20
Teachers’ Religious Expression in Public Schools
as compelling,’ and therefore may justify content-based discrimination.” (citation omitted)); Poway Unified Sch. Dist., 658 F.3d at 967-68; Roberts v. Madigan , 921 F.2d 1047, 1056-58 (10th Cir. 1990) (upholding school policy prohibiting teacher fromplacing Bible on his desk, reading Bible during silent reading period, and stocking two Christian books on shelves, because together theymight give students the impression of state endorsement of religion); Peloza v. Capistrano Unified Sch. Dist., 37 F.3d 517, 522 (9th Cir. 1994) (upholding school policy prohibiting teacher from speaking with students about religion any time the students are on campus, including lunch break and the time before, between, and after classes); but see Wigg v. Sioux Falls Sch. Dist. 49-5, 382 F.3d 807 (8th Cir. 2004) (holding that a teacher’s participation in an after-school religious club is protected free speech and does not violate the Establishment Clause). 45. Garcetti v. Ceballos , 547 U.S. 410, 418-22 (2006); Kennedy v. Bremerton Sch. Dist ., 991 F.3d 1004, 1015-17 (9th Cir. 2021). 46. Tucker, 97 F.3d at 1204. 47. See Pickering v. Bd. of Educ. of Twp. High Sch. Dist. 205, 391 U.S. 563, 572-73 (1968) (striking down school’s firing of a teacher for writing newspaper editorial criticizing the Board of Education’s allocation of funds); but see Dixon v. Univ. of Toledo, 842 F.Supp.2d 1044, 1049-53 (N.D. Ohio 2012) (upholding university decision to fire Associate VP for Human Resources for writing newspaper editorial referencing her religious views on homosexuality, based on her policy-related position, “speculative” damage that might occur to the university, and a “presumptive insubordination” rule based on her speech conflicting with the position of the school). 48. Nichol v. Arin Intermediate Unit 28 , 268 F. Supp. 2d 536 (W.D. Penn. 2003); but see Berry , 447 F.3d at 652 (upholding government agency’s policy prohibiting the display of religious items in employee’s cubicle because clients might reasonably interpret them as government endorsement of religion).
facilities for meetings, then the school must give teachers the same access to school facilities for religious meetings.[41]
For the most part, a teacher may express his or her faith during the workday and in public forums. The U.S. Supreme Court clearly articulated that: First Amendment rights, applied in light of special characteristics of the school environment, are available to teachers and students. It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate. This has been the unmistakable holding of this Court for almost 50 years.[42] Teachers and administrators engaging in non-disruptive religious expression[43] unrelated to the scope of their official duties and professional capacity, and generally not coercive to students,[44] are protected by the First Amendment. [45] For example, a school cannot create a sweeping policy to prohibit all written or oral religious advocacy among its employees,[46] or retaliate against a teacher for writing a religious-based letter to the local newspaper,[47] or prohibit employees from wearing religious attire or jewelry.[48]
Case Precedent: 36. U.S. Dep’t of Educ., Guidance on Prayer, supra note 7.
37. Wigg v. Sioux Falls Sch. Dist. 49-5, 382 F.3d 807, 815 (8th Cir. 2004) (holding that a teacher may participate in a religious, after-school program on school grounds in her capacity as a private citizen). 38. Compare Good News Club v. Milford Cent. Sch., 533 U.S. 98 (2001) (where school opens facilities for “variety of purposes” then it cannot prohibit use by a person or organization for religious purposes), with Berry v. Dep't of Soc. Servs., 447 F.3d 642, 654 (9th Cir. 2006) (where Department of Social Services does not open particular room for “multiple purposes” but only for business-related purposes, it can prohibit its use for employee prayer meetings). 39. Berry , 447 F.3d at 654. 40. U.S. Dep’t of Educ., Guidance on Prayer, supra note 7. 41. Good News Club , 533 U.S. at 98. 42. Tinker , 393 U.S. at 506. 43. Johnson v. Poway Unified Sch. Dist., 658 F.3d 954, 966 (9th Cir. 2011); Tucker v. Cal. Dep’t of Educ., 97 F.3d 1204, 1210 (9th Cir. 1996). 44. See Good News Club , 533 U.S. at 112 (“We have said that a state interest in avoiding an Establishment Clause violation ‘may be characterized
Made with FlippingBook Digital Proposal Creator