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Education Reporter

Report on Enforcement of Laws Protecting Religious Freedom,
2001-2006: Part II A, Education

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Public primary and secondary schools, as well as public colleges and universities, should be open to all members of the public, regardless of their faith. Students should not face discrimination or harassment because of their faith background, their beliefs, their distinctive religious dress, or their religious expression. From 2001-2006, the Civil Rights Division dramatically increased enforcement of civil rights protections against religious discrimination in education. During that period, the Division's Educational Opportunities Section reviewed 82 cases and opened 40 investigations involving various types of religious discrimination.26 This is in contrast to one review and no investigations for the period 1995-2000. From 2001-2006, the Civil Rights Division filed two consent decrees, reached one settlement, and filed thirteen friend-of-the-court briefs in education cases involving religion, versus none from 1995-2000.

The Civil Rights Division's Educational Opportunities Section enforces Title IV of the Civil Rights Act of 1964,27 which prohibits discrimination based on religion in public primary and secondary schools, as well as public colleges and universities. Subsection (a)(1) authorizes the Attorney General to bring suit in response to a written complaint by a parent that a child is being "deprived by a school board of the equal protection of the laws." Subsection (a)(2) permits the Attorney General to bring suit upon receiving a written complaint that a student has been "denied admission to or not permitted to continue in attendance at a public college by reason of race, color, religion, sex or national origin." The Attorney General has delegated this authority to the Civil Rights Division.

Additionally, Title IX of the Civil Rights Act of 196428 permits the Attorney General to intervene in any action in federal court, involving any subject matter, "seeking relief from the denial of equal protection of the laws under the fourteenth amendment to the Constitution on account of race, color, religion, sex or national origin," if such intervention is timely made and the Attorney General certifies that the case is of "general public importance." Enforcement of this provision also has been delegated to the Civil Rights Division, and the Division has participated in a number of education-related religious discrimination cases under Title IX.

The cases in which the Educational Opportunities Section was involved from 2001-2006 covered a wide range of situations and included allegations of discrimination against Muslim, Christian, Jewish, Native American, and Santerian students. Of the forty investigations, fourteen involved harassment by teachers or allegations of indifference by the school toward harassment by students, eight involved religious expression by students, four involved equal access for religious organizations to school facilities, four involved exclusion from higher educational opportunities based on religious belief, four involved issues of student religious dress, three involved refusal to provide excused absences for religious holidays, two involved state scholarships that discriminate against students attending religious schools, and one involved an allegation of a university's failure to accommodate the religious dietary needs of students.

Complaints of harassment based on religion were the most common problem addressed in the Civil Rights Division's cases. Most involved complaints of indifference by schools to student-on-student religious harassment in public primary and secondary schools, but some of the cases involved allegations of harassment by college professors and public school teachers. For example, the Civil Rights Division reached a settlement in March 2005 with the Cape Henlopen, Delaware School District after a fourth-grade Muslim student filed a complaint that she had been harassed by her teacher about her faith in front of her class, including being ridiculed because her mother wore a headscarf. As a result, the student was repeatedly harassed by other students and missed several weeks of school due to emotional distress. The student alleged that the school failed to take adequate remedial action. The settlement required programs for teaching religious tolerance for both teachers and students, and special training and monitoring for the teacher at issue. Other investigations resulted in schools promptly taking corrective action. In some cases, student-on-student harassment was found but there was insufficient evidence of school officials' indifference to trigger liability.

The second largest number of cases involved religious expression. These cases have involved speech in two basic contexts. One context is speech by students outside any organized school activity. For example, the Division filed a friend-of-the-court brief in the case of a group of Massachusetts high school students who were suspended for handing out candy canes to other students with religious messages attached.29 The court agreed that the students' First Amendment rights had been violated. The second context is school-sponsored, non-curricular expressive activities in which students are given freedom to choose their own speech, and then are censored when they choose something with religious content. For example, in O.T. v. Frenchtown Elementary School District Board of Education,30 a federal court agreed with the Division that a public school student whose chosen song for an evening talent show at her school was unconstitutionally censored because it was a Christian song. An example of this in the higher education context is the case of Indian River Community College in Florida, which told the Christian Student Fellowship that it could not show The Passion of the Christ on campus purportedly on the grounds that it was R-rated. However, the Fellowship alleged that at least one other R-rated movie had been shown on campus and that a student-run "No Shame Theater Company" performed plays with sexually explicit themes. The school reversed itself and permitted the film's showing the same day that it received the Civil Rights Division's letter opening an investigation.

The third category of education cases involves schools denying religious groups access to school facilities after-hours on an equal basis with other groups. The Civil Rights Division's Educational Opportunities Section opened investigations in four such cases, and the Division's Appellate Section filed appellate briefs in an additional three cases. In 2001, the Supreme Court ruled in Good News Club v. Milford Central School31 that a school that opened its facilities after-hours to a wide range of community organizations offering "social, civic and recreational meetings and entertainment events, and other uses pertaining to the welfare of the community" could not bar the Good News Club, a Christian organization that holds weekly activities for children involving Bible stories, religious lessons, and songs, from using the facilities on an equal basis with other groups.

Despite the Good News Club decision, there has been continued resistance by school boards to its requirement of equal access. The Civil Rights Division has been involved in three types of equal-access cases involving resistance to Good News Club. In the first type, schools argue that while they understand that they must provide religious community groups with the same access as other youth-serving community groups, they do not have to provide the religious groups with the same means of communicating to students and distributing permission slips that are provided to other youth organizations. The Civil Rights Division filed friend-of-the-court briefs in two cases arguing that Good News Club requires equal access to communications media such as bulletin boards, tables at back-to- school night, and "backpack mail." Courts of appeals agreed in both cases.32 In the second type of equal-access case, schools admit that they must allow groups like the Good News Club to meet, but require them to pay a fee that other youth-serving organizations do not have to pay. The Civil Rights Division opened investigations in two such cases, both of which resulted in settlements. The third type of equal-access case has involved schools saying that while Good News Club allows religious organizations an equal right to meet in school facilities, they may not engage in worship. The Civil Rights Division filed briefs in two such cases, arguing that worship is a form of speech that may not be discriminated against, and in both cases the courts agreed.33

The fourth category of education cases includes four cases in which students alleged that they were excluded from higher educational opportunities because of their religious beliefs. For example, the Division investigated Texas Tech University over the policy stated on a biology professor's official university website that he would only give medical school recommendations to students who would "truthfully and forthrightly affirm" a belief that humans came into existence through evolution. The investigation was closed when the professor agreed simply to require students to explain the scientific theory of evolution.

The fifth category of cases consists of investigations in which students are denied the right to wear religious headcoverings at school. For example, in Hearn and United States v. Muskogee Public School District,34 the Civil Rights Division intervened in the case of a Muslim girl told that she could not wear a headscarf required by her faith to school. The Civil Rights Division's suit was based on the fact that the school was enforcing its uniform policy in an inconsistent manner. The case was settled by consent decree in May 2004. Two additional headcovering cases were resolved after initiation of investigations.

The sixth category of education cases involves students who are denied excused absences for religious holidays. In Scheidt v. Tri-Creek School Corporation,35 a boy in Indiana was threatened with suspension, and his mother was threatened with child neglect, when he missed several days of school for religious holidays. The school permitted only one excused absence per year for religious holidays, even though more days are permitted for secular reasons that included attending the state fair and serving as a page in the state legislature. The Civil Rights Division opened an investigation and submitted an amicus brief in a private suit filed by the boy's mother. The school board settled and changed its policy to permit excused absences for religious holidays. Cases in a different state involving similar facts are under investigation.

The next category involves states discriminating against students using neutrally available scholarships toward education at religiously affiliated schools. In Colorado Christian University v. Weaver,36 the Division's Educational Opportunities Section filed a friend-of-the-court brief arguing that a Colorado program providing financial aid to Colorado residents unconstitutionally bars students from using their scholarships to attend religious colleges and universities. The brief argued that the Supreme Court's decision Locke v. Davey,37 which permits states to bar students from using state funds to pay for ministry-training programs at seminaries, did not apply to students using scholarships for general education at colleges and universities that are religiously affiliated.

Finally, the Division investigated one case involving allegations that a university did not accommodate the dietary needs of Jewish students.

26 A case is identified as a review when the Division interviewed the complainant and witnesses, if any. Investigations include cases in which the Division contacted the school for interviews and/or document requests, or filed legal pleadings or briefs.

27 42 U.S.C. 2000c-6.

28 42 U.S.C. 2000h-2.

29 Westfield High School L.I.F.E. Club v. City of Westfield, 249 F. Supp. 2d 98 (D. Mass. 2003).

30 No. 05-2623 (D.N.J. Dec. 12, 2006).

31 533 U.S. 98 (2001).

32 Child Evangelism Fellowship v. Stafford Township Sch. Dist., 386 F.3d 514 (3d Cir. 2004); Child Evangelism Fellowship v. Montgomery County Pub. Sch., 373 F.3d 589 (4th Cir. 2004).

33 Bronx Household of Faith v. Board of Educ. of the City of New York, 331 F.3d 342 (2d Cir. 2003); Campbell v. St. Tammany Parish Sch. Bd., No. 98-CV-2605 (E.D. La. July 30, 2003). The Bronx Household brief was handled by the Civil Rights Division's Appellate Section and thus is not included in the statistics in this section of the report. As described in Section H below, the Civil Rights Division filed a second appellate brief in a further proceeding in the Bronx Household case, which is pending.

34 No. Civ. 03 598-S (E.D. Okla. 2003).

35 No. 2:05-CV-204 (N.D. Ind., complaint filed May 18, 2005).

36 No. Civ. 04-2512 (D. Colo., complaint filed December 6, 2004).

37 540 U.S. 712 (2004).

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