Transcript Slide 1

The Old Gray Mare Ain’t
What She Used To Be:
A Survey of Selected Separation
of Church-State Issues
VSBA School Law Conference
Charlottesville, Virginia
June 3, 2011
Francisco M. Negrón, Jr.
Associate Executive Director and
General Counsel
National School Boards Association
[email protected]
Public Dollars for Private , Religious Tuition?
 Arizona Christian School Tuition Organization v. Winn,
No. 09-987 (U.S. Apr. 4, 2011).
 What Kinds of Policies are Permissible?
 Christian Legal Society v. Martinez
(June 28, 2010).
 Who’s Speech is Protected?
 Johnson v. Poway Unified School District, No.
07cv783BEN (NLS) (S.D. Calif. Feb. 25, 2010).
 What About Classroom Speech?
 Morgan v. Swanson, No. 09-40373 (5th Cir., en banc
review granted, Dec. 17, 2010).
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Beginning at the beginning…
Congress shall make no law respecting
an establishment of religion, or
prohibiting the free exercise thereof.
Inherent tension between government
endorsement (separation of church & state) and
free exercise of religion.
Growing trend away from separation towards free
exercise.
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This trend is evident at the Supreme Court…
 This is a conservative 5-4 court.
 Justice Alito is a great defender of the First Amendment,
particularly the Free Exercise Clause.
 He is becoming the spokesperson for the conservative
wing’s Free Exercise perspective.
 Rulings from 3rd Circuit strongly indicated this view.
 Concurrence in Morse v. Frederick points to how far he will
go in balancing expression with other rights.
 Justice Kennedy, the swing vote in many cases, has sided
with Scalia in church/state issues in the past.
 Upshot: More to come in the Culture Wars.
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Arizona Christian School Tuition
Organization v. Winn, No. 09-987 (U.S.
Apr. 4, 2011).
 At issue was the Arizona law that gave taxpayers $500-
$1000 tax credits for direct contributions to School
Tuition Organizations.
 The STO’s in turn allocated scholarships to students
attending nonpublic schools.
 The STO’s had no limitation on funding sectarian schools.
 In fact, most of the scholarships funded by the STO went
to religious schools --Arizona’s three largest STOs restrict
scholarship use to religious schools.
The lawsuit…
 Arizona taxpayers sued arguing that the tax credit scheme
violates the Establishment Clause because it deprives
parents of a genuine choice between selecting
scholarships to private secular schools or religious ones.
….and no surprise…
 The Ninth Circuit agreed with the taxpayers noting,
among other things, that 85 percent of the scholarship
money is available only for use at religious schools.
The Ninth Circuit relied on Supreme Court precedent to
determine when “vouchers” are permissible…
 Zelman set out the standard for the expenditure of pubic
dollars towards private schools.
 Religious school funding is permissible if it is part of a
broader, comprehensive system of school choice that
includes sectarian, private secular and public schools.
 The key is not the kind of targeted “as applied” result that
was created in Arizona.
A supreme twist…
 But, the issue before the Supremes was NOT whether the
Arizona tax credit violated the Establishment Clause.
 In fact, the Court didn’t even reach the merits of the
Establishment Clause claim.
 By a 5-4 vote, the Court upheld the Arizona tax credit
scheme, holding that there was no individual standing to
bring a taxpayer action under Article III.
 No Case & Controversy permitting federal justiciability.
 No injury to the individual that allowed a challenge to
government taxing scheme. (Court precedent set out the
conditions when an individual can sue the government
around its taxing programs).
Both the Court and dissent had to deal with the
Court’s four-decade old decision in Flast v. Cohen.
 Flast said an individual can sue the government for
violating the Establishment Clause.
 But, in order to sue the taxpayers has to show a
connection or “nexus” between the taxpayer and the
constitutional infringement.
 The government “using tax proceeds to aid religion”
means there is such a connection.
But, the majority read Flast very
narrowly.
 First, the Court says Flast is a narrow exception.
 Second, the Court says Flast allows taxpayer standing
when he/she suffers “a particular injury “by means of the
“taxing and spending power” of the government through
its treasury to a “sectarian entity.”
 The root of the injury is the extraction and spending of
tax money to aid religion.
 A tax credit is neither an extraction nor a spending of tax
monies.
Both the Court and the Dissent turn to historical
perspectives to explain their conclusions.
Heavy focus on James Madison’s 18th Century writings
on separation of church and state.
Both look at Madison’s writing in a publication entitled
Memorial and Remonstrance (1785?)
…the government should not “force a citizen to
contribute three pence only of his property for the
support of any one establishment.”
 The majority says at the heart of Madison’s concern is
the government compelling a taxpayer to pay money
that violates his conscience.
 But, if a tax is not “extracted and spent” by the
government, then there has been no compulsion.
 A tax credit is in the view of the majority akin to the
government declining to impose a tax.
 And, in fact, allows citizens to retain control over
their own funds.
 “The tax credit system is implemented by private
action and with not state intervention
 The Wall Street Journal agrees.
Justice Kagan in her first major
dissent comes out swinging…
 The tax credit vs. Extract and Spend?
 HOGWASH, she says…
 “This novel distinction in standing law between
appropriations and tax expenditures has as little
basis in principle as it has in our precedent.”
 “From now on, the government need follow one
simple rule---subsidize through the tax system--to preclude taxpayer challenges to state funding
of religion.”
A rose by any other name is still a tax subsidy…
 Court’s action is arbitrary and disingenuous she argues,
because it ignores 4 decades of precedent that says a tax
subsidy is a tax subsidy is a tax subsidy.
 Tax credits, exemptions, etc. all advance some sort of
government interests she says.
 “Our taxpayer standing cases have declined to
distinguish between appropriations and tax
expenditures for a simple reason: …the distinction is
one in search of a difference.”
The End?
 Not by a long shot.
 Legislation is already cropping up in Legislatures around
the country, i.e., Okalhoma.
 Roadmap to diversion of public dollars may follow as
Kagan predicts.
 Possibly with even higher stakes, because the real money
is in the granting of tax credits to businesses and
corporations. Arizona already has a corporate tax credit.
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Christian Legal Society v. Martinez
(June 28, 2010).
 Issue:
Whether a public university can
constitutionally require all student groups to adhere to its
nondiscrimination policy as a condition for granting
official recognition and the benefits that accompany that
status.
 Facts:
 As a condition for the Hastings College of Law
granting “Registered Student Organization” (RSO)
status, a student group must include in its
constitution Hastings’ nondiscrimination statement
which prohibits, among other things, discrimination
on the basis of religion and sexual orientation.
 The Christian Legal Society (CLS) required voting
club members to affirm a Statement of Faith, which
states that “unrepentant participation in or
advocacy of a sexually immoral lifestyle is
inconsistent with an affirmation of the Statement of
Faith.”
 The law school denied the CLS Registered
Student Organization (RSO) status, concluding
that its constitution violates the law school’s
nondiscrimination policy.
 CLS sued, claiming a variety of First Amendment
violations including free speech, free exercise
and the right to assemble.
 The Ninth Circuit ruled in favor of the law
school.
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But, if this is a higher education case, why does
NSBA care? Aren’t law students adults, for the
most part?
NSBA Position:
In the K-12 context the challenge is between the free
association rights of students and maintaining a
learning environment free of discrimination, which is in
an of itself part of the academic mission of schools.
1.
NSBA encouraged the Court to allow public
school districts to deny recognition to clubs that do
not comply with a district’s nondiscrimination policy
even if the Court reaches the opposite conclusion
regarding public colleges and universities.
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2. NSBA also argued that school districts:
 should be able to recognize only those student
clubs that comply with non-discrimination
policies that are viewpoint neutral and
reasonable and
 should not be placed in the position of drawing
lines to determine whether a particular student
group is entitled to an exemption from the policy.
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What’s the rationale?
 Schools have a special need to protect young,
emotionally vulnerable students, particularly around
harmful discrimination.
 In the K-12 school context this special need trumps
freedom of association claims of clubs that want to
exclude students. Exclusion is particularly invidious in
K-12 because extra curricular activities, including clubs
teach valuable social/civic skills, i.e., leadership;
democratic participation---part of the educational
mission of schools.
 Holding:
In a 5-4 vote, the Court affirmed the
Ninth Circuit’s decision. (Justices Ginsburg, Stevens,
Kennedy, Breyer and Sotomayor)
The majority decided that the open membership rule
imposed by the public law school on all student
groups seeking official recognition, which requires the
groups to accept all comers even if those individuals
disagree with the mission of the group, is viewpoint
neutral and constitutionally reasonable.
 Justice Ginsburg wrote the policy was reasonable
because:
 (1) it ensures that no student is forced (through activity
fees) to fund a group that would reject her as a member;
 (2) it helps the school police the written terms of its
non-discrimination policy without inquiring into
motivation for membership restrictions;
 (3) it encourages diversity and tolerance and/or conflict
resolution skills; and
 (4) it incorporates state-law prohibitions on
discrimination.
Recognition of the how the Culture Wars play
out in public schools:
Court saw the law school as, “caught in the
crossfire between a group’s desire to exclude
and...” the law school’s general prohibition against
discrimination.
NSBA Victory!!! “All-comers” policies are
viewpoint neutral,
because they are aimed at the act of
rejecting would-be group members without
reference to the reasons motivating that behavior.
But still some question about pretext…
To be resolved on Remand. The Ninth Circuit
could consider, on remand, whether the policy
was selectively enforced as a pretext for
discrimination, to the extent the argument was
preserved, noted the court.
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Strong dissent claims set-back for freedom of
expression.
Surprise, Surprise Surprise!
Justice Alito wrote the dissent joined by the usual
suspects.
Alito, defender of the unpopular. He said that
Supreme Court precedents protect the freedom to
express “the thoughts that we hate."
Political Correctness. "Today’s decision," he opined
"rests on a very different principle: no freedom for
expression that offends prevailing standards of
political correctness in our country’s institutions of
higher learning.”
Take aways:
 Schools can require their clubs and student
organizations to follow the district’s non-discrimination
policies.
 Characteristics of constitutional policies:
 They Prevent Student Harm: Avoiding exclusion
 They Are Content Neutral: Focusing on the exclusion ACT
and not the reason for the exclusion
 They Have an Educational Objective: Encourage diversity
and tolerance and/or conflict resolution skills; and
 They Are Supported by State Law: Incorporate state-law
prohibitions on discrimination.
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Can teachers proselytize in the
classroom?
Does the First Amendment
protect teacher free speech
rights in the classroom?
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Johnson v. Poway Unified School District,
No. 07cv783BEN (NLS) (S.D. Calif. Feb. 25, 2010).
 Issue: When can school districts regulate teacher
classroom expression without violating the First
Amendment?
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 The case was brought by
Bradley Johnson, a high
school math teacher, after
he was asked to remove
large banners that he had
hung on his classroom walls
expressing “famous national
phrases” with religious
undertones (“In God We
Trust,” “God Shed His Grace
on Thee,” etc.), after
another teacher
complained.
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 Mr. Johnson was represented by the Thomas More
Law Center, “a not-for-profit public interest law firm
dedicated to the defense and promotion of the
religious freedom of Christians, time-honored family
values, and the sanctity of human life.
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 “The Thomas More Law Center is the Christian response
to the ACLU.”
 TMLC is “inspired by the recognition that the issues of the
culture war being waged across America--issues such as
… school prayer, and the removal of the Ten Commandments from municipal and school buildings--are not being
decided by elected legislatures, but by the courts.”
(Emphasis in the original).
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 Mr. Johnson sued the school district, claiming his First
Amendment rights had been violated. The district court,
agreed with him.
 The court said the classroom walls are a limited public
forum for teacher speech in this case because the school
district allowed teachers to post non-curricular messages
on their classroom walls.
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 So, while instructing Mr. Johnson to remove his banners,
the district allowed other teachers’ “religious” messages
to remain:
 35 to 40 foot string of Tibetan prayer flags with images of
Buddha;
 a poster with the lyrics from John Lennon's song
"Imagine," which starts off, Imagine there's no Heaven;
 a poster with Hindu leader Mahatma Gandhi's "7 Social
Sins;"
 a poster of Muslim leader Malcolm X, and a poster of
Buddhist leader Dali Lama.
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 Any restrictions on speech in a limited public forum
must be viewpoint neutral.
 Restricting Johnson’s “Judeo-Christian” speech was
not viewpoint neutral where the district allowed other
teachers to display materials promoting other
religious perspectives and anti-religious viewpoints.
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NSBA’s position:
The Supreme Court’s decision in Garcetti v.
Ceballos dictates the outcome of this case in the
school board’s favor.
Under Garcetti, the school district may regulate
any work related speech by a teacher that takes
place at school.
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The policy consequence:
Don’t place schools in the untenable position of
choosing between banning all teacher speech in the
name of neutrality or allowing speech that is against
the educational mission.
Particularly here, where the school district had a
written policy disallowing advocating of religion in the
classroom.
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Take Aways:
 Ensure your policies are viewpoint neutral and in
line with your educational mission.
 Implement and enforce the policies consistently!!!
Otherwise you risk the charge that you are creating
a Limited Public Forum.
 Train, train, train staff on the policies. Turnover,
pressures of day-to-day operations, teaching, etc.,
mean that these are perishable skills.
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Morgan v. Swanson, No. 09-
40373 (5th Cir., en banc review
granted, Dec. 17, 2010).
 In this case, the entire U.S. Court of Appeals for the Fifth
Circuit will decided whether two school principals should
be protected from personal liability for prohibiting
elementary school students from distributing items with
religious messages at classroom parties.
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FACTS:
 Plano Independent School District was sued by four
students after their children were not permitted to
distribute religious-themed items as part of a goodie bag
exchange during winter break parties.
 The items included candy cane pens with a card stating
the "J" shape of a candy cane stands for "Jesus" or the
staff of the "good shepherd," and the three stripes
symbolize Jesus' blood or the Trinity. Some pencils read,
"Jesus is the reason for the season."
 The Fifth Circuit three-judge panel concluded
that the principals did not have qualified
immunity “[b]ecause it has been clear for over a
half a century that the First Amendment
protects elementary school students from
religious-viewpoint discrimination.”
 The school officials’ request for review by the
entire Fifth Circuit (en banc) was granted in
January 2011.
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NSBA’s position:
-The students’ rights in this case were not clearly
established because there is no on-point decision from the
Supreme Court or the Fifth Circuit and,
-In fact, there is a lack of clarity of Supreme Court
jurisprudence generally on religion in schools.
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As a result, similar cases have been decided different ways by
other federal circuit courts and recognize administrators
must make determinations in widely varying factual
contexts.
 For example, in a Third Circuit case in which NSBA recently
participated, Busch v. Marple, the school administrator was
sued for refusing to allow a parent to read passages from
the Bible to her son’s elementary school classmates as part
of a curricular activity.
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 Significantly, at least two other cases have been
litigated recently where school districts have
kept students’ religious messages out of the
classroom.
 In one case, the court concluded the school
district’s restrictions were constitutional. In the
other case, the court concluded they were not
but granted school officials immunity based on
the lack of clarity of the law.
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 These cases are particularly difficult for school
districts because they often require
administrators to make on-the-spot decisions in
the face of very unclear law.
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 The lack of clarity arises from the inherent
tension between the First Amendment’s
competing Free Exercise and Establishment
Clauses:
 One recognizes a student’s right to freedom of
religion, while the other prohibits state
establishment of religion.
 In this context it makes little sense to hold
administrators personally liable for the kinds of
legal hair-splitting in which even courts and
lawyers disagree.
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Q&A ?
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Thank You.