	Background

The issue of religious discrimination in public schools has been a subject of congressional attention in a variety of contexts over the past several years. That legislation would have amended Title VI of the Civil Rights Act of 1964 (CRA) to prohibit discrimination based on religion in programs receiving federal funds, in addition to the other classes already protected under the CRA. As Congress continues to consider potential reauthorization of the Elementary and Secondary Education Act (ESEA), issues related to religious discrimination in schools are particularly relevant. This report analyzes the constitutional and statutory protections that may prevent religious discrimination against students. It examines the current interpretations of the Establishment and Free Exercise Clauses of the First Amendment, as well as the protections available to religious student groups under the Equal Access Act and the Free Speech Clause of the First Amendment. The report also discusses the effect of Titles IV and VI of the CRA, which prohibit discrimination in education and federally funded programs, respectively. It addresses the Supreme Court's rulings on student religious groups in the context of access to school facilities and funds. Finally, the report analyzes the extent to which religious student groups may be selective in their membership requirements without violating nondiscrimination requirements. To illustrate the complexity of the legal issues involved in these scenarios, a group may challenge a school's policy requiring acceptance of any interested student as a condition to use school resources on a number of counts: (1) the Establishment Clause, alleging disfavorable treatment based on the group's religious identity; (2) the Free Exercise Clause, alleging infringement on the group's ability to maintain its religious identity and beliefs; (3) the Free Speech Clause, alleging that the policy limits the group's ability to express its beliefs as other groups might be permitted to do; (4) the Equal Access Act, alleging that the school has limited access to its facilities based on the religious content of the proposed speech; (5) the constitutional freedom of association, alleging that the school's policy requires groups to accept members who may not otherwise be identified with the group. Legal Rules Governing Religion in Schools

The primary legal protections that may be used to prevent discrimination based on religion in schools are the First Amendment, the Equal Access Act, and the Civil Rights Act of 1964. Title IV specifically addresses the desegregation of public schools. Title VI provides significant nondiscrimination protection in schools, but it does not extend to discrimination based on religion. The Proposed Student Non-Discrimination Act (H.R. 998; S. 555)

Intended to ensure that students are free from discriminatory conduct such as harassment, bullying, intimidation, and violence, the proposed Student Non-Discrimination Act (SNDA) would prohibit discrimination on the basis of actual or perceived sexual orientation in public elementary and secondary schools.
Reports of harassment in schools, including examples based on religious identity and practices, have raised public attention and congressional interest in the issue of religious discrimination in schools. Congressional attention to the issue has focused on efforts to prevent discrimination in programs receiving federal funding, namely, public schools. The 112th Congress has introduced proposals (e.g., the Student Non-Discrimination Act) to curtail harassment in public schools and may consider related issues in the potential reauthorization of the Elementary and Secondary Education Act. Some proposals have specifically addressed religious discrimination, while other proposed nondiscrimination measures have raised tangential concerns regarding religious freedom, namely, the ability of students to maintain religious identity or beliefs that would conflict with the protections offered in legislation.
Both constitutional and statutory protections prevent discrimination based on religion in school contexts. The First Amendment of the U.S. Constitution generally prohibits public schools from limiting access of religious groups to school facilities and resources for the purpose of religious expression. The Equal Access Act provides similar protection to ensure that student religious groups have access to secondary school facilities on an equal basis as other groups. Finally, the Civil Rights Act of 1964 includes several protections to prevent religious discrimination, including Title IV and Title VI. Title IV prohibits discrimination based on religion in education, and Title VI prohibits discrimination based on religion in federally funded programs generally, which includes public schools.
This report analyzes the legal protections available to students and student groups that may be subject to religious discrimination in public schools. It examines the current interpretations of the Establishment and Free Exercise Clauses of the First Amendment, as well as protections available to religious student groups under the Equal Access Act and the Free Speech Clause of the First Amendment. The report also discusses the effect of Titles IV and VI of the Civil Rights Act as they relate to school programs. The report specifically analyzes two significant issues related to religious discrimination in schools: access of religious student groups to school facilities and resources and the rights of such groups to be selective in their membership. Finally, the report examines the status of these legal protections under the proposed Student Non-Discrimination Act (H.R. 998; S. 555).