School prayer is back

NEA Today, Sep 1994 by Simpson, Michael D

The Supreme Court first struck down officially sponsored school prayer in 1962. A year later, the Court said that schools cannot begin each day with Bible readings and recitations of the Lord's Prayer.

The high Court's rulings on school prayer have been the law of the land for more than 30 years now. But recent lower court decisions have given life to a new drive to put prayer into the schools.

The key decision came in 1992 from the Fifth Circuit Court of Appeals in Jones v. Clear Creek Independent School District. In that Texas case, the court upheld "student-initiated" graduation prayer.

The school policy challenged in Jones allowed the senior class to decide whether to have an invocation or benediction at its graduation ceremony. Any prayer had to be "nonsectarian and nonproselytizing" and delivered by a "student volunteer."

In upholding the policy, the Fifth Circuit court emphasized the distinction between government sponsorship of religious activities, which the Establishment Clause prohibits, and religious speech by private citizens, which the Free Speech Clause of the First Amendment protects.

The school's action was legal, the court ruled, because students had made the decisions.

The court said, "A graduating high school senior who participates in the decision as to whether her graduation will include an invocation by a fellow student volunteer will understand that any religious references are the result of student, not government, choice."

The Supreme Court declined to review the case, so it is now the law in the three states that make up the Fifth Circuit-Texas, Louisiana, and Mississippi.

Emboldened by the Jones decision, Pat Robertson's American Center for Law and Justice (ACLJ) immediately launched a campaign to put prayer back in the public schools.

Last spring, ACLJ sent a letter to 35,000 school officials touting the Jones decision and claiming that students now have the "free speech" right to pray at graduation ceremonies and to engage in other religious activities at school.

And in a pamphlet distributed nationally, ACLJ urges students to exercise their First Amendment rights to proselytize on public school campuses.

The American Civil Liberties Union (ACLU) joined the fray last April by sending its own mailing to school officials refuting Robertson's position and asserting that "student-initiated" prayer is unconstitutional.

Beleaguered school officials don't know what to do.

The dueling memos from the ACLJ and the ACLU have caused a "horrible mess," says Gwen Gregory, deputy general counsel for the National School Boards Association.

The confusion has been compounded by several contradictory court decisions handed down since the 1992 Jones case.

Federal judges in Iowa, New Jersey, and Virginia have rejected the Fifth Circuit's reasoning in Jones and held that student-initiated graduation prayer violates the Establishment Clause.

The policy challenged in the Virginia case, Gearon v. Loudoun County School Board, allowed the senior class to vote whether to have a "nonsectarian, nonproselytizing invocation/benediction/prayer" at graduation.

In striking down the policy, Judge Albert V. Bryan, Jr. held that "the state [cannot] delegate the decision as to a prayer to the graduating class without ding the Establishment Clause.... The notion that a person's constitutional rights may be subject to a majority vote is itself anathema."

The attorney generals for the states of Kansas, Kentucky, and Maryland all have ruled that student-led graduation prayer is unconstitutional.

On the other hand, federal district courts in Idaho and Florida last year followed the reasoning of the court in Jones and upheld school policies allowing student-initiated prayers at graduation.

Several of these cases are now pending in the federal courts of appeal, and it's likely that one of them will wind up in the Supreme Court next year.

Proponents of school prayer have also launched efforts in state legislatures. According to the ACLU, six states this year passed legislation mandating a moment of silence or permitting student led prayer at school events. The six states are Alabama, Arkansas, Georgia, Mississippi, Tennessee, and Virginia.

While the debate over student led prayer will undoubtedly continue, at least until the Supreme Court hands down a definitive ruling, the law remains clear on one matter--teachers and other school employees cannot participate in religious activities while at school.

The Fifth Circuit Court of Appeals, for example, held last year that it is a violation of the Establishment Clause for a basketball coach to lead his players in pre-and post-game prayer. Similarly, the Eighth Circuit ruled in 1988 that a high school band teacher could not lead band members in prayer at rehearsals and performances.

Legal turmoil aside, some suggest the current school prayer movement is a response to urban chaos and violence in school.

As D.C. Council member Marion Barry explained when he introduced a school prayer bill, "With all this violence and other problems, we need to get back to trying to allow those who want to pray to do it. It may set a moral tone at the schools