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Church-State Separation in the United States:
Religion in Public Schools and the Legal/Off-Courtroom Strategies of the Christian Right

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Last update: 03/06/2005

BACKGROUND

During the course of my investigation of the lawsuit filed by the Alliance Defense Fund (ADF) against the Cupertino Union School District (CUSD) and Principal Patricia Vidmar on behalf of Stevens Creek Elementary School teacher Stephen Williams, I started to look for more material about ADF. Jim Allison (who along with Susan Batte) jointly maintains an excellent source of research on the topic of Church-State separation here, helpfully sent me a note referring me to this book:

Trumping Religion: The New Christian Right, The Free Speech Clause, and the Courts by Steven P. Brown

I should thank Jim for his recommendation because the book is indeed excellent. It provides a very good, dispassionate perspective on how the legal strategies of the Christian Right (what Brown calls the "New Christian Right" (NCR)) have evolved over the years and how they adopted (in part) a litigation- and prelitigation-based approach to increase the role of religion in the public arena and especially in schools (to counter the spread of secular values). I recommend readers who are interested in getting a better understanding of the topic of Church-State separation and the Christian Right buy this book and read it - it is not very long and it is worth every penny. [You even get interesting nuggets such as the origin of the word "fundamentalism" (page 17) - it refers to the teachings of some Protestants who published a "series of pamphlets called The Fundamentals: A Testimony to the Truth" between 1910 and 1915, in response to what they viewed as an overly "modernist or liberal view of Protestantism" at that time (Phrases in quotes are taken from the book).]

Based on what I learnt from this book and some additional materials, I have put together this page to address the issue of religion in schools (from a legal standpoint), the Christian Right's legal and off-courtroom strategies on religion, and what we can learn from it.

[NOTE: I provide access to material on this page that is copyrighted. However, this is purely for a research/educational/informational standpoint and no profits are being obtained from the reproduction of the material. I believe this is in accordance with Title 17 U.S.C. section 107: http://www.law.cornell.edu/uscode/17/107.shtml. I am also encouraging readers to buy the book referred to here considering the far greater value and information contained in the book, in comparison to what I have featured here.]

SUMMARY

Christian Right legal firms like the Alliance Defense Fund (ADF) have evolved a partly successful strategy of lawsuits to propagate religion and religious views, especially in public schools. While their positions sometimes have (legal) merit, there are many occasions where they don't. Their courtroom strategy is sometimes indirect/passive (e.g., amicus curiae briefs, which they often use in Supreme Court religion cases of interest to them) and sometimes direct/active (via funding or providing counsel to try lawsuits, which they do more often in the lower Federal Courts). Their success in the lower courts (which decide the vast majority of cases in the country) has been highest when they have argued the Free Speech angle in their religion lawsuits (and lowest when they used the Establishment clause). This may explain why ADF's lawsuit against the CUSD on behalf of teacher Stephen Williams partly invokes the Free Speech clause to defend the teacher's actions (in addition to the Establishment clause and the Fourteenth Amendment's Equal Protection clause). 

By the admission of some of the Christian Right legal firms, they achieve most of their goals via off-courtroom activities. This includes (among other things): 
(a) public relations and (sometimes fake) propaganda via a helpful mainstream media and Christian/right-wing networks, 
(b) so-called public "education" campaigns using bulletins, letters or notices to public organizations like schools, and,
(c) threats of lawsuits

Based on the information presented in this page, in the separate Cupertino lawsuit analysis, and this Commonweal Institute report, important lessons can be learnt by teachers, parents and public school districts (and other public organizations). If you are a public school and you receive a threat of a lawsuit or an "education" bulletin from Christian Right legal firms, do not assume that everything they claim is correct or legal. These groups (and their appendages in the media) have a history of fabricating myths or distorting the facts or presenting selective, misleading information. Just because lawsuits arguing the Free Speech clause have provided the Christian Right with greater success, it doesn't automatically mean that a Free Speech argument has legal merit. This line of legal attack has historically been more successful in cases where off-classroom religious activities are involved, and less successful when in-classroom activities are involved (which always risk the implication of the school's endorsement of religion - something that the Supreme Court has repeatedly scorned at). The Stevens Creek Elementary School lawsuit (partially argued using the Free Speech clause) not only falls in the latter category but is also characterized by the teacher using bogus and highly slanted documents. As such, it is a frivolous lawsuit that is extraordinarily weak on the legal merits.

The Christian Right and its extended network has a historically rich track record of trying to discredit and destroy public education and teachers unions. The religion in schools angle is just one of many in their assault on public education. It would be foolish to take their attacks lying down. 

DETAILS

1. Religion, Schools and Church-State Separation: A Personal Assessment

2. Basic U.S. Law relating to Church-State Separation and Religion in Schools

2.1 First Amendment of the United States Constitution 

2.2 Some Relevant Landmark U. S. Supreme Court (SCOTUS) decisions on religion and public schools up until 2000

2.2.1 Some Relevant Landmark U. S. Supreme Court (SCOTUS) decisions on religion and public schools beyond 2000 
(added 3/6/05)

2.3 Some Comments on the above Supreme Court decisions

3. The Legal Strategies of the Christian Right

3.1 U.S. Supreme Court Religion Cases from 1980 through 2000

3.2 U.S. Lower Federal Court Religion Cases from 1980 through mid-2000

3.3 "Free Speech" emphasis in the legal strategy to introducing more religion into schools

4. Christian Right Off-Courtroom Strategies: Pre-Litigation, Public "Education", Media

5. Some information on the Alliance Defense Fund (ADF)

6. Lessons to be Learnt

LETTERS to eRiposte in response to this article 

1. Religion, Schools and Church-State Separation: A Personal Assessment

The topic of religion in public schools is a compelling subject that is also a matter of frequent controversy. I felt that an examination of the law on this topic would therefore be worthwhile. 

Before I review the legal issues, though, I would like to provide some personal observations on religion and schools, since I believe this may be useful to the reader to better understand the perspective I bring to this topic. (At the bottom of this page - in the Letters section, I have posted noteworthy comments I receive in response to this post.)

2. Basic U.S. Law relating to Church-State Separation and Religion in Schools

To understand the legal strategies of the Christian Right and religion in schools it is important to understand some of the basic legal precedents that relate to church-state separation in the context of public schools.

2.1 First Amendment of the United States Constitution 

Without a doubt, the fundamental law that we need to be aware of on Church-State Separation is the First Amendment of the U.S. Constitution. It is worth calling that out here:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

2.2 Some Relevant Landmark U. S. Supreme Court (SCOTUS) decisions on religion and public schools up until 2000

In his book (Trumping Religion: The New Christian Right, The Free Speech Clause, and the Courts), Steven Brown examines key U.S. Supreme Court precedents that has allowed the Christian Right to forge a legal strategy. They are discussed in a clear overview in Chapter 5 (indeed, Chapter 5 alone makes the book worth buying). As he summarizes in page 68 (in the quotes below and elsewhere on this page, bold text, or comments within "[]", are eRiposte emphasis):

The [Supreme] Court's 5-4 decision to permit public funding of a religious student magazine in Rosenberger [Rosenberger v. Rector and Visitors of the University of Virginia (1995)] quickly accorded the case landmark status. But Rosenberger is important for other reasons as well. Although the majority opinion appealed to a number of previous Supreme Court rulings to justify its decision, the core issue in Rosenberger - the linking of speech, religion, and the state - was grounded in three precedent-setting decisions inextricably tied to the New Christian Right: Widmar v. Vincent [1981], Board of Education of Westside Community Schools v. Mergens [1990], and Lamb's Chapel v. Center Moriches union Free School District [1993].

The decisions from the Supreme Court on the three latter cases - all of which had significant legal involvement by some group in the Christian Right - were as follows (pages 79-83):

[Widmar v. Vincent, 1981] The Court ruled 8-1 that universities could not deny the use of their facilities to student religious groups if such facilities were made available to secular organizations.

[Board of Education of Westside Community Schools v. Mergens, 1990] The Court held the Equal Access Act [1984] to be constitutional by an 8-1 margin.

[Lamb's Chapel v. Center Moriches union Free School District, 1993] In a 9-0 decision the Court ruled that schools that make their facilities available to secular organizations for after-school use must accommodate religious groups as well.

Before I comment on any of these cases, let me add two other pieces of information. 

First, a note about the Equal Access Act of 1984. The key part of the Act is this:

(a) Restriction of limited open forum on basis of religious, political, philosophical, or other speech content prohibited

It shall be unlawful for any public secondary school which receives Federal financial assistance and which has a limited open forum to deny equal access or a fair opportunity to, or discriminate against, any students who wish to conduct a meeting within that limited open forum on the basis of the religious, political, philosophical, or other content of the speech at such meetings.

(b) ``Limited open forum'' defined

A public secondary school has a limited open forum whenever such school grants an offering to or opportunity for one or more noncurriculum related student groups to meet on school premises during noninstructional time.

Second, a note on another landmark case explored at some length by Brown in his book - Santa Fe Independent School District v. Doe [2000], where [page 79]:

By a 6-3 margin the Court rejected the argument that student-initiated prayer before football games constituted private, protected speech. Rather, the school's sanctioning of such a practice violated the establishment clause.

2.2.1 Some Relevant Landmark U. S. Supreme Court (SCOTUS) decisions on religion and public schools beyond 2000 (added 3/6/05)

I came across this article in the Journal of Church and State (Autumn 2004 v46 i4 p717(21)), titled "A commentary on the Supreme Court's "equal treatment" doctrine as the new constitutional paradigm for protecting religious liberty", authored by Derek H. Davis. There are some interesting comments in this article that I'd like to highlight.

Until recently, the Supreme Court's analysis of religion cases typically began with a review to determine if either the Establishment or Free Exercise Clause of the First Amendment was implicated under the facts of the case. Only after the Court concluded its analysis and was assured that the religion clauses had not been violated did it proceed to determine whether other constitutional protections might have been breached. This approach by the Court recognized the preeminent position our Constitution places upon the American people's right to practice freely their religion, and the concurrent right to be free from government coercion in matters of faith.

A series of opinions by the Court has signaled a departure from this historic pattern of analysis. In these cases, the Court seems satisfied to equate religious speech or activity with other forms of secular speech or activity, so that it now frequently adjudicates many religion cases primarily pursuant to a free speech analysis and only secondarily pursuant to a religion clause analysis.
...
The enshrinement of the "equal treatment" principle has developed over a period of about twenty-five years, but now seems entrenched as a hallmark of U.S. Supreme Court jurisprudence. Moreover, as a result of two recent Supreme Court cases, Mitchell v. Helms (2000) and the celebrated voucher case, Zelman v. Simmons-Harris (2002), the "equal treatment" principle has been extended to cases that deal with government financial aid to religious institutions, that is, cases that traditionally have called only for an Establishment Clause analysis without any free speech analysis. Nevertheless, the Court's recent holding in Davey v. Locke (2004) suggests that the "equal treatment" principle does not have unlimited application, that indeed the Court acknowledges religion must not in all cases be treated equally with nonreligion.
...
For example, the Court's equal treatment approach was applied in the 2000 case of Mitchell v. Helms. Helms involved Chapter 2 of the Education Consolidation and Improvement Act of 1981 that enabled federal funds to go to state and local education agencies that in turn lend educational materials and equipment to public and private elementary and secondary schools to implement "'secular, neutral, and nonideological" programs.
...
The sweeping nature of the plurality opinion in Helms suggests that many of the Supreme Court justices no longer care whether government funds are diverted to religious purposes. These justices are now supportive of an equal treatment principle that' makes government accountable only for neutral allocations of government funds. 

It should be pointed out that the equal treatment principle will extend beyond programs involving church-related schools. Equal treatment, or neutrality, seems on track to become this Court's mantra for deciding the constitutionality of most government aid programs to religious institutions.
...
The "equal treatment" doctrine received another vote of confidence in the 2002 case of Zelman v. Simmons-Harris, which dealt with the constitutionality of voucher programs.
...
The Ohio voucher program was challenged at both the state and federal levels. In 1999; the Ohio Supreme Court rejected challenges made on church-state grounds, but invalidated the law on a technical error. The voucher law was a rider on an appropriations bill in violation of the state's "one-subject" rule. State lawmakers fixed the error and reauthorized the program. A group of Ohio residents challenged the law, claiming that the program funded religious schools and therefore violated the Establishment Clause. Attorneys for the plaintiffs argued that 96 percent of students in the program enrolled in schools with religious affiliations, proving a bias toward religion. Nevertheless, the Supreme Court ruled 5-4 that the Cleveland program does not violate the Establishment Clause, holding that "a government aid program is not readily subject to challenge under the Establishment Clause if it is neutral with respect to religion and provides assistance directive, to a broad class of citizens who, in turn, direct government aid to religious schools wholly as a result of their own genuine and independent private choice." Education scholar Charles Haynes glibly described the Court's stance as "We're not favoring religion, a religion, or non-religion. We're just treating everybody the same."
...
After Helms and Zelman, neutrality has come to mean providing religious groups with the same treatment that other groups get. In view of the Court's consistent adherence to the equal treatment principle, the outcome of Davey v. Locke (2004) was a surprise to many. Davey dealt with the State of Washington's request to pay for the Pastoral Ministries degree of Joshua Davey at Northwest College, a distinctively Christian college affiliated with the Assembly of God. Davey argued that because the scholarship program funded the education of non-ministerial students, the state of Washington could not discriminate against him. In other words, the Constitution required "equal treatment." The Court disagreed, however, holding that Davey's degree plan was specifically for ministerial training and that the State of Washington was not obliged to pay for such an education if its constitution prohibited taxpayer-subsidized ministerial degrees. Chief Justice William Rehnquist, writing for a 7-2 majority, held that "training someone to lead a congregation is an essentially religious endeavor.... Indeed, majoring in devotional theology is akin to a religious calling as well as an academic pursuit."

2.3 Some Comments on the above Supreme Court decisions

Interestingly, I discovered my views are not that different from those of the American Civil Liberties Union (ACLU). The ACLU issued a a bulletin in March 2002 covering the issue of religious liberty. I am reproducing some relevant extracts here (with bold text - excluding section headers - being my emphasis) since it covers various aspects - graduation prayer, Bible distribution, equal access to school facilities and religious holiday activities. Note the discussion in Section I.B in particular - on student-initiated prayer.

An ACLU Legal Bulletin

The Establishment Clause And Public Schools

...
For the past 20 years, the federal courts have utilized the three-pronged framework first set forth in Lemon v. Kurtzman, 403 U.S. 602 (1971), to maintain the separation of government and religion. Under the so-called "Lemon test," a court must inquire (1) whether the government's action has a secular or a religious purpose; (2) whether the primary effect of the government's action is to advance or endorse religion; and (3) whether the government's policy or practice fosters an excessive entanglement between government and religion.
...
I. GRADUATION PRAYER

The Supreme Court has long held that the Establishment Clause of the First Amendment forbids school-sponsored prayer or religious indoctrination. Over thirty years ago, the Court struck down classroom prayers and scripture readings even where they were voluntary and students had the option of being excused. See School Dist. of Abington Township v. Schempp, 374 U.S. 203 (1963); Engel v. Vitale, 370 U.S. 421 (1962). The Court earlier had struck down a "released-time" program providing voluntary religious instruction in public schools during regular school hours. See Illinois ex rel. McCollum v. Board of Educ., 333 U.S. 203, 209-10 (1948). 

More recently, the Supreme Court has held that a school district may not require that students observe a moment of silence at the beginning of the school day where the purpose of such a requirement is that students use that time for prayer. Wallace, 472 U.S. at 40. In a similar vein, the Court has held that the state may not require the posting of the Ten Commandments in public school classrooms, Stone v. Graham, 449 U.S. 39, 41 (1980)(per curiam), and may not require the teaching of "creation science" in public school science classes where evolution is taught, Edwards v. Aguillard, 482 U.S. 578, 596-97 (1987). 

The fundamental principle underlying all these decisions is that the Constitution commands that public schools may not take sides in matters of religion and may not endorse a particular religious perspective or any religion at all. 

A. The Supreme Court's Graduation Prayer Decision

In 1992, the Supreme Court held in Lee v. Weisman, ___ U.S. ___, 112 S.Ct. 2649 (1992), that prayer -- even nonsectarian and nonproselytizing prayer -- at public school graduation ceremonies violated the Establishment Clause of the Constitution. The Supreme Court held that the inclusion of prayers as part of a school-sponsored and school-supervised graduation ceremony contravened the Establishment Clause both because of its inevitably coercive effect on students and because it conveyed a message of government endorsement of religion. See id. at 2655. 

The Supreme Court focused on the subtle coercive pressures that accompany any religious exercise conducted as part of a school-sponsored event. The Court held that even though the school district in Lee did not require students to attend graduation in order to receive their diplomas, the students' attendance and participation in graduation exercises was "in a fair and real sense obligatory."
...
The Supreme Court in Lee also focused on the unavoidable entanglement of government and religion that results from any attempt by school officials to control the content of graduation prayers, even if that control extends, as it did in Lee, only to making sure that the prayers given are nondenominational. Under Lee, school officials may not in any way "assist in composing prayers as an incident to a formal exercise for their students."
...
Contrary to protests voiced by the religious right, the Supreme Court's holding in Lee is not anti-religious and does not interfere with the rights of students, guaranteed by the Free Exercise Clause of the First Amendment, to worship and pray according to the dictates of their own consciences.
...
The absence of prayer from a school's official graduation ceremony does not impose any burden on the ability of students to affirm their religious beliefs before or after the ceremony. Nothing in Lee, for example, would prevent or prohibit like-minded students from organizing a privately sponsored baccalaureate service -- provided that it was held off school grounds, was entirely voluntary, and was neither sponsored nor supervised by school officials.
...
B. Student-Initiated Graduation Prayer

1. The Fifth Circuit's decision in Jones v. Clear Creek Indep. Sch. Dist. 

This past year, a federal appeals court in Texas approved a school board's policy allowing graduation prayer where a majority of the graduating class had requested that a prayer be given by a student volunteer at the school's graduation ceremony. Jones v. Clear Creek Indep. Sch. Dist., 977 F.2d 963 (5th Cir. 1992), cert. denied, ___ U.S. ___ 113 S.Ct. 2950 (1993). 

As a technical matter, the decision in Jones only applies within the three states comprising the Fifth Circuit (Texas, Louisiana and Mississippi). More fundamentally, in our view, Jones seriously misreads the Supreme Court's holding in Lee. 

The Supreme Court made clear that its decision in Lee did not turn on the fact that school officials made the decision to include prayers in the graduation ceremony or the fact that the principal selected the particular clergyman who gave the prayers. Rather, the Court held that prayers at public school graduation ceremonies carry the imprimatur of the state and, therefore, impermissibly endorse religion because the prayers are included as part of a program that is sponsored, supervised and controlled by the school and at which student attendance is, for all practical purposes, obligatory. See 112 S.Ct. at 2657. Lee thus stands for the straightforward proposition that when public schools reserve time at a graduation ceremony for prayers, they violate the Constitution by putting the power, prestige and endorsement of the state behind whatever prayer is offered, no matter who offers it. 

As the Supreme Court observed, "the school district's supervision and control of a high school graduation ceremony places public pressure, as well as peer pressure, on attending students" to act in a manner that signifies participation in or approval of religious exercises that an individual student may find repugnant to his or her own beliefs. 112 S.Ct. at 2658. 

The Fifth Circuit in Jones relied in part on the fact that school officials reviewed the student prayers to ensure that they were nondenominational and nonproselytizing. 977 F.2d at 971.(1) Yet this review by itself impermissibly involves school officials in deciding which prayers are acceptable and which are not. As the Supreme Court warned in its first school prayer decision, "one of the greatest dangers to the freedom of the individual to worship in his own way [lies] in the government's placing its official stamp of approval upon one particular kind of prayer or one particular form of religious services." Engel, 370 U.S. at 429. In Lee, the Supreme Court reaffirmed this basic tenet when it stated that "our precedents do not permit school officials to assist in composing prayers as an incident to a formal exercise for their students." 112 S.Ct. at 2657. 

This past summer, the Supreme Court decided not to review the Fifth Circuit's decision in Jones. Over the past few months, leaders of the religious right have claimed that the Supreme Court's action is an endorsement of student-initiated prayer and a vindication of Jones. That characterization is simply wrong as a matter of law. The Supreme Court's decision does not indicate approval of the result in Jones, nor does it transform the Fifth Circuit's decision into a national precedent. 

The Supreme Court grants review on writ of certiorari in only a small fraction of the cases that are presented to it each year. Its decision not to grant review in a particular case is wholly discretionary and is rarely explained, as it was not in the Jones case. See generally P. Bator, D. Meltzer, P. Mishkin & D. Shapiro, Hart & Wechsler's The Federal Courts and the Federal System, at 1855 (3d ed. 1988). 

The Court has emphasized that a denial of certiorari is not a decision on the merits and thus carries no precedential weight. See Teague v. Lane, 489 U.S. 288, 296 (1989)("[A] denial of a writ of certiorari imports no expression upon the merits of the case")(quoting United States v. Carver, 260 U.S. 482, 490 (1923)(Holmes, J.)); Maryland v. Baltimore Radio Show, 338 U.S. 912, 917-19 (1950)(opinion of Frankfurter, J.). See generally 16 C. Wright, A. Miller, E. Cooper & E. Gressman, Federal Practice & Procedure 4004, at 510-511 & n.20 (1977 & Supp. 1993). As Justice William J. Brennan has explained: 

A denial of certiorari is not an affirmance of the [lower] court judgment as some erroneously think . . . . The denial does not mean that the Court agrees with the result reached by the [lower] court. . . . The Court may very well take the next case raising the same question and reach a different result on the merits. 

Lee v. Weisman, not Jones, is the law of the land, and Lee holds that graduation prayer is unconstitutional. 

2. Other decisions on student-initiated prayer 

Following the Supreme Court's denial of certiorari in Jones, a handful of federal courts have considered challenges to student-initiated graduation prayers. Although the outcomes of these cases have been somewhat mixed, the more well-reasoned decisions, including a decision by the Court of Appeals for the Third Circuit, have held that student-initiated graduation prayers run afoul of the separation of church and state required by the Establishment Clause of the First Amendment. 

Federal courts in Iowa, New Jersey, and Virginia have held that student-initiated prayers of the type at issue in Jones are forbidden by the Establishment Clause.
...
The Fifth Circuit's decision in Jones also runs contrary to the decisions of other federal courts of appeal and that have addressed the issue of student-initiated prayers at school-sponsored events. In Jager v. Douglas County Sch. Dist., 862 F.2d 824 (11th Cir.), cert. denied, 490 U.S. 1090 (1989), the Court of Appeals for the Eleventh Circuit held that prayers at public high school football games violated the Establishment Clause, even though student clubs designated the individuals who gave the prayers. Likewise, in Collins v. Chandler Unified Sch. Dist., 644 F.2d 759, 762 (9th Cir.), cert. denied, 454 U.S. 863 (1981), the Ninth Circuit Court of Appeals held that student-initiated prayer and Bible readings at school assemblies violated the Establishment Clause, even though the prayers and readings were given by student volunteers.(3) Finally, the Fifth Circuit itself, in Karen B. v. Treen, 653 F.2d 897 (5th Cir. 1981), aff'd, 455 U.S. 913 (1982), held that the Establishment Clause prohibited student volunteers from leading fellow classmates in prayer, even though students could be excused from participating. 653 F.2d at 901-02.(4) 

As these cases demonstrate, Jones relies on a crabbed reading of Lee that rests almost entirely on a distinction between school-initiated and student-initiated graduation prayer that is irrelevant to the analysis and result in Lee and that ignores the inherently coercive nature of a religious exercise conducted as part of an event convened and sponsored by the school. 

The fact that a majority of students may ask the school district to allow a prayer at graduation does not change the requirements of the Establishment Clause. Indeed, the very purpose of the Establishment Clause is to prevent a majoritarian government from imposing particular religious beliefs -- or any religious beliefs at all -- on individuals in our society who do not share those beliefs.
...
II. BIBLE DISTRIBUTION

Earlier this year, the United States Court of Appeals for the Seventh Circuit ruled that an Indiana school district's policy and practice permitting representatives of Gideon International to distribute Bibles in public schools during school hours violated the Establishment Clause of the Constitution. See Berger v. Rensselaer Central School Corp., 982 F.2d 1160 (7th Cir.), cert. denied, ___ U.S. ___, 113 S.Ct. 2344 (1993). 
...
A long line of Supreme Court precedents establish that it is impermissible for school officials to allow the machinery of the state to be used to gather an audience for religious exercises or instruction. See Illinois ex rel. McCollum v. Board of Educ., 333 U.S. 203; Engel, 370 U.S. 421. In McCollum, for example, the Supreme Court struck down a program allowing religious instructors to come into the public schools to teach sectarian classes during school hours, at a time when students would be free to attend the religious classes or remain in their regular classes.
...
Moreover, the Supreme Court repeatedly has emphasized the impressionability of primary and secondary school children and the pressure they are apt to feel from teachers, administrators and peers to conform. As the Supreme Court recently observed in Lee, "there are heightened concerns with protecting freedom of conscience from subtle coercive pressure in the elementary and secondary public schools" 112 S.Ct. at 2658.
...
III. EQUAL ACCESS TO SCHOOL FACILITIES

The Establishment Clause issues are quite different where a school district wishes to make its facilities available for use by student or community groups during non-school hours. In such cases, the Establishment Clause does not prohibit opening the school's facilities to religious groups -- provided no elements of school sponsorship or endorsement are present. 

Indeed, once the school district opens its facilities for use by students or members of the community during non-school hours, the Free Speech Clause of the First Amendment requires that the school district not discriminate based on the point of view of groups seeking access to those facilities. See Cornelius v. NAACP Legal Defense and Educ. Fund, Inc., 473 U.S. 788, 800 (1985); Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37, 46 (1983). 

This year, in Lamb's Chapel v. Center Moriches School District, ___ U.S. ___, 113 S.Ct. 2141 (1993), the Supreme Court held that a school district violated the First Amendment free speech rights of a local church by refusing to permit the church to exhibit, on school property during non-school hours, a film series dealing with family values and child-rearing from a religious perspective, even though those same school facilities were open to other groups in the community desiring to address the same subjects from other perspectives. See id. at 2147-48. 
...
In Lamb's Chapel, the proposed use of the public school auditorium was limited, occasional, and comparable to other uses already permitted by the school district. The proposed use was to occur in the evenings, well after school hours. The activity was not uniquely religious, like worship or prayer; it was open to the public; it concerned a subject of general interest addressed to the entire community; and it was not to be promoted by the school. See id. at 2144-46. 

The result clearly would be different, however, if a religious group were to seek special access to public school students during the school day. See McCollum, 333 U.S. 203; Berger, 982 F.2d 1160. Any request by a religious group for special privileges -- including access that is significantly different in either quality or quantity from the access granted to other student or community groups not available to secular groups -- would raise serious Establishment Clause problems. See Texas Monthly, 489 U .S. at 17. 

IV. RELIGIOUS HOLIDAY PARTIES

In the past year, some religious activists have encouraged public school districts to ignore the Supreme Court's Establishment Clause rulings and to celebrate the religious significance of holidays such as Christmas as part of the regular school curriculum. It is clear, however, from the Supreme Court's cases dealing with public school education, as well as the Court's decisions involving the public display of religious symbols, that the Establishment Clause prohibits public schools from sponsoring holiday observances -- including Christmas programs or Christmas pageants -- that promote or emphasize the religious significance of the holiday. 

In two recent decisions, the Supreme Court has held that displays of religious symbols such as nativity scenes on public property contravene the Establishment Clause if they convey a message that is primarily religious rather than secular. See Allegheny , 492 U.S. 573; Lynch, 465 U.S. 668 (1984).
...
In Lynch, for example, the Court upheld a city's display of a nativity scene together with various secular symbols of Christmas, including a Christmas tree and Santa Claus house. See Lynch, 465 U.S. at 679-85. In Allegheny, however, the Court ruled that a city's display in the County Courthouse of a creche with a banner proclaiming "Glory to God in the Highest" constituted an impermissible endorsement of religion under the Establishment Clause.
...
While it is clear that the Constitution does not forbid the mere mention of religion in the public schools, it is also clear from the Supreme Court's Establishment Clause decisions that the public schools may not observe religious holidays in a manner that has the effect of promoting or endorsing the religious themes associated with those holidays. 

Ed Brayton at Dispatches from the Culture Wars has linked to this FindLaw commentary by legal scholar Vikram David Amar (in the context of the Stephen Williams Cupertino lawsuit), which is worth noting:

The Illusory Right of "Academic Freedom" of Public K-12 Teachers, When Government Itself is the Speaker

In the Williams case, some may respond by invoking, as Williams appears to, notions of "academic freedom" that teachers enjoy under the First Amendment. The idea is that so long as a teacher is not violating the Establishment Clause - or any other limitation imposed by the Constitution -- he has substantial leeway to teach his class children in the way he thinks will be educationally best. The reality, however, is that individual K-12 teachers do not - in spite of some loose language and rhetoric out there - enjoy broad First Amendment rights of "academic freedom."

To be sure, the government cannot tell private school teachers what to say or what books to use. But in the public school context, government is itself the speaker. As the Supreme Court has repeatedly recognized, government expresses itself through the subjects and topics it decides to cover, the precise curriculum it chooses, and the lesson plans it approves.

In the famous Board of Education v. Pico case involving whether a school district could remove books from a school library because of objections to their content, even the most First Amendment-protective of the Justices observed that "the Court has long recognized that local school boards have broad discretion in the management of school affairs. . . . [L]ocal school boards must be permitted to 'establish and apply their curriculum in such a way as to transmit community values,' and . . . . 'there is legitimate and substantial community interest in promoting respect for authority and traditional values be they social, moral or political."

In other words, government can itself express a point of view - and this point of view may be a less religious point of view than the Establishment Clause would permit - when government prescribes textbooks and classroom content standards. As the Court has put the point, "[m]uch like a university selecting a commencement speaker, [and] a public institution selecting speakers for a lecture series, a public school prescribing its curriculum . . . by its nature will facilitate the expression of some viewpoints instead of others." In order to transmit its message, government will necessarily have to keep individual teachers from going their own ways.

Thus, a school board or a Superintendent or a Principal can certainly choose in a social science curriculum to emphasize aspects of our nation's founding other than the religious convictions of the framers, because these educational administrators feel in their professional judgment that the non-religious themes are more important. And they could make the same decision simply because they want to steer clear of any Establishment Clause problem or avoid parental complaints.

Just last Term, in Locke v. Davey, the Supreme Court affirmed that there is "play in the joints" of the religion clauses of the First Amendment. The Court there held that even if a state's funding of a religious vocational education would not have violated the Establishment Clause, the state's decision not to do so - to avoid getting close to the Establishment Clause line -- did not reflect impermissible hostility to religion.

The Limitations on Government's Exclusion of Religion and Religiosity

This does not mean, of course, that a school can affirmatively send a message - through its treatment of Williams or in any other way - that religion or religiosity is bad. Thus, if the Cupertino school authorities have singled out Williams's classroom for special oversight simply because they dislike his evangelical zeal, or in order to send a message to students that religion or Christianity is wrong, then there could be a constitutional problem.

But if school authorities have singled out Williams for special review simply because he is the only teacher who even approaches the Establishment Clause boundary in his teaching style -- and the school wants to steer well clear of that line -- or because the school thinks some of his lesson-plan ideas simply don't make good pedagogical sense, or because parents have complained about his references to religion, then he has no First Amendment claim.

I hope to add some of my comments on Sec. 2.2.1 cases in the near future.

3. The Legal Strategies of the Christian Right

Brown's book provides very good coverage of this topic and this section is largely based on material from his book. The following observation of his (taken from page 10) more or less summarizes the most important reason for the success that the Christian Right has seen in the courts since the 1980s (bold text, or comments within "[]", are eRiposte emphasis - in the quotes below and elsewhere on this page).

Perhaps surprisingly, New Christian Right lawyers neither boldly renounce the Supreme Court's establishment clause rulings of the past nor offer any new interpretation of the free exercise clause to protect religious expression. Instead, they turn to the free speech clause of the First Amendment. 
...
And it is just this approach which, after years of frustrating losses in the courts [arguing the religion clauses, as Brown points out in page 58], has provided the movement with a number of significant legal victories in both the Supreme Court and the lower federal courts.

That sentiment echoes through much of the rest of the book, for good reason. As Brown points out:

[pages 58-59]
For obvious reasons this view, which equates religious and secular speech for constitutional purposes and which has been reaffirmed by the Supreme Court several times, is of immense importance to New Christian Right activism in the courts. 
...
[page 78]
With the single exception of Santa Fe, the free speech clause arguments advanced by New Christian Right law firms in Supreme Court religion cases since Widmar have not only brought victory but have generally received broad approval from justices from across the ideological spectrum.

In the following sub-sections I explore some additional details on the Christian Right's legal strategy and its successes/failures.

All of the information in Section 3 is for the 5 firms that Brown has identified in his book as being the Major/Top "New Christian Right" (NCR) legal public-interest firms in the U.S. at the time his book was published (2002). These are:

• Pat Robertson's American Center for Law and Justice (ACLJ)
• Alliance Defense Fund (ADF) [which I covered to some level of depth here]
• Rutherford Institute (RI)
• Center for Law and Religious Freedom, which is the formal advocacy arm of the Christian Legal Society (CLS)
• Liberty Counsel (LC)

3.1 U.S. Supreme Court Religion Cases from 1980 through 2000

The chart below provides a visual summary of the track record of Brown's Top 5 NCR firms. Note that this chart is based entirely upon the data in Brown's book.

At least during this time period, for the reasons discussed in Brown's book (cost of litigation, small number of cases heard by the Supreme Court each year, etc.), the top 5 NCR firms played a direct participatory legal role (funding or legal counsel) in only a minority of the cases. The bulk of their participation was via the use of far less expensive amicus curiae briefs. So, any reference to the NCR firms having "prevailed" or "defeated" (right side of the chart) must be understood as a reflection of the position they were advocating "winning" or "losing"; in other words, the right side of the chart includes statistics on all cases in which the top 5 NCR firms participated - whether as counsel, funding source or amici. 

Objectively speaking, at least in the 1980-2000 time period, two points need to be made.

(a) It can be argued that the direct influence of the top 5 NCR firms on religion cases at the U.S. Supreme Court was not substantial in a majority of the cases. (The influence has been growing further since then). 
(b) Nevertheless, their legal position was successful in a few of the important, landmark cases discussed in Section 2.3. 

3.2 U.S. Lower Federal Court Religion Cases from 1980 through mid-2000

As Brown points out in page 88:

...most cases are disposed of in the lower federal courts. With original jurisdiction in nearly all federal civil, criminal, and bankruptcy cases, the U.S. District Courts decide well over one million cases annually.⁷ These decisions may be appealed, but only about 20 percent ever reach the federal appellate courts; and of those, a majority fail. Thus, in most cases, the decisions of the district courts are, in effect, final.

   For their part, the U.S. Courts of Appeals are sometimes viewed as "mini Supreme Courts" because of their definitive rulings in approximately 85 percent of all federal cases.⁸ One study of three circuit courts pushed the finality percentage even higher, finding that 99.7 percent of the 4,000 rulings handed down were left undisturbed. That is, they either were not appealed, were denied review by the Supreme Court, or the Supreme Court's ruling did not reverse the holding of the lower court.⁹

Brown's conclusion is not as straightforward as he makes it out to be because the Supreme Court may take up cases at any time in the future even if it denies writ of certiorari to similar cases in a past year. But by and large, his point is well taken. That explains (in large part) why the top 5 NCR firms have been participating far more directly and actively in lower Federal court religion cases than in Supreme Court cases.

The chart below provides a visual summary of the track record of Brown's Top 5 NCR firms. Note that this chart is based entirely upon the data in Brown's book. The chart/data is discussed in Section 3.3 below.

3.3 "Free Speech" emphasis in the legal strategy to introducing more religion into schools

The chart below provides a visual summary of the track record of Brown's Top 5 NCR firms in lower federal Court Religion Cases, with the type of case broken out. Note that this chart is also based entirely upon the data in Brown's book. This chart demonstrates why the NCR firms have evolved a strategy that increasingly focuses more on pushing the Free Speech envelope in trying to win religion cases than the Establishment Clause or the Exercise Clause. 

Although it is not apparent from the chart, their success in Free Speech heavy cases has largely been in those involving religion in schools. Per Brown, ~71% of the lower Federal Court religion cases involving the free speech clause (in the 1980 to mid-2000 period) related to "religious expression in schools". As he notes on pages 117 and 119:

In the lower courts access to school facilities, recognition of religious school clubs, and school policies on the distribution of religious literature are the most consistently litigated issues of New Christian Right public interest law firms.
...
While the New Christian Right has attempted to raise free speech and religious arguments in other areas, it has done so with relatively little success compared to its linking of free speech with religious expression in the schools.

One of the side effects of their strategy, though, is that the Free Speech clause also benefits groups or positions that are opposing to theirs. Brown highlights this in his book using the example of East High School PRISM Club v. Cynthia L. Seidel. He says (page 140):

Just as the landmark rulings established by the ACLU's obscenity cases three decades ago paved the way for the current success of the New Christian Right's religion-as-speech arguments, so too have the precedents set forth in the New Christian Right's religion cases laid the basis for the legal successes of groups they strongly oppose. 

ACLU Utah has provided a summary of the background in East High School PRISM Club v. Cynthia L. Seidel:

The conflict began in 1995 when a group of students at East High School attempted to form a school club called the Gay/Straight Alliance (GSA). Its purpose, like that of hundreds of other similar clubs that have long been meeting in schools across the country, is to provide a safe and welcoming forum in which students can discuss important issues facing lesbian and gay youth.The GSA is no different than other high school student-initiated groups, all of which are protected by the 1984 Equal Access Act (EAA), mandating that any school that receives federal funding and has some non-curricular clubs, must give all non-curricular clubs equal access to the school’s resources.

Unfortunately, the Salt Lake City School District did not want to allow the GSA to meet. In order to block student speech it considered offensive and, at the same time, maintain compliance with the EAA, Salt Lake City became the first school district in the country to take the drastic step of banning all student clubs not related to the curriculum. In response, the ACLU of Utah, along with cooperating attorneys Laura Milliken Gray and Marlin Criddle, the ACLU of Northern California, Lambda Legal Defense and Education Fund, and the National Center for Lesbian Rights, filed a lawsuit on behalf of GSA members Keysha Barnes and Ivy Fox, arguing that the district’s actions violated the EAA since some non-curricular student groups were still allowed to meet. Our complaint also charged that the district’s policy regarding school clubs was evidence of a broader, unwritten, but very real policy prohibiting the expression of gay-positive viewpoints in any school setting, and it therefore violated the students’ First Amendment rights as well.

In October 1999, U.S. District Judge Bruce Jenkins agreed with us that the district violated the EAA during the 1997-98 school year when it did not allow the GSA to meet on the same terms and conditions as another East High non-curricular club (click here to view Judge Jenkins's October opinion). More importantly, in a November 1999 pre-trial hearing, the district stated in no uncertain terms that students have a First Amendment right to express gay-positive views in approved school groups. For the first time, the district referred to an administrative rule issued in May 1999 by the State Office of Education prohibiting discrimination against students and teachers on the basis of sexual orientation. This policy is an extremely significant consequence of our lawsuit, and the new state policy is a help to administrators, teachers, and students who wish to create a forum for gay-positive viewpoints that will counter the overwhelmingly negative atmosphere that lesbian and gay youth often face (click here to view Judge Jenkins's November Judgment and Order of Dismissal).
...
Despite the fact that the Salt Lake City School District acknowledged in 1999 that students have the First Amendment right to express gay-positive viewpoints in approved student clubs, on March 1, 2000, Assistant Superintendent Cynthia Seidel, the school official responsible for approving student clubs, rejected the application of a group that wanted to provide students with the opportunity to do just that. The PRISM Club, which stands for People Respecting Important Social Movements, seeks to extend and enhance the study of curricular subjects such as American Government and Law, U.S. History, and Sociology, by “talk[ing] about democracy, civil rights, equality, discrimination and diversity” through the perspectives of lesbians and gay men.

In the PRISM Club’s application, the students outlined an organization that fit the district’s definition of curriculum-related student groups in that its subject matter is taught in the school curriculum and its activities provided an “extension and reinforcement, application, and practice of curricular content.” After reviewing the clubs that Seidel had approved, it was clear that in rejecting the PRISM Club’s application, she had misapplied district standards for giving students access to the resources available to curricular clubs. And, through her inconsistent application of these standards, she effectively silenced gay-positive viewpoints in the forum available to student groups, and therefore violated the district’s policy regarding the expression of these views.

In April 2000, the ACLU of Utah, along with cooperating attorney Richard Van Wagoner, the National Center for Lesbian Rights, and Lambda Legal Defense and Education Fund, filed a complaint on behalf of the PRISM Club, the East High Rainbow Club (a similar club whose application was rejected in 1999), and individual students Jessica Cohen and Margaret Hinckley. The complaint argued that the rejection of the clubs’ applications violated the students’ First Amendment rights to free speech and association as well as district policy. We also filed a preliminary injunction asking that the club be allowed to meet while this issue remained before the court. In an April 26 order, U.S. District Judge Tena Campbell granted the preliminary injunction and found that Seidel did not adhere to the district’s policies in determining that the PRISM club was not sufficiently “curriculum-related.” Thankfully, litigation is no longer necessary now that the Salt Lake City School District has granted club-status to both the GSA and the PRISM Club.

4. Christian Right Off-Courtroom Strategies: Pre-Litigation, Public "Education", Media

Perhaps even more important than their litigation strategy, are the NCR groups' off-courtroom and prelitigation strategies. Brown provides a good overview of these in his book. As he points out on page 121:

New Christian Right lawyers spend a considerably greater proportion of their time engaged in extra-courtroom activities than they do in litigation. Part of the reason for this is the fact that religious liberty cases, like most legal disputes generally, are resolved before trial. Rutherford Institute officials estimate that as much as 80 percent of that organization's cases are resolved without setting foot in the courtroom.² In assessing the efforts of his ACLJ, Pat Robertson notes that less that 1 percent of the cases in which the ACLJ is involved actually "end up in a court of public record."³

The prelitigation strategy typically involves either "friendly" communications to target schools/public agencies or "demand letters". Brown says:

[Page 130]
The organizations in this study all claim to resolve the vast majority of religion-related disputes in the prelitigation stage.
...
[Page 132]
Precisely because these groups can take an individual or organization to court, they have a persuasive ability that may be difficult to counter.³⁷ John Whitehead of the Rutherford Institute has acknowledged the compelling power associated with litigation threats: "We don't charge our clients...but if we sue each school board member, they each have to get a fancy outside law firm to defend themselves."³⁸ In short, New Christian Right firms fully appreciate that it both easier and cheaper for policymakers to relent on a given policy affecting religious expression than it is to resist in a court of law.

Going hand-in-hand with this strategy of using threats of costly lawsuits, is their strategy of public "education" - using periodic, proactive or reactive, notices or press releases or bulletins to various groups (especially public schools). Brown provides an example of this in pages 128-129:

Although it is difficult to trace the impact of these efforts, an example of how New Christian Right groups engage in public education can be seen in the actions of the ACLJ in the aftermath of the Supreme Court's ruling in Lee v. Weisman (1992), which held impermissible school-sponsored prayers at graduation ceremonies. As mentioned earlier, the Fifth Circuit Court of Appeals [a highly conservative court which incidentally had a 100% reversal rate of its decisions on which the Supreme Court ruled in 2003] soon thereafter upheld the practice of student-initiated, student-led prayers at graduation in its Clear Creek decision.²⁸ The ACLJ immediately sent out a memo to each of the nation's fifteen thousand superintendents informing them of the Clear Creek ruling and explaining the critical "student-led" aspect that distinguished that decision from Lee.²⁹ Outraged, the ACLU and Americans United for Separation of Church and State shot off their own memos to the nation's schools, criticizing the ACLJ's legal analysis and threatening legal action to those schools that followed the ACLJ's recommendations. [eRiposte note: This probably refers to this ACLU bulletin, which I have provided highlights from in Section 2.3].

   The following November the ACLJ again contacted each of the school districts, informing them of a constitutionally appropriate manner for recognizing Christmas and Hanukkah.³⁰ The ACLU again responded with a clarifying memo.

Religious broadcasting - a huge business - and PR and propaganda (often fake) through other supposedly secular, mainstream media are a big part of the Christian Right's strategy as well, as the Cupertino media brouhaha amply demonstrated. 

5. Some information on the Alliance Defense Fund (ADF)

Additionally, ADF does not list the cases they backed and lost. Looking at Brown's data, ADF participated in 4 SCOTUS (Supreme Court Of The U. S.) religion lawsuits in the 1994-2000 time period, of which their position prevailed in two cases and lost in two cases (a 50-50 record). In particular, one of the lost cases was Santa Fe Independent School District v. Doe (2000), and this is considered a landmark case. As Brown describes this decision:

By a 6-3 margin the Court rejected the argument that student-initiated prayer before football games constituted private, protected speech. Rather, the school's sanctioning of such a practice violated the establishment clause.

Thus, to those who read ADF's website, it is worth noting that their list is selective (by leaving out defeats) and there is a possibility that the role of ADF itself is potentially exaggerated.

Brown also comments in his book that ADF works "quietly" in the "background" and that it is not very transparent about how it does its funding. To those who may be so inclined, it may therefore be worth exploring whether ADF meets all the requirements of a tax-exempt entity under section 501(c)(3) of the Internal Revenue Code (which they claim they are). I have no specific knowledge to suggest that they don't, but this BBB Wise Giving Alliance Charity Report on ADF does raise some questions. As of 12-24-04, here is what the report says:

Alliance Defense Fund (ADF) does not meet the following 4 Standards for Charity Accountability.

4: Not more than one or 10% (whichever is greater) directly or indirectly compensated person(s) serving as voting member(s) of the board. Compensated members shall not serve as the board’s chair or treasurer.

ADF does not meet this Standard because the chair of its board of directors was compensated in 2003. The chair of the board received honoraria payments of $3,400 for speaking fees at ADF program events that took place over four weeks in 2003.

12: Include in the financial statements a breakdown of expenses (e.g., salaries, travel, postage, etc.) that shows what portion of these expenses was allocated to program, fund raising, and administrative activities.

ADF does not meet this Standard because its audited financial statements for the fiscal year ended  
June 30, 2003, do not contain a schedule of expenses by natural classification (e.g., salaries, employee benefits, occupancy, postage, etc.) for each of its major programs, fund raising, and administration.

14: Have a board-approved annual budget for its current fiscal year, outlining projected expenses for major program activities, fund raising, and administration.

ADF does not meet this Standard because the budget for its 2004 fiscal year does not show projected totals to be spent respectively in conjunction with each of its major program categories, fund raising, and administration.

16: Have an annual report available to all, on request, that includes: (a) the organization’s mission statement, (b) a summary of the past year’s program service accomplishments, (c) a roster of the officers and members of the board of directors, (d) financial information that includes (i) total income in the past fiscal year, (ii) expenses in the same program, fund raising and administrative categories as in the financial statements, and (iii) ending net assets.

ADF does not meet provision (d) of this Standard. The annual report received by the Alliance from ADF does not contain information regarding its total income, expenses in the same categories as its financial statements, and ending net assets for the past fiscal year.  
 
ADF meets the remaining provisions of this Standard.

In addition, the BBB Wise Giving Alliance requested, but did not receive, complete information on ADF's finances and fund raising practices, and therefore, is unable to verify ADF's compliance with the following 3 Standards for Charity Accountability (see back of page one for description of standards): 8, 9, and 13.

Alliance Defense Fund meets the remaining 9 Standards for Charity Accountability Please note that as of the date of this report four out of the 20 Standards for Charity Accountability are not currently effective. As a result, these four Standards have not been applied in this evaluation.

The standards 8, 9 and 13 are as follows:

8. Spend at least 65% of its total expenses on program activities.
...
9. Spend no more than 35% of related contributions on fund raising. Related contributions include donations, legacies, and other gifts received as a result of fund raising efforts.
...
13. Accurately report the charity's expenses, including any joint cost allocations, in its financial statements. For example, audited or unaudited statements which inaccurately claim zero fund raising expenses or otherwise understate the amount a charity spends on fund raising, and/or overstate the amount it spends on programs will not meet this standard.

Moreover, the ADF website [screenshot here] still has a completely false claim/statement about the Cupertino lawsuit. It says:

Declaration of Independence Banned from Classroom

I wonder if non-profit (and especially legal) organizations can openly transmit false information in public.

6. Lessons to be Learnt

Let me first provide a broad summary of the information presented in previous sections on this page on the Christian Right's strategies to bring more religion into the public sphere:

• Christian Right legal firms like the Alliance Defense Fund (ADF) have evolved a partly successful strategy of lawsuits to propagate religion and religious views, especially in public schools. While their positions sometimes have merit, there are many occasions where they don't. Their courtroom strategy is sometimes indirect/passive (e.g., amicus curiae briefs, which they often use in Supreme Court religion cases of interest to them) and sometimes direct/active (via funding or providing counsel to try lawsuits, which they do more often in the lower Federal Courts). Their success in the lower courts (which decide the vast majority of cases in the country) has been highest when they have argued the Free Speech angle in their religion lawsuits (and lowest when they used the Establishment clause). This may explain why ADF's lawsuit against the CUSD on behalf of teacher Stephen Williams partly invokes the Free Speech clause to defend the teacher's actions (in addition to the Establishment clause and the Fourteenth Amendment's Equal Protection clause). 
• By the admission of some of the Christian Right legal firms, they achieve most of their goals via off-courtroom activities. This includes (among other things): 
  (a) public relations and (sometimes fake) propaganda via a helpful mainstream media and Christian/right-wing networks, 
  (b) so-called public "education" campaigns using bulletins, letters or notices to public organizations like schools, and,
  (c) threats of lawsuits

Based on the information presented in this page, in the separate Cupertino lawsuit analysis, and this Commonweal Institute report, important lessons can be learnt by teachers, parents and public school districts (and other public organizations). 

1. If you are a public school and you receive a threat of a lawsuit or an "education" bulletin from Christian Right legal firms, do not assume that everything they claim is correct or legal. These groups (and their appendages in the media) have a history of fabricating myths or distorting the facts or presenting selective, misleading information.