by Chris Gilbert, Thompson & Horton LLP

Over twenty years ago, I wrote an article called ““The Coming of the Witches: Schools, Esoteric Religions and the Christian Backlash,”[1] in which I predicted that public schools would soon be grappling with how to respond to and try to accommodate requests from “esoteric” religions, like witchcraft or Wicca, to meet or otherwise interact with students at school.  While I was not immediately correct on any widescale basis, recently a number of schools have had to respond to requests from the Satanic Temple that echo my fears from two decades ago.

For example, a school district in Pennsylvania recently changed its mind and revoked permission for the “After School Satan Club” to meet using school facilities.[2]  The Club, sponsored by The Satanic Temple, which describes itself as a “non-theistic religion that views Satan as a literary figure who represents a metaphorical construct of rejecting tyranny and championing the human mind and spirit,” purports to teach children benevolence and empathy, critical thinking, problem solving, creative expression, personal sovereignty, and compassion, according to a flier distributed to the school district.  Although school officials had originally announced that they were allowing the Club to meet because federal law prohibits schools from barring a religious group from using school facilities simply because of its religious viewpoints, the Saucon Valley superintendent rescinded permission because the group had failed to comply with school board policies.  Although her announcement did not elaborate on what the Club did wrong, schools were closed for a day after someone left a threatening voicemail related to the Club, and references to student safety in the superintendent’s announcement suggest that safety concerns were the reason for the reversal.

The “federal law” that the school referenced was the Equal Access Act, and under the Act and the related First Amendment, the rule for when outside organizations can use school facilities is actually very simple: you treat everyone the same, period.  The fact that a group is religious should make no difference, and while a school does not have to allow outside organizations to use its facilities in the first place, if it allows one outside group access, it must allow all other outside groups the same access, at least insofar as the groups are similarly-situated.  A school cannot deny a group permission to meet simply because it does not like the group, or the group’s message, or because the group is unpopular in the community.  It should always be remembered that the First Amendment was intended to protect minority and unpopular viewpoints.  And the Equal Access Act was originally passed to require schools (or really to remind schools, since this right really already existed under the First Amendment) to allow Christian Bible Clubs to meet after school. A law that was intended to allow one type of religious group to meet certainly can’t be interpreted to deny similar permission to other religions, no matter how unpopular they may be.

That said, Saucon Valley is hardly the first school district to struggle with how to respond when the Satanic Temple comes knocking at the schoolhouse gates.  In September 2014, the  Satanic Temple announced that in light of a court ruling[3] “allowing” the distribution of religious materials in the Orange County Schools in Florida, it intended to hand out its own religious literature in the schools:  “The Satanic Children’s Big Book of Activities.”  Satanic Temple spokesman Lucien Greaves was quoted as saying:

[The organization] would never seek to establish a precedent of disseminating our religious materials in public schools because we believe our constitutional values are better served by respecting a strong separation of Church and State.”

“However, if a public school board is going to allow religious pamphlets and full Bibles to be distributed to students — as is the case in Orange County, Florida — we think the responsible thing to do is to ensure that these students are given access to a variety of differing religious opinions, as opposed to standing idly by while one religious voice dominates the discourse and delivers propaganda to youth.”[4]

In February 2015, the school board voted to ban the passive distribution of all religious, political, denominational, sectarian and partisan materials.  The Board actually came close to shutting down the distribution of all outside materials.

Schools are not the only target of the Satanic Temple.  In 2014, a nearly 9-foot tall bronze statue of the goat-headed deity Baphomet was created as part of an online crowdsourcing campaign, intended to be offered to the Oklahoma state capitol as a  challenge to a Ten Commandments monument that was already on display.[5]  After a state supreme court ruling prohibited all religious statues on the capitol grounds, the stature apparently traveled to Arkansas for a short visit to protest another Ten Commandments monument,[6] and then was “permanently” (as far as I can tell) installed in Detroit.[7]

It is a little unclear how serious the Satanic Temple was about holding student club meetings in Pennsylvania, or passing out coloring books in Florida – at least for any extended period of time.  These highly publicized disputes with local school districts feel a little like attempts to get attention and some free publicity…and in both cases, spokespersons for the Temple cheerfully admitted that at least part of what they were doing was trying to make a point about what they saw as the hypocrisy of how non-Christian groups are treated.  Although the creators of the Baphomet statue obviously devoted substantial resources to it, they made it clear that the statute was more about protesting the presence of Ten Commandment monuments than it really was about displaying a satanic statute.

So what lessons can schools learn from these incidents?  First, and probably most importantly, the Satanic Temple was right about the law: if you let the popular outside or student groups meet or distribute literature, then you have to let the unpopular groups do so as well, absent (very rare) extenuating circumstances.   To this end, schools should evaluate their facility use and literature distribution policies before they have any controversies, to consider whether they really want to allow all outside or all student groups to meet, and whether they want to establish any neutral limitations on groups (such as only allowing groups whose primary purpose is to serve students) using their facilities.  Such limitations can be legal and can be effective, but you should consult with your local school attorney before implementing any of them.

Second, schools can consider some other neutral rules regarding facility use in advance, that may limit the impact of unpopular groups being allowed to meet on school property.  A rule that all groups that wish to use school property must submit applications early in the school year, so that they can all be approved at the same time by the school board at its September meeting, does not allow you to deny permission to any unpopular groups at that time, but it does provide structure to the process by allowing you to deny “surprise” applications that you receive from any group mid-year, who may be seeking publicity more than access.  A rule that all students attending after-school club meetings must have a signed parental permission slip will again not allow you to deny unpopular groups permission to meet, but it will head off a common complaint by making sure that parents know where their kids are after school and have given permission for them to attend whatever club is at issue.

Both of these rules work better with student clubs than they do with outside organizations.  More importantly, they must be even handedly applied to all clubs to avoid charges of viewpoint discrimination.  If you have an “all clubs must be approved by September 15” rule, you can’t feel sorry for some new student group that approaches you in November.  But if you think about your facility use and literature distribution policies in advance, and adopt some of these neutral time, place or manner rules, it may at least help mitigate the impact of allowing an unpopular group access to your schools.

[1] “The Coming of the Witches: Schools, Esoteric Religions and the Christian Backlash,” Texas School Administrators’ Legal Digest, March 2002.

[2] See https://www.lehighvalleynews.com/school-news/k-through-12/2023-02-22/after-school-satan-clubs-use-of-saucon-valley-middle-school-causes-stir (visited Match 8, 2023).

[3] The distribution was done pursuant to a Consent Decree issued in World Changers of Fla, Inc. v. District Sch. Bd. of Collier County, Fla., C.A. No. 2:10-cv-419-FtM-36SPC.  Orange County was not a party to that lawsuit, but apparently it (and several other local school districts) had voluntarily agreed to follow that Consent Decree in handling requests to distribute literature by third parties.

[4] See http://www.salon.com/2014/09/16/satanic_temple_hands_out_activity_books_to_schools_in_response_to_judicial_ruling/ (visited September 17, 2014).

[5] https://abcnews.go.com/US/detroit-largest-satanist-temple-chapter-us/story?id=32714083 (visited March 9, 2023).

[6] https://en.wikipedia.org/wiki/Baphomet (visited March 9, 2023).

[7] https://time.com/3972713/detroit-satanic-statue-baphomet/ (visited March 9, 2023).