First amendment schools resources – handout 1a electricity song omd

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In Everson v. Board of Education (1947) Justice Hugo L. Black (on the Court 1937-1971) detailed the history and importance of the Establishment Clause. He states that prior to the Fourteenth Amendment, “some states persisted for about half a century in imposing restraints upon the free exercise of religion and in discriminating against particular religious groups. In recent years, so far as the provision against the establishment of a religion is concerned, the question has most frequently arisen in connection with proposed state aid to church schools and efforts to carry on religious teachings in the public schools in accordance with the tenets of a particular sect.”

These principles came to be known as the establishment clause test. Other tests for constitutionality of laws and actions were introduced by Supreme Court justices and replaced the establishment clause test over the next 50 years. Since 1971 justices have used three tests in deciding establishment clause cases: The Lemon test, the endorsement test and the coercion test.

The justices have held divergent views on difficult establishment clause cases. At the end of the twentieth century, the Lemon test came under sharp criticism from some scholars and from a majority of the justices of the Supreme Court. Some legal scholars have even called for a return to the establishment clause test.

The Lemon test, based on the 1971 U.S. Supreme Court ruling in Lemon v. Kurtzman,is the standard of judicial review in cases involving the establishment clause of the First Amendment. The Lemon test involves three criteria for judging whether laws or governmental actions are allowable under the establishment clause. A negative answer to any of the three questions means the act is unconstitutional.

Justice Sandra Day O’Conner, in a concurring opinion, first proposed the endorsement test in 1984 in Lynch v. Donnelly. The endorsement test asks whether the challenged law or government action has either the purpose or effect of endorsing religion or disapproving of religion in the eyes of the community members. As O’Connor argued, “Endorsement sends a message to non-adherents that they are outsiders, not full members of the political community, and an accompanying message to adherents that they are insiders, favored members of the political community. … What is crucial is that the government practices not have the effect of communicating a message of government endorsement or disapproval of religion.”

Justice Anthony Kennedy proposed a “coercion” standard in Lee v. Weisman(1992). In this case, the test focused on the psychological coercive effect of clergy-led prayer at graduation ceremonies. The Court found, “The school district’s supervision and control of a high school graduation ceremony places subtle and indirect public and peer pressure on attending students to stand as a group or maintain respectful silence during the invocation and benediction.” The Court stated in its decision, “… at a minimum, the Constitution guarantees that government may not coerce anyone to support or participate in religion or its exercise.”

Justice Antonin Scalia, a devout Catholic and former altar boy, wrote in the dissenting opinion that “from our Nation’s origin, prayer has been a prominent part of governmental ceremonies and proclamations. The Declaration of Independence, the document marking our birth as a separate people, ‘appeal[ed] to the Supreme Judge of the world for the rectitude of our intentions’ and avowed ‘a firm reliance on the protection of divine Providence.’ In his first inaugural address, after swearing his oath of office on a Bible, George Washington deliberately made a prayer a part of his first official act as President … Most recently, President George Herbert Walker Bush, continuing the tradition established by President Washington, asked those attending his inauguration to bow their heads, and made a prayer his first official act as President.”

In the majority opinion, Justice Kennedy, also a devout Catholic and former altar boy, stated, “The atmosphere at a state legislature’s opening, where adults are free to enter and leave with little comment and for any number of reasons, cannot compare with the constraining potential of the one school event most important for the student to attend.”

In front of 600 students in a school assembly, 17-year-old Matthew Fraser, a student at Bethel High School in Washington, strung together a list of double-entendres, saying the candidate he supported was “ … a man who is firm — he’s firm in his pants … in his character … a man who takes his point and pounds it in … who will go to the very end — even to the climax, for each and every one of you.” Fraser’s candidate won the election. Fraser was suspended for two days.

The Supreme Court said Bethel High School officials in Washington did not violate the First Amendment by punishing 17-year-old Matthew Fraser for a campaign speech that was considered lewd. Both of the lower courts had ruled for Fraser because there was no disruption following the speech given in the school auditorium. Chief Justice Warren E. Burger distinguished between political speech (protected in Tinker v. Des Moines Independent Community School District in 1969) and vulgar or lewd speech. Because it was a school-sponsored activity, the Supreme Court said school officials had the right to punish the risque content of his speech. After Bethel, rather than providing evidence of substantial interference, as is required in the Tinker standard, school officials must meet a standard of reasonableness if they choose to restrict school-sponsored expression.The Court held,

• “Under the First Amendment, the use of an offensive form of expression may not be prohibited to adults making what the speaker considers a political point, but it does not follow that the same latitude must be permitted to children in a public school. It is a highly appropriate function of public school education to prohibit the use of vulgar and offensive terms in public discourse. … The inculcation of these values is truly the work of the school, and the determination of what manner of speech is inappropriate properly rests with the school board.”