There is a common misconception, among parents and school officials alike, that religious texts, such as the Bible or Koran, cannot exist within the school walls. Often, school officials do not have a sound understanding of the First Amendment and impose unconstitutional rules upon their students. Many, believing in the so-called “separation of church and state,” think that the Constitution prohibits students from reading these texts or handing them out. In fact, that is not the case.
In Tinker v. Des Moines Independent School District, the U.S. Supreme Court made it clear that students “do not shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” This case, creating an area of law called the “Tinker analysis,” tasks courts with evaluating whether the student’s speech “materially and substantially interfere[s] with…the operation of the school.”
Thus, while speech that is lewd, vulgar, indecent or plainly offensive can be prohibited at school, religious speech cannot be regulated, so long as it is not disruptive to the school’s operations. A student’s speech, religious or not, is not the school’s speech. The message belongs to the student, and must be treated as such. At times when students can hand out a party invitation or pamphlets about a political cause, students are also permitted to hand out religious material.
For example, in a case in Pennsylvania, a fifth grade student wished to hand out invitations for an event at her church to her classmates before class began. Students at the school were permitted to hand out other items, such as birthday party invitations, at the same non-instructional time. The Court determined that the school was unable to identify any disruption caused by the invitations to church and, thus, the school could not prevent the student from passing them out.
Schools can, however, restrict students from passing out religious material, so long as the restrictions treat all speech the same. For example, in a case in Texas, students were not allowed to pass out pencils stating “Jesus is the reason for the season” and other religious pamphlets. The school in this case had a policy that students could pass out materials only at designated times, such as before and after school, at certain annual parties, and during recess. The Court permitted these restrictions because the rules were neutral to any particular viewpoint.
Yet these type of school policies, even if viewpoint neutral, must allow for alternative channels of speech during the day, meaning the students have to be given some opportunity to communicate their chosen speech. For example, blanket restrictions on handing out all material during school hours is permissible when students are permitted to hand it out before and after school and at recess. But a blanket ban on handing out materials during the entire school day would not be permissible.
One might ask how students passing out religious literature does not violate the Establishment Clause of the First Amendment. The Establishment Clause merely requires “the state be a neutral in its relations with…religious believers.” The Establishment Clause requires “neutrality rather than endorsement.” If a school banned religious texts, but not non-religious texts, the school could hardly be viewed as “neutral” in its relations with religious believers.
So, parents, if your child would like to pass out Valentine’s Day cards with a religious reference, students are well within their rights to do so. If they would like to pass out the Bible, Koran, or any other religious text, they may do that too. However, be sure to check your school’s policies as to when they may do so. If you are seeking legal counsel regarding First Amendment and religious liberties issues, the attorneys at Dhillon Law Group would be happy to speak with you.
Curtis Schube is a senior associate at Dhillon Law Group where he practices constitutional law, defamation, politics, and election law.