First Amendment

2012-02-06 00:01:39 by admin

The First Amendment was enacted in response to the experiences that the American colonists had with their British government as that government established religions in some colonies and limited freedom of the press generally. The First Amendment guarantees five freedoms:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

The Supreme Court did not review litigation involving the First Amendment until the 20th century because the justices had not developed and applied the “incorporation doctrine,” which made the Bill of Rights applicable to the states through the Fourteenth Amendment. In Gitlow v. New York (1925), the Court found that the states could not limit all forms of political expression. In Near v. Minnesota (1931), the Court ruled that a state law violated freedom of the press as guaranteed by the First Amendment. Further, in Cantwell v. Connecticut (1940), the Court extended the religion clauses of the First Amendment to the states through the Fourteenth Amendment.

This entry summarizes Supreme Court rulings on the freedoms guaranteed in the First Amendment as they relate to schools.

Religion and Public Schools

Insofar as the religion clauses in the First Amendment have generated a significant amount of litigation involving public schools, this section highlights key cases on this important topic. As to aid, in Everson v. Board of Education of Ewing Township (1947), the Supreme Court laid the foundation of the Child Benefit Test, under which the government is free to provide specified types of aid to students who attend religiously affiliated nonpublic schools. In Everson, the Court allowed the state of New Jersey to reimburse parents for the cost of sending their children to religiously affiliated nonpublic schools. Almost 20 years later, in Board of Education v. Allen (1968), the Court upheld the loan of textbooks for secular instruction to students who attended religious schools.

In the Supreme Court’s most important case involving aid to religion, Lemon v. Kurtzman (1971), the justices invalidated plans from Pennsylvania and Rhode Island that would have provided salary supplements for teachers in religious schools. In reaching its conclusion, the Court created the tripartite Lemon test, which reads: “First, the statute must have a secular legislative purpose; second, its principal or primaryeffect must be one that neither advances nor inhibits religion; finally, the statute must not foster ‘excessive entanglement with religion’ ” (p. 612–613). Following Lemon, the Court struck down a wide variety of forms of aid to religious schools until 1993.

Starting with Zobrest v. Catalina Foothills School District (1993), the Supreme Court reinvigorated the Child Benefit Test in deciding that a school board could provide a sign-language interpreter to a deaf student who attended a religious school. The Court noted that the interpreter provided neutral aid to the student without offering financial benefits either to his parents or his school, and there was no governmental participation in the instruction, because the interpreter was only a conduit who effectuated the student’s communications with school staff. Five years later, in Agostini v. Felton (1997), the Court permitted the onsite delivery of Title I services for poor students in recasting the Lemon test by leaving its purpose test unchanged but melding the effects and excessive entanglement tests into one. Finally, in 2002, in Zelman v. Simmons-Harris, the Court upheld a voucher program that allowed specified students to attend religious schools, because they did so based on the independent choices of their parents.

As to religion in schools, in People of the State of Illinois ex rel. McCollum v. Board of Education of School District 71, Champaign County (1948), the Supreme Court invalidated a plan that allowed religious leaders to teach religion classes on-site in public school on the basis that this violated the Establishment Clause. However, four years later in Zorach v. Clauson (1952), the Court said public schoolchildren could leave their schools during the class day to attend religious school to receive religious instruction, as long as they had the written permission of their parents.

Turning to prayer and other school-sponsored religious activities, in Engel v. Vitale (1962) the Supreme Court struck down a directive calling for the recitation of a prayer in public schools as an unconstitutional establishment of religion. A year later, in the companion cases of Abington Township School District v. Schempp and Murray v. Curlett (1963), the Court ruled that the state could not require students to say the Lord’s Prayer or listen to readings from the Bible, even if their parents could give written permission to excuse them from doing so, in creating the first two parts of what would become the Lemon test. More than 20 years later, the Court struck down silent meditation or voluntary prayer in public schools in Wallace v. Jaffree (1985) on the ground that the state legislature intended to use this as a means of introducing school prayer. The Court later invalidated prayer at graduation ceremonies in Lee v. Weisman (1992) and at football games in Santa Fe Independent School District v. Doe (2002).

Speech and Public Schools


The Supreme Court did not directly address a case involving student rights of any kind until 1969. In Tinker v. Des Moines Independent Community School District, the first of its four cases on this point, the Court determined that school officials could not limit the free speech rights of students in a dispute over wearing black armbands to protest American involvement in Vietnam, absent a showing that doing so created a reasonable forecast of material and substantial disruption. However, in Bethel School District No. 403 v. Fraser (1986), the Court limited student speech rights in acknowledging that educators can limit expression—in this case, a nominating speech for student government— when a speaker uses lewd, vulgar language that is plainly offensive and lacks any political context.

In Hazelwood School District v. Kuhlmeier (1988), the Supreme Court considered the extent to which school officials could exercise editorial control over a school-sponsored newspaper. The Court reasoned that “educators do not offend the First Amendment by exercising editorial control over the style and content of student speech in school-sponsored expressive activities so long as their actions are reasonably related to legitimate pedagogical concerns” (p. 273). Most recently, in Morse v. Frederick, the Court ruled that a principal did not violate the First Amendment rights of a student who was suspended for displaying a sign reading “BONG HiTS [sic] 4 JESUS” (p. 2619) on a sidewalk across the street from his school during a parade. The Court concluded that the principal had the authority to restrict student speech that she perceived to be promoting illegal drug use.


The most important case directly involving the free speech rights of public school employees is Pickering v. Board of Education of Township High School District 205, Will County (1968), in which a teacher was disciplined for criticizing his school board and superintendent. The Court held that the school officials exceeded their authority, because teachers do not forfeit their rights to speak out on matters of public concern. In another case directly involving a teacher, Mt. Healthy City Board of Education v. Doyle (1977), the Court agreed that a board could terminate the contract of a nontenured teacher because of a telephone call that he made to a radio station criticizing the principal’s memo on professional appearance and because of other actions at school. The Court explained that although the teacher engaged in protected conduct by calling the radio station, there was enough in his record to dismiss him for other behavior.

Freedom of Association and Assembly

In perhaps the most important issue involving the rights of teachers to practice freedom of association and assembly, the Supreme Court, on four occasions, has tacitly acknowledged that teachers can organize and bargain collectively. Even so, in Abood v. Detroit Board of Education (1977), Chicago Teachers Union, Local No. 1 v. Hudson (1986), Lehnert v. Ferris Faculty Association (1991) (a case from higher education), and Davenport v. Washington Education Association (2007), the Court ruled that while unions can collect fair share fees—charges to nonmembers for representing them at bargaining—they must have safeguards in place to respect the free speech rights of nonmembers. Further, in Perry Education Association v. Perry Local Educators’ Association, (1983), the Court asserted that a school board did not violate the rights of a union in limiting access to its in-house mail system and other forms of communication to the union that represented its employees.

Robert J. Safransky

See also Bill of Rights; Teacher Rights

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