Few issues have generated more intense feelings than prayer in public schools. Although it was once a common practice in many public schools, the Supreme Court in two landmark cases in the early 1960s held that state-sponsored prayer in public schools was unconstitutional. In a series of subsequent decisions the Court has continued to prohibit any government effort to promote prayer in public schools. This has included instances where students recite government composed prayers and also clergy-led prayers at graduation ceremonies and student-led prayer at athletic events. At the same time the Court has emphasized that truly voluntary student prayer in schools is constitutionally permissible and, in some circumstances, even protected speech. This distinction between voluntary student prayer on the one hand and state-sponsored prayer on the other is the central consideration in analyzing school prayer cases and best balances the competing constitutional concerns that are present.
The debate over prayer in public school long preceded the Supreme Court’s involvement with the issue. As originally envisioned in the mid-nineteenth century, public education in America was to be ‘‘nonsectarian,’’ although it was commonly understood that Bible readings could be used as the basis of a common morality. In reality, however, many schools went beyond this, often incorporating a distinctly Protestant piety in the classroom, especially in the post-Civil War years. At times this included Bible readings, devotional exercises, and prayer.
Almost twenty states in the late nineteenth and early twentieth centuries took the issue a step further, passing laws that mandated prayer and Bible readings in public schools. Most of these laws went unchallenged, but lawsuits were initiated in several states, with state courts splitting as to the constitutionality of such laws. More generally, the issue of prayer in public schools, whether mandated by law or not, continued to be a volatile one throughout the first half of the twentieth century, with a number of state courts eventually addressing the issue. Although most courts held the practices constitutional, a substantial minority of lower court decisions struck them down as contrary to our freedoms and constitutional order.
The Supreme Court first addressed and struck down school prayer as unconstitutional in two landmark cases in the early 1960’s: Engel v. Vitale, 370 U.S. 421 (1962), and Abington School District v. Schempp, 374 U.S. 203 (1963). In Engel the Court reviewed a school board policy requiring that a prayer, adopted by the New York State Board of Regents, be said aloud by each class at the start of the school day. In finding that this practice violated the establishment clause, the Court primarily focused on the fact that students were required to recite a governmentcomposed prayer. The Court stated that, at a minimum, the establishment clause means that ‘‘it is no part of the business of government to compose official prayers for any group of the American people to recite as part of a religious program carried on by government.’’
The Court noted that the practice of governmentcomposed prayers by the Church of England was a major impetus for early colonists to come to this country. Thus, according to the Court, the First Amendment was in part designed to prohibit government from using its power ‘‘to control, support or influence the kinds of prayer the American people can say.’’
Significantly, the Court did not rest its holding on the coercive effect such prayers would have on students. It acknowledged that even when students were asked to be excused there might be a significant indirect coercion to conform to the officially approved religion, but the Court emphasized that the establishment clause went much further than prohibiting coercive activities. Unlike the free exercise clause, which the Court suggested requires a showing of government coercion, the establishment clause is violated by establishing an official religion, whether or not it coerces nonobserving individuals. Thus, even though the Court acknowledged that indirect coercion might have existed in Engel, it rested its decision on the official establishment of religion through prescribed prayer.
In Schempp, decided one year after Engel, the Court again struck down a religious exercise in a public school, this time involving a Bible reading over a school intercom followed by recitation of the Lord’s Prayer by students in their classrooms. The Court began its analysis by stating that the government must be neutral toward religion, requiring that government actions have a secular purpose and ‘‘a primary effect that neither advances nor inhibits religion.’’ The religious exercise before the Court clearly failed that test, since it appeared designed to promote religion and the state sponsorship of such activities clearly advanced religion. Moreover, the exercises violated the neutrality principle emphasized by the Court throughout the opinion since the state was actively involved in promoting religion.
Engel and Schempp established that state-sponsored prayer in public schools is unconstitutional, at least when it involved a state-promoted and prescribed prayer on a daily basis. It would be more than two decades before the Court again addressed the question of school prayer, leaving some uncertainty of the scope of the earlier decisions. When the Court finally addressed the issue again, in a series of cases beginning in 1985, it left no doubt that the constitutional prohibition applied to all state-promoted efforts at prayer, no matter how minor they might appear to some. At the same time, however, the Court clarified that voluntary student prayer in schools was permissible and, in some circumstances, even constitutionally protected.
The first of these cases, Wallace v. Jaffree, 472 U.S. 38 (1985), involved an Alabama statute that required a minute of silence in public elementary and secondary schools for the purpose of ‘‘meditation or voluntary prayer.’’ Even though the statute avoided some of the more coercive features found in Engel and Schempp, the Court said it violated the establishment clause. The Court stated that to be constitutional, the statute must have a secular purpose according to Lemon v. Kurtzman, 403 U.S. 602 (1971). The Alabama statute, however, was clearly designed to promote prayer, which the constitution prohibits the state from doing in schools. The legislative record lacked any purpose other than promoting prayer, a fact acknowledged in the legislative record by the bill’s sponsor. In addition, a prior Alabama statute already required a minute at the start of the school day for mediation; the only difference between the two statutes was the added words ‘‘or voluntary prayer’’ in the statute reviewed in Wallace. The Court concluded that adding these words served no purpose other than ‘‘to convey a message of state approval of prayer,’’ which the Constitution does not permit.
Wallace made clear that the state could not promote school prayer in any manner, even when it left the content entirely up to the individual student. It is important to emphasize, however, that Wallace did not declare all moment of silence statutes unconstitutional, but only those designed for no other purpose than to promote prayer. The Court approvingly spoke of the earlier statute permitting truly voluntary prayer during a moment of silence. Moreover, in concurring opinions Justices Powell and O’Connor explicitly stated that moment of silence statutes can be constitutional, even if individual students use them to pray. Such a position makes sense, since the statute is not promoting prayer as such, but a moment of silence, which might serve several secular purposes. Moreover, the choice to pray as well as the content of the prayer would belong solely to the student.
The Court’s next school prayer decision, Board of Education of Westside Schools v. Mergens, 496 U.S. 226 (1991), presented a scenario quite distinct from the earlier cases. In Mergens a student religious club sought permission to meet in a high school for the stated purpose of fellowship, Bible study, and prayer. Although a number of other student clubs were allowed to meet, the school denied access to the religious club because of establishment clause concerns. The Supreme Court held for the students, stating that when a school creates a forum for student speech, which it did when it allowed other clubs to meet, it cannot deny a group based on the religious content of the speech. Importantly, it also held that the establishment clause is not violated when a school permits a religious club to meet as part of a broader forum, since religion is being treated neutrally compared to other speech. Moreover, any decision to engage in prayer in such an instance would be initiated by students, rather than the school, and is therefore permissible.
Mergens is an important decision because it clarifies the distinction between government-promoted prayer, which is always unconstitutional, and student- initiated prayer, which is permissible and at times protected. As stated in Justice O’Connor’s plurality opinion, ‘‘there is a crucial difference between government speech endorsing religion, which the establishment clause forbids, and private speech endorsing religion, which the free speech and the free exercise clauses protect.’’ This does not mean that students can pray whenever and wherever they want, since their speech rights are subject to reasonable controls to protect the school’s educational mission. Yet, the Court indicated that when other student speech is allowed, religious speech, including prayer, must be accommodated.
The two most recent school prayer cases, Lee v. Weisman, 505 U.S. 577 (1992), and Santa Fe Independent School District v. Doe, 530 U.S. 290 (2000), involve more conventional fact patterns and demonstrate the Court’s resolve in finding any statepromoted prayer in public schools unconstitutional. In Lee the Court reviewed a school’s decision to have a rabbi deliver a prayer at a middle-school graduation. The Court held this was unconstitutional, stating that the prayer was a state-sponsored religious exercise that was coercive on those attending the ceremony. They began their analysis by finding that the prayer, though delivered by a private clergyman, could be attributed to the state in three ways: the school principal made the decision to include a prayer, the principal decided who would pray, and principal gave the rabbi a pamphlet containing guidelines for graduation prayers. Thus, unlike the situation in Mergens, this was a state-initiated rather than private prayer.
Second, the Court emphasized the coercive nature of the prayer, which pressured students to participate. After noting the heightened concerns that subtle coercive pressure presents in public elementary and secondary schools, the Court stated that the school’s extensive involvement in the ceremony put substantial pressure on students to engage in actions, such as standing during the prayer, that the students would consider participation. Although this pressure was indirect, since no one was required to stand, it was nonetheless real and substantial. Moreover, the fact that graduation ceremonies were not compulsory did little to address the problem of coercion since high school graduations play a uniquely important role in our society and cannot truly be considered voluntary. Thus, the Court concluded that the graduation prayers in this case constituted substantial, albeit indirect, coercion of dissenting students that violated the basic tenets of the establishment clause.
The Court’s most recent school prayer case, Santa Fe, involved a challenge to a school district policy governing prayer at football games. The policy, which was an attempt to shift the decision on whether to pray from school officials to students, provided for a bifurcated student election on prayer. Students would first vote by secret ballot on whether to have a prayer at games, and if the students chose to have a prayer, a second election was held to elect a student to pray. Pursuant to this policy the students elected to have a prayer at games and chose a student to deliver the prayer.
establishment clause, applying the same two-part coercion analysis used in Lee. The Court began by holding that the prayer was attributable to the state, notwithstanding the school’s argument that the election acted as a ‘‘circuit breaker’’ cutting off state involvement. The Court noted that even posing the question to students promoted prayer, since it initiated a process that, in all likelihood, would result in prayer. This involvement was reinforced by the prayer being delivered at a school function using the school’s public address system, which fostered perceptions of the state’s sponsorship. The Court then discussed the prayer’s coercive effect on students, reiterating the concerns voiced in Lee. It rejected the idea that attendance at football was a truly voluntary activity, noting the important role it played in high school, and stated that the state cannot take advantage of social pressure to coerce those in attendance to participate in what amounted to a state-promoted prayer. Why the Prayer Decisions Make Sense Santa Fe demonstrates the Court’s continuing commitment to prohibit any type of state-promoted prayer in public schools, even in what might be considered more subtle forms. This resolve makes sense because the issue of school prayer reflects the intersection of two highly compelling concerns: the avoidance of state-created religious orthodoxy and the particularly impressionable status of public school children. The first of these concerns is that the state has no business promoting prayer because of the threat it poses to religious freedom, a proposition that is historically sound and eminently sensible. Despite the uncertainty surrounding the religious clauses, one very clear purpose was to preserve religious freedom and avoid any state-approved orthodoxy in religious matters. Yet, to tell people how to pray or even whether to pray creates a form of government orthodoxy in an area central to religious expression. There is perhaps no more personal aspect to religion than prayer, and to many it is closely related to the act of worship. Government involvement with prayer is therefore government involvement with a core religious practice.
The danger of state-created religious orthodoxy is present even when prayer and worship are not compelled, but only promoted by the state in a voluntary setting. The state is still trying to direct and influence core religious practices. This is a form of state orthodoxy— the state is putting its stamp of approval on a particular belief as correct and is trying to influence its citizens in that regard. This path is constitutionally and historically a very dangerous one to follow since, as innocent as it may appear, it might well lead to substantial infringement of religious liberty at some point. This concern was at the heart of the Court’s analysis in Engel and Schempp and was strongly affirmed in Lee.
For these reasons state involvement in prayer is a bad idea and raises concerns at the heart of the establishment clause. Yet what makes school prayer especially problematic is its intersection with children, who are particularly susceptible to the impacts of such state involvement. The impressionable and vulnerable nature of school children has often been noted by the Court, requiring that it be particularly sensitive to the coercive nature of school prayer activities. This includes the possibility that not only students will feel coerced to participate in religious activities, but also that children will easily perceive state endorsement of religion is such situations. Taken together, the dangers of state-created orthodoxy and the impressionable nature of school children have properly led the Court to be extremely vigilant in guarding against any statepromoted prayer in public schools.
At the same time, however, the Court has also emphasized that voluntary student prayer is constitutionally permissible. This is most apparent in Mergens, where the Court held that voluntary student prayer not only was constitutionally permissible, but also was constitutionally protected when a speech forum was created. But in other cases the Court has similarly drawn a distinction between state-promoted prayer, which is unconstitutional, and voluntary student prayer, which is permitted and might be protected. As stated by the Court in Santa Fe, ‘‘Thus, nothing in the Constitution as interpreted by this court prohibits any public school student from voluntarily praying at any time before, during, or after the school-day. But the religious liberty protected by the Constitution is abridged when the State affirmatively sponsors the particular religious practice of prayer.’’ This distinction between voluntary student prayer and state-promoted prayer is the central consideration in the school prayer cases and best balances the competing interests at stake.
MARK W. CORDES
References and Further Reading
Cases and Statutes Cited
See also Abington Township School District v. Schempp, 374 U.S. 203 (1963); Board of Education of Westside Community Schools v. Mergens, 496 U.S. 226 (1990); Engel v. Vitale, 370 U.S. 421 (1962); Lee v. Weisman, 505 U.S. 577 (1992); Santa Fe Independent School District v. Doe, 530 U.S. 290 (2000); Wallace v. Jaffree, 472 U.S. 38 (1985)