Religion in American public schools is a hot-button issue. Can prayers be said in public schools? What about in extracurricular activities? Can states provide funds to religious schools? And if parents don’t vaccinate their children for religious reasons but send them to public schools, what can the State do?

These questions don’t have easy answers and the US constitution offers little help. The Establishment clause of the First Amendment of the constitution, for instance, forbids Congress from making laws in support of religion but also protects the free exercise of religion. Finding the right balance isn’t always straightforward.

My guest today is Martha McCarthy. She is the Presidential Professor at Loyola Marymount University and the Chancellor’s Professor Emeritus at Indiana University. Together with Suzanne Eckes and Janet Decker, Professor McCarthy has recently published Legal Rights of School Leaders, Teachers, and Students(Pearson, 2019).

Today’s episode of FreshEd was put together in collaboration with the Education Law Association.

Citation: McCarthy, Martha, interview with Will Brehm, FreshEd, 159, podcast audio, June 17, 2019.

Transcript, Translation, and Resouces:


Will Brehm  1:16
Martha McCarthy, welcome to FreshEd.

Martha McCarthy  1:18
Thank you, Will, I’m delighted to be here.

Will Brehm  1:21
So, I want to start with sort of a more general question about what parts of the Constitution actually apply to church and state relations inside schools.

Martha McCarthy  1:31
Okay, well, education is a state function as it is not mentioned in the US Constitution. The Bill of Rights places constraints on congressional action. So, I guess theoretically, states could have restricted personal freedoms until 1868, when the 14th amendment was enacted. This amendment deals specifically with state action. And the Supreme Court has interpreted it as incorporating the provisions of the Bill of Rights. So, the first amendment religious guarantees in the establishment and free exercise clauses are applied to state action through the 14th amendment. And this is really important in school cases because as I say, education is not mentioned in the US Constitution.

Will Brehm  2:20
Okay, so the first amendment is all about freedom of speech, and that includes religious activities. You also mentioned something about the free exercise clause. What is that?

Martha McCarthy  2:33
Alright. Actually, the first amendment has free speech guarantees but it’s a separate provision that has the free exercise and establishment clauses. It’s really only 16 words in these religion clauses but they have generated a lot of legal activity trying to interpret what they mean. First, I’ll just mention the establishment clause because it bars governmental action respecting the establishment of religion. The government doesn’t have to actually impose a religion to abridge this clause -just has to take steps in that direction. And our country was unique at the time that our constitution was adopted, no other country had an anti-establishment provision and so this has been important. In the 70’s the Supreme Court applied a very stringent test, the Lemon Test, to assess establishment clause claims. Under that test, government action can satisfy this clause if it has a secular purpose, neither advances nor inhibits religion, and avoids excessive governmental entanglement with religion. And the remedy is to cease the practice if you find an establishment clause violation. For example, daily Bible reading in public schools. Since it was found to abridge the establishment clause, that practice had to cease. But the Supreme Court’s becoming much more accommodationist, and now usually assesses whether government action endorses religion. And it’s been much more lenient in finding that it does not. So, the separation of church and state notion is not nearly as clear as it seemed in the 60s and 70s in the public-school domain and our domain, the school that’s been the last strong mole of separationist doctrine. So, it’s very interesting to see the evolution of the establishment clause. Free exercise clause is different and actually, if you carry the two to the extreme, they conflict with each other. It prohibits governmental action that interferes with the free exercise of beliefs, individuals can get accommodations or exemptions, but it doesn’t disturb the governmental practice as it does with the establishment clause. And Wisconsin vs. Yoder was a major education case in 1972 where the Supreme Court said that Amish youth were exempt from compulsory attendance after eighth grade. And the court used a balancing test in this case. The challenge to compulsory education to 16, they looked at it and said was this claim based on a sincere religious belief? Did the government burden this belief? And if so, was there a compelling governmental interest to do so and it was pursued at the least restrictive means that would interfere with religious practices. But Supreme Court found no compelling interest in mandating schooling beyond eighth grade, that was considered enough for citizenship. And I think also, the court noted that the Amish youth returned to the agrarian community, they get vocational training and I think that although wasn’t said in the case, I think that was important as well. There have been some subsequent cases that have modified this balancing test somewhat, making it easier for the government to defend a criminal law that burdens religious beliefs without a compelling interest. But in 2017, the court delivered a very significant free exercise decision and held that the government cannot condition generally available benefit on religion. So, this decision in 2017, seemed to elevate free exercise rights and I’d like to come back to that case, because it is an important one. The remedy for free exercise violation is usually as I said, accommodation or exemption, but not to stop the governmental practice as it is with an establishment clause violation.

Will Brehm  6:39
So, before we go to that case, in particular, I want to sort of look at some examples of where religious practice could enter schools. And I want to know, what is the legal thinking behind some of these practices? So, the first one that comes to my mind, and maybe this is common for many people in the US is prayers in public schools. You know, is that allowed? Are silent prayers allowed? Are prayers or moments of silence before, you know football game allowed? You know, what are the legal issues there when it comes to saying religious prayers inside public schools?

Martha McCarthy  7:22
Yes, in their early 60’s, the Supreme Court struck down school-sponsored prayer under the establishment clause. And it didn’t matter if the schools excused students, as long as the religious activities were sponsored by the public school it abridged the establishment clause. So, it’s clear that the public school can’t promote religion. And the court has struck down clergy-led prayer in graduation ceremony, and students saying prayers at athletic events where the school organized event using school equipment and determine the method to select the students who delivered the prayers. But some topics are not so clear. Student initiated devotionals at graduation may be okay, if the speaker is chosen on secular criteria -such as the valedictorian- and the ceremony is organized by students. The distinction is whether it’s school-sponsored, or personal expression, the former is not allowed but personal expression is protected by the free speech clause. And we are seeing more and more cases involving religious expression relying on the free speech clause -asserting that religious and secular speech should be treated the same. I just have to mention the Texas cheerleader case that I found so fascinating. The public-school cheerleaders had banners with religious verses that players ran through and the school said, “Well, they had to stop because of the establishment clause.” But then the school changed its mind because of the incredibly strong public reaction, by the way, this got national media attention. The state court eventually said the banners were personal expressions. So, it’s very hard for me to square that decision with the Supreme Court saying that students saying prayers before athletic events would violate the establishment clause. And that’s another reason why we could use more Supreme Court guidance on some of these prayer cases, because we do have conflicting lower court decisions.

Will Brehm  9:32
Right. So, in this cheerleader case, it’s a school-sponsored athletic event but it was the individual choice of the cheerleaders to design these banners through which football players ran through. That’s the logic here?

Martha McCarthy  9:48
Well, I assume that’s the logic. But you can see the problems there because in the other case, where the students couldn’t say the prayer before football games it could also be their choice as to what prayer they’re picking, or maybe they were picking something that wasn’t a prayer. But they didn’t allow that, because that was considered school-sponsored devotionals. It’s hard for me to see how this having a banner with a religious Bible phrase on it would not be considered school-sponsored if it’s at a school football game. But you’re exactly right, that the at least state court said this is personal expression, not school sponsored. So, where courts come down on that continuum, will decide whether certain practices are allowed or not.

Will Brehm  10:38
What about the Pledge of Allegiance? I mean, that has, in its very words, “under God”, in it, and I remember going to school and every single morning, we would stand up and put our hands over our hearts and look at the American flag and say the Pledge of Allegiance. I mean, is that not breaking the establishment clause?

Martha McCarthy  10:58
Yeah, that is such an interesting one because a lot of people don’t realize that the phrase “under God” was added in 1954. And it was added because of the concern about godless communism. And so, it wasn’t challenged so much more recently, and the Ninth Circuit said the words “under God” had to be removed before saying the pledge in public schools because that abridged the establishment calls, having those words. But the Supreme Court avoided the church state issue, finding that the father didn’t have custody of his child, so he didn’t have standing to challenge the practice. And I must say that our current Supreme Court, that’s really a position it likes to take is to not deal with the substantive issue, but to either decline to review the case, or to review it on some procedural ground. But anyway, there was such a negative reaction to the Ninth Circuit decision, including senators and representatives in DC going out in front of Congress and saying the pledge and yelling “under God”, so several other lower courts have upheld the pledge with the two words. And have said that having “under God” does not change this patriotic absorbance into a prayer. And actually, I’m re-hearing the Ninth Circuit changed his mind. So, I think we will probably not have a successful challenge to “under God” in the pledge in the near future.

Will Brehm  12:36
So, to this day, students still, if they say the Pledge of Allegiance in school, they would use those words?

Martha McCarthy  12:42

Will Brehm  12:43
So, what about things like religious holidays? I also remember going to school and getting Christmas off and Easter off? How is that not impacting the establishment clause?

Martha McCarthy  12:56
Well, it’s possible that it could in some instances. We did have a Supreme Court decision in 1980, and it was a 5:4 decision: Stone v. Graham that was struck down the opposing the ten commandments in all Kentucky classrooms. And the court said that paying for the copies with contributions really didn’t matter. It was the public-school sponsorship that abridged the establishment clause. And it rejected the justification that because the ten commandments reflect the fundamental code of Western civilization, they should be able to be posted, because the court said, the first three commandments are duties of believers toward God. So, it said they couldn’t really use that justification. But we’ve had several lower courts that have upheld the temporary display of religious artifacts -certainly can do that in comparative religion classes because it’s perfectly fine to teach about religion. But that’s the temporary display saying this artifact goes with this particular religious belief, and even the Eighth Circuit ruled that you could briefly display the nativity scene and other artifacts during the holiday season. That as long as it’s prudent and objective observance of Christmas and public schools, that will be okay, including singing Christmas carols as long as the holiday has a secular and a religious meaning, we do not have a Supreme Court decision on the holidays. What I advise schools to do is to have programs with something like holidays around the world and use all kinds of different music from different religions, because I think some of the lower courts have struck down having just Christian songs like Ava Maria, that’s been struck down. So, I think if they can have something that is broader in its orientation, they’d be on safer grounds.

Will Brehm  15:04
So, let’s turn to more of the free exercise clause. What sort of provisions are provided to schools and groups to allow equal access for religious expression?

Martha McCarthy  15:18
Well, again, I think the legality of equal access has changed over time. With more accommodation, the Supreme Court, we had a case in 2001. Good News Club vs. Milford Central School, where the court used the first amendment to declare if a public school allows secular groups to meet after school, it cannot deny religious groups access, like the Good News Club. And even though their meetings were led by adults, and they were proselytizing in nature, they couldn’t be denied. Now, it’s interesting that prior to this decision, Congress had enacted the Equal Access Act, because schools weren’t allowing religious groups to meet. Because of the establishment clause concerns and the Equal Access Act stipulates that if secondary schools create a forum for student expression, they can’t discriminate against groups based on religious, political or philosophical content of their meetings, and staff can just be there to maintain discipline -which by the way, it is interesting after that law was enacted, most of the calls I got, were not about religious groups meeting, they were about the Gay Straight Alliance and other groups, because this Equal Access Act is pretty broad in its coverage but it only applies to secondary schools. And with this interpretation in the Good News Club case of the first amendment, which would apply to elementary and secondary and allow adults to be there to lead the meetings, I really don’t think we need the Equal Access Act at all. I think the court has taken a very, very broad interpretation of equal access for religious groups.

Will Brehm  17:06
I mean, yeah, I mean, where does it end? You know, what if a new religion is created, let’s say I have my own religion, and I want equal access inside schools to meet with students on their own individual choice about this new religion? I mean, it just seems like there’s a very murky limit here.

Martha McCarthy  17:25
Yeah. And that’s just a really interesting question Will, because most of the cases where we have broadened access to the school have been with your traditional Christian religions. What if we had some other religious groups that wanted access? Maybe the schools would not be quite as apt to say that’s okay. But if you allow one group, you cannot disadvantage others based on the content of their meetings. Now, you can always say to groups they can’t meet if they are threatening somehow to disrupt the school. That is always the school’s prerogative to do but if it’s just a religious group meeting, I think even if it’s some kind of an alternative religion, they’d still have the right to meet.

Will Brehm  18:18
I mean, that’s quite interesting. I mean,

Martha McCarthy  18:20
But it’s during non-instructional time.

Will Brehm  18:22
Right, exactly. Just like the other religious groups that want to meet.

Martha McCarthy  18:25

Will Brehm  18:27
Recently, there’s been a lot of conversation about vaccinations. There’s been, you know, measles has sort of broken out among children in some schools and from my understanding, some religious groups choose not to get vaccinated for their own religious reasons. You know, is there anything about, say, vaccinations that have come up in court and said, in schools, children have to be vaccinated or children from particular religious groups can opt-out of vaccinations for their own particular religious choice?

Martha McCarthy  19:02
Yeah, it’s very interesting. I had stopped covering the topic of vaccination in my law courses and actually in one of the editions of the law book because it just seemed to be so settled that states can require students to be vaccinated as a condition of school attendance, and the state has the absolute power to do so. But given the controversy since 2015, I have reinstated this in my courses. Those opposed to vaccination have worked hard to get exemptions all states allow excusal for medical reasons, all but three allow religious exemptions and 17 allow parents to refuse vaccination on philosophical grounds and that’s a very broad exemption, that’s almost for any reason. But it’s interesting, California has no philosophical exemption and dropped its religious exemption after the Disneyland outbreak of measles in 2015. So, what’s happened in California is that the medical excuses have become a cottage industry for some doctors. So now what’s happening in California, their legislators are trying to strengthen the medical exemption requiring review by state health officials, so we’ll see what happens there. But in a number of states that have only a religious exemption, no philosophical like New York, there have been a lot of litigation as to what does that require. The last I saw in New York, there have been 12 cases. And some of the courts in New York are taking a fairly strict position, that immunization has to actually conflict with church doctrine to allow the exemption, but some other state courts have been much more lenient interpreting religious exemptions. So, with the recent outbreaks, I think, I feel pretty confident that this topic is going to remain controversial for a while.

Will Brehm  21:11
I would imagine another controversial topic is state funding to religious schools. You know, what have the courts said about that topic?

Martha McCarthy  21:21
Yes. And again, this is a place where we’ve seen a significant change with the Supreme Court increasingly likely to allow various types of government aid to flow to religious schools, even though in the mid-20th century, the Court had upheld loaning textbooks to children in religious schools and providing transportation services. Basically, in the 70’s, the Court applied the very stringent lemon test and denied all kinds of aid, faculty supplements, direct payment of teacher salaries, other types of aid, field trips, equipment, instruction materials, in our religious schools, but we definitely have seen a shift. The state still can’t make direct payments to such schools. But in the last three or more decades, the courts have been much more accommodationist, allowing public funds, money for state required test, sign language interpreters, personnel to provide diagnostic and therapeutic services in the religious schools. One of the most recent state aid cases, the court said that if it’s distributed based on secular criteria, almost anything would be okay to provide in the religious school. So, we’ve definitely seen the Supreme Court dismantle most of the decisions that it rendered in the 1970s. And it’s given us two opinions claiming the private school choice that upheld Cleveland’s voucher system in the Zelman case, because the money went to parents who made the decision to use it in religious schools. And in the Winn case, the Court upheld Arizona’s tax credit scholarship program, even though these organizations receiving the credits could limit their scholarships to particular faiths, and taxpayers could earmark their credits for non-dependents, so neighbors could swap credit. So very interesting case. And the most interesting thing in that case was that the court said there was no taxpayer standing to challenge the program, as the credits are not yet in the state coffers. And it’s interesting that the High Court found standing in all prior cases involving child challenges to various types of state aid, but not in this one. So clearly, the courts have become more accommodating toward religion in terms of state aid.

Will Brehm  23:51
So earlier in our conversation, you mentioned a 2017 case, and I think this was Trinity Lutheran that you were referring to and how it was really important to basically the free exercise clause and how it put that over the establishment clause. Can you give us a little background of this case and why it’s so important in your opinion?

Martha McCarthy  24:13
Yes, Will, I’ll be glad to do so. Trinity Lutheran Church versus Homer is a very important decision. It involved a religious daycare program that wanted to compete for a state grant to use recycled tires to refurbish its playground. And the state said, religious programs couldn’t compete for the grant because of the state constitutions very stringent provision barring the use of public money by religious entities. And the Supreme Court could have found that the daycare programs participation would not abridge the establishment clause as it had found in many of the cases I just mentioned, it found that various types of aid we’re okay under this establishment clause. But instead, the court held that under the first Amendment’s free exercise clause, states cannot deny participation in a generally available benefit on religious grounds. And this is huge! Before Trinity Lutheran, a number of state High Courts have ruled that states could enact stronger anti-establishment provisions that demanded by the establishment clause. And the US Supreme Court in 2004 had taken this position. The 2004 case was Locke v. Davey and the Supreme Court said that the state could deny a state scholarship to pursue the ministry because of its more stringent anti-establishment provision. And the Supreme Court in Trinity Lutheran tried to distinguish Locke, but I really don’t think it was very convincing. It seemed basically to overrule the Locke rationale to me. And the day afterwards sent back two education cases for reconsideration under Trinity Lutheran and in one of them, it was determined to be moved. It was a challenge to a school district’s voucher program that was subsequently they decided to get rid of the voucher program -so that one was moved. But the other case sent back for reconsideration in light of Trinity Lutheran, then New Mexico Supreme Court changed its mind. It originally had held the state bar loaning textbooks to religious schools under the state constitution, was overriding, but after Trinity Lutheran it held that the state constitution did not present a bar to the loan of such text, mentioning free exercise cause concerns. So, I think the implications of Trinity Lutheran are just huge and may negate the provisions of our aid to religious schools currently on the books in 38 states.

Will Brehm  27:01
So, would you say that, given this this 2017 ruling that the church-state sort of separation, as many people commonly assume exists, is actually waning inside public schools?

Martha McCarthy  27:16
Now, I definitely think that we on this continuum – from separation of church and state to absolute accommodation on the other end of the continuum- we’re moving much more toward accommodation. And before Trinity Lutheran, and it’s not just in this one decision. We were seeing in a lot of the establishment clause cases a move toward accommodation as well. But before Trinity Lutheran, the Supreme Court had found that certain types of aid didn’t abridge the establishment clause but never before had it found a free exercise entitlement to such aid. So, I think what it did was really elevate the Free Exercise Clause, seemingly above the Establishment Clause. And by the way, free exercise and establishment also are involved with free speech issues at times, because sometimes their cases deal with religious expression and it seems like free speech rights are being elevated as well when religious expression is involved.

Will Brehm  28:23
So, are there any cases that you’re currently watching sort of weave through the various courts around America that you think are going to have profound implications on church-state relations inside education?

Martha McCarthy  28:38
Well, I’ll just mention two cases that are going through the system. The Supreme Court has been petitioned to review, Espinosa vs. Montana Department of Revenue, in which the Montana Supreme Court struck down a tax credit scholarship program for private which are mainly religious school tuition. And it struck it down under the state constitutions bar to aiding religious entities. Now there have been a couple of state courts that have struck down voucher programs, but this is a first State High Court that has struck down a tax credit scholarship program. And it said the credits not a donation, taxpayers are determining where part of their tax liabilities spent. Taxpayer can’t keep the money or go on a vacation with it, the money would go into the state if the credit weren’t taken. So according to the Montana Supreme Court, the funds are diverted before the taxes are paid, and they are diverted to private, primarily religious schools. And two of the concurring justices went in further and said it violates the establishment clause. If the Supreme Court agrees to review the case, and I think it will. My guess is it will rely on Trinity Lutheran in saying that access to a public benefit that is generally available cannot be denied based on religion. And if it does that, that will seal the fate of the no-way provisions in most states and solidify that free exercise considerations I think are dominant now. The second case that I will just mention, is also a free exercise case, although it is not a school case. But it has implications certainly for education: its Klein versus Oregon Bureau of Labor and Industries. The Supreme Court has agreed to review this case dealing with the refusal of merchants to bake a wedding cake for a same-sex couple. And last year in the Masterpiece Cake Shop case where the court said that the bakers didn’t have to make such a cake, that was based on the finding of religious hostility, because a couple of the commissioners primarily one of the commissioners exhibited hostility when the complaint was before the state Civil Rights Commission. There’s no such claim of hostility in the Oregon case. Now the Supreme Court might rule the bakers can’t refuse to make the cake under civil rights provisions. And if I were talking with you two years ago, I would have said that’s probably what the Supreme Court would do. But we have a different Supreme Court right now. With the new Justices, I’m just not so sure. So, if the High Court takes a strong stand on using free exercise rights to allow such a denial of service, I think this ruling could have implications for public schools, perhaps students would assert religious grounds for making negative statements about homosexuality or other topics that conflict with their religious beliefs. So, it could elevate free exercise rights, even beyond the state aid cases. So, I urge people to definitely watch for this decision.

Will Brehm  31:51
I mean, it sounds like it’s incredibly important decisions possibly coming through shortly in the near future.

Martha McCarthy  31:58
Yes. It could be.

Will Brehm  32:00
It’s a hot topic. I mean, church-state relations, it just seems so vital and important today inside public schools, because like you said, schools are perhaps one of the last institutions where separationist ideas are still thriving, at least, but maybe not in the near future.

Martha McCarthy  32:21
Maybe not as much as they were. Yeah. Well, I will say Will, that the church-state arena is never dull. I’ve been on a panel dealing with church-state issues for many years at the Education Law Association Conference, and we always have new material. Usually we have a Supreme Court ruling to discuss so, one thing I can assure you is that there will be more to come on this topic for sure.

Will Brehm  32:50
Well, Martha McCarthy, thank you so much for joining FreshEd and please come back when there is another case and more to talk about when it comes to church state relations inside school.

Martha McCarthy  33:00
I would be glad to do so.

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