Is it legal to have student led prayer at public school events,
athletic contests, and voluntary prayer at commencement?
The answer-Yes!
No!
It all depends!
To give you an idea as to why all three answers could be considered according
the courts let’s look at some case histories.
Let’s begin with some history of religion in the classroom.
One case from Illinois, McCollum v. Board of Education, 333 U. S. 203, 68 S. Ct.
461 (1948).
Students were given religious instruction by private teachers in the public
schools during regular classroom time.
The Supreme Court ruled that the facts show the use of tax-supported property
for religious instruction and the close cooperation between the school
authorities and the religious council in promoting religious education violated
the establishment clause of the First Amendment.
In Zorach v. Clauson, 343 U.S. 306, 72 S. Ct. 679 (1952), a program in the
New York public schools allowed students to be released early from the public
school so that they could receive religious instruction at religious schools
elsewhere.
The Supreme Court ruled that the New York program does not violate the First
Amendment because it did not show an establishment of religion.
The reason I am starting with these particular cases is to show that society and
public school systems thought religion was important enough to allow students to
leave early to receive religious instruction or to have it taught in their public school.
McCollum v. Board of Education, 333 U. S. 203 (1948) brought up the use of tax
supported property for religious purposes and that will be an issue with student led
prayer at public school events.
The removal of prayer from public schools has been very gradual starting in the
1960s.
Three important cases started the process of removing prayer from public schools.
In Engel v. Vitale, 370 U. S. 421 (1962) the U.S. Supreme Court found the New York
Regents' prayer to be unconstitutional.
Murray v. Curlett, 1963 374 U.S. 203 (1963), and Abington School District v.
Schempp, were consolidated into one case and both dealt with Bible reading and
reciting the Lord’s Prayer in school.
The Supreme Court got the chance to establish a set criterion in the case of Lemon
v. Kurtzman (1971) 403 U.S. 60291 S. Ct. 2105.
This case dealt with Rhode Island's 1969 Salary Supplement Act, and
Pennsylvania's Nonpublic Elementary and Secondary Education Act (both were
found to be unconstitutional) the Court established three criteria needed for a law
to be considered constitutional regarding the establishment clause.
First, the statute must have a secular legislative purpose.
Second, its principal or primary effect must be one that neither advances nor
inhibits religion.
Finally, the statute must not foster "an excessive government entanglement with
religion.
This set of criterion used by the Court because of the Lemon v. Kurtzman case
became known as the Lemon Test.
The Supreme Court now has a set guideline for State Legislatures to follow,
regarding religion and the establishment clause.
However some states were still trying to find ways to get prayer back in the public
schools.
Alabama had statutes that by stages allowed voluntary prayer led by public
school teachers.
In Wallace v. Jaffree, 427 U.S. 38, 105 S. Ct. 2479, 86 L. Ed. 2d 29 (1985) the
key question was whether the State Statute Authorizing a Period for Meditation or
Voluntary Prayer Violates the Establishment Clause.
The District Court found nothing wrong with the first statute that called for a one
minute period of silence for meditation in all public schools.
Notice that it called for one minute of meditation and not prayer.
It then found the second and third statutes unconstitutional.
These statutes sanctioned voluntary prayer and permitted teachers to lead willing
students in a prescribed prayer to Almighty God…the Creator and Supreme Judge
of the world.
In Lee v. Weisman, 505 U.S. 577, 112 S. Ct. 2649 (1992), the key question was
whether Nonsectarian Prayer at School Graduation is Unconstitutional.
In this case the Supreme Court was going to make a major decision regarding
prayer led by religious figures at public school graduation ceremonies.
Prayer in public schools whether voluntary or involuntary had already be
addressed as had been prayers led by government employees.
Now the court was going to rule on religious figures leading prayers at graduation
ceremonies.
A rabbi was invited by Nathan Bishop Middle School principal Robert. E. Lee to
deliver a prayer at a public school’s graduation ceremony.
The rabbi was given a copy of a pamphlet that recommended prayers at civic
ceremonies be inclusive and sensitive.
The Defendant, Rachel Weisman, a student at the school, challenged the practice
of having prayers at public school graduations.
According to Justice Kennedy the case was so obvious that the Court did not
apply the Lemon test.
The 5-4 decision showed that the Court was one vote away from allowing
religious leaders to lead prayers at graduation ceremonies.
The Supreme Court has ruled that graduation ceremonies cannot have
government employees write prayers for the ceremonies or even encourage
prayers and they cannot have religious leaders pray at the graduation
ceremony.
How do the states try and get prayer back into their graduation ceremony?
The next case I am going to discuss will show how innovative some school
districts can be in dancing around the First Amendment.
In Jones v. Clear Creek School District (1992) 930 F.2d 416 67 Ed. Law Rep. 89
the Clear Creek Independent School District passed a resolution allowing high
school seniors to vote for student volunteers to deliver non-sectarian, nonproselytizing religious invocations at their graduation ceremonies.
School officials would review the invocation before the graduation ceremonies.
The Fifth Circuit Court of Appeals ruled that it's constitutional for students to
vote on having prayers during graduation ceremonies.
The Fifth Circuit Court applied the three prongs of the Lemon test.
What is odd is that, in the decision, the Court admits that the practical result
will be exactly what the Lee v. Weisman decision did not permit.
In other words the real difference between Weisman and Jones was that in
Weisman the prayer was led by a religious leader and initiated by the school
and principal where in Jones it was student initiated and student led.
In the case of Doe v. Duncanville Indep. Sch. Dist. 70 F.3d 402 (5th Cir. 1995)
two issues were in question, one dealt with religious music and the other dealt
with the school districts practice of permitting its employees to lead, encourage,
promote, and participate in prayers with students during various curricular and
extracurricular events.
In 1995 the Fifth Circuit ruled in a long running case involving the Duncanville
I.S.D. that school districts and their employees may not lead, encourage,
promote, or participate in prayers with or among students during curricular or
extracurricular activities, including before, during, or after-school related
sporting events (Doe v. Duncanville I.S.D., known as Duncanville II).
In short the law is clear that neither the public school nor its employees may
sponsor prayer at school or at extracurricular activities and athletic events.
On the issue of prayer in public schools the courts seem to have agreed on the
following, students can pray on their own, in some areas of the country they
can vote for students to read a prayer at graduation ceremonies and that public
schools nor their employees may lead prayer at school or at extracurricular
events and athletic events.
The final issue to address is students leading prayer at athletic events.
The case of Santa Fe Independent School Dist. v. Doe, 530 U.S. 290, 120m S. Ct
2266 (2000) involves student led prayer before all footballs games using the
public address system.
The Court of Appeals held that the football prayer policy was invalid.
The United States Supreme Court in a 6-3 held that the policy allowing the
student led prayer at the football games was unconstitutional.
The Supreme Court rulings affect all the states.
The rulings of state courts have an affect on the state schools and District Courts
only affect those states within the district.
As you can see the issue of prayer even when student led can violate the
“Establishment Clause” of the First Amendment.
In the case of Santa Fe Independent School Dist. v. Doe, 530 U.S. 290 (2000)
one of the problems was the use of the public address system on school
property for prayer, a real violation of separation of church and state.
On May 26, 2011 another case involving graduation prayer came up in Texas.
In the case Schultz v. Medina Valley Independent School District 5:2011cv00422
the plaintiff Schultz did not want a prayer read at her graduation ceremony.
On June 1, 2011 a federal judge ordered Medina Valley Independent School
District 5 Texas to prohibit public prayer at its June 4, 2011 high school
graduation ceremony.
Late Friday, June 3, 2011 in a back-and-forth battle of legal briefs, an appellate
judge in New Orleans overruled district judge Biery’s ruling.
As you can see from what I have shown you all three answers were correct at
certain times.
Another case has gone one step further and is in Illinois.
It involves the IHSA (Illinois High School Association) and the restriction that
the IHSA put on schools.
Member schools of the IHSA were told that they couldn’t announce prayer over
public address systems, for state tournaments which many private schools have
done for years.
Here is a state agency telling private schools what they can do.
Does this violate the First Amendment?
As you can see progress has been made in making sure that separation of
church and state is maintained within the public school system.
Yet more can be done especially in the area of consistency throughout the
country.
Our founding fathers were wise in the idea of separation of church and state yet
it certainly has been a challenge maintaining it.