The First Amendment to the United States Constitution provides, "Congress shall make no law respecting an establishment of religion .... " The First Amendment also provides, "Congress shall make no law ... abridging the freedom of speech, or of the press.. ." Perhaps no question has so bedeviled American courts in this century as that of how to reconcile these two provisions in this nation's public schools. Questions that arise include: Does allowing students to pray, share their faith with other students, or even discuss their religion at the public schools constitute an "establishment of religion?" May public schools go further in restricting students' religious speech than they may go in regulating other speech? Do public schools have to allow religious students to use school facilities to meet to discuss their religion? May schools recognize religious holidays? ...
Public school officials need guidance concerning how and when they may restrict students expressive activity. They need to be educated regarding student speech rights in general and students' religious speech rights in particular. To that end, the ACLJ has drafted Model Student Speech Guidelines for use by public school officials. (Those Guidelines are attached as an appendix to this Article). This Article will explain and defend the Model Guidelines. First, we will discuss general principles regarding student speech, including the general conditions for restricting or regulating student speech, the concept of viewpoint neutrality, the Equal Access Act, and Establishment Clause concerns. After discussing general principles, we will apply those principles to specific situations the proposed guidelines cover, including student religious speech, student distribution of religious literature, student Bible clubs and prayer groups, student religious speech and prayer at graduation, and school observance of religious holidays. Our hope is that the Model Guidelines will assist public school officials in regulating speech in a way that allows them to maintain appropriate control over student discipline and conduct but that protects all student speech, including religious speech, consistently with the First Amendment Free Speech and Establishment Clauses.
Sekulow, Jay Alan; Henderson, James; and Tuskey, John
"Proposed Guidelines for Student Religious Speech and Observance in Public Schools,"
Mercer Law Review: Vol. 46:
3, Article 2.
Available at: https://digitalcommons.law.mercer.edu/jour_mlr/vol46/iss3/2