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date: 17 April 2021

Abstract and Keywords

There is perhaps no better setting that exhibits the perennial tension between the Free Exercise Clause and the Establishment Clause than American public schools. The Free Exercise Clause of the First Amendment to the US Constitution ensures that students may retain their religious beliefs, practices, identities, and rights when they enter public schools. The free exercise principle also protects government employees; however, the Establishment Clause of the First Amendment prevents teachers and administrators, as agents of the state, from entangling the public school in religious activities or engaging in school speech that advances or endorses religion. This chapter illustrates how these two principles––free exercise of religion and non-establishment of religion––form the concept known as religious freedom. Attempting to strike this balance are public schools, which are required to serve the entire public, whether religious or not. Those within the school—both teachers and students—may be religious and wish to express their religion or to express their critique of or nonaffiliation with religion. This chapter explores different forms of religious expression for both students and teachers and details the unconstitutional nature of laws that seek to target religion for regulation or fail to accommodate religion in public schools.

Keywords: religious freedom, religious liberty, free speech, expression, public school, student, teacher, religious garb, Free Exercise Clause, Establishment Clause

Kevin R. Pregent

Kevin R. Pregent, originally from central New York, is an instructor at the Religious Freedom Center of the Freedom Forum Institute in Washington, DC, where he previously served as a law and religion fellow. He received his BA from the University of Delaware and is in his final year of a JD degree program at Vanderbilt University Law School. He is a contributing author to Religion in American Education: A Legal Encyclopedia (Rowman & Littlefield).

Nathan C. Walker

Nathan C. Walker is the executive director of 1791 Delegates, a consortium of constitutional and human rights experts who consult on issues of religion and public life. Walker is the author of Cultivating Empathy: The Worth and Dignity of Every Person—Without Exception (Skinner House Press, 2016) and Exorcising Preaching: Crafting Intellectually Honest Worship (Chalice Press, 2014). He is the co-editor with Edwin J. Greenlee of Whose God Rules? Is the United States a Secular Nation or a Theolegal Democracy? (Palgrave MacMillan, 2011). He is a contributing author to The Oxford Encyclopedia of Politics and Religion, edited by Paul Djupe (Oxford University Press, 2019); Religion in American Education: A Legal Encyclopedia, edited by Charles J. Russo (Rowman & Littlefield, 2019); and co-author with Lyal S. Sunga of Promoting and Protecting the Universal Right to Freedom of Religion or Belief through Law (International Development Law Organization, 2017). Formerly a resident fellow in law and religion at Harvard Divinity School, Walker received his doctorate in law, education, and religion from Columbia University, where he received his Master of Arts and Master of Education degrees. He received his Master of Divinity degree from Union Theological Seminary and is an ordained Unitarian Universalist minister. His website is www.ReligionAndPubliclife.com.

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