The following is a a legal opinion letter, explaining why under the United
States Constitution, teachers and elementary school students can participate in See You
at the Pole. If you would like to order a copy of this or other literature from
the NLF, click here.

ELEMENTARY STUDENTS AND TEACHERS
RIGHT TO PARTICIPATE IN SEE YOU AT THE POLE

Introduction

Students at schools all across America annually gather at their
schools flagpole to pray for their schools, friends, teachers, government, and
nation. This national event, called See You at the Pole, is student-initiated,
student-organized, and student-led.

In the early years of See You at the Pole, some schools
apparently felt that allowing their students to gather for prayer on school property might
violate the Establishment Clause.1
However, a broad consensus quickly developed within the legal and educational communities
that See You at the Pole posed no constitutional problem. Two documents were
instrumental in forging this consensus. First, Religion in the Public Schools: A Joint
Statement of Current Law was issued. This document explicitly declared that
"[s]tudent participation in before- or after-school events, such as See You
at the Pole, is permissible. School officials, acting in an official capacity,
may neither discourage nor encourage participation in such an event." Religion in
the Public Schools: A Joint Statement of Current Law, available at
http://www.aclu.org/issues/religion/relig7.html (September 13, 2001).

Many of the signatories to this document are among those groups
most likely to sue school districts over alleged Establishment Clause violations. Since
these groups, such as the American Civil Liberties Union, People for the American Way, and
Americans United for Separation of Church and State, have given See You at the Pole
a clean bill of health, there has been very little litigation or threat of litigation.2
Perhaps because of this lack of threats, very few schools have opposed See You at the
Pole.

The second document that helped forge the consensus was Religious
Expression in Public Schools, United States Department of Education Guidelines. This
document was distributed to every public school superintendent in the country by Richard
Riley, Secretary of Education under President Clinton. This document contained almost the
identical statement regarding See You at the Pole.

Thus, there has been very little question that See You at the
Pole is constitutional. Indeed, for groups, like the National Legal Foundation, which
stand ready to defend the religious rights of those who would like to participate in See
You at the Pole, the only questions that are routinely asked are whether teachers may
participate and whether elementary-aged children may participate.

Because these matters have not been litigated, the answer must be
tentative. However, based upon general First Amendment principles, both elementary school
children and teachers have a right to participate in See You at the Pole. The
starting point for this analysis must be the general recognition of constitutional rights
on school property. The United States Supreme Court put it well in the landmark case of Tinker
v. Des Moines Independent School System, 393 U.S. 503, 506 (1969), when it wrote,
"It can hardly be argued that either students or teachers shed their constitutional
rights to freedom of speech or expression at the schoolhouse gate. This has been the
unmistakable holding of this Court for almost 50 years." Of course, another thirty
years have come and gone since the Court wrote this statement.

It is true that courts often closely inspect the application of
general Establishment Clause principles to situations involving teachers and young
children. However, as the following analyses will show, schools may allow both of these
groups to participate in See You at the Pole without violating the Establishment
Clause.

Elementary students have a
constitutional right to participate in See You at the Pole

Students in elementary, middle, and high schools can all
participate in See You at the Pole. However, the age of the student may require
additional safeguards to pass muster under Establishment Clause jurisprudence. The Supreme
Court has held that high school students are mature enough to distinguish between
school-sponsored speech and private speech. Bd. of Educ. Of Westside Community Sch.
Dist. v. Mergens, 496 U.S. 226, 250-51 (1990) (plurality opinion). "Schools do
not endorse everything they fail to censor." Id. The Seventh and Eighth
Circuits have extended this analysis to junior high students. See Hedges v. Wauconda,
9 F. 3d 1295 (7th Cir. 1993); Good News/Good Sports Club v. Sch. Dist. of
City of Ladue, 28 F. 3d 1501 (8th Cir. 1994) In Hedges, the court
admonished the school "to educate the audience rather than to squelch the
speaker." Hedges, 9 F.3d at 1299. The court further noted,

schools may explain that they do not endorse speech by permitting
it. If pupils do not comprehend so simple a lesson, then one wonders whether the Wauconda
schools can teach anything at all.

Id. at 1300.

This year the Supreme Court has declared that religious activity
can occur during noninstructional time at elementary schools.

Establishment jurisprudence [does not] [] foreclose private
religious conduct during nonschool hours merely because it takes place on school premises
where elementary school children may be present.

Good News Club v. Milford Central Sch., 121 S. Ct. 2093, 2104
(2001). The Supreme Court focused on the parents perception of school sponsorship,
rather than on the elementary students views, since the parents allow their children
to attend the Bible Club. Id.3 The Court noted that
the parents could not reasonably believe that the school was sponsoring the Bible Club. Id.

In order to prevent accusations of Establishment Clause
violations in the elementary or middle school settings, parents should give the school
their permission for their children to participate in See You at the Pole. A Bible
Clubs requirement that junior high students obtain written parental consent before
attending meetings dispels any need for the school to monitor if attendance is voluntary. Good
News/Good Sports Club, 28 F.3d at 1510. A United States District Court has also
recognized that parents informed written consent for kindergarten through sixth
graders participation in religious activities dispels any presumptions of school
sponsorship since

parent[s] maturity and ability to discern the difference
between faculty supervision and implicit endorsement of the religious ideas expressed at
the meeting is imputed to the child.

The parental consent puts the elementary student on equal footing
with high school students, who the United States Supreme Court has held "are mature
enough to differentiate between sponsorship and mere custodial oversight." Id. (citing
Bd. of Westside Community Sch. Dist. v. Mergens, 496 U.S. 226, 250 (1990)).4 Furthermore,
parental consent creates an opt-in rather than an opt-out situation and thus, the
appearance of school sponsorship is greatly diminished. Id.

Also, to avoid Establishment Clause claims, See You at the
Pole should occur either before or after school, not during the normal school day
hours. Sometimes those who oppose religious activities on school property have raised
arguments based on when an event is held. These timing arguments center around state
compulsory attendance laws. However, if See You at the Pole is held before or after
school, then student attendance is not compelled and timing arguments will not survive. See
Mergens, 496 U.S. at 250-51; see also Hedges, 9 F.3d at 1298. ("Nothing in
the first amendment postpones the right of religious speech until high school, or draws a
line between daylight and evening hours.").5

The United States Supreme Court will reject a schools claim
that in order to avoid the perception of sponsorship, a school may suppress religious
speech such as See You at the Pole. Widmar v. Vincent, 454 U.S. 263, 271-73
(1981); Mergens, 496 U.S. at 247-52; Lambs Chapel v. Center Moriches Union
Free Sch. Dist., 508 U.S. 384 (1993).

In addition to See You at the Pole passing muster under
the Establishment Clause, it is also protected under the Free Exercise and Free Speech
Clauses of the First Amendment. Students do not shed their constitutional rights, such as
exercising their freedom of religion in participating in See You at the Pole, at
the school house door. Tinker v. Des Moines Ind. Community Sch. Dist., 393 U.S.
503, 506 (1969). The Supreme Court held that students constitutional rights extend
beyond the classroom"in the cafeteria, on the playing field, or on the campus
during authorized hours." Id. at 512-13. Therefore, the right to religious
expression extends to the schools flagpole. The only limitations on students
right to religious expression are that the students participating in See You at the
Pole not "materially and substantially interfere with the requirements of
appropriate discipline in the operation of the school and [] [not]collid[e] with the
rights of others." Id. To avoid interfering with the schools discipline,
the students should assemble peacefully and get the schools permission for the See
You at the Pole activity. Also, other students rights will not be collided since
See You at the Pole will be an opt-in rather than opt-out activity. Furthermore, a
hecklers veto will not override the students right to freedom of religious
expression at See You at the Pole. See Forsyth v. Nationalist Movement, 505
U.S. 123, 134 (1992). ("Listeners reaction to speech is not a content-neutral
basis for regulation."); Cox v. Louisiana, 379 U.S. 536, 551 (1965).
("First Amendment rights are not subject to a hecklers veto."). Regardless
if students are in elementary6, middle, or high
school, they should be permitted to express their freedom of religion by participating in See
You at the Pole.

Furthermore, if a Bible Club is organizing and leading See You
at the Pole, then the event will have statutory protection under the Equal Access Act,
42 U.S.C. §§ 4071-74 (2000). Also, See You at the Pole may be protected under a
states statute. For example, the Tennessee and Kansas legislatures have enacted
statutes that protect the rights of students to express their religious beliefs (through
prayer, witnessing, and communication with other believers), to the degree that students
possess the right to express beliefs on other subjects. Tenn. Code. Ann. §§49-6-2901 to
2902 (2000); Kan. Stat. Ann. §§158.181-187 (2001). See You at the Pole should
pass constitutional muster as one District Court has concluded that monthly prayer
meetings at the school flag are permissible. See Daughtery v. Vanguard Charter Sch.
Academy, 116 F. Supp. 2d 897, 910-11 (W.D. Mich. S.D. 2000).

Teachers can constitutionally participate in See
You at the Pole

Like students, teachers do not shed their constitutional rights
at the schoolhouse gate. Tinker, 393 U.S. at 506. However, teachers rights in
the public school are not co-extensive with rights of adults in other settings. Roberts
v. Madigan, 921 F.2d 1047, 1056 (10th Cir. 1990). Therefore, whether
teachers can actively participate in See You at the Pole depends on whether they
are acting in their official capacity or as a citizen.

When teachers acting in their official capacity seek to
participate in religious activities, courts typically hold that their free exercise rights
can be restricted. Students, parents, or other members of the public may perceive teacher
participation as placing the states imprimatur on the event. Id. at 1057. A
United States District Court found that teachers, in their official capacity, could be
present at student prayer at the school flagpole as long as they are acting in a
supervisory capacity, without participating in the prayer. Daughtery v. Vanguard
Charter Sch. Academy, 116 F. Supp. 2d 897, 910-11 (W.D. Mich. S.D. 2000).

If teachers, however, are acting as citizens, then they can pray
at See You at the Pole. The United States Supreme Court has held that teachers
cannot be

compelled to relinquish the First Amendment rights they would
otherwise enjoy as citizens to comment on matters of public interest in connection with
operation of the public school in which they work.

Madison Sch. Dist. v. Wisconsin Emp. Commn, 429 U.S.
167, 175 (1976) (citing Pickering v. Bd. of Educ., 391 U.S. 563, 568 (1968)); see
also Keyishian v. Bd. of Regents, 385 U.S. 589 (1967); Shelton v. Tucker, 364
U.S. 479 (1960); Wieman v. Upegraff, 344 U.S. 183 (1952).7Praying for the nation and the school should be
likened to commenting on matters of public interest. Where a State has opened a forum,
such as a school, for direct citizen involvement, then teachers cannot be excluded. Madison
Sch. Dist., 429 U.S. at 175. Therefore, if the school allows, for example, the Boy
Scouts to meet at the school, it cannot stop a teacher, acting as a citizen, from praying
at See You at the Pole.

It is imperative that teachers constitutional freedoms be
protected. "The vigilant protection of constitutional freedoms is nowhere more vital
than in the community of American schools." Tucker v. Shelton, 364 U.S. 479,
487 (1960).

By limiting power of the States to interfere with the freedom of
speech and freedom of inquiry and freedom of association, the Fourteenth Amendment
protects all persons, no matter what their calling. But, in view of the nature of the
teachers relation to the effective exercise of rights which are safeguarded by the
Bill of Rights, and by Fourteenth Amendment, inhibition of freedom of thought, and of
action upon thought, in the case of teachers brings the safeguards of those amendments
vividly into operation. Such unwarranted inhibition upon the free spirits of teachers . .
. has an unmistakable tendency to chill that free play of the spirit which all teachers
ought especially to cultivate and practice; it makes for caution and timidity in
associations by potential teachers.

Wieman v. Updegraff, 344 U.S. 183, 195 (1952)
(concurring opinion).

Some states may also provide statutory protection for teachers.
For example, the Tennessee legislature has recognized the constitutional rights of
teachers and passed an act that protects the rights of school employees to read the Bible,
pray quietly, meet with other employees to pray, and wear religious garb. Tenn. Code Ann.
§§49-6-8001 to 8005 (2000).

Teachers have two options when it comes to their presence at See
You at the Pole. Teachers can either be non-participating state actors, by acting in a
supervisory capacity, or can participate and pray while acting as a non-state actor in
their citizen capacity. Teachers must make sure not to blur the lines between their
official capacity and their citizen capacity. Those teachers who want to be perceived as
non-state actors should not volunteer to supervise the event, personally announce the
event in their classrooms, or encourage or discourage students participation. In
order to maintain the line between their citizen capacity and their official capacity,
teachers should walk to the flagpole from off campus as opposed to exiting from the school
building and should not address school-related activities or assignments during the See
You at the Pole event.

Conclusion

Generally, See You at the Pole has not been challenged.
Following the guidelines set forth in this memorandum should enable younger students and
teachers to participate in See You at the Pole. The National Legal Foundation is
available to assist students, parents, teachers, and school officials with questions
concerning See You at the Pole.