Likely no area is as confused and difficult for a public school educator than the role of religion in public schools. What must be prohibited versus what must be allowed is ever-changing and likely to continue evolving.
The “candy cane” case
A significant case that may go far in defining the rules is presently working its way through the courts. Commonly referred to as “the candy cane case,” it involves a suit brought by parents against educators in Plano ISD and the district itself.
The educators, following district policy, prohibited elementary school students from passing out religious-themed candy, pencils and tickets at school. The parents sued the educators and district, claiming they were liable for monetary damages for violating the students’ constitutional rights. ATPE filed an amicus brief in support of two educators who were being sued by parents. Although the two educators in the case happened to be principals, ATPE got involved because the court’s decision would affect all educators. Teachers are just as responsible for following policy but also knowing and following the law and, if anything, are even more likely to be confronted with a similar situation.
This case is important to all educators because any educator in the state might, without warning, be faced with the same choices faced by the two educators here. So, what happened that led to the suit?
The district policy at the time prohibited students from distributing any item with a religious message while at school. There were four separate incidents, all involving elementary students:
At a party, one student was prohibited from passing out candy cane-shaped pencils with a religious message describing a possible Christian explanation for the striped candy as gifts to fellow students. Other students were allowed to pass out gifts without a religious message.
At school but not during class, a student was prohibited from passing out tickets to a Christian play put on by a local church.
At a “half-birthday” party, a student was prohibited from passing out a pencil inscribed with a religious message but was able to pass out gifts without a religious message.
The same student was prohibited from passing out the pencils with a religious message after school but while on the school grounds.
The school policy prohibited students from distributing any religious-themed message. Perhaps the policy was a well-intentioned effort to avoid controversy and a possible legal claim against the district or staff that allowing students to distribute religious messages would in effect endorse a particular religion and thus violate the U.S. Constitution. This too is prohibited, which is why school prayers are not allowed and why educators are prohibited from participating in “meet me at the flagpole” ceremonies. Whatever the reason for the policy, however, the court made clear that elementary school students have First Amendment free speech and religious rights that cannot be unduly restricted. Although there is still a lot of gray area as to exactly what those rights are, educators now know that they must consider whether prohibiting an elementary school student’s expression could violate the law.
Second, the court ruled that prohibiting the elementary school student from distributing pencils while on school grounds but after school hours was a violation of the student’s First Amendment rights.
Although the two educators in this case were granted immunity, that result might not be the case for the next educators facing a similar situation. This is because the court ruled that some of the educators’ actions were unconstitutional. All educators are expected to know the law and, on these issues, may now be unsuccessful in claiming that they should be immune from suit.
Texas Education Code on religious expression
In addition to the constitutional issues described above, the Texas Education Code also provides protections for student expression on religion. The code provides:
A school district shall treat a student’s voluntary expression of a religious viewpoint, if any, on an otherwise permissible subject in the same manner the district treats a student’s voluntary expression of a secular or other viewpoint on an otherwise permissible subject and may not discriminate against the student based on a religious viewpoint expressed by the student on an otherwise permissible subject.
The education code goes on to state specific rules that districts and district staff must follow to ensure that the district or its staff do not discriminate. Districts must:
Establish a “limited public forum” when students can publicly speak as school events. The forum cannot discriminate against a student based on a religious viewpoint expressed by the student on an otherwise permissible subject.
Provide a method, based on neutral criteria, for a selection of student speakers at school events.
Ensure that a speaker does not engage in obscene, vulgar, offensively lewd or indecent speech.
State in writing or orally that the student’s speech does not reflect endorsement, sponsorship, position or expression of the district.
Allow students to express their beliefs about religion in homework, artwork and other written or oral assignments free from discrimination based on the religious content. The work must be judged by ordinary academic standards of substance and relevance to the assignment, and a student cannot be penalized or rewarded on account of the religious content.
Allow students to organize into religious groups to the same extent that students are allowed to organize into secular groups. The groups must be given access to school facilities to the same extent that noncurricular groups are.
Although the Texas Education Code provisions are intended to provide protection to districts and educators in allowing student expression, they must be read in context of the U.S. Constitution’s prohibition on religious endorsement, so the complex question of what must be allowed versus what must be prohibited is likely to remain not completely answered for some time.