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S. at 755. In some of the schools mandatory religion courses were taught, the significant factor in Justice Stewart’s view, id. at 773, but overweighed by other factors in the plurality’s view. 142 426 U.S. at 755-66. The plurality also relied on the facts that the student body was not local but diverse, and that large numbers of non-religiously affiliated institutions received aid. A still further broadening of governmental power to extend aid affecting religious institutions of higher education occurred in several subsequent decisions. First, the Court summarily affirmed two lower-court decisions upholding programs of assistance—scholarships and tuitions grants—to students at college and university as well as vocational programs in both public and private— including religious—institutions; one of the programs contained no secular use restriction at all and in the other one the restriction seemed somewhat pro forma. Smith v. Board of Governors of Univ. of North Carolina, 434 U.S. 803 (1977), aff’g 429 F. Supp. 871 (W.D.N.C. 1977); Americans United v. Blanton, 434 U.S. 803 (1977), aff’g 433 F. Supp. 97 (M.D. Tenn. 1977). Second, in Witters v. Washington Dep’t of Services for the Blind, 474 U.S. 481 (1986), the Court upheld use of a vocational rehabilitation scholarship at a religious college, emphasizing that the religious institution received the public money as a result of the ‘‘genuinely independent and private choices of the aid recipients,’’ and not as the result of any decision by the State to sponsor or subsidize religion. Third, in Rosenberger v. The Rector and Visitors of the University of Virginia, 515 U.S. 819 (1995), the Court held that a public university cannot exclude a student religious publication from a program subsidizing the printing costs of all other student publications. The Court said law precluded the use of any state-financed project for religious activities. 139 The kind of assistance permitted by Tilton and by Hunt v. McNair seems to have been broadened when the Court sustained a Maryland program of annual subsidies to qualifying private institutions of higher education; the grants were noncategorical but could not be used for sectarian purposes, a limitation to be policed by the administering agency. 140 The plurality opinion found a secular purpose; found that the limitation of funding to secular activities was meaningful, 141 since the religiously affiliated institutions were not so pervasively sectarian that secular activities could not be separated from sectarian ones; and determined that excessive entanglement was improbable, given the fact that aided institutions were not pervasively sectarian. The annual nature of the subsidy was recognized as posing the danger of political entanglement, but the plurality thought that the character of the aided institutions— ‘‘capable of separating secular and religious functions’’— was more important. 142 VerDate Apr<15>2004 08:57 Jun 25, 2004 Jkt 077500 PO 00000 Frm 00029 Fmt 8222 Sfmt 8222 C:\CONAN\CON024.SGM PRFM99 PsN: CON024 1042 AMENDMENT 1—RELIGION, FREE SPEECH, ETC. the fund was essentially a religiously neutral subsidy promoting private student speech without regard to content. 143 175 U.S. 291 (1899). 144 487 U.S. 589 (1988). Chief Justice Rehnquist wrote the Court’s opinion, and was joined by Justices White, O’Connor, Scalia, and Kennedy; in addition, Justice O’Connor and Justice Kennedy, joined by Justice Scalia, filed separate concurring opinions. Justice Blackmun’s dissenting opinion was joined by Justices Brennan, Marshall, and Stevens. 145 Pub. L. 97–35, 95 Stat. 578 (1981), codified at 42 U.S.C. § 300z et seq. 146 The Court also noted that the 1899 case of Bradfield v. Roberts had established that religious organizations may receive direct aid for support of secular social- welfare cases. 147 487 U.S. at 621. Finally, in the only case since Bradfield v. Roberts 143 to challenge the constitutionality of public aid to non-educational religious institutions, the Court in Bowen v. Kendrick 144 by a 5–4 vote upheld the Adolescent Family Life Act (AFLA) 145 against facial challenge. The Act permits direct grants to religious organizations for provision of health care and for counseling of adolescents on matters of pregnancy prevention and abortion alternatives, and requires grantees to involve other community groups, including religious organizations, in delivery of services. All of the Justices agreed that AFLA had valid secular purposes; their disagreement related to application of the effects and entanglement tests. The Court relied on analogy to the higher education cases rather than the cases involving aid to elementary and secondary schools. 146 The case presented conflicting factual considerations. On the one hand, the class of beneficiaries was broad, with religious groups not predominant among the wide range of eligible community organizations. On the other hand, there were analogies to the parochial school aid cases: secular and religious teachings might easily be mixed, and the age of the targeted group (adolescents) suggested susceptibility. The Court resolved these conflicts by holding that AFLA is facially valid, there being insufficient indication that a significant proportion of the AFLA funds would be disbursed to ‘‘pervasively sectarian’’ institutions, but by remanding to the district court to determine whether particular grants to pervasively sectarian institutions were invalid. The Court emphasized in both parts of its opinion that the fact that ‘‘views espoused [during counseling] on matters of premarital sex, abortion, and the like happen to coincide with the religious views of the AFLA grantee would not be sufficient to show [an Establishment Clause violation].’’ 147 At the time it was rendered, Bowen differed from the Court’s decisions concerning direct aid to sectarian elementary and secondary schools primarily in that it refused to presume that religiously affiliated social welfare entities are pervasively sectarian. That difference had the effect of giving greater constitutional lati- VerDate Apr<15>2004 08:57 Jun 25, 2004 Jkt 077500 PO 00000 Frm 00030 Fmt 8222 Sfmt 8222 C:\CONAN\CON024.SGM PRFM99 PsN: CON024 AMENDMENT 1—RELIGION, FREE SPEECH, ETC. 1043 148 Everson v. Board of Education, 330 U.S. 1, 63 (Justice Rutledge dissenting) (quoted supra). 149 Illinois ex rel. McCollum v. Board of Education, 333 U.S. 203, 209–10 (1948). 150 333 U.S. at 211. 151 Zorach v. Clauson, 343 U.S. 306 (1952). Justices Black, Frankfurter, and Jackson dissented. Id. at 315, 320, 323. tude to public aid to such entities than was afforded direct aid to religious elementary and secondary schools. As noted above, the Court in its recent decisions has now eliminated the presumption that such religious schools are pervasively sectarian and has extended the same constitutional latitude to aid programs benefiting such schools as it gives to aid programs benefiting religiously affiliated social welfare programs. Governmental Encouragement of Religion in Public Schools: Released Time.—Introduction of religious education into the public schools, one of Justice Rutledge’s ‘‘great drives,’’ 148 has also occasioned a substantial amount of litigation in the Court. In its first two encounters, the Court voided one program and upheld another, in which the similarities were at least as significant as the differences. Both cases involved ‘‘released time’’ programs, the establishing of a period during which pupils in public schools were to be allowed, upon parental request, to receive religious instruction. In the first, the religious classes were conducted during regular school hours in the school building by outside teachers furnished by a religious council representing the various faiths, subject to the approval or supervision of the superintendent of schools. Attendance reports were kept and reported to the school authorities in the same way as for other classes, and pupils not attending the religious instruction classes were required to continue their regular studies. ‘‘The operation of the State’s compulsory education system thus assists and is integrated with the program of religious instruction carried on by separate religious sects. Pupils compelled by law to go to school for secular education are released in part from their legal duty upon the condition that they attend the religious classes. This is beyond all question a utilization of the taxestablished and tax-supported public school system to aid religious groups to spread their faith. And it falls squarely under the ban of the First Amendment . . . .’’ 149 The case was also noteworthy because of the Court’s express rejection of the contention ‘‘that historically the First Amendment was intended to forbid only government preference of one religion over another, not an impartial governmental assistance of all religions.’’ 150 Four years later, the Court upheld a different released-time program. 151 In this one, schools released pupils during school hours, on written request of their parents, so that they might leave VerDate Apr<15>2004 08:57 Jun 25, 2004 Jkt 077500 PO 00000 Frm 00031 Fmt 8222 Sfmt 8222 C:\CONAN\CON024.SGM PRFM99 PsN: CON024 1044 AMENDMENT 1—RELIGION, FREE SPEECH, ETC. 152 343 U.S. at 315. See also Abington School Dist. v. Schempp, 374 U.S. 203, 261–63 (1963) (Justice Brennan concurring) (suggesting that the important distinction was that ‘‘the McCollum program placed the religious instruction in the public school classroom in precisely the position of authority held by the regular teachers of secular subjects, while the Zorach program did not’’). the school building and go to religious centers for religious instruction or devotional exercises. The churches reported to the schools the names of children released from the public schools who did not report for religious instruction; children not released remained in the classrooms for regular studies. The Court found the differences between this program and the program struck down in McCollum to be constitutionally significant. Unlike McCollum, where ‘‘the classrooms were used for religious instruction and force of the public school was used to promote that instruction,’’ religious instruction was conducted off school premises and ‘‘the public schools do no more than accommodate their schedules.’’ 152 ‘‘We are a religious people whose institutions presuppose a Supreme Being,’’ Justice Douglas wrote for the Court. ‘‘When the state encourages religious instruction or cooperates with religious authorities by adjusting the schedule of public events to sectarian needs, it follows the best of our traditions. For it then respects the religious nature of our people and accommodates the public service to their spiritual needs. To hold that it may not would be to find in the Constitution a requirement that the government show a callous indifference to religious groups. That would be preferring those who believe in no religion over those who do believe.’’ Governmental Encouragement of Religion in Public Schools: Prayers and Bible Reading.—Upon recommendation of the state governing board, a local New York school required each class to begin each school day by reading aloud the following prayer in the presence of the teacher: ‘‘Almighty God, we acknowledge our dependence upon Thee, and we beg Thy blessing upon us, our parents, our teachers and our country.’’ Students who wished to do so could remain silent or leave the room. Said the Court: ‘‘We think that by using its public school system to encourage recitation of the Regents’ prayer, the State of New York has adopted a practice wholly inconsistent with the Establishment Clause. There can, of course, be no doubt that New York’s program of daily classroom invocation of God’s blessings as prescribed in the Regents’ prayer is a religious activity. . . . [W]e think that the constitutional prohibition against laws respecting an establishment of religion must at least mean that in this country it is no part of the business of government to compose official prayers for any group of the American people to recite as a part of a religious program carried on by VerDate Apr<15>2004 08:57 Jun 25, 2004 Jkt 077500 PO 00000 Frm 00032 Fmt 8222 Sfmt 8222 C:\CONAN\CON024.SGM PRFM99 PsN: CON024 AMENDMENT 1—RELIGION, FREE SPEECH, ETC. 1045 153 Engel v. Vitale, 370 U.S. 421, 424, 425 (1962). 154 370 U.S. at 430. Justice Black for the Court rejected the idea that the prohibition of religious services in public schools evidenced ‘‘a hostility toward religion or toward prayer.’’ Id. at 434. Rather, such an application of the First Amendment protected religion from the coercive hand of government and government from control by a religious sect. Dissenting alone, Justice Stewart could not ‘‘see how an ‘official religion’ is established by letting those who want to say a prayer say it. On the contrary, I think that to deny the wish of these school children to join in reciting this prayer is to deny them the opportunity of sharing in the spiritual heritage of our Nation.’’ Id. at 444, 445. 155 Abington School Dist. v. Schempp, 374 U.S. 203, 223 (1963). ‘‘[T]he States are requiring the selection and reading at the opening of the school day of verses from the Holy Bible and the recitation of the Lord’s Prayer by the students in unison. These exercises are prescribed as part of the curricular activities of students who are required by law to attend school. They are held in the school buildings under the supervision and with the participation of teachers employed in those schools. None of these factors, other than compulsory school attendance, was present in the program upheld in Zorach v. Clauson.’’ Id. 156 374 U.S. at 223-24. The Court thought the exercises were clearly religious. 157 374 U.S. at 225. ‘‘We agree of course that the State may not establish a ‘religion of secularism’ in the sense of affirmatively opposing or showing hostility to religion, thus ‘preferring those who believe in no religion over those who do believe.’’’ Zorach v. Clauson, 343 U.S. at 314. ‘‘We do not agree, however, that this decision in any sense has that effect.’’ government.’’ 153 ‘‘Neither the fact that the prayer may be nondenominationally neutral nor the fact that its observance on the part of the students is voluntary can serve to free it from the limitations of the Establishment Clause, as it might from the Free Exercise Clause. . . . The Establishment Clause . . . does not depend upon any showing of direct governmental compulsion and is violated by the enactment of laws which establish an official religion whether those laws operate directly to coerce nonobserving individuals or not.’’ 154 Following the prayer decision came two cases in which parents and their school age children challenged the validity under the Establishment Clause of requirements that each school day begin with readings of selections from the Bible. Scripture reading, like prayers, the Court found, was a religious exercise. ‘‘Given that finding the exercises and the law requiring them are in violation of the Establishment Clause.’’ 155 Rejected were contentions by the State that the object of the programs was the promotion of secular purposes, such as the expounding of moral values, the contradiction of the materialistic trends of the times, the perpetuation of traditional institutions, and the teaching of literature 156 and that to forbid the particular exercises was to choose a ‘‘religion of secularism’’ in their place. 157 Though the ‘‘place of religion in our society is an exalted one,’’ the Establishment Clause, the Court continued, prescribed VerDate Apr<15>2004 08:57 Jun 25, 2004 Jkt 077500 PO 00000 Frm 00033 Fmt 8222 Sfmt 8222 C:\CONAN\CON024.SGM PRFM99 PsN: CON024 1046 AMENDMENT 1—RELIGION, FREE SPEECH, ETC. 158 374 U.S. at 226. Justice Brennan contributed a lengthy concurrence in which he attempted to rationalize the decisions of the Court on the religion clauses and to delineate the principles applicable. He concluded that what the establishment clause foreclosed ‘‘are those involvements of religious with secular institutions which (a) serve the essentially religious activities of religious institutions; (b) employ the organs of government for essentially religious purposes; or (c) use essentially religious means to serve governmental ends, where secular means would suffice.’’ Id. at 230, 295. Justice Stewart again dissented alone, feeling that the claims presented were essentially free exercise contentions which were not supported by proof of coercion or of punitive official action for nonparticipation. While numerous efforts were made over the years to overturn these cases, through constitutional amendment and through limitations on the Court’s jurisdiction, the Supreme Court itself has had no occasion to review the area again. But see Stone v. Graham, 449 U.S. 39 (1980) (summarily reversing state court and invalidating statute requiring the posting of the Ten Commandments, purchased with private contributions, on the wall of each public classroom, on the grounds the Ten Commandments are ‘‘undeniably a sacred text’’ and the ‘‘pre-eminent purpose’’ of the posting requirement was ‘‘plainly religious in nature’’). 159 472 U.S. 38 (1985). 160 472 U.S. at 59. 161 Justice O’Connor’s concurring opinion is notable for its effort to synthesize and refine the Court’s Establishment and Free Exercise tests (see also the Justice’s concurring opinion in Lynch v. Donnelly), and Justice Rehnquist’s dissent for its effort to redirect Establishment Clause analysis by abandoning the tripartite test, discarding any requirement that government be neutral between religion and ‘‘irreligion,’’ and confining the scope to a prohibition on establishing a national church or otherwise favoring one religious group over another. 162 505 U.S. 577 (1992). that in ‘‘the relationship between man and religion,’’ the State must be ‘‘firmly committed to a position of neutrality.’’ 158 In Wallace v. Jaffree, 159 the Court held invalid an Alabama statute authorizing a 1-minute period of silence in all public schools ‘‘for meditation or prayer.’’ Because the only evidence in the record indicated that the words ‘‘or prayer’’ had been added to the existing statute by amendment for the sole purpose of returning voluntary prayer to the public schools, the Court found that the first prong of the Lemon test had been violated, i.e. that the statute was invalid as being entirely motivated by a purpose of advancing religion. The Court characterized the legislative intent to return prayer to the public schools as ‘‘quite different from merely protecting every student’s right to engage in voluntary prayer during an appropriate moment of silence during the schoolday,’’ 160 and both Justices Powell and O’Connor in concurring opinions suggested that other state statutes authorizing moments of silence might pass constitutional muster. 161 The school prayer decisions served as precedent for the Court’s holding in Lee v. Weisman 162 that a school-sponsored invocation at a high school commencement violated the Establishment Clause. The Court rebuffed a request to reexamine the Lemon test, finding ‘‘[t]he government involvement with religious activity in this case VerDate Apr<15>2004 08:57 Jun 25, 2004 Jkt 077500 PO 00000 Frm 00034 Fmt 8222 Sfmt 8222 C:\CONAN\CON024.SGM PRFM99 PsN: CON024 AMENDMENT 1—RELIGION, FREE SPEECH, ETC. 1047 163 The Court distinguished Marsh v. Chambers, 463 U.S. 783, 792 (1983), holding that the opening of a state legislative session with a prayer by a state-paid chaplain does not offend the Establishment Clause. The Marsh Court had distinguished Abington on the basis that state legislators, as adults, are ‘‘presumably not readily susceptible to ‘religious indoctrination’ or ‘peer pressure,’’’ and the Lee v. Weisman Court reiterated this distinction. 505 U.S. at 596-97. 164 530 U.S. 790 (2000). [to be] pervasive, to the point of creating a state-sponsored and state-directed religious exercise in a public school.’’ State officials not only determined that an invocation and benediction should be given, but also selected the religious participant and provided him with guidelines for the content of nonsectarian prayers. The Court, in an opinion by Justice Kennedy, viewed this state participation as coercive in the elementary and secondary school setting. 163 The state ‘‘in effect required participation in a religious exercise,’’ since the option of not attending ‘‘one of life’s most significant occasions’’ was no real choice. ‘‘At a minimum,’’ the Court concluded, the Establishment Clause ‘‘guarantees that government may not coerce anyone to support or participate in religion or its exercise.’’ In Santa Fe Independent School District v. Doe 164 the Court held a school district’s policy permitting high school students to vote on whether to have an ‘‘invocation and/or prayer’’ delivered prior to home football games by a student elected for that purpose to violate the establishment clause. It found the policy to violate each one of the tests it has formulated for establishment clause cases. The preference given for an ‘‘invocation’’ in the text of the school district’s policy, the long history of pre-game prayer led by a student ‘‘chaplain’’ in the school district, and the widespread perception that ‘‘the policy is about prayer,’’ the Court said, made clear that its purpose was not secular but was to preserve a popular state-sponsored religious practice in violation of the first prong of the Lemon test. Moreover, it said, the policy violated the coercion test by forcing unwilling students into participating in a religious exercise. Some students – the cheerleaders, the band, football players – had to attend, it noted, and others were compelled to do so by peer pressure. ‘‘The constitutional command will not permit the District ‘to exact religious conformity from a student as the price’ of joining her classmates at a varsity football game,’’ the Court held. Finally, it said, the speech sanctioned by the policy was not private speech but government-sponsored speech that would be perceived as a government endorsement of religion. The long history of pre-game prayer, the bias toward religion in the policy itself, the fact that the message would be ‘‘delivered to a large audience assembled as part of a regularly scheduled, school-sponsored function conducted on school property’’ and over the school’s public address VerDate Apr<15>2004 08:57 Jun 25, 2004 Jkt 077500 PO 00000 Frm 00035 Fmt 8222 Sfmt 8222 C:\CONAN\CON024.SGM PRFM99 PsN: CON024 1048 AMENDMENT 1—RELIGION, FREE SPEECH, ETC. 165 393 U.S. 97 (1968). 166 393 U.S. at 109. 167 482 U.S. 578, 591 (1987). 168 482 U.S. at 589. The Court’s conclusion was premised on its finding that ‘‘the term ‘creation science,’ as used by the legislature . . . embodies the religious belief that a supernatural creator was responsible for the creation of humankind.’’ Id. at 592. system, the Court asserted, all meant that the speech was not genuine private speech but would be perceived as ‘‘stamped with the school’s seal of approval.’’ The Court concluded that ‘‘the policy is invalid on its face because it establishes an improper majoritarian election on religion, and unquestionably has the purpose and creates the perception of encouraging the delivery of prayer at a series of important school events.’’ Governmental Encouragement of Religion in Public Schools: Curriculum Restriction.—In Epperson v. Arkansas, 165 the Court struck down a state statute which made it unlawful for any teacher in any state-supported educational institution ‘‘to teach the theory or doctrine that mankind ascended or descended from a lower order of animals,’’ or ‘‘to adopt or use in any such institution a textbook that teaches’’ this theory. Agreeing that control of the curriculum of the public schools was largely in the control of local officials, the Court nonetheless held that the motivation of the statute was a fundamentalist belief in the literal reading of the Book of Genesis and that this motivation and result required the voiding of the law. ‘‘The law’s effort was confined to an attempt to blot out a particular theory because of its supposed conflict with the Biblical account, literally read. Plainly, the law is contrary to the mandate of the First . . . Amendment to the Constitution.’’ 166 Similarly invalidated as having the improper purpose of advancing religion was a Louisiana statute mandating balanced treatment of ‘‘creation-science’’ and ‘‘evolution-science’’ in the public schools. ‘‘The preeminent purpose of the Louisiana legislature,’’ the Court found in Edwards v. Aguillard, ‘‘was clearly to advance the religious viewpoint that a supernatural being created humankind.’’ 167 The Court viewed as a ‘‘sham’’ the stated purpose of protecting academic freedom, and concluded instead that the legislature’s purpose was to narrow the science curriculum in order to discredit evolution ‘‘by counterbalancing its teaching at every turn with the teaching of creation science.’’ 168 Access of Religious Groups to Public Property.—Although government may not promote religion through its educational facilities, it may not bar student religious groups from meeting on public school property if it makes those facilities available to non- VerDate Apr<15>2004 08:57 Jun 25, 2004 Jkt 077500 PO 00000 Frm 00036 Fmt 8222 Sfmt 8222 C:\CONAN\CON024.SGM PRFM99 PsN: CON024 AMENDMENT 1—RELIGION, FREE SPEECH, ETC. 1049 169 454 U.S. 263, 270–75 (1981) 170 496 U.S. 226 (1990). The Court had noted in Widmar that university students ?are less impressionable than younger students and should be able to appreciate that the University’s policy is one of neutrality toward religion,? 454 U.S. at 274 n.14. The Mergens plurality ignored this distinction, suggesting that secondary school students are also able to recognize that a school policy allowing student religious groups to meet in school facilities is one of neutrality toward religion. 496 U.S. at 252. 171 Pub. L. 98–377, title VIII, 98 Stat. 1302 (1984); 20 U.S.C. §§ 40

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