The prinicpal was contacted in writing about this matter on January 23, 2013. No action has taken place yet.
Administrative Law Lawyer
There are no facts provided here that enable a responsible or meaningful response. The answer to the question in the headline is "Of course not." But that is a meaningless question/response without any facts to establish that whatever is occurring in this 1st grade classroom in fact constitutes unlawful religious intimidation.
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Education Law Attorney
Your question implicates the Free Exercise Clause of the First Amendment.
The U.S. Constitution’s Establishment Clause imposes duties on public employers that may appear to contradict the Free Exercise Clause. The First Amendment’s “establishment of religion clause” prohibits the government from enacting a law or sponsoring an activity that has the purpose of advancing religion. In Lemon v. Kurtzman, the U.S. Supreme Court developed the following three-prong test to determine whether an activity violates the Establishment Clause: 1) Does the law or activity have a secular purpose? 2) Does the activity’s principal or primary effect neither advance nor inhibit religion? 3) Does the activity foster excessive entanglement with religion? If a public employer’s activity satisfies all three prongs of this test, the activity does not violate the establishment clause.
Prayer in public schools implicates both the Establishment and Free Exercise Clauses of the First Amendment. Typically, an attempt to pray at school by either a pupil or teacher is frustrated by actions or policies of the public school attempting to regulate the school environment. Teachers and students enjoy First Amendment rights at school. This has been true and recognized by courts for over eighty years. Courts balance the individual’s right to freedom of expression of religious speech against the Establishment Clause. On the one hand, the First Amendment protects private religious expression. When a school permits the use of public facilities by groups unrelated to curriculum, it may not deny access to certain groups based on the religious content of their speech. The U.S. Supreme Court struck down a university policy preventing student groups from using school facilities for religious worship and discussion as an unconstitutional restriction of student religious expression. On the other hand, the Establishment Clause is generally violated where prayer appears to be sanctioned or endorsed by the public school. The U.S. Supreme Court found that student-delivered prayer at high school football games was unconstitutional. The high court similarly found clergy-delivered prayer at a high school graduation was unconstitutional. The holding of a moment of silence for “meditation or voluntary prayer” was also found unconstitutional. The U.S. Supreme Court has upheld reasonable content-neutral restrictions on protected expression in public schools so long as the restrictions serve a legitimate governmental purpose and leave open adequate other places for speech as alternatives. When the restrictions are content-based, however, it is the same both inside and outside the public school setting; content-based restrictions must survive strict scrutiny, the most exacting and difficult constitutional test used by courts considering a governmental limitation to a fundamental right.
Generally, the Court’s apply the Lemon test to determine whether a public school violated the Establishment Clause. The public school violates the Establishment Clause where “an objective observer” would consider the school’s action “a state endorsement of prayer in public schools.” The Establishment Clause is generally offended where prayer occurs at school-sanctioned events or in the classroom. Where prayer occurs on school grounds but is private and student initiated, the Establishment Clause is typically not violated. When school policy requires prayer or school prayer is public, the U.S. Supreme Court generally finds it unconstitutional; when school prayer is private, consensual, and occurs outside of the classroom, the U.S. Supreme Court generally finds it protected expression.
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