Prayer in schools: What the law allows

NEA Today, Oct 1995 by Simpson, Michael D

Declaring that the First Amendment "does not convert our schools into religion-free zones," President Clinton last July released a comprehensive statement of principles, spelling out what student religious activities are permissible in the public schools.

Although the President's statement does not have the force of law, it is intended to summarize court holdings on religion in the schools. Copies of the statement were sent to all 15,000 public school districts in the country.

While the statement is somewhat ambiguous and leaves several tough questions unanswered, it broadly affirms the right of students to engage in religious expression during the school day.

The statement takes the position that, since students have the right to "free speech" in school, then "private religious expression" by students cannot be banned simply because it is religious. In short, if students are "not engaged in school activities or instruction," and are otherwise permitted to talk among themselves, then they have the right to say prayers or discuss their religious beliefs.

The statement advises that "in informal settings, such as cafeterias and hallways," students can "pray and discuss their religious views with each other, subject to the same rules of order as apply to other student activities and speech." This includes meeting with other students for "group prayer," saying "grace before meals," and praying "before tests."

By the same token, however, "the right to engage in voluntary prayer...does not include the right to have a captive audience listen or to compel other students to participate."

But the devil's in the details. Does that mean that students can pray out loud during homeroom, study hall, or in class before instruction has begun? Wouldn't that "compel" a "captive audience" of other students to "listen" to prayer?

The statement of principles doesn't answer that tough question, and the courts have yet to consider such a case.

The statement also provides advice about the legality of other forms of religious activities in school. Students, for example, have the right "to distribute religious literature to their schoolmates," subject to reasonable "time, place, and manner" restrictions.

They can read the Bible or other scriptures at school and can "speak to and attempt to persuade their peers about religious topics," so long as it doesn't rise to the level of "harassment." Students also have the right to wear religious garb and to "display religious messages on items of clothing."

Students can "express their beliefs about religion" in homework and other assignments. And teachers should evaluate such work by "ordinary academic standards of substance and relevance."

The statement draws a careful distinction between student religious expression and school-sponsored religious activities. The former is protected by the free speech clause of the First Amendment, while the latter is prohibited by the Establishment Clause.

That means that teachers and other school officials cannot encourage or participate in religious activities while at school. At the same time, schools can teach about religion, including "the Bible-as-literature," the role of religion in history, and religious influences on art, music, literature, and social studies.

In a message to administrators, Education Secretary Richard Riley cautions that "[i]mplementation of these principles, of course, will depend on specific factual contexts and will require careful consideration in particular cases."

That's an understatement. Several lawsuits show how tricky it can be to apply these principles in the "real world."

Last July, the Sixth Circuit Court of Appeals held in Settle v. Dickson County School Board that a Tennessee teacher did not violate a ninth grader's free speech rights by giving her a grade of zero for a research paper on Jesus Christ.

The assignment required students to obtain the teacher's prior approval of the research topic, and the student originally signed up to write about drama. The teacher refused to allow the student to change her topic to a paper on Jesus, because the teacher felt there were not enough "original sources" on that subject matter and because she was aware the student already knew a great deal about Jesus, defeating the purpose of the research assignment.

When the student ignored the teacher's instructions and submitted a paper entitled "The Life of Jesus Christ," the teacher gave her a zero. The student sued, claiming a violation of her free speech rights.

In rejecting that claim, the court said this was not a case where a teacher sought to punish a student's speech because of religious content. Rather, the student got a zero simply for failing to comply with a class assignment.

Last year, the parents of 10-year-old Raymond Raines sued the St. Louis school system claiming he had been put in detention for saying grace in the school cafeteria.

School officials have denied that the fourth grader's prayers had anything to do with the punishment. According to Superintendent David Mahan, "He was disciplined for some matters that were totally independent of silent praying." The case is still pending in federal court.