First Amendment Basics

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First Amendment Basics

Texas Administrator Guide
TASB Legal Services

Several laws form the foundation that guides public school districts in navigating the complex area
of religion in schools. This document provides a basic overview of these laws, including the U.S.
Constitution First Amendment. The documents entitled Student Religious Expression and
Employee Religious Expression detail how these laws apply within several common contexts.

First Amendment
The First Amendment to the U.S. Constitution states: Congress shall make no law respecting
an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of
speech . . . . U.S. Const., Amend. I. The First Amendment applies to school districts as
political subdivisions of the state through the Fourteenth Amendment. Engel v. Vitale, 370 U.S.
421 (1962). Together, these laws protect private religious expression but prohibit government
action to advance, coerce, or endorse religion in the public schools.
Plaintiffs may sue the government for violations of the First Amendment through Section 1983,
42 U.S.C. 1983.
Religious Liberty Clauses
Establishment Clause: The First Amendment Establishment Clause, Congress shall make no
law respecting an establishment of religion . . . , prohibits school districts and their employees
from establishing religion. U.S. Const. Amend. I.
The Establishment Clause prohibits schools from advancing, coercing, or endorsing a particular
religion or religion over non-religion. To avoid an establishment of religion, government action
must:

Have a secular purpose. Lemon v. Kurtzman, 403 U.S. 602 (1971).

Not have a primary effect of advancing or inhibiting religion. Lemon v. Kurtzman, 403
U.S. 602 (1971).

Not foster an excessive government entanglement with religion. Lemon v. Kurtzman, 403
U.S. 602 (1971).

Not persuade or compel a student to participate in a religious exercise. Lee v. Weisman, 505
U.S. 577 (1992).

Not endorse religion in the public schools. Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290
(2000).
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Free Exercise Clause: The First Amendment Free Exercise Clause, Congress shall make no
law . . . prohibiting the free exercise [of religion], prohibits districts and their employees from
unduly burdening citizens free exercise of religion. U.S. Const. Amend. I.
The Free Exercise Clause prohibits the government from passing laws or establishing practices
that specifically target adherents of particular faiths. Under the federal Free Exercise Clause, the
government may, however, adopt and apply neutral, generally applicable laws and practices.
Employment Div., Dept of Human Res. of Or. v. Smith, 494 U.S. 872 (1990).
Not religion-free zones: The Religion Clauses of the First Amendment prevent the
government from making any law respecting the establishment of religion or prohibiting the free
exercise thereof. By no means do these commands impose a prohibition on all religious activity in
our public schools. Indeed, the common purpose of the Religion Clauses is to secure religious
liberty. Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290, 313 (2000) (citations omitted).
Free Speech Clause
The First Amendment also prohibits interference with an individuals freedom of speech, the
Free Speech Clause, stating that, Congress shall make no law . . . abridging the freedom of
speech. U.S. Const. Amend. I. The Free Speech Clause protects private speech and prohibits
the government from discriminating against individual viewpoints.
Free speech: First amendment rights, applied in light of the 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. Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 506 (1969).
Public forums: School officials can open school facilities for public usein other words,
create a public forumthrough the policies or practices of the district or an individual campus.
Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290 (2000). Within a limited public forum, limits on
expression must be viewpoint-neutral and reasonable in light of the purpose of the forum. The
government may impose reasonable time, place, and manner restrictions, as long as these
restrictions do not relate to the content of the expression. See generally Cornelius v. NAACP
Legal Def. and Educ. Fund, Inc., 473 U.S. 788 (1985).
Private speech protected: There is a crucial difference between government speech endorsing
religion, which the Establishment Clause forbids, and private speech endorsing religion, which
the Free Speech and Free Exercise Clauses protect. Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S.
290, 302 (2000) (quoting Bd. of Educ. of Westside Cmty. Sch. v. Mergens, 496 U.S. 226, 250
(1990) (opinion of OConnor, J.) (emphasis in original)).

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Federal Statutes and Guidance

Federal statutes and guidance further inform the topic of student and employee religious
expression.
Federal Law
Title VII of the Civil Rights Act of 1964: Title VII of the Civil Rights Act of 1964, 42 U.S.C.
2000e - 2000e-17, prohibits discrimination in employment: It shall be an unlawful
employment practice for an employer . . . to fail or refuse to hire or discharge any individual, or
otherwise to discriminate against any individual with respect to his compensation, terms,
conditions, or privileges of employment, because of such individuals . . . religion . . . . 42
U.S.C. 2000 e-2.
Title VII prohibits an employer from doing any of the following to an employee or prospective
employee based on the individuals religion: failing to hire; firing; discriminating with respect to
compensation, terms, conditions, or privileges of employment; or classifying employees or
applicants in a way that could adversely affect employment opportunities. 42 U.S.C. 2000e-2(a).
For purposes of Title VII, the term religion includes all aspects of religious observance and
practice, as well as belief, unless an employer demonstrates that it is unable to reasonably
accommodate an employees or prospective employees religious observance or practice without
undue hardship on the conduct of the employers business. 42 U.S.C. 2000e(j).
Under Title VII, an employee or prospective employee can establish a prima facie case of
religious accommodation discrimination by showing: (1) he or she has a bona fide religious
belief that conflicts with an employment requirement; (2) he or she informed the employer of the
belief; and (3) he or she suffered an adverse consequence for failure to comply with the
employment requirement. If an employer offers the individual a reasonable accommodation, the
employer has complied with Title VII; the employer need not show that each of the individuals
suggested accommodations would result in undue hardship. Ansonia Bd. of Educ. v. Philbrook,
479 U.S. 60 (1986).
Equal Access Act: The Equal Access Act, 20 U.S.C. 4071, requires that districts permit
student clubs of a religious nature to meet on school property, subject to the same rules and
privileges as other non-curricular student groups. In secondary schools, student-organized,
student-led groups meet pursuant to school district policies established under the Act. 20 U.S.C.
4071. Employees may be present at student religious meetings only in a non-participatory
capacity. 20 U.S.C. 4071(c)(3). In both elementary and secondary schools, community
groups, including adult-led groups attended by students, such as the Good News Club or the Boy
Scouts, meet on campus pursuant to school district policy.

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Federal Guidance
U.S. Department of Education Guidance: The Department of Education Guidance on
Constitutionally Protected Prayer in Public Elementary and Secondary Schools provides
guidance on the current state of the law regarding religious expression in schools, available at
www.ed.gov/policy/gen/guid/religionandschools/prayer_guidance.html.
To receive funds under the federal Elementary and Secondary Education Act, as amended by the
No Child Left Behind Act, local school districts must certify that their local policies do not
prevent or deny participation in constitutionally protected prayer as set forth in related DOE
guidance. See Texas Education Agency, No Child Left BehindSchool Prayer, available at
www.tea.state.tx.us/nclb/prayer.html.
EEOC Compliance Manual: The U.S. Equal Employment Opportunity Commission
Compliance Manual on Religious Discrimination provides guidance on handling employee
complaints of religious discrimination, available at www.eeoc.gov/policy/docs/religion.html.

Texas Law
Several Texas laws are relevant to the topics of student and employee religious expression.
Freedom of Worship Clause: The Freedom of Worship Clause of the Texas Constitution
provides,
All men have a natural and indefeasible right to worship Almighty
God according to the dictates of their own consciences. No man shall
be compelled to attend, erect or support any place of worship, or to
maintain any ministry against his consent. No human authority ought,
in any case whatever, to control or interfere with the rights of
conscience in matters of religion, and no preference shall ever be
given by law to any religious society or mode of worship. But it shall
be the duty of the Legislature to pass such laws as may be necessary
to protect equally every religious denomination in the peaceable
enjoyment of its own mode of public worship.
Art. I, 6.

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Under this provision, if a litigant shows that the exercise of his religious beliefs was substantially
burdened by a school-imposed regulation or requirement, the district will be required to show a
compelling state interest behind the regulation and the lack of a less restrictive, alternative means
of meeting that interest. Some state appellate courts have observed that the Texas Constitution
grants greater religious freedom than is provided by the U.S. Constitution. See, e.g., Howell v.
State, 723 S.W.2d 755 (Tex. App.Texarkana 1986, no writ). No courts decision appears to
turn on the distinction, however, and the Texas Supreme Court has more recently assumed
without deciding that the state and federal free exercise guarantees are coextensive. Tilton v.
Marshall, 925 S.W.2d 672 (Tex. 1996).
Texas Equal Rights Amendment: The Texas Equal Rights Amendment, Texas Constitution
article I, section 3a, prohibits discrimination on the basis of religion: Equality under the law
shall not be denied or abridged because of sex, race, color, creed, or national origin. Tex.
Const. art. I, 3a.
Religious Freedom Restoration Act: In addition to all other protections provided under state
and federal law, Texas Religious Freedom Restoration Act (RFRA) prohibits a government
agency from substantially burdening a persons free exercise of religion unless the burden is in
furtherance of a compelling governmental interest and is the least restrictive means of furthering
that interest. Tex. Civ. Prac. & Rem. Code 110.003, .009.
For purposes of RFRA, free exercise of religion means an act or refusal to act that is
substantially motivated by sincere religious belief. In determining whether an act or refusal to
act was substantially motivated by a sincere religious belief, it is not necessary to determine that
the act or refusal to act was motivated by a central part or central requirement of the persons
sincere religious belief. Tex. Civ. Prac. & Rem. Code 110.001(a)(1).
In determining whether an interest is a compelling governmental interest under RFRA, a court
shall give weight to the interpretation of compelling interest found in federal case law relating to
the Free Exercise Clause. Tex. Civ. Prac. & Rem. Code 110.001(b).
Possible remedies under RFRA include: declaratory relief; injunctive relief; compensatory
damages for pecuniary and nonpecuniary losses up to $10,000; and reasonable attorneys fees,
court costs, and other expenses incurred in bringing the action. In most cases, a person may not
file suit under RFRA unless the person has given the governmental agency written notice 60
days before bringing the action. Tex. Civ. Prac. & Rem. Code 110.005, .006.

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Texas Commission on Human Rights Act: The Texas Commission on Human Rights Act
(TCHRA) provides,
An employer commits an unlawful employment practice if because of
race, color, disability, religion, sex, national origin, or age the
employer: (1) fails or refuses to hire an individual, discharges an
individual, or discriminates in any other manner against an individual
in connection with compensation or the terms, conditions, or privileges
of employment; or (2) limits, segregates, or classifies an employee or
applicant for employment in a manner that would deprive or tend to
deprive an individual of any employment opportunity or adversely
affect in any other manner the status of an employee.
Tex. Lab. Code 21.051.
Due to the lack of case law interpreting TCHRA, the Texas Supreme Court has indicated that it
is appropriate to seek guidance from the federal court cases interpreting Title VII when
addressing TCHRA claims. Consequently, the standard for religious accommodation
employment discrimination is the same under Title VII and TCHRA. Grant v. Joe Myers
Toyota, Inc., 11 S.W.3d 419 (Tex. App.Houston 2000, no pet).
Texas Civil Practice and Remedies Code chapter 106: Texas Civil Practice and Remedies
Code chapter 106 provides,
An officer or employee of the state or of a political subdivision of the
state who is acting or purporting to act in an official capacity may
not, because of a persons race, religion, color, sex, or national origin:
(1) refuse to issue to the person a license, permit, or certificate;
(2) revoke or suspend the persons license, permit, or certificate;
(3) refuse to permit the person to use facilities open to the public
and owned, operated, or managed by or on behalf of the state
or a political subdivision of the state;
(4) refuse to permit the person to participate in a program owned,
operated, or managed by or on behalf of the state or a political
subdivision of the state;
(5) refuse to grant a benefit to the person;
(6) impose an unreasonable burden on the person; or
(7) refuse to award a contract to the person.
Tex. Civ. Prac. & Rem. Code 106.001(a).

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If a district employee knowingly violates Chapter 106, the employee will be deemed to have
committed a misdemeanor punishable by a fine of up to $1,000, confinement in a county jail for
up to a year, or both. Tex. Civ. Prac. & Rem. Code 106.003. The victim may also sue for
preventative relief such as an injunction and, if the victim prevails, may be awarded attorneys
fees. Tex. Civ. Prac. & Rem. Code 106.002.
Texas Education Code provisions: The Texas Education Code includes several statutes that target
specific issues that may arise regarding religious expression. The statutes are described in more
detail in the documents entitled Student Religious Expression and Employee Religious Expression.

The Religious Viewpoint Antidiscrimination Act, Texas Education Code sections 25.151
25.156, provides that school districts will not discriminate against students expressions of
religious beliefs, including in their personal communications, though their schoolwork, and
in student clubs. The RVAA requires school districts to adopt policies creating limited
public forums for student speakers at school events. Tex. Educ. Code 25.151-.153.

The Bible course statute, Texas Education Code section 28.011, provides that school
districts may offer an elective course on the content, history, literary style, and influence
of the Old and New Testaments.

Texas Education Code section 25.087 requires that a district must excuse a student from
attending school for the purpose of observing religious holy days, including traveling for
that purpose.

The voluntary prayer statute, Texas Education Code section 25.901, protects students
right to individually, voluntarily, and silently pray in a nondisruptive manner at school.

The school uniform exemption statute, Texas Education Code section 11.162, permits
parents to seek an exemption from a school uniform requirement or request a transfer to a
campus without such a requirement based on a bona fide religious objection.

Under the immunization exemption statute and regulation, Texas Education Code
section 38.001 and 25 Texas Administrative Code section 97.62, immunization is not
required for admission to public school with a proper affidavit stating that the applicant
declines immunization for reasons of conscience, including a religious belief.

Texas Health and Safety Code sections 36.005, 37.002, and 95.003 and 25 Texas
Administrative Code sections 37.23 and 37.148 require districts to exempt students from
certain medical assessments based on request of parents who cite conflicts with the
parents or students' religious beliefs.

The temporary removal statute, Texas Education Code section 26.010, permits parents
to temporarily remove their children from classes or school activities that conflict with
their religious beliefs.

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Texas Education Code section 25.082 permits exemptions to the required recitation of the
Pledge of Allegiance and the moment of silence to be granted on the request of
students parents.

The educator absence statute, Texas Education Code section 21.406, prohibits a district
from denying a salary, bonus, or similar compensation, based in whole or part on
attendance, to an educator on the basis of an absence for observation of a holy day
observed by a qualified religion.

District Policies
TASB policies cover several topics related to student religious expression:

Pledges of Allegiance and moment of silence, found at policies EC(LEGAL) and

EC(LOCAL)

Exemption from instruction based on religious belief, found at policy EMB(LEGAL)

Prohibition on religious discrimination of a student, found at policy FB(LEGAL)

Prohibition on accepting or rejecting interdistrict transfers based on religion, found at

policy FDA(LOCAL)

Excused absences for observing religious holy days, found at policies FEA(LEGAL),
FEB(LEGAL), FEC(LEGAL), and FEC(LOCAL)

Exemption from certain medical assessments based on religious belief, found at policy
FFAA(LEGAL)

Exemption from immunizations based on religious belief, found at policy

FFAB(LEGAL)

Prohibition on religious harassment, found at policy FFH(LOCAL)

Religious expression at graduation, found at policy FMH(LEGAL)

Religious expression generally, found at policies FNA(LEGAL) and FNA(LOCAL)

Distribution of materials, found at policies FNAA(LEGAL) and FNAA(LOCAL)

Facilities use by religious groups, found at policies FNAB(LEGAL) and FNAB(LOCAL)

Exemption from uniform requirements based on religious belief, found at policies

FNCA(LEGAL) and FNCA(LOCAL)

Prohibition on religious discrimination in extracurricular standards of behavior, found at

policy FO(LOCAL)

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TASB policies also cover several topics related to employee religious expression:

Prohibition on religious discrimination and harassment of an employee, found at policies

DAA(LEGAL), DIA(LEGAL), and DIA(LOCAL)

Prohibition on denial of an attendance bonus based on an absence for observing a

religious holy day, found at policy DEAA(LEGAL)

Absences for religious observances, found at policy DEC(LEGAL)

Prohibition on religious discrimination in the nonrenewal of an employee, found at

policies BJCF(LOCAL) and DFBB(LOCAL)

Prohibition on religious discrimination of an employee or a student by an employee,

found at policy DH(EXHIBIT)

Teaching about religion, found at policies EMI(LEGAL) and EMI(LOCAL)

Texas Version
The Training Material is provided for educational purposes only and contains information to facilitate a general
understanding of the law. It is neither an exhaustive treatment of the law on this subject nor is it intended to
substitute for the advice of an attorney. It is important for the viewer to consult with the viewers own attorney in
order to apply these legal principles to specific fact situations.
Copyright 2008 Texas Association of School Boards, Inc. All rights reserved.
Further duplication or distribution of the Training Material (other than as specifically set out above), in whole or in
part, is prohibited without written permission of TASB. Requests to duplicate or distribute any portion of the
Training Material should be made in writing to Director, Legal Services, Texas Association of School Boards, P.O.
Box 400, Austin, Texas 78767-0400.

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