This time of year questions can arise in schools and the communities they serve regarding religion in public education. Community members may question the inclusion of Christian Christmas music in a winter choir concert, or parents may scoff at calling the upcoming days off “Winter Break” instead of “Christmas Break.” A Jewish employee might question why Christmas is a paid holiday, but she does not get paid time off for Hanukkah. An enterprising student may mount a campaign to ensure that a Christmas tree in the office is surrounded by symbols of other winter celebrations.
These issues are ultimately about the first two clauses of the First Amendment to the U.S. Constitution: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof…” Over the years the separation of church and state has been repeatedly litigated. In one case, the U.S. Supreme Court allowed the display of a city-owned nativity scene, reasoning that it did not constitute an endorsement of any particular religion because it was part of a display celebrating a secular holiday (other parts of the display included a tree, Santa Claus, and a banner that read “Season Greetings”) and it merely highlighted the origins of the Christmas holiday. Lynch v. Donnelly, 465 U.S. 668 (1984). Just five years later, the Court prohibited the display of a privately owned nativity scene on the steps of a courthouse. County of Allegheny v. ACLU, 492 U.S. 573 (1989). In the latter case, the display stood on its own and was placed at a major government building. The Court concluded that a reasonable person might understand this to be an endorsement of Christianity.
Many other cases have been decided over the years. These disputes are not limited to December. Cases involving prayer at football games, reciting the Pledge of Allegiance at the beginning of the school day, funding private schools with tax-dollar-supported vouchers, and displaying the Ten Commandments and images of Jesus are among the cases that have directly involved schools and the First Amendment.
While these cases are highly fact-dependent, a few themes emerge relevant to winter holidays and public schools. The courts are willing to treat Christmas as a secular (nonreligious) holiday. Polling indicates more than 80 percent of non-Christian Americans celebrate Christmas. As a result, many symbols of Christmas do not implicate the First Amendment. A Christmas tree in a school building lobby is unlikely to be successfully challenged. Also, context matters. A high school choir concert that includes religious pieces among other songs is likely to be viewed as an artistic event rather than as an endorsement of religion. On the other hand, a first-grade reading assignment of the Biblical Christmas story is more problematic, especially given the age and impressionability of the students.
Finally, the courts are generally willing to protect the religious speech of students even as they limit that of school officials. The Supreme Court ultimately declined to hear a case arising in Texas involving a third-grade student who was prohibited from distributing candy cane pens with the message “Jesus is the Christ” at a class party. By passing on the case, the Court left in place the appellate court decision, which found that the child’s First Amendment rights were violated. Morgan v. Swanson, 659 F.3d 359 (5th Cir. 2011).
Constitutional questions are complex matters and are very fact-dependent. It is best to be proactive and consult legal counsel when questions arise. With this in mind, we hope you enjoy the final days of school before your winter break. Happy holidays!
School districts frequently ask how to balance the rights of a person who brings a service animal onto school grounds against the rights of others. For example, if one child in a classroom is allergic to pet dander, but another child demands to bring her service dog to school, whose rights prevail? These concerns are not limited only to the rights of students but also can easily arise with an employee’s request for accommodations under the Americans with Disabilities Act. In other scenarios, members of the public, including parents or spectators at a sporting event, could also be covered.
A court decision this month out of New York gives one example of conflicting rights of different members of the school community. The parents of a student with asthma and severe allergies filed a wide-ranging lawsuit in the U.S. District Court for the Southern District of New York, arguing that a school district violated their child’s rights by not having a policy prohibiting service animals and by allowing a service animal on the school grounds several times in violation of their child’s 504 plan.
In this case, the parent of a different student required the use of a service animal and brought the animal to multiple school events in which the student with the allergy participated. The student with the allergy had a 504 plan that required the school to, among other things, ensure no animals come within 30 feet of the student, keep the student out of contact with service animals, implement a cleaning protocol after animals are within the school building, and communicate in advance with her parents when a service animal was anticipated to be within the school building.
Additionally, the parents had requested other accommodations that are not discussed in the court decision and had also requested a blanket policy banning service animals from school. The school district rejected the latter request, explaining that it had an obligation under federal disability law to allow service animals within the building.
The court dismissed most of the claims but will allow the disability discrimination claim to proceed. This relates to alleged violations of the 504 plan. The court recognized that the school is required under federal law to allow service animals but noted that this does not excuse a school district from fulfilling its obligations under a 504 plan to protect a student against allergies. This case shows how distinct legal rights can come into direct conflict.
While the public court filings do not provide sufficient detail to determine what, if anything, the school might reasonably have done differently (or even if it did, in fact, violate the student’s rights), one lesson is that in allowing a student, staff member, or school visitor to exercise her right to use a service animal, a school district must consider whether accommodations are necessary to ensure that the rights of students with allergies are protected. This is a difficult balance that will depend very much on the individual facts of each case.
– Doe v. United States, 118 LRP 49416 (S.D.N.Y. 2018).
We are very pleased to announce that the highly reputed organization Super Lawyers has selected Ennis Britton shareholder Gary Stedronsky as a Super Lawyer and shareholders Megan Bair, Pamela Leist, and Erin Wessendorf-Wortman as Super Lawyers Rising Stars for 2019!
Gary Stedronsky is a shareholder who has been with Ennis Britton since 2003. He started as a law clerk while attending law school. As a member of Ennis Britton’s Construction and Real Estate Team and School Finance Team, he provides counsel to school districts throughout Ohio on matters related to property issues, public finance matters, tax incentives, and more. He is a published author and frequent presenter on many education-related topics. Gary received the prestigious Super Lawyers Rising Star award five years in a row and now has received the Super Lawyers award!
Megan Bair is a shareholder who advises school districts on a variety of education law matters. As a member of Ennis Britton’s Special Education Team and School Finance Team, Megan represents boards of education on collective bargaining, student discipline, board policy, and much more. Megan has offices in Cleveland and Mahoning Valley. This is Megan’s third year in a row to receive the Super Lawyers Rising Star award!
Pamela Leist is an Ennis Britton shareholder who assists clients with a variety of education law issues. As a member of the firm’s Special Education and Workers’ Compensation Practice Teams, she has represented boards of education before state and federal courts and multiple state and federal administrative agencies. Ms. Leist frequently presents across the state of Ohio on issues related to school law and operations. This is Pam’s second year in a row to receive the Super Lawyers Rising Star award!
Erin Wessendorf-Wortman is a shareholder with the firm. As a member of the firm’s Special Education and Workers’ Compensation Practice Teams, Erin represents school districts across Ohio on a variety of matters including labor and employment issues, civil rights, special education, public records, and more. She is a published author and frequent presenter on many education-related topics. This is Erin’s third year in a row to receive the Super Lawyers Rising Star award!
Super Lawyers is a national rating service that publishes a list of attorneys from more than 70 practice areas who have attained a high degree of peer recognition and professional achievement.
To qualify as a Rising Star, an attorney must score in the top 93rd percentile during a multiphase selection process that includes peer nominations and evaluations combined with independent research. A Super Lawyers rating is considered a very prestigious designation in the legal field. Only those in the top 5 percent of the total lawyers in the state are selected to Super Lawyers, and only 2.5 percent of newer lawyers are selected to Rising Stars. We commend Gary for his selection to Super Lawyers and Megan, Pam, and Erin for their selection to Rising Stars!