Personal Injuries – Part 3

On Church Property or During Church Activities

Richard R. Hammar, Attorney, CPA

Bio

State: New Jersey
Categories: Church Property, Schools

Church Law and Tax 1989-01-01 Recent Developments

Personal Injuries – On Church Property or During Church Activities

Richard R. Hammar, J.D., LL.M., CPA

• The New Jersey Supreme Court ruled that a church-operated school located on church property could be sued by a pedestrian who suffered permanent injuries when she slipped on a sidewalk abutting the school that had not been cleared of snow and ice. Such a result, concluded the court, was “less harsh than imposing the entire loss on a pedestrian injured by the negligent maintenance of a sidewalk,” and “would in no way interfere with the exercise of religion” by the church. Further, requiring church schools to clear abutting sidewalks of snow and ice “would not greatly add to the type of maintenance tasks [such schools] routinely undertake.” Finally, the court rejected the church’s claim that the state “charitable immunity law” (which prevents charitable and religious organizations from being sued in some cases by their “beneficiaries”) prevented it from being sued—since the injured pedestrian was not a beneficiary of the church. While acknowledging “the good works performed by religious and charitable organizations,” the court concluded that “religious institutions do not enjoy an absolute immunity from worldly burdens.” Brown v. St. Venantius School, 544 A.2d 842 (N.J. 1988).

© Copyright 1989, 1998 by Church Law & Tax Report. All rights reserved. This publication is designed to provide accurate and authoritative information in regard to the subject matter covered. It is provided with the understanding that the publisher is not engaged in rendering legal, accounting, or other professional service. If legal advice or other expert assistance is required, the services of a competent professional person should be sought. Church Law & Tax Report, PO Box 1098, Matthews, NC 28106. Reference Code: m58 m65 c0189

Legal Developments

Freedom of Religion – Part 1

Church Law and Tax 1989-01-01 Recent Developments Freedom of Religion Richard R. Hammar, J.D., LL.M.,

Richard R. Hammar, Attorney, CPA

Bio

State: New York
Categories: Freedom of Religion, Schools

Church Law and Tax 1989-01-01 Recent Developments

Freedom of Religion

Richard R. Hammar, J.D., LL.M., CPA

• Many churches use public school facilities on a temporary basis (and during noninstructional hours) during the construction or renovation of their own facilities. Many other churches have considered such a practice. Are such arrangements legal? That was the issue before a federal appeals court in New York in a recent case. A church applied for and was granted permission to use a public school building on four consecutive Sundays while its own church facility was being renovated. During the four week period, the church applied for a permit to use the school facilities for an additional “six to eight months.” This permit was denied, and a trial court granted the church’s request for an injunction forcing the school district to issue the requested permit. On appeal, the school district defended its refusal to grant the permit by pointing to a New York law that prohibits public school properties from being used for “meetings … where admission fees are charged … if such meetings are under the exclusive control, and said proceeds are to be applied for the benefit of … a religious sect or denomination.” The court acknowledged that this language was inconsistent with church use of public school property. However, it concluded that the school district had “opened this forum to [the church] through a practice of granting permits to use public school facilities to other religious organizations.” The court also rejected the school district’s argument that granting the permit to the church would constitute an impermissible “establishment of religion” in violation of the first amendment. It noted that “the semblance of official support is less evident where a school building is used at night as a temporary facility by religious organizations, under a program that grants access to all charitable groups.” Deeper Life Christian Fellowship v. Board of Education, 852 F.2d 676 (2nd Cir. 1988).

Legal Developments

Court Rejected Religious School’s Claim That It Was Exempt from Federal Age Discrimination Law

A federal district court in Ohio rejected a religious school's claim that it was exempt

Richard R. Hammar, Attorney, CPA

Bio

State: Ohio
Categories: Freedom of Religion, Schools

A federal district court in Ohio rejected a religious school's claim that it was exempt from federal age discrimination law.

Xavier University is a Catholic institution of higher education operated by the Order of Jesuits. An employee brought an age discrimination lawsuit against the University. The University claimed that the court lacked jurisdiction over the case, since, as a religious institution, it was exempt from the antidiscrimination provisions of the federal Age Discrimination in Employment Act ("ADEA").

The court agreed with the employee that the ADEA "gives no indication that religious institutions are exempt from its provisions." However, it also acknowledged that a religious institution could be exempted on the basis of the constitutional guaranty of religious freedom if application of the ADEA to the institution would "give rise to serious constitutional questions" under the religious freedom clause of the first amendment. The court concluded that no "serious constitutional questions" were implicated by an application of the ADEA to the University and accordingly the claim of an exemption was rejected.

In 1979, the United States Supreme Court ruled that the National Labor Relations Act (NLRA) did not apply to church-operated schools since serious constitutional questions would be implicated by an application of the Act to such schools, and there was no evidence of an "affirmative intention of Congress clearly expressed" for church-operated schools to be covered under the Act. This test for evaluating the application of federal laws to church-controlled schools has not been successfully applied in other contexts. Perhaps it will remain limited to union organizing efforts under the NLRA.

Soriano v. Xavier University, 687 F. Supp. 1188 (S.D. Ohio 1988)

Legal Developments

Schools

Church Law and Tax 1988-09-01 Recent Developments Schools Richard R. Hammar, J.D., LL.M., CPA •

Richard R. Hammar, Attorney, CPA

Bio

State: Connecticut
Categories: Schools

Church Law and Tax 1988-09-01 Recent Developments

Schools

Richard R. Hammar, J.D., LL.M., CPA

• Private schools may be eligible to seek a deferral until May 9, 1989 of the October 12, 1988 deadline for submitting an asbestos management plan to their state government. Deferrals will only be granted if several conditions are satisfied. First, a school must submit an application for deferral to the appropriate state office. Second, the application must explain why, despite good faith efforts, the school will not be able to meet the original October 12, 1988 deadline for submitting an asbestos management plan. Third, the application must indicate that one of the following documents is available for inspection at the school: (1) a solicitation by the school to contract with an accredited asbestos contractor for inspection or management plan development; (2) a letter certifying that school district personnel are enrolled in an EPA-approved training course for inspection and management plan development; or (3) documentation showing that suspected asbestos-containing material from the school is being analyzed at an accredited laboratory. Fourth, the application must indicate that the school has notified affected parent, teacher, and employee organizations of its intent to file for a deferral. Fifth, the application must contain a proposed schedule outlining the activities that will lead up to the submission of a management plan by May 9, 1989, including inspection of the school. This schedule must contain a deadline of no later than December 22, 1988 for entering into a contract with an accredited inspector (unless inspections are to be performed by accredited school personnel). Schools in the states of Connecticut, Illinois, New Jersey, and Rhode Island have slightly different requirements, since these states independently sought waivers of the October 12, 1988 deadline. Schools in these states must also submit an application for deferral, but their applications need only contain the following assurances: (1) their state requested a waiver from EPA prior to June 1, 1988, and (2) the school has notified affected parent, teachers, and employees groups about its intention to apply for a deferral. Other conditions apply. For more specific information regarding deferral requests, and a listing of the state agencies in each state to which deferral requests should be submitted, contact the EPA at 1-202-554-1404.

© Copyright 1988, 1998 by Church Law & Tax Report. All rights reserved. This publication is designed to provide accurate and authoritative information in regard to the subject matter covered. It is provided with the understanding that the publisher is not engaged in rendering legal, accounting, or other professional service. If legal advice or other expert assistance is required, the services of a competent professional person should be sought. Church Law & Tax Report, PO Box 1098, Matthews, NC 28106. Reference Code: m65 c0588

Legal Developments

Public School Cannot Prohibit Students from Distributing Religious Literature in Hallways Before School Starts

Can a public junior high school prohibit students from distributing religious literature in school hallways

Richard R. Hammar, Attorney, CPA

Bio

State: Pennsylvania
Categories: Freedom of Religion, Schools

Can a public junior high school prohibit students from distributing religious literature in school hallways before the start of each school day? This question was addressed by a federal district court in Pennsylvania.

The court concluded that the school, by permitting various student groups to meet on school property during noninstructional hours, had created a limited "public forum." Accordingly, the school could not restrict any group's speech on the basis of the content of the speech, unless the restriction was necessary to serve a "compelling state interest" and it was "narrowly drawn to achieve that end."

Banishing Christian students to "sidewalks and parking lots" violated the students' constitutional right of free speech, concluded the court, and was not supported by any compelling state interest. The court rejected the school's argument that the restrictions were necessary in order to avoid violating the nonestablishment of religion clause: "Accommodation … of a religious organization in accordance with a limited public forum does not constitute a state imprimatur on the particular religion involved."

The court emphasized that its conclusion "in no way affects [the school's] power to enforce reasonable time, place, and manner regulations" designed to insure that no student group materially interferes with the educational process or interferes with another person's rights.

Finally, the court rejected the students' claims that the "Equal Access Act" had been violated (it only addresses the right of students to engage in voluntary meetings on public school property during noninstructional hours), and that their constitutional right to freely exercise their religion had been abridged (the students were free to distribute literature and engage in evangelism in any public place, including the school parking lot). Thompson v. Waynesboro Area School District, 673 F. Supp. 1379 (M.D. Pa. 1987)

Legal Developments

Refusal to Permit Students to Meet on School Premises for Bible Study and Prayer Did Not Violate the Equal Access Act or the Guaranty of Religious Freedom

A federal district court in the State of Washington ruled that a public high school's

Richard R. Hammar, Attorney, CPA

Bio

State: Washington
Categories: Freedom of Religion, Schools

A federal district court in the State of Washington ruled that a public high school's refusal to permit students to meet on school premises for Bible study and prayer did not violate either the Equal Access Act or the constitutional guaranty of religious freedom.

Under the Equal Access Act, a public high school having a "limited open forum" may not deny access to school premises to any noncurriculum-related, student-initiated groups on the basis of the religious content of their speech. Schools create a limited open forum by allowing any noncurriculum-related student groups to meet on school premises during noninstructional hours.

This law, concluded the court, did not apply in the present case since the school had not created a limited open forum. While several student groups met on school premises, all of them were curriculum related and school sponsored. The court also observed that even if the school had created a limited open forum by allowing noncurriculum-related student groups to meet on school premises during noninstructional hours, the Equal Access Act still would have been of no benefit to students seeking permission to use school property for religious purposes since such use of public school facilities would have violated the Washington state constitution, and "the Equal Access Act itself provides that a state need not break its own laws in order to observe [the Act's] requirements."

The state constitution, concluded the court, "requires a far stricter separation of church and state than the federal constitution." Finally, the court ruled that the students' constitutional right to freely exercise their religion had not been abridged by the school's policy, since students were free to meet on private property for Bible study and prayer, and the school's policy was mandated by the nonestablishment of religion clauses in both the state and federal constitutions. Garnett v. Renton School District, 675 F. Supp. 1268 (W.D. Wash. 1987)

Legal Developments

Equal Access Act Did Not Require a Public High School to Allow Students from an Evangelical Christian Group to Distribute Religious Materials

A California appeals court ruled that the federal "Equal Access Act" did not require a

Richard R. Hammar, Attorney, CPA

Bio

State: California
Categories: Freedom of Religion, Schools

A California appeals court ruled that the federal "Equal Access Act" did not require a public high school to allow students from an evangelical Christian group to distribute religious materials on school property or place religious advertisements in the school yearbook.

The Act forbids public high schools from restricting the use of school facilities during noninstructional hours by noncurriculum-related student-initiated groups solely on the basis of the content of a group's speech (religious, political, etc.) if the school has created a "limited open forum" by making those same facilities available to other groups.

In this case, concluded the court, the high school had not created a limited open forum since it had never made its facilities available to any noncurriculum-related student group. As a result, the school was not required to accommodate the activities of the religious group in question. Perumal v. Saddleback Valley Unified School District, 243 Cal. Rptr. 545 (4th App. Dist. 1988)

Legal Developments

Asbestos Hazard Emergency Response Act (AHERA)

On October 22, 1986, President Reagan signed into law the Asbestos Hazard Emergency Response Act

Richard R. Hammar, Attorney, CPA

Bio

State: Federal
Categories: Schools

On October 22, 1986, President Reagan signed into law the Asbestos Hazard Emergency Response Act (AHERA).

The law required the Environmental Protection Agency (EPA) to develop regulations providing a comprehensive framework for addressing asbestos problems in public and private elementary and secondary schools. On October 30, 1987, EPA published the Asbestos-Containing Materials in Schools Rule. This new rule requires all public and private elementary and secondary schools to inspect for friable and non-friable asbestos, develop asbestos management plans that address asbestos hazards in school buildings, and implement response actions in a timely fashion.

Schools must use accredited persons to carry out activities involving inspections, management plans, and response actions. By October 12, 1988, public and private (including church-operated) elementary and secondary schools have the following obligations: (1) have an accredited inspector complete an initial inspection to locate all asbestos-containing building materials (ACBM), and (2) have an accredited management planner develop and submit to a state agency (designated by the governor) an asbestos management plan that includes the results of the inspection. No later than July 9, 1989, schools must begin to implement their management plan.

In addition, schools have certain obligations immediately, including having custodial and maintenance staff members receive training prior to conducting activities that may disturb asbestos, and posting warning labels in maintenance areas where asbestos was previously identified.

A bill has been introduced in the United States Senate (S.2024) that would postpone the implementation deadline of July 9, 1989 to July 9, 1990. Churches having elementary or secondary schools should contact the nearest EPA office (or call the EPA hotline at 1-202-554-1404) and obtain the helpful book entitled "Asbestos-in-Schools: A Guide to New Federal Requirements for Local Education Agencies." This book provides very clear guidance as to the responsibilities of public and private schools under the new law. Note that the penalty for failure to conduct an inspection by an accredited inspector by October 12, 1988, or to develop and submit to the appropriate state agency an asbestos management plan by the same date, is potentially $5,000 per day per violation.

Some church-operated schools are having a staff member become accredited to conduct the initial inspection and to prepare and submit the management plan. In some cases, associations or groups of schools are designating one individual to become accredited as an inspector and management planner, with the understanding that this person will then assist all of the schools in the group in complying with the October 12, 1988 requirements. You may contact your regional asbestos coordinator to obtain a current list of EPA-approved training courses in your area (regional asbestos coordinators are identified in EPA book described above .

Legal Developments

Court Permitted Student to Sue His Church-Operated High School for Injuries in Football Game

On Church Property or During Church Activities

Richard R. Hammar, Attorney, CPA

Bio

State: New York
Categories: Personal Injuries on Church Property or During Church Activities, Schools

A New York court permitted a student injured in an intramural tackle football game sponsored by a church-operated high school to sue his school.

The game was an annual, informal contest between students that was officiated by instructors from the school. No protective equipment was provided. The injured student alleged that the school failed to properly supervise the game and to provide the necessary protective equipment.

The court concluded that the evidence was "sufficient to allow a jury to conclude that the failure to equip [the injured student] with shoulder pads was a proximate cause of his resulting injury." The court also rejected the school's claim that the student should not be allowed to recover since he had voluntarily "assumed the risk" of injury by playing tackle football without pads.

While this may be true where participants "expressly" assume a risk, it is not necessarily true, in the State of New York, when there is only an "implied" assumption of risk. Voluntary participation in an athletic contest, without more, amounts to only an implied assumption of risk that is not a complete bar to recovery in the event of an accident. It is, however, a factor to be considered in assessing fault. Locilento v. John A. Coleman Catholic High School, 523 N.Y.S.2d 198 (1987)

Legal Developments

Court Concluded District’s Civil Rights Act Did Require Equal Access to University Facilities and Services

University was sued by various homosexual student groups for its refusal to officially recognize them.

Richard R. Hammar, Attorney, CPA

Bio

State: District of Columbia
Categories: Freedom of Religion, Schools

Georgetown University was sued by various homosexual student groups for its refusal to officially recognize them. The students cited the District of Columbia "Civil Rights Act" which bans discrimination based on sexual orientation by any educational institution within the District.

The University (a private Catholic educational institution) argued that recognition of the groups would violate its constitutional right to religious freedom since recognition would imply endorsement of conduct contrary to Catholic doctrine.

The court concluded that the District's Civil Rights Act did not require that a private religious university recognize a student group whose beliefs and practices were contrary to church teachings. However, it held that the Act did require equal access to University facilities and services, and, since the University denied the homosexual groups certain services (a mailbox, computer labeling, mailing services, and the right to apply for funding), it was in violation of the Act.

The court found that any burden on the University's religious freedom that might result from providing these incidental services was so minimal that it was overridden by the compelling governmental interest of eradicating discrimination. Gay Rights Coalition v. Georgetown University, 536 A.2d 1 (D.C. App. 1987)

Legal Developments

School Not Responsible for Damages Resulting from an Alleged Sexual Relationship Between a Teacher and Student

Can a church school be legally responsible for damages resulting from an alleged sexual relationship

Richard R. Hammar, Attorney, CPA

Bio

State: Washington
Categories: Child Abuse, Schools

Can a church school be legally responsible for damages resulting from an alleged sexual relationship between a teacher and student? This was the difficult question confronting a Washington state appeals court in a recent case.

The student's parents sued the school and church for "negligent hiring" and "negligent supervision." The court rejected both allegations. With regard to the school's alleged negligent hiring, the court observed that "the hiring process employed by the school suggests it took reasonable care in hiring [the teacher] …. The process appears sufficient as a matter of law to discover whether an individual is fit to teach at [the school]."

With regard to the school's alleged "negligent supervision," the court agreed that "schools have a duty to supervise their students," and to take precautions to protect students from dangers that may reasonably be anticipated. However, "at some point the event is so distant in time and place that the responsibility for adequate supervision is with the parents rather than the school." Such was the case here, concluded the court, since the alleged misconduct occurred off school property during noninstructional hours.

The court also rejected the argument that the school had breached an implied promise to provide a "competent and morally fit faculty." Scott v. Blanchet High School, 747 P.2d 1124 (Wash. App. 1987)

Legal Developments

Court Ruled That a Quadriplegic Student Could Not Sue Church Officials for Failing to Obtain Adequate Insurance

The Kansas Supreme Court ruled that a student who was rendered a permanent quadriplegic as

Richard R. Hammar, Attorney, CPA

Bio

State: Kansas
Categories: Insurance, Personal Injuries on Church Property or During Church Activities, Schools

The Kansas Supreme Court ruled that a student who was rendered a permanent quadriplegic as a result of injuries sustained while playing football for a church-operated high school could not sue church officials for failing to obtain adequate insurance coverage.

The victim alleged that the school and church officials had been negligent in "failing to properly insure students for injury incurred as a result of school activities and in failing to properly advise and inform students and their parents … of the insurance protection provided to students."

In rejecting this claim, the court cited a state law making the purchase of liability insurance coverage by public schools discretionary rather than mandatory. Such a law, reasoned the court, applied "by implication" to private schools as well. Since private schools were not required to purchase insurance, they could not be liable for failure to have enough coverage to cover catastrophic losses.

"We feel sympathy for the severe injuries suffered by this plaintiff," concluded the court. "However, there are dangers and risks inherent in the game of football and those who play the game encounter these risks voluntarily. It is fundamental that before there can be any recovery in tort there must be a violation of a duty owed by one party to the person seeking recovery …. It is clear under the facts of this case that no … duty existed to properly insure or to advise the plaintiff regarding medical insurance purchased by the defendants for the plaintiff." Wicina v. Strecker, 747 P.2d 167 (Kan. 1987)

Legal Developments

Court Rejected School District’s Claim that Allowing School Facilities to Be Used for Religious Purposes Would Violate the First Amendment

Can a high school legally prohibit religious groups from using an auditorium that is available

Richard R. Hammar, Attorney, CPA

Bio

State: Pennsylvania
Categories: First Amendment, Freedom of Religion, Schools

Can a high school legally prohibit religious groups from using an auditorium that is available without restriction to non-religious community groups?

A federal district court in Pennsylvania said no. Here are the facts. A Christian student group requested permission to use a high school auditorium for a one-night performance and evangelistic message by a noted magician. The students' application included the application fee of $1,379. When school authorities discovered that the proposed use of the auditorium included a religious message, they denied the application, citing a school policy prohibiting "use of school facilities for religious services, instruction, or activities."

The student group thereafter sued the school district, alleging a violation of the constitutional right of free speech. The court agreed, noting that "the state is not required to open its property to the public in order to allow it to engage in free speech, association and discussion—but once it does, rights of free speech and association guaranteed by the first amendment are entitled to be protected even if that activity includes religion or religious subjects."

The court emphasized that the school district had "opened the school facilities for general use by community groups," including boy scouts, girl scouts, Easter Seals, Kiwanis, Rotary, dance lessons, and a symphony orchestra. In addition, the school was used for adult evening classes which included instruction on occultic religious practices. Having created an "open forum" for free speech and assembly in its school facilities, the district could not deny access to any group on the basis of the content of its speech, even if the speech were religious in nature.

The court rejected the district's claim that allowing school facilities to be used for religious purposes would violate the first amendment's nonestablishment of religion clause: "Nothing in the establishment clause requires the state to suppress a person's speech merely because the content of that speech is religious in character."

The court warned that it would have reached a different conclusion had the evidence indicated that religious speakers "dominated" the open speech forum, or if use of the school facilities included "religious services." While noting that a school can lawfully prohibit all groups from meeting without violating the free speech rights of any group, it prohibited the school district from closing its "open speech forum" before the challenged performance was conducted.

Several churches and religious groups have been denied access to public school facilities that are made available to other community groups. The Pennsylvania ruling, while not binding in other states, will serve as useful precedent for religious groups seeking limited access to public school facilities. Gregoire v. Centennial School District, 674 F. Supp. 172 (E.D. Pa. 1987)

Legal Developments

Court Ruled that a Proposed State Law Providing a Tax Deduction for Education Expenses Violated the State Constitution

The Massachusetts Supreme Court ruled that a proposed state law providing a tax deduction for

Richard R. Hammar, Attorney, CPA

Bio

State: Massachusetts
Categories: Freedom of Religion, Schools

The Massachusetts Supreme Court ruled that a proposed state law providing a tax deduction for education expenses incurred in attending public or private primary and secondary schools violated the state constitution.

The court acknowledged that the United States Supreme Court in 1983 upheld a similar statute in Minnesota against the claim that it violated the nonestablishment of religion clause of the United States Constitution. However, the court concluded that the Massachusetts state constitution contained a more stringent clause that banned any "grant, appropriation or use of public money" for any private or religious school or institution. This ruling is one of a number of state court rulings in recent years that have used state constitutional provisions to condemn practices that the federal courts have said do not violate the nonestablishment of religion clause of the United States Constitution. Opinion of the Justices to the Senate, 514 N.E.2d 353 (Mass. 1987)

Legal Developments

Court Rules on Right of Students to Meet on School Property for Prayer, Bible Study, and Evangelism

A question of continuing controversy is the constitutional right of public high school students to

Richard R. Hammar, Attorney, CPA

Bio

State: Federal
Categories: Freedom of Religion, Schools

A question of continuing controversy is the constitutional right of public high school students to meet on school property during non-instructional hours for prayer, Bible study, and evangelism.

This important question was addressed in a recent federal district court ruling in Texas. A group of students, that originally had met on school property for collective prayer and Bible study, became much more evangelistic in its mission. The group's leader preached loudly (sometimes using a bullhorn) to attract the attention of other students, and group members distributed tracts to other students urging them to dedicate their lives to Jesus Christ.

The school administration prohibited the group from conducting further meetings on school property, and the group sued the school district for an alleged violation of the constitutional guaranty of religious freedom.

The court concluded that: (1) The use of bullhorns and loud preaching was not protected by the constitutional guaranty of religious freedom since "the students' right of expression must be balanced against the school's countervailing interest in protecting the privacy of unwilling student listeners." (2) Students have a "limited free exercise right" to engage in "small, informal meetings, centered on communication between group members and not disrupting the comings and goings of other students by proselytizing," since such meetings are "appropriate to the nature of the forum." However, this limited right is superseded by the first amendment's nonestablishment of religion clause and accordingly a school can constitutionally prohibit any religious meetings on school property. The court rejected the contention that it was impermissibly "inhibiting" the exercise of religion, since students were free to meet on nearby private property. (3) Individual students cannot be denied the right to "discuss religion and pray discreetly with others." (4) Large, organized religious meetings enjoy no constitutional protection and can be prohibited since they are "inconsistent with the intended use of school property."

Finally, the court acknowledged that its ruling was inconsistent with Equal Access Act enacted by Congress in 1985. The Equal Access Act generally permits public high school students to meet on school property during non-instructional hours for religious purposes if the school permits other groups to use school facilities for meetings.

The court concluded that the Equal Access Act is unconstitutional and therefore invalid. This ruling will doubtless be appealed to the fifth circuit court of appeals—a court that ruled in 1982 that the first amendment's nonestablishment of religion clause prohibits organized meetings on public high school property. For now, the constitutionality of the Equal Access Act is in doubt in the fifth federal circuit (consisting of the states of Alabama, Florida, Georgia, Louisiana, Mississippi, Texas).

Source: CLTR, March/April 1988

Legal Developments

Public School Impermissibly Violated Church School’s Religious Freedom

A federal court in Massachusetts ruled that a state law requiring private schools to be

Richard R. Hammar, Attorney, CPA

Bio

State: Federal
Categories: Freedom of Religion, Schools

A federal court in Massachusetts ruled that a state law requiring private schools to be "approved" by a public school committee impermissibly violated the religious freedom of a church school.

The court observed that "when, as here, there is a conflict between an individual's constitutional rights to the free exercise of their [sic] religious beliefs and the state's compelling interest in assuring that children are educated adequately, the government must show that it is using the least restrictive means possible to satisfy its interest."

The court concluded that reliance on standardized test scores and individual follow-up in appropriate cases "is a less restrictive, effective means of assuring that students are adequately educated." Since a less restrictive means of accomplishing the state's interest existed, the "approval" requirement was unconstitutional. New Life Baptist Church Academy v. East Longmeadow, 666 F. Supp. 293 (D. Mass. 1987)

Legal Developments

Court Reversed Ruling Books Constituted an Impermissible Establishment of the “Religion of Secular Humanism”

A federal appeals court reversed a lower court ruling on books used in the Alabama public schools.

Richard R. Hammar, Attorney, CPA

Bio

State: Alabama
Categories: Freedom of Religion, Schools

A federal appeals court reversed a lower court ruling that 44 books used in the Alabama public schools constituted an impermissible establishment of the "religion of secular humanism."

The court observed that

"examination of the contents of these textbooks … reveals that the message conveyed is not one of endorsment of secular humanism or any religion. Rather, the message conveyed is one of a governmental attempt to instill in Alabama public school children such values as independent thought, tolerance of diverse views, self-respect, maturity, self-reliance, and logical decision-making. This is an entirely appropriate secular effect."

The message conveyed by the textbooks was one of neutrality

"the textbooks neither endorse theistic religion as a system of belief, nor discredit it." Further, "if we are to eliminate everything that is objectionable to any of these warring sects or inconsistent with any of their doctrines, we will leave public education in shreds."

Smith v. Board of School Commissioners, 827 F.2d 684 (11th Cir. 1987)

Legal Developments

No Deduction Is Available for a Charitable Contribution of Services

An attorney performed legal services (that he valued at $7,000) for a charitable organization and

Richard R. Hammar, Attorney, CPA

Bio

An attorney performed legal services (that he valued at $7,000) for a charitable organization and then claimed a charitable contribution deduction for the value of his services.

The Tax Court, in denying the deduction, reaffirmed the principle that no deduction is available for a charitable contribution of services. Levine v. Commissioner, T.C.Memo. 1987-413 (1987).

Legal Developments

Free Exercise Clause Not Violated by Textbooks Used in Public Schools

Federal court ruling addresses the issue of whether textbooks used in public schools, and that

Richard R. Hammar, Attorney, CPA

Bio

State: Federal
Categories: Freedom of Religion, Schools

Federal court ruling addresses the issue of whether textbooks used in public schools, and that are offensive to the religious beliefs of certain parents and students, can be banned on the ground they violate the first amendment guaranty of religious freedom.

A federal appeals court (by a vote of 2-1) reversed a lower federal court ruling that the Holt, Rinehart, and Winston basic reading series used in grades 1 through 8 violated the constitutional rights of fundamentalist Christian parents. The parents had argued that the reading series contained numerous passages that violated their religious beliefs. In particular, they cited passages dealing with evolution, feminism, role reversal, and occultism.

The court concluded that a requirement that a person be exposed to ideas he or she finds objectionable on religious grounds does not constitute an impermissable burden on the free exercise of that person's religion. Rather, "governmental compulsion either to do or refrain from doing an act forbidden or required by one's religion, or to affirm or disavow a belief forbidden or required by one's religion, is the evil prohibited by the Free Exercise Clause."

The court found no compulsion in the requirement that students read the Holt series, and therefore there had been no violation of the guaranty of religious freedom. No one was required to affirm or deny a religious belief or to engage in a practice forbidden by a religious belief. On the contrary, parents were free to send their children to religious schools or educate them at home.

The court observed that "were the free exercise clause violated whenever governmental activity is offensive to or at variance with sincerely held religious precepts, virtually no govermental program would be constitutional." Therefore, to establish a violation of the constitutional right of religious freedom, a person "must show that the challenged state action has a coercive effect that operates against the practice of his or her religion." Mozert v. Hawkins County Board of Education, 827 F.2d 1058 (6th Cir. 1987)

Legal Developments

Court Rulings on the Constitutionality of Including Invocations at Public High School Graduation Ceremonies

Two courts have ruled on the constitutionality of including invocations at public high school graduation

Richard R. Hammar, Attorney, CPA

Bio

State: California
Categories: Freedom of Religion, Schools

Two courts have ruled on the constitutionality of including invocations at public high school graduation ceremonies, with mixed results.

A California appeals court ruled that the inclusion of a religious invocation in a public high school graduation ceremony violated state and federal constitutional provisions prohibiting the establishment of religion. In reaching its conclusion, the court applied the three-part test often employed by the United States Supreme Court in deciding whether a challenged governmental action violates the first amendment's nonestablishment of religion clause: (1) the governmental action must have a secular purpose; (2) it must not have a primary effect that advances or inhibits religion; and (3) it must not create an excessive entanglement between church and state.

The inclusion of invocations at public high school graduation ceremonies violated all three of these tests, concluded the court. The court also observed that "the citizens of this country, and perhaps of this state in particular, are a people of highly diverse cultural, ethical and religious backgrounds," and that "any religious invocation … therefore almost certainly will not comport with the beliefs of a number of those persons present, and may in fact be offensive to some." Freedom to believe and to worship, concluded the court, "includes the freedom not to engage in the religious practices of the majority." Bennett v. Livermore Unified School District, 238 Cal. Rptr. 819 (1987).

A federal appeals court also struck down the inclusion of invocations and benedictions at public high school graduation ceremonies. However, the court acknowledged that invocations and benedictions would be constitutionally permissible if they were similar to the "civil invocations or benedictions used in public legislative and judicial sessions." Permissible invocations, noted the court, would be nonsectarian, nonproselytizing, and solemnizing.

The invocations and benedictions that the court invalidated employed the language of Christian theology and prayer, often invoking the name of Jesus Christ as the Savior. Such language "symbolically placed the government's seal of approval on one religious view—the Christian view," and was therefore impermissible. Stein v. Plainwell Community Schools, 822 F.2d 1406 (6th Cir. 1987).