Public School Curricula and Free Exercise Claims

Public school curricular decisions have frequently been challenged by parents and students alleging violations of the free exercise clause of the FirstAmendment. The standard courts use to assess free exercise claims changed substantially with the Supreme Court’s decision in Employment Division v. Smith, 494 U.S. 872 (1990). As a general matter, Smith made it more difficult to prove free exercise violation. However, plaintiffs have faced significant difficulties trying to win curriculum cases before and after Smith.

The Supreme Court has interpreted the First Amendment’s religion clauses to mean that government must be neutral towards religion. (See Sch. Dist. of Abington Twp. v. Schempp, 374 U.S. 203, 216, 1963; Comm. for Public Educ. & Religious Liberty v. Nyquist, 413 U.S. 756, 792-93, 1973 [‘‘proper respect for both the free exercise and the Establishment Clauses compels the State to pursue a course of ‘neutrality’ toward religion’’]; Wallace v. Jaffree, 472 U.S. 38, 60, 1985 [‘‘government must pursue a course of complete neutrality toward religion’’].) When it comes to the operation of public schools, the Court has recognized that judicial intervention requires ‘‘care and restraint’’ (Epperson v. Arkansas, 393 U.S. 97, 104, 1968), but it has also stated that ‘‘the vigilant protection of constitutional freedoms is nowhere more vital’’ than in public schools (Shelton v. Tucker, 364 U.S. 479, 487, 1960).

Until 1990, courts analyzing challenges to curricula under the free exercise clause used the test articulated in Sherbert v. Verner, 374 U.S. 398 (1963). Under Sherbert, courts first examined the burden on the religious practices or beliefs of the party challenging the government action. If the burden was substantial, then the government needed to satisfy the strict scrutiny test: it had to have a compelling interest, and its practice had to be narrowly tailored to further that interest. (See, for example, Mozert v. Hawkins County Bd. of Educ., 827 F.2d 1058, 1063, 6th Cir., 1987 [citing Sherbert].) In cases involving public school curricula, courts measured the burden on religion by asking whether the curricula had a coercive effect on the student, forcing the student to declare his belief or nonbelief in religion or to compel the student to take action inconsistent with his beliefs (Mozert, 827 F.2d at 1063-64; Grove v. Mead School Dist. No. 354, 753 F.2d 1528, 1533, 9th Cir., 1985, cert. denied, 474 U.S. 826, 1986). When students were not forced to declare their belief or nonbelief or perform acts inconsistent with their beliefs, the government’s compelling interest in providing quality public education was found to outweigh the alleged burden (Mozert, 827 F.2d at 1065; Grove, 753 F.2d at 1533).

In 1990, the Supreme Court decided Employment Div. v. Smith, 494 U.S. 872, 878-82 (1990), holding that a law neutral on its face and applied generally did not violate the free exercise clause, regardless of the law’s burden on religion. The Court reiterated this in Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 531 (1993), holding that a ‘‘law that is neutral and of general applicability need not be justified by a compelling governmental interest even if the law has the incidental effect of burdening a particular religious practice.’’ The Court in Smith distinguished free exercise-only claims from ‘‘hybrid claims’’ that combined a free exercise challenge with another constitutional claim, such as due process. In ‘‘hybrid rights’’ cases, courts could take into account the burden on the plaintiff’s religion (Lukumi Babalu Aye at 882. After Smith, laws challenged on free exercise grounds alone must be upheld if they are facially neutral and generally applicable.

Since Smith was decided, most courts faced with free exercise clause challenges involving public school curricula have concluded that the issue is whether the curricular decision is facially neutral and generally applicable, rather than whether it imposes an unacceptable burden on the free exercise of religion. In Brown v. Hot, Sexy and Safer Productions, Inc., 68 F.3d 525, 530 (1st Cir. 1995), the court found that a one-day sex education program was a ‘‘neutral requirement that applied generally to all students’’ (Brown at 539). Because this requirement was neutral and generally applicable (and because it was not a ‘‘hybrid claim’’—that is, the free exercise claim was not accompanied by another constitutional claim), the plaintiffs’ free exercise rights were not violated.

In Axson–Flynn v. Johnson, 356 F.3d 1277, 1280 (10th Cir. 2004), a Mormon student challenged an acting class requirement that she be forced to use offensive words and take God’s name in vain. Like the first circuit, the tenth circuit applied the Smith test and asked whether the requirement was neutral and generally applicable. On the facts, the court of appeals held that the plaintiff was entitled to try her claim that the requirement she adhere to the script during an acting class was not truly neutral and generally applicable, but instead disguised religious discrimination (Axson–Flynn. at 1294).

At least one circuit has continued to use the Sherbert Balancing Test, even after the decision in Smith. The seventh circuit heard a free exercise clause challenge to public school curriculum in Fleischfresser v. Dirs. of Sch. Dist. 200, 15 F.3d 680 (7th Cir. 1994). The court found that the burden on the parents was ‘‘at most, minimal,’’ finding that the reading program at issue did not ‘‘compel the parents or children to do or refrain from doing anything of a religious nature’’ (Fleischfresser, 15 F.3d at 690). Applying the Sherbert test without discussing why Smith did not apply, the seventh circuit held that a reading program that did not compel or coerce students did not violate the free exercise clause.

Regardless of whether the Sherbert or the Smith test is applied, it is apparent that the Court’s more fundamental principle of neutrality towards religion has been the key issue in free exercise clause cases involving public school curricula. Such challenges have tended to fail under either test, unless the plaintiff can show (as was claimed in Axson–Flynn) that school officials have departed from the neutrality demanded by the First Amendment.

SAMUEL A. MARCOSSON

References and Further Reading

• Blumhofer, Edith L., ed. Religion, Education, and the American Experience: Reflections on Religion and American Public Life. Tuscaloosa: University of Alabama Press, 2002.
• Lechliter, Michael E., Note: The Free Exercise of Religion and Public Schools: The Implications of Hybrid Rights on the Religious Upbringing of Children, Michigan Law Review 103 (2005): 2209–2241.

Cases and Statutes Cited

• Axson–Flynn v. Johnson, 356 F.3d 1277 (10th Cir. 2004)
• Brown v. Hot, Sexy and Safer Productions, Inc., 68 F.3d 525 (1st Cir. 1995)
• Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520 (1993)
• Comm. for Public Educ. & Religious Liberty v. Nyquist, 413 U.S. 756 (1973)
• Employment Division v. Smith, 494 U.S. 872 (1990)
• Epperson v. Arkansas, 393 U.S. 97 (1968)
• Fleischfresser v. Dirs. of Sch. Dist. 200, 15 F.3d 680 (7th Cir. 1994)
• Grove v. Mead School Dist. No. 354, 753 F.2d 1528 (9th Cir. 1985), cert. denied, 474 U.S. 826 (1986)
• Mozert v. Hawkins County Bd. of Educ., 827 F.2d 1058 (6th Cir. 1987)
• Sch. Dist. Of Abington Twp. v. Schempp, 374 U.S. 203 (1963)
• Shelton v. Tucker, 364 U.S. 479 (1960)
• Sherbert v. Verner, 374 U.S. 398 (1963)
• Wallace v. Jaffree, 472 U.S. 38 (1985)