reorganized Church of Jesus Christ of Latter Day Saints; Union of American Hebrew Congregations; Unitarian Universalist Association of Congregations; United Church of Christ, Office for Church in Society.

3     According to the Supreme Court’s analysis, even if a small child perceives that the school is endorsing See You at the Pole that does not mean that the See You at the Pole can not occur. Good News Club v. Milford Central Sch., 121 S. Ct. 2093, 2106 (2001) ("We decline to employ Establishment Clause jurisprudence using a modified heckler’s veto, in which a group’s religious activity may be proscribed on the basis of what the youngest member of the audience might misperceive.") Note also that a United States District Court noted that elementary school students could recognize that a student written religious leaflet was not endorsed by the school. Slotterback v. Interboro Sch. Dist., 766 F. Supp. 280, 296-97 (E.D. Penn. 1991).

4     Assuming parental permission and in light of the Supreme Court’s Mergens and Good News decisions, those cases that have held that elementary students cannot distinguish between private speech and school endorsement are not an obstacle to See You at the Pole. See Bell v. The Independent Sch. Dist. 70 of Cleveland County, 766 F.2d 1391, 1404-05 (10th Cir. 1985) (noting that child can not distinguish between school sponsorship and faculty supervision and explaining that the presence of even one teacher would appear to be "school authorization and approval"); Quappe v. Endry, 772 F. Supp. 1004, 1014 (S.D. Ohio 1991) (explaining that elementary school teacher’s participation in Bible Club could cause students to view the Club as endorsed by the school). Note that in Quappe, the teacher’s actions of using her classroom to voice her religious views as well as to recruit members for the Bible Club were the basis for the courts reasoning that her presence at Bible Club meetings could create an impression of school sponsorship. The court, however, did not prohibit the teacher from attending the Bible Club meetings during after- school hours.

5    Those cases that have found establishment clause violations when the elementary students participate in Bible Club meetings immediately before or immediately after school hours may not be good law after the Supreme Court’s Good News decision and with the parents giving permission. See Quappe, 772 F. Supp. at 1015. (breaking the continuity between the end of the school day at 3:30 and the Club meeting at 6:30); Ford v. Manuel, 629 F. Supp. 771, 777 (N.D. Ohio W.D. 1985) (holding that it is unconstitutional for a Bible Club to meet at an elementary school five minutes before or after the school day); Bell, 766 F.2d at 1406. (explaining that even though the Bible Club meeting occurred before school, "the students were under the control and supervision of the school from the moment they boarded the bus.")

6     Courts have applied Tinker to elementary students. See Jeglin v. San Jacinto Unified Sch. Dist., 827 F. Supp. 1459, 1461 (C.D. Ca. 1993); Johnston-Loehner v. O’Brien, 859 F. Supp. 575 (M.D. Florida). Although Judge Manion   questioned whether Tinker applies to elementary students. Muller v. Jefferson Lighthouse Sch., 98 F.3d 1530, 1539 (7th Cir. 1996). Judge Manion  was the only one out of a three-judge panel to question whether Tinker applies to elementary students and thus, his comments on Tinker are not part of the court’s opinion. In fact, the other two judges vehemently disagreed. Id. at 1545 (Eschbach, J., concurring) (although Judge Eschbach’s opinion was labeled simply "concurring" in the reporter, he explicitly stated that he did not concur with the portion of the opinion questioning Tinker’s applicability); 1545-46 (Rovner, J., concurring in part and in the judgment).

7     Although these cases are factually different from See You at the Pole, the principle remains that when schoolteachers are non-state actors, i.e., when they are acting in citizen capacity, the school cannot squelch their First Amendment rights. Therefore, teachers as citizens, can comment—or pray—about matters of public interest.

 

 


Post Office Box 64427, Virginia Beach, Virginia, 23467-4427
Phone (757) 463.6133; Fax (757) 463.6055; E-mail
nlf@nlf.net

© 2006 by the National Legal Foundation & Minuteman Institute