Santa Fe independent school district v. Doe: Establishment clause chaos on the high school gridiron

St. John's Law Review, Winter 2001 by Chanice, Lawrence J

In 1962, Engel v. Vitale92 represented the first application of the Establishment Clause to a case involving prayer in a public setting. In this case, the New York Board of Regents composed a prayer that was recited at the start of each school day by the

teacher and his or her class.93 The Supreme Court held that such a practice violated the Establishment Clause94 even though the prayer was "nondenominational" and "noncoercive."95 In reaching this decision, the Court found that

[the] constitutional prohibition against laws respecting an establishment of religion must at least mean that in this country it is no part of the business of government to compose official prayers for any group of the American people to recite as a part of a religious program carried on by government.96

Disregarding the states' right to govern church-state relations that was provided by the Framers, the Court, to support its holding, recited irrelevant history regarding the colonists' plight to free themselves from the religious constraints imposed by the Church of England.97

One year later, the Supreme Court decided School District of Abington Township v. Schempp.98 This case involved the consolidation of two suits.99 In the first suit, a Pennsylvania statute mandated that a minimum of ten verses from the Bible were to be read to students at the beginning of each school day followed by a recitation of the Lord's Prayer.100 The other suit, taking place in Baltimore, Maryland, similarly involved reading a chapter of the Bible to the students.101 To resolve this matter, the Court created a test that asks what is the purpose and the

primary effect of the enactment?lot In this case, it found that the practices at issue violated this two-prong analysis.103 The Court, however, indicated that it might have decided differently in the Baltimore suit if there were "factors" tending to show that "the Bible [was] used either as an instrument for nonreligious moral inspiration or as a reference for the teaching of secular subjects."104

Beginning in 1981, the Supreme Court reviewed a trilogy of cases involving student-prayer groups.105 In the first case, the Supreme Court applied the Lemon test,106 and found a state university's refusal to allow a student-religious group to use its facilities in order to adhere to the tenets of the Establishment Clause unwarranted.107 Nine years later, a plurality found that the Equal Access Act, which granted a right to student high school groups to meet at public schools during non-instructional time in a limited public forum setting, did not violate the Establishment Clause.108 The last of these cases held that the funding of a student religious group's activities by a state university would not violate the Establishment Clause because

in Widmar v. Vincent109 and Board of Education of the Westside Community Schools v. Mergens,110 the universities spent money to provide those groups with a meeting place.111 Although the facts in this line of cases are not completely analogous to those involving prayer in a public setting, these cases are important in addressing the problem of excessive entanglement.112