Schools: Church/State seperation vs. free speech

So this flyer comes home in my second grader’s school packet last month, along with the notices about youth soccer and other community groups’ announcements:

“Celebrate a Passover Seder With Christians and Other People of Faith to Commemorate Jesus’ Last Meal” from a community church.

with the small print that it is not a District sponsered event. Public school.

My wife is livid. She sees this as a blurring of Church and State. That the use of “the Thursday Packet” to promote a particular religious viewpoint is wrong.

I grant her that expropriating Passover through a Christologic perspective in a medium aimed at schoolkids is disrespectful to those of us who celebrate Passover part of our religion and that its intention may very well be evangelical, but that community group proselytizing has as much right to be included in a medium open to community group notices as American Youth Soccer does; that unless it crosses the line into hate speech it is protected religious expression.

The District defends its including the flyer under the Williamsberg Charter.

The vast plurality of other Jews in my community that I have discussed this with, both Reform and Conservative (we don’t have a significant Orthodox presence in our town) agree with my wife and are offended by this flyer’s inclusion in a packet aimed at our schoolkids. It’s attempted theft of our holiday’s significance in scool venue has really pushed a few buttons.

So. Thoughts of the Board? Is my wife right? Or is an example of excess sensitivity on the part of my religious copatriots?

I think it may be insensitive, but I don’t think it blurs the distinction between church and state. Quoth the Constitution:

So I don’t see any problem in that regard, since religion is being treated equally with other activities, which seems to be what the Constitution endorses. But it may be inappropriate, I would have to know more about the flyer and what “ordinary” fliers look like to decide more precicely.

I don’t think the school should be used as vehicle to solicit attendance at evangelical events, even if the event is not sponsored by the school itself.

I also think the flyer is rather offensive.

Imagine a flyer that read like this:

“Celebrate a Christmas Meal With Witches and Other Pagans to Commemorate the birth of the Sun God by the Great Mother Goddess.”
From the Covenant of the Goddess Wiccan Temple

Imagine a public school stuffing these flyers into Christian kids’ packets and sending them home.

Think there might be some irate phone calls?

How about: “come celebrate the Crucifixtion of Jesus Christ with the local Satanists!”

I’m not sure what the legal implications should be: bit of a gray area, since these are just community bulletins in general, not necessarily a school function (though the school does seem to be doing the job og handing them out, right?)

Steven L Carter, a Christian, wrote something right on in his book “The Culture of Disbelief” about this. Essentially, he remembers how when there was school prayer in the schools, and he was praying with his fellow students, the Jewish students would read quietly. He wondered how they felt. Many years later he learned that what the parents were telling their children was that they should sit quietly during the prayers, taking it as a lesson “about what we’re up against in this world.” Carter was horrified: the last thing he ever wanted for Christianity was for it to be something that Jewish believers felt they were “up against.” I wonder if, when presented that way, more people would put down the lawbooks and realize that maybe pissing people off pointlessly is a dub idea if what you want is to spread the good news and good will.

I think your wife may be partly right. Putting any religious notice in a school flyer at least seems to be an endorsement by the school district. After all, they would not announce activities like a peyote ritual, even though that is a religious observance to some. I don’t think it is a church/state issue, at least directly. But I don’t think the school should be announcing any activities other than secular ones for the reasons that Diogenes and Apos have already suggested.

I don’t see the blending of Christian and Jewish traditions as disrespectful to either religion, however. I grew up in a Christian denomination that observed Passover and not Easter, for example. We did not keep Christmas, but did observe the Feast of Tabernacles. I was not raised Jewish, but I was circumcised on the eighth day, and observed a Saturday sabbath growing up. Certainly in the nominally Christian church of my childhood there was nothing anti-Jewish in blending the traditions.

Your wife may not be the only one incensed by the flyer, however. I imagine a lot of Christian denominations would have the same feeling of being disrespected. Sounds like this group is similar to the one I grew up in. But they should find another outlet for their announcements.

I am very sensitive to the church/state issue, but I don’t think this particular action fits. Just as a matter of good community relations this school district should not include religious notices in its flyer, perhaps. But would you react the same way if they said that X church or Y temple were going to have a softball game? Seems to me a lot of “church” or “temple” activities for young people might be of the “come one, come all” variety. Just my two cents.

This is not necessarily true SRVick and may actually fly in the face of a few U.S. Supreme Court opinions such as Allegheny v. ACLU, Santa Fe Independent School Dist. v. Doe, and a few other cases. To be honest it all depends on the facts. I do not believe, as you do, this is a violation of the Establishment clause but I reach this conclusion for different reasons.
Dseid I am gathering from your information this was just a flyer made by some entity external to the school but a member of the community. I do not think this is a violation of the Establishment clause and I am basing my decision on U.S. Supreme Court cases. When a school avails itself to be an open forum to the community for the purpose of providing a public forum for the members of the community to express its message, then the school must permit all viewpoints, including religious ones, otherwise this would violate the Free Speech clause of the First Amendment. See Capitol Square Review Bd. v. Pinette and Rosenberger v. Rector . So when private speakers want to engage in religious speech in a forum that’s open to the public generally, then they must be allowed to participate. In such a situation the school, and thus the state, is not sponsoring the message and thus no violation of the Establishment clause.

So in this instance it appears on the facts as you have provided them that the school provided a general forum open to the public. This forum appears to have been created primarily for the purpose of letting commercial enterprises, clubs, organizations, and other entities inform students and parents of upcoming events or other activities worth noting. The Boy Scouts of America would be capable of placing a flyer indicating future events on their schedule just as the YMCA could use a flyer to advertise a Halloween party, or some business could advertise. Similarly, the school must also let private religious entities also promote any events they might have and if they refused then this is considered as viewpoint discrimination in violation of the Free Speech clause of the First Amendment. The state can’t pick and choose what messages it will permit to be advertised as this amounts to nothing more than censorship.

It can also be said that to exclude religious announcements of upcoming events is a violation of the Free Exercise of Religion clause in the First Amendment as the state is precluded from discriminating against the expression of religious messages or beliefs. See McDaniel v. Paty, Church of the Lukumi Babalu Aye v. City of Hialeah.

Finally just because the school established the forum does not mean the school is endorsing the message. Endorsement is not created by the creation of a public forum for all to speak so long as those who desire to speak are permitted to do so. Rather, they are just providing a “forum” for all people to express their message and nothing more. There is no endorsement in such a situation unless the school begins censoring certain messages. Once the school precludes certain messages from being expressed then their is endorsement and it comes in the form that the school approves of the non-censored speech but disapproves of other types of speech and therefore censors it. The school then endorses the former and rejects the latter and this is not constitutional nor may the state discriminate against religious messages or beliefs in this manner. See Rosenberger v. Rector. Consequently, I do not see this flyer as a violation of the Establishment Clause since the school has created a general public forum and is not endorsing any of the messages appearing on the flyers.

Dseid I might also add this disclaimer strengthens my argument that the flyer does not violate the establishment clause of the First Amendment. When private speakers want to engage in a religious speech in a forum that’s open to the public generally, as appears to be the case here where the school permits members of the community to include informational flyers in a school packet about an event of some kind they are having, then religious speakers must generally be allowed to participate, see Capitol Square Review Bd. v. Pinette.

However, three concuring Justices amplified this holding and would require the government in such a situation to put up disclaimers or take other steps to make clear to the public that the government is not endorsing the speech, which is exactly what the school did when it said, " **with the small print that it is not a District sponsered event. ** As a result, this is not on its facts as presented a violation of the Establishment clause.

Well the school is not promoting the event. The school has included a disclaimer stating they do not sponsor the event and as a result it can hardly be contended this is an instance where the school is promoting a religious event, unless you can get promotion out of disclaimer stipulating they do not sponsor the religious event. The school is not promoting or sponsoring anything on the flyers. All the school has done is provided a forum for “infomercials” in the form of flyers. The school is not doing the speaking nor is the school speaking in such an instance.

To draw an analogy the school already allows, and it must, student religious organizations and clubs to advertise upcoming meetings, events, their times, places, and how to join information in the form of flyers placed on posterboard or handed out by students or by announcements during school hours just as this is permitted and done by the Physics club, Gay and Lesbian Club, Young Republicans and Democracts Club, Save the Earth Club, or some other club. In none of these instances has it been found the school is promoting or endorsing the message of these clubs by allowing them to advertise and promote themsevles during school hours by the means of a flyer or some other public announcement. The clubs in such an instance are doing the speaking and not the school.

The school is not promoting anything in this instance nor are they doing any speaking preferring one message over the other. The school is silent and the members of the community are doing the speaking and promotion.

If the school put any resources toward the flyers (copying them, stuffing them in envelopes) they are sponsoring the event. In an era of reduced spending on school secretaries, I’m not eager to see them spending time stuffing Christian flyers in school packets.

If the school is not promoting anything, they will willing accept a flyer from someone like the Secular Humanists or the Wiccans. A test of their policy is to see if one of these groups is willing to be the test case. Often, this causes the school to “re-evaluate” the policy.

Wow, Jimmy!
After that series of posts, may I suggest that providing your location is superfluous? :wink:

We were - uh - troubled by the same thing when our heathen kids started grade school. In addition to such fliers there were class trips to a historic chapel in town, pictures of churches to color, gospel songs at assemblies, etc.

Ho hum. We found it pretty hard to pick these as our most significant battles, when the schools were doing such an execrable job teaching our kids basic reading, math, etc.

Was there more to the flyer than this? Because this doesn’t sound like it’s promoting a religious viewpoint at all, but a religious event.

And what is this “Thursday Packet”? It sounds like an opportunity for community groups to promote their events. In this case, isn’t it discriminatory to disallow promotion of certain events because of their religious content?

A separate question, also worth debating, is whether this event (the “Passover Seder” being promoted) is, itself, offensive or improper.

Was this church’s intent to promote Christianity? to recognize Jesus’s Jewish heritage? to “take over” a sacred part of Judaism in the service of their own religion? to emphasize what Jews and Christians have in common?

Is it similarly offensive if non-Christians celebrate Christmas or Easter? if they do it in such a way as to promote their own, nonchristian religions (e.g. Rampant Consumerism)?

I can see it now “If there are thirteen disciples and one betrays christ, how many are left.”

I would agree with Jimmy1, because of the disclaimer. However, you wrote “with the small print that it is not a District sponsered event.”. Does “small print” mean that it’s not distinguishable at a glance? If so, I’d deem that the people who made the flyer try to mislead the readers and are at least morally wrong (even though they may have legally secured their position, thanks to the disclaimer).

You may be right, Jimmy1, and you certainly know more about the law than I do. I was merely pointing out that it does not seem to go against what the Constitution says regarding religion and the “separation between church and state” (as I read it, not as others interpret it).

While I can see the point that putting any resources toward distributing the flyers assists the organization holdling the event in promoting it and costs the school some small amount of money (and in my own experience, the school staff doesn’t copy or stuff envelopes- they simply put enough of the flyers provided by the organization into each class mailbox, or add one more sheet of paper to the other notices being stapled together.) I don’t believe that that is enough to constitute sponsorship, nor do I see how the notice for this event can be excluded, if as in the OP, notices from a youth soccer league and other community groups are accepted. Certainly the school can refuse to distribute any flyers from outside organizations. But if they are going to distribute flyers from sports leagues, politicans , the VFW, the American Legion, Scouts, the historical society, the “Friends of the library”, the local political clubs, property owners’ associations, test preparation courses and summer camps (just some of the organizations that have distributed flyers in the public and non-public schools in my area), I don’t see how they can refuse to distribute flyers from a religious organization simply because it is a religious organization.

Lordy…you people are lucky if this is the most you have to worry about. Here, the principal of the school uses state funded paper and copy machines to promote her church’s special events, as well as instructing the teachers to make sure that their kids get them.

it only stopped when the principal left the school…she was promoted to coordinator of elementary education for the district.


welcome to the Bible Belt.

i was actually told by an administrator at the state university where i work that accomadations were always to be made for the local churches, unless someone complained…but no one would, because “anyone who did would be run out of town on a rail.”

if you want to pick a fight with religion here, you’re career is over.

-stonebow, the brown, atheist, liberal democrat stuck in Arkansas

Dangerosa this is not necessarily correct. See Everson v. Board of Education In this case the state of New Jersey passed a statute authorizing local school districts to make rules and contracts for the transportation of children to and from schools. The appellee, a township board of education, acting pursuant to the statute, authorized reimbursement to parents of money expended by them for the bus transportation of their children on regular buses operated by the public transportation system. Part of this money was for the payment of transportation of some children in the community to Catholic parochial schools. Held by the Court, No violation of the Establishment Clause.

Some comparisons can be drawn between this and the facts in Rosenberger. If the schools goal in contributing some money to placing the information on the flyer(s) is for the purpose of allowing the community to disseminate its advertisements and upcoming events, thereby creating a public forum for those in the community to disseminate information about itself, and expends money to do so for any individual or entity of the community with a non-religious point of view, just as the University of Virginia was expending funds for the purpose of creating a public forum for a wide range of views to be published and although some money undoubtedly was expended to publish Christian points of view this did not violate the Establishment clause, then just because some of the money goes to placing religious information on the flyer occurs is not a violation of the Establishment Clause and for the same reasons which follow.

So just because the school may put some resources toward the flyers does not necessarily mean they are sponsoring religion or the religious event. See also Rosenberger v. Rector, Mitchell v. Helms . This is not a case where “the government is making direct money payments to an institution or group that is engaged in religious activity. No public funds flow directly to,” the religious organization responsible for the information on the flyer.
Quoting Rosenberger v. Rector "The error lies in focusing on the money that is undoubtedly expended by the government, **rather than on the nature of the benefit received by the recipient. ** Nor would this be an instance where a tax is levied for the direct support of the church, quoting Rosenberger. Any benefit to religion is incidental to the government’s provision of secular services for secular purposes on a religion-neutral basis. Quoting Rosenberger.

So since the school has a secular purpose, i.e. creating a public forum to allow members in the community to disseminate information by way of a flyer in a school packet, and although they may cover the costs of printing and copying the information onto the flyer(s), does not violate the Establishment clause because the benefit to religion is incidental, is not an instance of making direct money payments to an institution or group that is engaged in religious activity and **no public funds flow directly to ** any religious entity.

So even if the school spent money on copying the flyers or stuffing them in envelopes, does not mean they are sponsoring religion and thus, no violation of the Establishment clause.

Actually it does express a particular religious point of view. Celebrating the Passover is not an observance done by all religions but only a few. Additionally, the chosen timing of this Passover is also rooted in a particular religious denomination and finally the Last Supper of Jesus is an observance not practiced by all people. Rather, this is nothing more than an expression of Christian ritual inviting others to participate in this Chirstian oriented practice of observing Passover and Jesus Last Supper. This flyer most certainly expresses a religious viewpoint, especially those of the Christian faith.

Some more information and responses …

Here is a snip from the e-mail received by my wife from the President of the school board after she had communicated her concerns to our local principal (I’ve italicized some pertinent parts):

Am I alone in seeing the internal inconsistency here?

The District “may not refuse access to the information distribution system to a particular group based upon a group’s message, policies, or beliefs” but it does not allow expression of ideas that are “partisan political”.

As to whether or not the expression of religious concepts offensive to the majority would be permitted speech would be allowed by the Superindentent … well, I have my educated and cynical guess. But, Jimmy, given this policy in this “limited open forum” of censoring certain types of expression usually protected (ie political viewpoints) is the Board still covered in its facilitation of the expression of a flyer offensive to a sizable minority population on religious grounds?

And Thudlow, that’s part of my wife’s angst over this. You ask

And I do not go out on a limb by answering that the puropose of advertising such a function in a public school forum is not to recognize that Christ was a Jew or to raise Christian understanding of Jewish ritual celebrations. It is to take over a sacred part of Judaism in service of their own faith and very likely with an evangilistic tilt … attempting to convert Jews to accepting Christ is implicit in such an action. This is not trying to appreciated your neighbor’s beliefs; this trying to co-opt its significance.

You further ask

And while I am not Christian so I merely speculate an answer, my thought is that it would indeed be offensive. “Please join us at the community Mosque for an Easter service in which Christ’s death is explained and celebrated as a presage for the future birth of Mohammad” Yeah, I think that there would be some offense taken by some.

But again, while I find the flyer offensive it is not explicitly derogatory. It comes close, but does not cross the line. Some people can’t express their religion without trying to save you from yours …

Good question Dseid and let me begin by first stating despite the District’s best attempt to state this is a “limited open forum” it in fact is not. The University of Virginia attempted to make the same argument to the U.S. Supreme Court in Rosenberger v. Rector and the U.S. Supreme Court did not buy it. Why? Precisely because the University Virginia stated as its goal what the District is stating as its goal, which is to open the school as a public forum for the purpose of not getting information on a particular subject but to get any and all information that is of community-wide interest and scope for children and families. The school makes not mention of the fact the subject matter is to be “limited” to the following. They did not create a limited forum by stating only on the following subjects may information be disseminated. The school never restricted its forum to any particular subject and as a result it is not a limited open forum.

Does this sound like a limited forum to you? It sure doesn’t to me and the giveaway is the fact the Board recognized schools provide an important avenue for the distribution of information that is of community-wide interest and scope for children and their families. This is not language indicating a limited open forum at all. Rather, this is language indicating a very broad and open forum permitting anyone to use the school to provide information that pertains to community-wide interest or pertain to families and children and this would of course include, guess what, partisan political information such as a Republican events or Democratic events. Political party events are those of the type pertaining to a community interest and within the scope of interest to parents unless of course nobody in your town identifies themselves with a particular political party. The language “community-wide interest…scope to children and families” makes it a very broad forum and not one of a “limited forum”.

This is similar to Rosenberger where the school wanted to create a forum for the purpose of getting a wide range of views, just as in this instance the purpose of the school is to get a wide range of entities to inform children and parents of social happenings in the community, and consequently this no longer becomes one of a limited public forum but one of a open public forum, just as in Rosenberger.

Additionally, this fails another consideration the U.S. Supreme Court raised in Rosenberger v. Rector. In Rosenberger the University of Virginia did not prohibit all religious discussion but only religious messages reflecting or coming from a particular religious denomination, such as an editorial or journal reflecting a Christian point of view, but permitted religious discussion coming from atheists, human secularists, and others. The U.S. Supreme Court said this was viewpoint discrimination in violation of the First Amendment. Once the school has opened its doors as a public forum for the purpose of creating a wide range of diverse discussions from different people, it can’t close its doors to those messages it does not like.

Similarly the Board policy does not prohibit all materials relating to politics but only those materials that are “partisan” and this is once again, viewpoint discrimination . The school can’t pick and choose which political messages it is going to allow. So flyers with political information or messages are permitted so long as they are not partisan political, such as flyers coming from an Independent although the material is one regarding a political issue or topic, or perhaps Libertarians could provide flyers because your town only has the two traditional political parties present, Republican and Democrat. Or letters from organizations with a political message, such as the Federalist Society, but not a member to either political party can post information regarding political subjects. This is the same type of discrimination that occurred in Rosenberger where the school prohibited religious messages reflecting a particular denominational point of view and is unconstitutional.

More than likely this answer is going to be yes. While the Court never addressed this issue in Rosenberger it must be admitted the Christian point of view was going to be read by some who found the message to be “offensive” and normally mere “offensiveness” has never been enough for the U.S. Supreme Court to permit the censorship of a message. The fact is some materials included in the packet may prove to be offensive to other people and if offensiveness was the standard, then there may not be much advertised. For example, children with Christian parents may find it offensive the school permits flyers by the YMCA celebrating a holiday with pagan roots, such as Halloween. Should the mere existence of offended Christians in the community preclude the YMCA from promoting activities in celebration of a holiday that has its roots in paganism? You get what I am saying here? Offensiveness is simply not a sufficient test to be used in drawing lines because it is inevitable to go through this life without being exposed to messages that do not offend us.

If offensiveness was the standard, few if any of us would be permitted to say anything.

Sounds like a phrasing that the “Jews” for Jesus would come up with.