kbaker@hslegalfirm.com khaase@hslegalfirm.com swilliams@hslegalfirm.com
ACLU-NEBRASKA’S E-MAIL TO SCHOOL DISTRICTS
Many of you received a letter from the ACLU-Nebraska which claims that your district will violate the First Amendment if you allow certain organizations or speakers to make presentations at your school. We are writing to caution you that the ACLU-Nebraska has used too broad a brush to paint what should be a detailed picture, so their letter that may not accurately represent the law in your particular case. For example, the letter incorrectly states that a private speaker’s intent somehow determines whether a First Amendment violation has occurred. Instead, the relevant legal question is whether the effect of the speech constitutes government endorsement of a particular religious view.
The First Amendment to the United States Constitution prevents the government from establishing religion while it simultaneously protects privately initiated religious expression and activities from government interference. As you might guess, these clauses often conflict with each other and the conflicts are ultimately resolved by courts. However, court decisions in this area don’t always create clear rules that can be applied in all situations. In fact, court decisions make it clear that school officials’ actions must be judged based on the particular facts of each case.
While the Constitution forbids public school officials from directing or favoring religious belief, “not every message” that is “authorized by a government policy and take[s] place on government property at government-sponsored school-related events” is “the government's own”. Santa Fe, 530 U.S. at 302. “The proposition that schools do not endorse everything they fail to censor is not complicated.” Mergens, 496 U.S. at 250 (plurality opinion); id. at 260-61 (Kennedy, J., concurring in part and in judgment). Also remember that the Constitution requires neutrality
rather than hostility toward privately initiated religious expression. See Rosenberger, 515 U.S. at 845-46; Mergens, 496 U.S. at 248 (plurality opinion); id. at 260-61 (Kennedy, J., concurring in part and in judgment). In other words, school officials are prohibited from encouraging or discouraging religious belief while acting in their official capacities.
As you can see from this summary, and as you probably already knew, there is nothing simple or straightforward about the application of First Amendment principles to speakers who address students at school assemblies. It is not "safe" to automatically exclude speakers who have a religious affiliation if they are proposing to speak to students on a topic which is appropriate and about which you would allow speakers who are not religiously-affiliated to speak. School officials must be scrupulously neutral on this issue.
We do agree with ACLU-Nebraska that you should thoroughly research all speakers before allowing them to make a presentation to your students at an assembly. We have heard reports from some administrators that some of the speakers identified by ACLU-Nebraska have, in fact, proselytized and prayed during their presentations, even after the speaker assured school officials that the presentation would not be expressly religious. You cannot rely on a speaker’s assurance that he or she will be neutral if you have reason to suspect that they are not being honest. In some cases, you may go so far as to secure written assurances from speakers that they will not endorse or advocate any religious practice or belief. If you witness a speaker during a school assembly address religious issues, you would be wise to protect the district from possible litigation by interrupting the speaker to prevent students from being forced to hear a religious message while at school.
We strongly encourage you to consult with your school district attorney to discuss any concerns about the legality of an assembly. It is inadvisable to accept legal advice from a politically-motivated organization such as the ACLU-Nebraska. It is also unwise to simply accept the assurances of groups that want to make presentations to your students without carefully researching the group.
As always, if you have questions or concerns about this issue or about other legal issues, feel free to contact Kelley, Karen or Steve.
