Overzealous Application Of Separation Can Give The Principle A Black Eye

created image showing Seperation of Church and State

Most of the posts on this blog talk about agents of the government NOT doing enough to support or ignoring the principle of the separation of church and state. Some religionists, in an effort to refute the principle, bring up examples of the overzealous application of the principle. Their intention is clear. They think that if the government goes too far in separation that it hurts the rights of believers but such overreaches are few and far between and don’t refute the principle that separation of church and state is needed.

You may have heard this or similar stories making the rounds on chain e-mails or posted to Facebook by religious friends:

A student who claims he was suspended for talking about Christianity to classmates and banned from bringing his Bible to campus has filed a federal lawsuit against an East County school district.

An attorney for Kenneth Dominguez, 16, said the Grossmont Union High School District infringed on his client’s Constitutional rights. However, an attorney representing the district countered that Dominguez was suspended because of “an incredible amount of disruptive behavior,” not because of his religious fervor.

The lawsuit contends Dominguez was told he could not talk about his faith at school because of the separation of church and state and was suspended after failing to comply.

A suspension document from the school states: “Student was told to stop preaching at school. Student continued after being warned several times.” It goes on to say: “Student will not bring Bible to school.”

Student booted in Bible flap suing school district

Then there was this more recent court decision:

In K.A. v. Pocono Mountain School District, (3d Cir., March 12, 2013), the U.S. 3rd Circuit Court of Appeals upheld the right of a 5th grade student to hand out invitations to her classmates to a Christmas party at her church when classmates are allowed to hand out invitations to birthday parties, Halloween parties and the like during non-instructional time. Affirming the district court’s grant of a preliminary injunction (see prior posting), the court held that the Supreme Court’s Tinker decision should apply in the elementary school context as well as for older students.

3rd Circuit Upholds Elementary School Student’s Right To Distribute Christmas Party Invitations

The basic story is a school district, not wanting a lawsuit, goes too far to separate church and state and gets a lawsuit. This doesn’t mean the principle of separation of church and state is wrong and should be set aside. It means that sometimes a government can go too far especially when the treat of a lawsuit makes them overreact.

The key point to keep in mind is not the content of the student’s action but if that action disrupts the school (causes a scene or keeps students from their studies).

Free speech protection has been extended to the public school context. As the Court in Tinker v. Des Moines Independent Community School District observed, students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”

Nevertheless, courts have also recognized the principle that public school student expression is “not automatically co-extensive with the rights of adults in other settings.”

Applying these principles in Tinker, where students wore black armbands to protest U.S. involvement in the Vietnam War, the Court ruled that schools cannot restrict student speech unless the speech “materially and substantially interfere[s]” with classroom activities or the school environment.

Schools need not wait for disruption to occur before restricting speech, but they do bear the burden of proving that their actions are based on a reasonable forecast of disruption.

Moreover, “undifferentiated fear or apprehension of disturbance is not enough to overcome the right to freedom of expression.”

Religion in the Public Schools | A Road Map for Avoiding Lawsuits and Respecting Parents’ Legal Rights – Page 82

Administrators do have some leeway on what speech happens in school. I remember back when I was in school, students could be sent home to change if they wore T-shirts with marijuana leaves or that advertised tobacco or alcohol but as long as the student expression is quiet and passive then courts have generally supported students especially when the expression is religious in nature.

A girl handing out invitations to a Christmas party shouldn’t be a big deal since the person getting the invite doesn’t have to attend and can throw away the invitation. A student proselytizing to their classmates during English class is a big deal because the other students can’t easily leave and the preaching student is disrupting class. Punishing the disrupting student is NOT taking away his religious freedom anymore than prohibiting teachers from leading prayers in class is taking away the student’s or teacher’s religious freedom.

Some schools have stopped observing Christmas in class not because they think to observe it might be illegal (it’s not), but because they acknowledge not all students observe the holiday. By changing to a general Holiday observance, the school is able to be as inclusive as possible. Not observing Christmas doesn’t take it away from Christians since they are free to observe it personally or at home.

The next time a religious friend is outraged about some school making a mistake by overreacting to student expression of religion in schools, let them know that doesn’t mean separation of church and state is wrong.


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    • March 15, 2013

      That tends to be true. They seem to support free speech as long as it is what they approve of. That's why I think it is better to not focus on the content but the result of the expression.

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