2010-09-10 The Serpentine Wall

The Serpentine Wall
Frederick S. Lane
AZ School Boards Association Law Conference
10 September 2010
Religion and Free Speech
In and Around the Public Schools
www.FrederickLane.com

Seminar Overview
• The 1st Amendment
• The 14th
Amendment
• The Establishment
Clause
• The Free Exercise
Clause
• No Abridgement of
Speech or Press

Introduction
• Attorney, Educational
Consultant & Lecturer

Introduction
• Author of 5 Books

Introduction
• Chair, Burlington (VT)
School Board

Introduction
School Board
• 1st Amendment Expert

Introduction
School Board
• 1st Amendment Expert
• Student Safety &
Privacy Advocate

The 1st Amendment
Congress shall make no law respecting
an establishment of religion, or
prohibiting the free exercise thereof;
or abridging the freedom of speech,
or of the press; or the right of the
people peaceably to assemble, and to
petition the Government for a redress
of grievances.

The 14th Amendment
Section 1. All persons born or naturalized in the
United States, and subject to the jurisdiction
thereof, are citizens of the United States and of
the State wherein they reside. No State shall make
or enforce any law which shall abridge the
privileges or immunities of citizens of the United
States; nor shall any State deprive any person of
life, liberty, or property, without due process of
law; nor deny to any person within its jurisdiction
the equal protection of the laws.

The Establishment Clause
• 1962 – Engel v. Vitale – School-sponsored prayer is
unconstitutional
• 1963 – Abington School District v. Schempp – Bible reading
in public schools unconstitutional
• 1968 – Epperson v. Arkansas – Legislature cannot bar
teaching of evolution
• 1992 – Lee v. Weisman – School-sponsored graduation
prayer is unconstitutional
• 1999 – Cole v. Cleveland Bd. Of Education – School Board
cannot open meeting with prayer
• 2000 – Santa Fe Independent Sch. Dist. v. Doe – Student-
led prayer at sporting event was unconstitutional

The Free Exercise Clause
• Student expression of religious views in public areas of
school
• Student expression of religious views in class or in
assignments
• Student expression of religious views in hair style or
clothing
• Accommodation of religious holidays
• Distribution of religious literature on school property
• Formation of religious clubs and access to meeting
space

Don’t Tinker with Free Speech
• 1969 – Tinker v. Des Moines – School could not bar the
wearing of anti-Vietnam black armbands
• 1973 – Papish v. Bd. Of Curators of Univ. of Missouri –
School improperly expelled journalism student for
writing offensive leaflet
• 1986 – Bethel School Dist. No. 403 v. Fraser – School
was justified in punishing student who delivered lewd
campaign speech
• 1988 – Hazelwood School Dist. v. Kuhlmeier – School
had right to edit and censor school newspaper where
articles might invade student privacy.

Heading for the High Court

Frederick v. Morse (2007)
• Jason Frederick creates sign to display at passing of
Olympic torch in 2002 in Juneau, Alaska
• Sign is on public sidewalk and not on high school
property
• Frederick is suspended for 10 days by principal
Deborah Morse
• 9th Circuit sides with Frederick, but Morse appeals
• Supreme Court overrules lower court …
• Morse had right to exert authority over school-
sanctioned event, even off school property
• Morse reasonably believed sign promoted drug use, in
violation of school policy.

General Principles
• Students do not shed constitutional rights at the
schoolhouse door.
• However, those rights are not co-extensive with
adults.
• School districts may impose reasonable
restrictions to prevent disruption of education
• Religion(s) may not be singled out for deferential
treatment or unfairly targeted
• The free speech you save may be your own ….

Materials
• You Can Download a PDF of the Slides at:
http://bit.ly/aVdCyL

2010-09-10 The Serpentine Wall

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2010-09-10 The Serpentine Wall