San Jose Unified is committed to both the freedom of religious practice and to the separation of church and state such freedom requires. Religious expression in public schools involves a careful balancing of free speech rights and the right to free exercise of religion without promoting or establishing religion. In that spirit, San Jose Unified offers this statement of guiding principles for district practice as an aid to parents/guardians, staff and students.

Religious Content in the Instructional Setting

Students may be taught about religion from a cultural and historical perspective, but public schools may not teach religion. School District of Abington Township, PA v. Schempp, 374 US 203 (1963). It is permissible to teach objectively about the role of religion in the history of the United States and other countries as included in the California History/Social Science Standards and the standards based state adopted texts. Public schools may require that all students use a prescribed set of textbooks if the book neither promotes nor opposes religious practice. Mozert v. Hawkins County Public Schools, 827 F.2d 1058 (6th Cir. 1987). The history of religion, comparative religion, the Bible, the Koran or other religious scripture - as literature - are all permissible public school subjects. The reading from religious texts during instructional time shall be permitted for instructional and literary purposes only. The readings shall not be used for promoting religious beliefs or for devotional purposes. Abington v. Schempp, 374 US 203 (1963).

1. Religious Observances: The study of religious observances may be included in the curriculum as an opportunity for teaching about religions. Recognition of and information about holy days shall focus on their educational aspects. Such study serves the academic goals of educating students about history and cultures, as well as fostering understanding and mutual respect among students. Florey v. Sioux Falls School District, 49-5, 619 F.2d 1311 (8th Cir.).

2. Religious Symbols: The use of religious symbols is permitted as a teaching aid or resource, provided such symbols are used as examples of cultural and religious heritage. Their display and use shall be limited to the specific teaching activity and shall not be used for devotional or proselytizing purposes. County of Allegheny v. American Civil Liberties Union, 492 US 573, 629n69 (1989).

3. Evolution vs. Creationism: Evolution must only be taught as a scientific explanation. The law requires that only scientific explanations for life on earth and scientific critiques of evolution may be taught in science classes. McLean v. Arkansas Board of Education, 529 F.Supp. 1255 (E.D.Ark.1982)

4. Guest Speakers: A guest speaker may be invited to speak in the classroom when the students are studying about religion. However, care should be taken to find someone with the academic background necessary for an objective and scholarly discussion of the historical period and the religion considered. Faculty and religious leaders in the community may be a resource as long as they understand the First Amendment guidelines and are clear about the academic nature of the discussion.

5. Student religious papers and presentations: Student papers and presentations based on the student's personal viewpoint on religious topics are permitted as part of a secular program of instruction as long as they fulfill the purposes of the classroom assignment. However, such papers and presentations may not interfere with the rights of other students and may not harass, intimidate, threaten school personnel or students or disrupt or threaten to disrupt the educational process. Downs v. Los Angeles USD, 228 F.3d 1003 (9th Cir.2000); Peck v. Baldwinsville School Board of Education, 2001 WL 303755 (2nd Cir.2001).

Student Prayers

Students have the right to engage in voluntary, individual prayer that is not coercive and that does not disrupt the school's educational mission. Groups have the same right so long as they are not disruptive or coercive. Students enjoy the right to read their Bibles or other scriptures, say grace before meals, pray before tests, and discuss religion with other willing student listeners. In the classroom, students have the right to pray quietly except when required to be actively engaged in school activities (e.g., students may not decide to pray just as a teacher calls on them). Therefore,

1. Private, voluntary prayer or meditation by individual shall be permitted as long as it is not disruptive and does not interfere with either the school's educational mission or with the rights of others.

2. Students may engage in voluntary private individual or group prayer that does not occur under the sponsorship or involvement of the district or its employees.

3. District employees shall treat voluntary student private prayer with respect, but shall not audibly pray with or in the presence of their students. Nor shall they lead, compose, sponsor, encourage, suggest, or provide the means for the recitation of prayers in school facilities during school hours or before, during, or after any school-sponsored public athletic or extracurricular event.

Prayer at School and Graduation Ceremonies

School personnel may not mandate or organize prayer at graduation or promotion, nor may schools sponsor religious graduation or promotion ceremonies. School personnel may not lead, compose, sponsor, encourage, suggest, or provided the means for the recitation of prayers in school facilities during school hours or before, during, or after any school-sponsored public athletic or extracurricular event.

It is also not permissible for a member of the clergy to offer prayer before or after public school athletic activities. Jager v. Douglas County School District, 862 F.2nd 824 (11th Cir. 1989) Prayers delivered by clergy at public school graduation ceremonies are unconstitutional. Duncanville Independent School District v. John Doe, 994 F.2d 160 (5th Cir. 1993). Student-initiated, nonsectarian graduation prayers are also not acceptable. In additional, school personnel may not mandate or organize prayer at graduation or promotion ceremonies. Lee v. Weisman, 505 US 577 (1992) Santa Fe Independent School District v. Doe, 30 US 290 (2000)

Official Participation or Encouragement of Religious Activity

School personnel, when acting in their official capacity or in any manner which could be perceived as an official or representative of the school district, are prohibited from endorsing, soliciting, encouraging, participating, or directing religious activities with students.

Religious Excusal

Upon advance written request by the parent/guardian and the approval of the principal or designee, a student's absence shall be excused for observance of a religious holiday or religious ceremony or attendance at religious retreats. Attendance at religious retreats shall not exceed more than four hours per semester. Students should be allowed a reasonable opportunity to make up the schoolwork missed by the absence and shall be given full credit for those assignments. Penalties may not be imposed upon students who are absent for a religious holiday. (Education Code 48205)

Students, with written consent of their parents or guardians, may be excused from school in order to participate in religious exercises or receive religious instruction at their respective places of worship or at other suitable places away from school property designated by the religious group, church, or denomination. Zorach v. Clauson US 306 (1952). Such absence shall not be considered in computing average daily attendance if the following conditions exist:

1. That the elementary student attend at least the minimum school day.

2. That the student shall be excused for this purpose on no more than four days per school month.

Students shall be allowed to complete all assignments and tests missed during the absence that can be reasonably provided and, upon satisfactory completion within a reasonable period of time, shall be given full credit for those assignments.

The district has a compelling interest in establishing required standard curriculum for all students. The district's curriculum presents ideas and information and no such curriculum endorses religion or coerces or requires a student to personally affirm, adopt, or reject a particular ideology or belief. Students or parents/guardians of students may submit a written request to the school principal for an alternative lesson if they can demonstrate that a particular lesson substantially interferes with their freedom to exercise their religious beliefs and an accommodation will not unduly compromise the district's compelling interests, including exposing students to ideas and information and maintaining a standard curriculum. Such requests are granted in conjunction with alternate classroom assignments.

Distribution of Religious Literature

Distribution of religious literature at schools follows the same procedures as that required for non-religious materials. Muller v. Jefferson Lighthouse School, 98F.3d 1530 (7th Cir. 1996).

1. Distribution by Outsiders

Outsiders must register on campus at the principal's office when coming onto campus for any reason, including the distribution of any non-school materials. Distribution of religious literature at schools follows the same procedures as that required for non-religious materials. Both require advance notice to the District's Office of Public Engagement and the site principal or designee using the following process. The District's Office of Public Engagement and/or the site principal or designee will determine the following:

a. Whether the group has complied with District Use Permit criteria

b. Whether the distribution materials advance the district's purposes and educational goals

c. Whether the distribution of the materials or the content of the materials are reasonably likely to disrupt or interfere with the educational process, the school, the students, the teachers or school employees, or would result in damage to property or injury to persons, would subject the district to liability, or would result in the distribution or use of unlawful or controlled substances.

d. Confirm that scholarships are available for SJUSD students if a fee is charged

Outsiders may not distribute materials on elementary school campuses. On secondary campuses, the district will place reasonable "time, place and manner" restrictions on all materials distributed on campus by outsiders. Outsiders may not distribute materials on campus during instructional time. In addition, schools may specify when the distribution can occur (e.g., lunch hour or before or after classes begin), where it can occur (e.g., outside the school buildings) and how it can occur (e.g., from passive distribution such as tables or from fixed locations as opposed to roving distribution). The school may require that notices be posted only within a particular display case or on a specific wall, and may require that each notice bear a stamp indicating that it has been approved for posting and a disclaimer providing that the district does not endorse or support the content of the posting.

The district or school will not endorse or support the information presented in any religious materials and will take reasonable steps to avoid the appearance of any such endorsement. For instance, flyers that include religious content may not be sent home as part of a packet with school or school-endorsed materials since this may imply school endorsement of the religious materials. Teachers should not be directly, personally involved in the distribution of flyers. Muller v. Jefferson Lighthouse School, 98F.3d 1530 (7th Cir. 1996).

2. Distribution By Students

Students should report to the principal any outsiders who request or solicit students to distribute non-school materials, including without limitation religious, political or commercial materials, on campus on their behalf. Secondary students have the right to distribute religious materials on campus, subject to the same restrictions imposed on distribution of all non-school materials by the district or site. Where a student wishes to distribute more than 15 copies of non-school materials, the student must also provide the principal with a copy of the materials. The materials should clearly state the student and, if applicable student group, distributing the materials.

Students should not distribute such non-school materials in the classrooms or during instructional time. The distribution by students may not interfere with other students' passage from class to class or obstruct classroom or building doorways. A school may confine distribution of multiple copies all non-school literature to specified location(s) at particular time(s) or impose other reasonable requirements such as statements disclaiming school endorsement or stamps indicating that a copy is on file with the principal.

The district prohibits the distribution of the following types of materials:

a. Materials that would be likely to cause substantial disruption of the operation of the school�Literature that uses fighting words or other inflammatory language about students or groups of students would be an example of this type of material.

b. Material that violates the rights of others�Included in this category would be literature that is libelous, invades the privacy of others or infringes on a copyright.

c. Obscene, lewd or sexually explicit material.

d. Commercial materials advertising products unsuitable for minors.

e. Religious materials that students would reasonably believe to be sponsored or endorsed by the school.

Students who violate the district�s or school�s policies relating to distribution of non-school materials may be subject to discipline.

Religious Gatherings

Student participation in before- or after-school events, such as "see you at the flag pole," is permissible. School officials, acting in an official capacity, may neither discourage nor encourage participation in such an event nor may they participate.

Religious Persuasion Versus Religious Harassment

Students have the right to speak to, and attempt to persuade, their peers about religious topics just as they do with regard to political topics. But school officials should intercede to stop student religious speech if it turns into religious harassment aimed at a student or a small group of students. While it is constitutionally permissible for a student to approach another and issue an invitation to attend church, repeated invitations in the face of a request to stop constitute harassment.

Religious Clubs

Students in secondary schools (defined as grades 9 to 12) Peck v. Upshur County Board of Education, 155 F3d 274 (4th Cir. 1998) may form religious clubs pursuant to the federal Equal Access Act. If a school permits extra curricular student groups to meet during non-instructional time, this act requires that religious groups be given equal treatment. A non-curricular club is any club not related directly to a subject taught or soon-to-be taught in the school. Teachers may not actively participate in club activities but are required to be present. For insurance purposes, the student club must identify a school district certificated employee who will be present at all meetings in a custodial, non-participatory capacity. Forfeiture of the club�s right to access may result if the club fails to meet this requirement. "Non-school persons" may not control or regularly attend club meetings.

The Equal Access Act (20 USC 4071-74) does not apply to student religious clubs below the secondary level, defined as grades 9-12. However, other laws and policies apply to religion and speech issues at the elementary school level. Generally, schools may exercise greater control over speech at the elementary school level, than at the secondary school level, in part because younger students are more impressionable and susceptibility to influence by the school environment. Where an issue arises on an elementary school campus that is not addressed by this guideline or by the district�s policies, it should be discussed with the appropriate level Director and/or the Assistant Superintendent of Instruction as it arises.

Religious Holidays and School Productions

Public schools may teach about religious holidays and may celebrate the secular aspects of the holiday. However, teachers must be alert to the distinction between teaching about religious holidays, which is permissible, and celebrating religious holidays, which is not. They may not observe the holidays as religious events. Schools should generally excuse students who do not wish to participate in holiday events. Florey v. Sioux Falls School District, 49-5, 619 F.2d 1311 (8th Cir.) Cert. Denied, 449 U.S. 987 (1980).

For both class and extra curricular purposes, students regularly produce drama and other theatrical events. Whether produced as part of a class activity (such as drama class or as a school-sponsored club), the production is a school sponsored-event or activity over which the school retains control and responsibility and therefore, religious guidelines apply.

Holiday programs should serve an educational purpose for all students and remain secular in nature, neither promoting nor inhibiting religion. In addition, they may:

1. Include music related to Christmas and Hanukkah, but religious music should not dominate. School District of Abington Township, PA v. Schempp, 374 U.S. 203 (1963), Sease v. School District of Philadelphia, 811 F.SUPP 183 (E.D. Pa 1993).

2. Contain dramatic productions that emphasize the cultural and secular aspects of the holidays. Nativity pageants or plays portraying the Hanukkah miracle are not appropriate. School District of Abington Township, PA v. Schempp, 374 U.S. 203 (1963), Sease v. School District of Philadelphia, 811 F.SUPP 183 (E.D. Pa 1993).

3. Include concerts that present a variety of selections including some religious music. However, concerts dominated by religious music, especially when they coincide with a particular religious holiday, must be avoided. School District of Abington Township, PA v. Schempp, 374 U.S. 203 (1963).

Religious Dress

Dress required by religious customs shall be permitted. District personnel may wear religious symbols provided that the symbols do not serve to advance religious beliefs in a way to jeopardize the district�s neutrality toward religion. Religious messages on T-shirts and the like may not be singled out for suppression. Students may wear religious attire, such as yarmulkes and head scarves, unless the item poses a safety risk.

School Facility Use by Religious and Other Groups

Student religious clubs have the same rights of access to school facilities as are enjoyed by other comparable groups. Good News Club v. Milford Central School, 533 U.S. (June 11, 2001).

The district�s facilities may be rented for purposes of religious worship or religious teaching by religious organizations or groups only if such facilities are made available under the district�s general policies applicable to non-school organizations or groups. In this context, the policy shall permit the use of such facilities by staff and students acting as private individuals. The district facilities may be used for religious activities only if the activities:

1. Are outside normal school hours

2. Are not promoted or encouraged by the district or School

3. Do not require the expenditure of public funds

School Use of Facilities Owned by Religious Institutions

Public schools may arrange to use the facilities of private landholders including churches, temples, mosques, or other religious institutions. However, the following guidelines apply:

1. The school must have a secular educational purpose for seeking to use the facilities, such as after-school recreation, extended daycare, homework study hall, etc.

2. Where schools lease space from religious institutions for use as a regular public-classroom, the leased space is in effect a public-school facility, and therefore, religious symbols or messages may not be displayed in the leased areas.

3. School officials may neither select nor reject the use of a private religious facility based on its religious teachings. The following religion-neutral criteria shall be used:

a. Proximity to the school in question

b. Suitability of the facility for the intended use

c. Health and Safety

d. Comparative expenses

e. Accessibility for parent pickup or busing

BIBLIOGRAPHY

Anti-Defamation League. "Religion in the Public Schools: Guidelines for a Growing and Changing Phenomenon for K-12." Rev. Ed., Anti-Defamation League 2001.

Haynes, Charles and Thomas, Oliver. Finding Common Ground: A Guide to Religious Liberty In Public Schools. First Amendment Center. 2001.

"Public Schools and Religious Communities: A First Amendment Guide," American Jewish Congress, Christian Legal Society, and First Amendment Center.

Regulation SAN JOSE UNIFIED SCHOOL DISTRICT

approved: September 20, 2001 San Jose, California

revised June 3, 2004