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QUESTION PRESENTED: Whether volunteer chaplains may access public schools to meet with students during non-instructional time.
ANSWER: Yes, chaplains are entitled to the same access to public schools enjoyed by other persons during non-instructional time to speak with students who have parental permission voluntarily to speak with them, but chaplains are not entitled to preferential access to public schools.
DISCUSSION: A chaplain’s request to speak with students who have parental permission voluntarily to speak with them during non-instructional time in public schools invokes the chaplains’ and students’ free speech, free exercise, and equal protection rights under the Florida and federal constitutions and their rights under the Florida Religious Freedom Restoration Act of 1998, § 761.01-.05, Fla. Stat. (2002).1 In previous decades, school officials worried that their obligation to comply with the state and federal establishment clause conflicted with these rights; however, the U.S. Supreme Court has repeatedly held in recent years that (1) it constitutes impermissible viewpoint discrimination in violation of the free speech clause to discriminate against speakers on the basis of their religious speech and (2) neutral and equal treatment of religious speech does not violate the Establishment Clause. Good News Club v. Milford Cent. Sch., 533 U.S. 98 (2001); Lamb’s Chapel v. Center Moriches Union Free Sch. Dist., 508 U.S. 384 (1993); Rosenberger v. Rector and Visitors of Univ. of Va., 515 U.S. 819 (1995); Widmar v. Vincent, 454 U.S. 263 (1981).
Neutral and equal treatment of explicitly religious speech in elementary schools is required.2 Good News Club, 533 U.S. at 111-12, 113-14. It does not matter that a religious organization requires its leaders to abide by a particular statement of faith nor that the private religious speech occurs on public grounds or is delivered to a public audience. Board of Educ. of Westside Comm. Sch. v. Mergens, 496 U.S. 226, 248-50 (1990); Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290, 302 (2000). Neutral treatment of religious speech is necessary before school, after school, and during non-instructional time during the school day; for example, during lunch. Id. at 114 n.5; Donovan v. Punxsutawney Area Sch. Bd., 336 F.3d 211 (3d Cir. 2003).3
Neutral treatment of religious speech is necessary in a wide variety of forums that schools establish including forums for use of facilities and communication forums like take-home flyer, public address system, bulletin board, and back-to-school night forums. Mergens, 496 U.S. at 227 (school newspaper, public address system, bulletin board, and annual club fair); Rosenberger, supra (funding for student publications); Hills v. Scottsdale Unified Sch. Dist., 329 F.3d 1044 (9th Cir. 2003) (take-home flyer forum); Sherman v. Comm. Consol. Sch. Dist., 8 F.3d 1160 (7th Cir. 1993), cert. denied, 511 U.S. 1110 (1994); Child Evangelism Fellowship of N.J., Inc. v. Stafford Tp. Sch. Dist., 233 F.Supp.2d 647 (D.N.J. 2002) (take-home flyer, school wall poster, and back-to-school night forums); Daugherty v. Vanguard Charter Sch. Academy, 116 F.Supp.2d 897 (W.D.Mich. 2000) (flyers).4
State and federal law are in accord about the importance of neutrality. Since the late-1950s, the Florida Supreme Court has viewed neutral treatment of religious persons during non-instructional time consistent with Section 6 of the Declaration of Rights of the Florida Constitution. Southside Estates Baptist Church v. Board of Trustees, Sch. Tax Dist. No. I, in and for Duval County, 115 So.2d 697 (Fla. 1959) (use of public school facilities for worship on Sundays held consistent with Florida Constitution). Accord Koerner v. Borck, 100 So.2d 398 (Fla. 1958) (use of public lake for baptisms requiring perpetual easement); Widmar, 454 U.S. at 277-78 (hypothetical state interest in achieving greater separation of church and state than is already ensured under the federal constitution was not sufficiently compelling to justify viewpoint discrimination).
Of course, “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.” Mergens, 496 U.S. at 250. Ordinarily, school districts may not grant preferential access to religious speakers or their speech any more than they may discriminate against religious speech. Accord Koerner, 100 So.2d at 401 (“State power is no more to be used so as to handicap religions, than it is to favor them.”).5 For example, schools may not require students to attend counseling with chaplains without parental consent or compel them to participate in other religious activities.6 See Good News Club, 533 U.S. at 115 (emphasizing parental permission to avoid coercion); Lee v. Weisman, 505 U.S. 577, 599 (1992); Wallace v. Jaffree, 472 U.S. 38 (1985).
On the other hand, schools may require counseling of students and leave it to parents to choose between religious or non-religious counseling. Schools are not obliged to open or maintain forums for chaplains or non-religious counselors,7 but selectively allowing some students to speak with non-religious counselors while denying others access to chaplains implicates students’ First Amendment rights. Tinker v. Des Moines Indep. Comm. Sch. Dist., 393 U.S. 503, 506 (1969) (students do not "shed their constitutional rights to freedom of speech or expression at the schoolhouse gate."); Johnston-Loehner v. O’Brien, 859 F.Supp. 575 (M.D. Fla. 1994) (unconstitutional prior restraint on speech to prevent student from distributing a religious pamphlet and flyer to other students during non-class time).8
Authorizing a forum where chaplains, as well as non-religious persons, may mentor willing students with parental permission during non-instructional time for a non-religious purpose such as mitigating school violence is, of course, quite different from a school district establishing a chaplaincy program characterized by, for example, public preference or special access for religious over non-religious counseling; religious counseling during instructional time; incorporation of the chaplaincy program into the curriculum; requiring religious counseling for students; school selection or discrimination among eligible chaplains; and school guidance, oversight, and monitoring of chaplains beyond implementing neutral and reasonable time, place and manner regulations.9
Government-paid chaplains have been held constitutional in a variety of settings including the legislature, see, e.g., Marsh v. Chambers, 463 U.S. 783 (1983); Murray v. Buchanan, 720 F.2d 689 (D.C. Cir. 1983); military, see, e.g., Katcoff v. Marsh, 755 F.2d 223 (2d Cir. 1985); prisons, see, e.g., Ingram v. Ault, 50 F.3d 898, 900 (11th Cir. 1995); Montano v. Hedgepeth, 120 F.3d 844 n.10 (8th Cir. 1997); Johnson-Bey v. Lane, 863 F.2d 1308, 1312 (7th Cir. 1988); Remmers v. Brewer, 494 F.2d 1277 (8th Cir. 1974), cert denied, 419 U.S. 1012 (1974); Op. Atty. Gen. 077-55 (June 17, 1977) (citing, inter alia, O’Malley v. Brierley, 477 F.2d 785 (3d Cir. 1973); United States v. Kahane, 396 F.Supp. 687, 698 (E.D.N.Y. 1975), modified, 527 F.2d 49 (2d Cir. 1975)); and public hospitals, see, e.g, Carter v. Broadlawns Medical Center, 857 F.2d 448 (8th Cir. 1988), cert. denied, 489 U.S. 1096 (1989).
Yet none of these cases are necessarily dispositive of the constitutionality of a school chaplaincy program. The single school chaplaincy program reviewed by federal courts was held unconstitutional under the second Lemon prong when it did not incorporate non-religious counseling into the program of equal breadth and due to concerns about the extent of parental consent for participation in the program. See Oxford v. Beaumont Indep. Sch. Dist., 224 F.Supp.2d 1099 (E.D. Tex. 2002), on remand from Doe v. Beaumont Indep. Sch. Dist., 240 F.3d 462 (5th Cir. 2001)
CONCLUSION: Public schools should not establish a chaplaincy program as this could be construed as a form of preferential access to public schools, but public schools may establish a counseling program in which chaplains and non-religious counselors are permitted to participate during non-instructional time. Chaplains cannot be denied the same access to public schools enjoyed by other persons during non-instructional time to speak with students who have parental permission voluntarily to speak with them. Chaplains also may not be denied equal access to communication and other public school forums.
1Under Employment Div., Dept. of Human Resources v. Smith, 494 U.S. 872, 881 (1990), claimant’s hybrid rights may be impacted when multiple constitutional rights are offended.
2In high schools, the First Amendment and Equal Access Act, 20 U.S.C.A. § 4071 et al. (1984), protect religious speech. The Equal Access Act applies specifically to student-initiated groups. Id. § 4071(c)(1).
3As the Supreme Court has explained, “The proposition that schools do not endorse everything they fail to censor is not complicated.” Mergens, 496 U.S. at 250 (plurality); id. at 260-61 (Kennedy, J., concurring in part and in judgment). To avoid any mistaken perception that a school endorses private religious speech, schools are permitted to require appropriate, neutral disclaimers of sponsorship to clarify that the speech (whether or not religious) is not the schools’.
4In fact, the federal government may withhold funds if equal access is denied. See Memorandum of Martha K. Asbury to Florida School District Superintendents dated December 15, 2003 (regarding U.S. Dept. of Education, Guidance on Constitutionally Protected Prayer in Public Elementary and Secondary Schools (February 7, 2003)).
5Neutral forums available on equal terms to a variety of religious and non-religious students and persons in the community presumptively satisfies the various tests for compliance with the state and federal establishment clauses including the three-pronged Lemon test, see Lemon v. Kurtzman, 403 U.S. 602 (1971); coercion test, see Lee v. Weisman, 505 U.S. 577, 586 (1992); and endorsement test. See County of Allegheny v. ACLU, 492 U.S. 573, 593 (1989). The same presumption does not arise with respect to religious speech granted special access during instructional time without parental permission. See Brown v. Orange County Bd. of Public Instr., 128 So.2d 181 (Fla. 2d DCA 1960), cert. denied, 129 So.2d 141 (Fla. 1961) (disapproving distribution of Gideon Bibles during instructional time without parental permission).
The Lemon test is utilized to assess compliance with both the federal and state establishment clauses. See Lemon, supra (program must have a secular purpose, its principal or primary effect must be one that neither advances nor inhibits religion, and it must not foster excessive entanglement with religion); Silver Rose Entertainment, Inc. v. Clay County, 646 So.2d 246, 251 (Fla. 1st DCA 1994), rev. denied, 658 So.2d 992 (Fla. 1995), cert. denied, 516 U.S. 932 (1995); Rice v. State, 754 So.2d 881 (Fla. 5th DCA 2000), rev. denied, 779 So.2d 272 (Fla. 2000).
6School officials also may not lead students in religious activities. See Engel v. Vitale, 370 U.S. 421 (1962) (invalidating state laws directing the use of prayer in public schools); School Dist. of Abington Twp. v. Schempp, 374 U.S. 203 (1963) (invalidating state laws and policies requiring public schools to begin the school day with Bible reading and prayer).
7Closing forums may be at odds with important policy objectives such as encouraging mentoring and parent and community participation in education.
8Schools possess substantial discretion to impose rules of order and pedagogical restrictions on student activities; for example, to forbid lewd, profane, vulgar, and sexually explicit speech, see Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675, 684 (1986), but schools may not structure such rules to discriminate against religious speech. For example, it is generally inappropriate to prohibit or discriminate against students who wish to incorporate religious speech in a manner directly responsive to homework or curriculum assignments or in internship or community service programs. See infra note 4; U.S. Dept. of Education, Religious Expression in Public Schools (1998) (“Students may express their beliefs about religion in the form of homework, artwork, and other written and oral assignments free of discrimination based on the religious content of their submissions. Such home and classroom work should be judged by ordinary academic standards of substance and relevance, and against other legitimate pedagogical concerns identified by the school.”)
9An open school forum in which chaplains and non-religious counselors may participate merely incidentally benefits religion through state action intended to promote a secular purpose consistent with the Establishment Clause, whereas a school-sponsored chaplaincy program may have as its end promoting religion inconsistent with the Establishment Clause. Cf. Nohrr v. Brevard County Educ. Facilities Auth., 247 So.2d 304, 307 (Fla. 1971) (citing Johnson v. Presbyterian Homes of Synod of Fla., Inc., 239 So.2d 256, 261 (Fla. 1970)).