Freedom of Religion – Part 2

Church Law and Tax 1989-09-01 Recent Developments Freedom of Religion Richard R. Hammar, J.D., LL.M.,

Church Law and Tax 1989-09-01 Recent Developments

Freedom of Religion

Another federal appeals court ruled that a Christian student group could not meet on a public high school campus for Bible study and prayer prior to the start of the school day. The court noted that allowing the students to meet on school property would violate the first amendment’s nonestablishment of religion clause, since “it would have the primary effect of advancing religion, and it would foster government entanglement with religion.” The court acknowledged that the United States Supreme Court has upheld the right of students to meet in public university facilities for religious purposes if the facilities are made available to other groups. However, it concluded that there is a significant difference between high school and college students that warrants a different result: “Unlike university students, high school students are required to attend school. The instructional format at a high school is far more structured that at a university. High school students are less mature and more impressionable than university students. Teachers at high schools, unlike college professors, are both educators and authority figures. The same considerations that mandate special vigilance in preventing religious establishments in public schools—the impressionability of young students, compulsory attendance laws that make students a captive audience, and the role of public schools in inculcating democratic ideals—distinguish public secondary schools from public universities.” The court also rejected the students’ claim that the school’s refusal to allow them to meet violated the federal “Equal Access Act.” The Act (explained in the previous case summary) generally provides that a public high school cannot deny Christian students the right to meet on school property during “noninstructional” (i.e., nonschool) hours if the school has created a “limited public forum” by permitting “noncurriculum-related” groups to use the same facilities. The court concluded that the Act simply did not apply since the school did not allow any noncurriculum-related group to use school facilities during noninstructional hours and accordingly had not created a limited open forum. The ruling is controlling in the ninth federal judicial circuit (which includes the states of Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington)—unless reversed or modified by the same court in a later decision, or by the United States Supreme Court. Garnett v. Renton School District, 865 F.2d 1121 (9th Cir. 1989).

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