Focus on Education

Religion and Public Schools

Separation of church and state, shaken

Carol Kocivar

• • • • • • • • November 19, 2024 • • • • • • • •

Our country’s political divisions are again raising basic questions about American values, including the separation of church and state. Religion and public education have long been kept separate in America, like oil and water. What are the rules about religious freedom and our schools?

Should all students be required to say a prayer specified by the state?
Can the Bible, Talmud, or Koran be mandated parts of the school curriculum?
Should religious schools be funded by your tax dollars?

Controversy over religious freedom in America dates back to the founding of the United States. While we may think of religion in the colonies as mainly Protestant, there were many different religions.

Should California schools favor a particular religion?

America 1776

Puritans, Quakers, Anglicans, Lutherans, Baptists, Congregationalists, Deists, Dutch Reformed, Catholics, Huguenots, Calvinists, Reformed Pietists, Jews, Muslims, and followers of indigenous American spiritual traditions.

The founders had an important question to answer: Should this new country favor a particular religion?

For the settlers fleeing religious persecution, the answer was a resounding NO. At the same time, the founders wanted to make it clear that while the government could not favor a particular religion, it also could not deny a person the right to practice a religion.

These principles were so important that the founders established them in the First Amendment of the US Constitution:

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof….”

Historically, prohibiting establishment of religion meant “prohibiting state-sponsored churches, such as the Church of England”.

By adopting the Bill of Rights (the first ten amendments), America’s founders established a Jeffersonian “wall of separation between church and state” as a fundamental principle of American governance. The California Constitution proclaims similar values.

Religion and education

To further clarify that state governments could not fund religious education, in 1875 Congressman James G. Blaine proposed an amendment to the U.S. Constitution to expressly prohibit state governments from subsidizing religious schools with public money. The amendment was not ratified as part of the US Constitution, but Blaine amendments were adopted in the constitutions of 38 states, including California.

The California Constitution and education code contain clear guidelines about separation of church and state.

No public money to support religion: Article XVI, Section 5
No money for religious schools. No teaching religion in public schools: Article IX, Section 8
Teaching religion is not permitted, though teaching about religion is. California education code 51511.

Pretty clear, right? So why are people arguing over whether Bibles and the Ten Commandments should be required in classrooms? Quick answer: The present Supreme Court has abandoned long standing precedents about how decisions are made regarding the establishment of religion. In some states, people are seeing how far they can push the envelope. More on this later.

Conflicting rules and views

While constitutions set out principles, they only matter if courts ultimately decide which rights are protected. In some cases, state and federal constitutional protections may conflict. In practice, what does it mean that there shall be no law respecting the establishment of religion or prohibiting the free exercise of religion?

The debate over private school tuition vouchers is an example.

Supporters of public schools tend to want a clear line that prohibits the government from giving public money to private and religious schools. In California, voters have consistently defeated ballot measures to fund private and religious schools with tax-funded vouchers. California lawmakers have voted down similar legislative proposals.

In contrast, some supporters of school choice favor a blurred line. In this view, it’s permissible to spend public taxes on religious and private schools. Mechanisms for these subsidies vary, including tax-funded vouchers, opportunity scholarships, tax credits, tax-funded scholarships, and education savings accounts.

The map below, using data collected by EdChoice.org, shows states with laws that have directed public money to private and religious schools, subsidizing them to varying degrees.

What was the Lemon test?

There have been many disputes over the separation of church and state. To help courts sort it out, in 1971 the US Supreme Court developed a three-part test in Lemon v. Kurtzman (403 U.S. 602 (1971) to determine whether a law violates the First Amendment's Establishment Clause.

Under the "Lemon" test (yes, really), the government can assist religion only if (1) the primary purpose of the assistance is secular (non-religious), (2) the assistance neither promotes nor inhibits religion, and (3) there is no excessive entanglement between church and state.

Yes. We really are getting down into the weeds. But it is important to know that even legal precedents that have stood for over 50 years — such as Roe v. Wade (1973) — can be overturned by a majority of Supreme Court justices with the stroke of a pen.

Just as the Supreme Court overturned Roe v. Wade, it also recently got rid of the Lemon Test. In Kennedy v. Bremerton School District (2022), the court held that a football coach could pray in the center of the field after a game, surrounded by players. Abandoning Lemon, the court created a new test based on the “original meaning and history of the Constitution.”

Significant Supreme Court decisions

Note: The decisions below were made before the Lemon test was abandoned. All of them remain the law of the land — for now, at least. They may be challenged in the future.

Recent Supreme Court decisions

Blurred Lines?

Several recent supreme court decisions show a trend toward less separation between church and state.

Trinity Lutheran v. Comer (2017)

Espinoza et.al. v. Montana Department of Revenue (2020)

Carson v. Makin (2021)

Rules about religion in California public schools

With all of these changes and challenges afoot, perhaps a recap is in order.

May public money be used to pay for religious schools?	No
May public schools promote a specific religion?	No
May charter schools provide a religious education?	No
May public schools teach about religions?	Yes
May schools require students to pledge allegiance?	No
May students be excused from school based on religious beliefs?	Yes
May students be excused from activities because of religious beliefs?	Yes
May students have a moment of silence for religious prayer?	It depends
May students form religious clubs?	Yes
May students wear religious clothing?	Yes
May a religious exercise be required at a graduation ceremony?	No