School officials have heard a lot recently regarding what religious activities and events are not permitted in public schools based on the Establishment Clause principle of "separation of church and state." We thought it would be helpful to review which religious practices and activities on the part of students, employees, and others are permitted in the schools pursuant to the Free Exercise Clause and other First Amendment provisions. Though there are gray areas that depend on the specific facts of a situation, the following is a general guide concerning what students, school employees, and other persons or organizations may do on school grounds concerning religious practices and events.
So long as students do not infringe on the rights of others, students have the right to practice their religion on school grounds and at school-sponsored events. Students may read scripture; say grace before meals; and pray before tests. Students may pray and discuss their religious views with other students in informal settings on school grounds, so long as they follow the same rules applied to other student activities and speech. Prayers and discussions regarding religious beliefs must be student-initiated and student-led. Teachers, administrators, and coaches cannot organize prayer activities on school grounds during school hours or during school-sponsored events, such as athletic contests or graduation ceremonies. Students may distribute religious material to their peers to the same extent that students are allowed to distribute non-religious materials and so long as the distribution does not interfere with school activities and the materials are not school-sponsored or endorsed.
Students may wear clothing and accessories expressing their religious beliefs, so long as the items in question are not a distraction to educational activities and do not violate a specific provision of a Student Dress Code.
If relevant to the subject matter being taught or discussed, students may express their religious views during a class discussion or as part of an assignment. Students cannot, however, evangelize their peers in the classroom or during any other school setting where there is a captive audience.
South Carolina law requires that "all schools shall provide for a minute of mandatory silence at the beginning of each school day." While students have the right to pray to themselves during this moment of silence, teachers should not encourage or discourage students from using the moment of silence for a particular purpose.
South Carolina law provides that students may organize prayer groups, religious clubs, "See you at the Pole" events, and other religious gatherings before, during, and after school to the same extent students are permitted to organize other non-curricular student activities and groups. School facilities may be used for religious gatherings if those facilities are used by other student-led groups. Similarly, students may take advantage of school media (newspapers, announcements, flyers, etc.) to advertise meetings and activities of religious groups and clubs if other clubs and organizations have the same right under school rules. Teachers may not lead, participate or promote these organizations, but they may monitor club meetings to ensure compliance with school policies.
Schools should attempt to accommodate requests from parents and students to be excused from specific classroom assignments or activities for religious reasons. School officials should first ask whether the request is based on a sincere religious belief. It is important to note that the school does not have to agree with the belief or find it logical, just that the belief is sincerely held by the student. Next, the school should determine whether the assignment or activity would contradict the student's religious beliefs. From there, the school should take a course of action that does not violate the student's religion if such a course of action is available and feasible. For example, if the teacher assigns a book that the student or parent finds objectionable on religious grounds, the teacher may assign an alternate selection.
As government employees, school personnel are required to be neutral concerning religion while carrying out their job responsibilities. School employees should not pray with or in the presence of students during the school day. Employees may pray together or meet for scripture study or other religious discussions on school grounds, so long as the activity is outside the presence of students and does not interfere with the rights of other employees. Employees may wear religious accessories (crosses, yarmulkes, head scarves, etc.), but should avoid wearing clothing with proselytizing messages.
The law does not require that classrooms be "religious-free zones" when a lesson involving a discussion about religion is educationally relevant. When planning an activity that includes religious content, teachers should ask themselves:
1. Is there a distinct educational purpose to the lesson other than the promotion of religion?
2. Does the activity serve the educational mission of the school or the goals of the course?
3. Have measures been taken to ensure that no student or parent will feel like an outsider because of the activity?
Schools may instruct about religion in an educational manner, so long as the purpose is to teach rather than preach. For example, teachers may teach about the tenets of Christianity as part of a larger discussion on the tenets of other religions. It should be noted that Bibles or other holy books should not be handed out to students by school employees.
Schools may allow outside religious organizations to use school facilities after school hours if such access is granted to other groups. Steps must be taken to ensure that the religious organization or its events are not promoted or endorsed by the school. To that end, teachers may attend religious services and events held on school grounds after hours if they are doing so in their individual capacity, and not as a school employee. Flyers promoting religious services may be distributed by churches, temples and synagogues on school grounds to the extent that schools allow other non-education related groups to do the same (e.g., local recreation commissions and boys and girls clubs).
If your district has specific questions regarding your district policies or needs assistance with a specific issue regarding religion in your schools, please feel free to contact our office.
We are pleased to welcome Joseph Bias as an associate with the firm. Mr. Bias is a graduate of Wofford College (B.A., Humanities) and the University of South Carolina (J.D.). He has worked as an assistant public defender with Richland County and was a law clerk for the Honorable Alison R. Lee. Mr. Bias will work in the areas of litigation, employment law, and education law.
Following is an update to the Affordable Care Act issue of the month that was published in June. The text of the original newsletter is still valid, but the compliance date now is January 1, 2015.
On July 2, 2013, the United States Department of the Treasury issued a blog post stating that the mandatory employer and insurer reporting requirements and the employer shared responsibility payments under the Affordable Care Act (“ACA”) were being delayed from January 1, 2014 to January 1, 2015. While the language used in that post was ambiguous, our legal interpretation is that employers do not have to comply with the employer mandate until January 1, 2015. The South Carolina Public Employee Benefits Authority (“PEBA”) has also interpreted the delay in this way, and will not be changing its benefits plans for state employees until January 1, 2015.
This delay allows school districts with extra time to determine how the change in the law will affect budgets, workloads, and schedules, and districts should take this opportunity to make the transition to compliance with the law as smooth as possible. Set forth below is a brief list of what districts need to do during the 2013-14 school year.
Letter to Employees Regarding Health Insurance
Re: IMPORTANT INFORMATION REGARDING YOUR HEALTH CARE COVERAGE
As many of you know, a new federal law, the Affordable Care Act, created significant changes in how Americans will obtain health insurance. Currently, most employees within our District are offered health insurance through the State Employee Benefits Authority’s health plans.
Employees who are offered coverage are those individuals in full-time, permanent positions and permanent, part-time teachers. Additionally, dependents of those eligible employees are offered coverage. Dependents are defined as spouses or children younger than age 26.
Originally, the US government planned to require large employers to expand that coverage to individuals who worked 30 hours or more per week, but that requirement has been delayed until January 1, 2015. For the 2014 calendar year, there will be no change in the types of employees who are offered coverage through the District. That means that District employees who are not considered permanent full-time employees or permanent part-time teachers will need to obtain health insurance through some means, other than the District, beginning January 1, 2014. Individuals may be eligible to get insurance through their spouse’s employer, Medicaid, Medicare, or TriCare.
The Affordable Care Act mandates that all United States taxpayers obtain health insurance coverage by January 1, 2014 or pay a penalty through their annual tax returns. The penalty for not obtaining health insurance for the 2014 year will be the greater of $95 per person or 1% of your annual income. (For example, if you earn $25,000 annually, your estimated penalty for not obtaining health insurance coverage would be $250.00.) That penalty increases every year after 2014.
The attached notice provides information on how you can shop for health insurance coverage online, beginning October 1, 2013. The online marketplaces will require you to enter the information contained in this form, so you must retain this information if you plan to shop for health insurance. Please read the notice carefully, and contact _________________ (BA, director of personnel, etc.) at _______________ or _______________ if you have any questions.
 The other legal interpretation is that the delay of penalties and reporting requirements is not the equivalent of a delay in the mandate to provide health insurance coverage to employees who work 30 hours or more per week. If your district agrees with this interpretation, your district can use its procurement processes to arrange for private health insurance coverage for those employees who work 30 hours or more per week, but are not currently eligible for PEBA benefits.
[TEXT OF THE ORIGINAL ISSUE OF THE MONTH FOLLOWS]
School districts, like many other employers, are grappling with the requirements of the federal Affordable Care Act (ACA), sometimes referred to as "Obamacare. " Among other things, the ACA requires employers with 50 or more employees to offer affordable health insurance benefits to full-time employees (those who work 30 hours or more per week). While this requirement seems straightforward, determining which employees are covered is not so simple, especially for school districts. Before the implementation date of January 1, 2014, school districts must classify groups of employees who work variable hours.
• For employees who have always been considered full-time, such as teachers, administrators, and full-time classified staff, there will be no change in the benefits districts offer.
• Many part-time employees clearly work less than 30 hours per week and will continue not to be offered coverage.
• Other employees, whose work hours vary on a daily or weekly basis, are referred to as "variable hour employees." These employees include daily substitute positions; long-term substitute positions; bus drivers, cafeteria, custodial, and maintenance workers; homebound teachers; tutors; dual position employees, and other semi-part-time staff. It is their status that must be determined. Please note that this includes temporary employees who average more than 30 hours per week during the measurement period.
The murder of 20 elementary school children in Newton, Connecticut in December 2012 reignited public discourse regarding how school districts might best protect students in crisis situations, including nation-wide debate as to whether public school administrators and/or teachers should be allowed to carry concealed weapons on school campuses. Presently, school districts across South Carolina are taking steps to examine their emergency procedures, safety programs, and facility security measures to ensure that their schools are protected and that their crisis plans are well-coordinated.
Each individual school district should be familiar with its community and students, including, at least to some degree, the type of threats a school might face. While it may be tempting for all school districts to take a hard-line approach in response to recent events, school districts should instead approach their specific circumstances in reviewing and updating existing safety and emergency plans, relationships and communications with law enforcement and emergency response agencies, as well as the security of their facilities. This review should include not only crisis measures in the event of an armed intruder, but also may provide an opportune time for districts to review their existing safety plans related to weather or other disasters. In light of the recent focus on school security, school districts should determine if the preventative focus is on external threats (intruders unaffiliated with the school), internal threats from students and staff, or both. For external concerns, school districts should review the state of their building security, including, but not limited to, doors and windows that are locked from the outside; keycard systems; staffed sign-in or visitor checkpoints; visitor identification badges; video surveillance; and the need for on-campus armed security, such as school resource officers. Moreover, both school and outside emergency personnel should be well-informed and well-practiced in the event of a security breach or emergency. Regarding potential internal threats, schools may also wish to review their approach to student bullying, including cyber-bullying, disciplinary procedures, use of metal detectors, student searches, background checks for volunteers, and student access and referral to mental health services.
South Carolina school districts should be aware of legislation recently introduced by members of our General Assembly, which, if passed into law, may require changes to district policies, procedures, and operations as they relate to school resource officers, lockdown plans, and the carrying of firearms on school grounds by school employees. In fact, some seven bills dealing directly with school safety are currently pending before the Legislature. These bills include:
• Senate Bill 162 - permits any school to establish an elective, one-semester course in firearm marksmanship, which course must include specific components, including instruction on firearm operations and safety, constitutional and historical elements of firearms, and practice time at a shooting range.
• Senate Bill 249 - requires the General Assembly to appropriate sufficient funding to school districts to employ at least one school resource officer for each public school. In addition, the proposed bill would remove any discretion a county/city/town may have in granting a school district's request for a school resource officer and requiring the county/city/town to provide a school district the number of School resource officers requested by the school district and subject to school district providing the requisite funds.
• House Bill 3237 – requires school districts to request school resource officer for each school and for that officer to be on campus during all regular hours. If the officer s not present during regular operating hours or absent, the school must notify law enforcement, who must dispatch an officer to the school. Similar to S.249, this bill also requires a county/city/town to provide a school resource officer if requested, but does not address funding.
• House Bill 3364 - mandates each school district develop a lockdown plan for each school, with specific provisions about what each plan should include and parent notification of that plan.
• House Bill 3365- requires each school to employ a school psychologist on a full-time basis to help identify and address mental health needs of students. No funding provision is included
Each of these bills raise questions and concerns regarding implementation on the local level. The size, location, and layout of a particular school will likely drive the number of school resource officers needed. For example, do a small elementary school and a small middle school, located beside each other or even on the same campus, need a separate officer? How will schools monitor the location of a school resource officer to ensure their "continuous presence," and what impact will that have on the relationship between the school and law enforcement? Do the lock-down requirements set forth in the proposed legislation match the needs of particular school districts or provide necessary discretion to school and district administrators? Regarding school psychologists, even if the role of a school psychologist is to address non-educational mental health issues, increasing the number of school psychologists required across the state may prove impossible for a position that is already difficult to fill.
In addition to the bills discussed above, the proposed laws that have elicited the most debate relate to the presence of firearms on school grounds. In that regard, it should be noted that, under existing law, school officials may provide permission for an employee who has a concealed weapons permit (CWP) to bring their firearm onto campus. In addition, most school resource officers carry weapons, as may any law enforcement officer who enters school premises. However, recent legislation, as introduced by members of our General Assembly, would expand that authority to all holders of a CWP, including school employees. Among the most controversial is Senate Bill 242, which would remove from SC law an existing requirement that persons with a CWP must store their firearm within the locked compartment of a vehicle when that vehicle comes onto school grounds. In short, pursuant to this Bill, visitors who have a CWP would not be required to obtain permission from school officials before carrying a concealed weapon onto school grounds. Further, House Bill 3160 would allow school employees who have a CWP to carry a firearm onto school grounds, provided the employee keeps the weapon on his/her person and concealed when not in use, that the employee uses specified bullets, and that the employee provides notice of his/her ability to carry a weapon to school administration. This bill also provides limited grounds on which a district could deny the employee the authority to bring their firearm onto school grounds.
While arguments are made in favor of armed classroom teachers and administration, both as a preventative measure and as a means to stop armed intruders, security experts and our own Director of the State Law Enforcement Division (SLED) question the advisability of arming as many adults in a school as possible. Both from a practical standpoint, as well as in considering a district's potential liability, districts must consider that arming staff who have minimal training may result in accidental shootings, shots that hit the wrong target, incidents where students forcibly take a weapon from an employee, and other such unintended consequences may serve as a deterrent.
If you have any questions regarding your district's policies and procedures as they relate to this issue, please do not hesitate to contact