Below is a short legal analysis prepared by ACLJ attorneys on this topic. A more in-depth legal analysis is available here.
The First Amendment to the United States Constitution protects a student’s right to freedom of speech and expression along with the student’s religious freedom. However, many school officials mistakenly believe that student prayer inside the public schoolhouse violates the Establishment Clause’s so-called “separation of church and state.” That is simply not the case.
“School officials do not possess absolute authority over their students. Students in school as well as out of school are ‘persons’ under our Constitution. They are possessed of fundamental rights which the State must respect, just as they themselves must respect their obligations to the State.”
Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 511 (1969). The law regarding the First Amendment rights of students is well established. Students’ speech cannot be restricted solely because of the content of that speech. It is well settled that religious speech, which includes prayer and worship, is protected by the First Amendment of the Constitution. Widmar v. Vincent, 454 U.S. 263, 269 (1981). The Supreme Court has also made it clear that “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 Free Exercise Clauses protect.” Bd. of Educ. of the Westside Cmty. Sch. v. Mergens, 496 U.S. 226, 250 (1990). Accordingly, a public school may not suppress or exclude private student speech for the sole reason that the speech contains a religious perspective. Widmar, 454 U.S. at 269.
It is imperative that school officials respect the rights of students to express their private religious views and understand the boundaries of their authority and obligations. In view of that, it is essential to understand “[t]he Establishment Clause does not license government to treat religion and those who teach or practice it, simply by virtue of their status as such, as subversive of American ideals and therefore subject to unique disabilities.” Mergens, 496 U.S. at 248 (plurality) (quoting McDaniel v. Paty, 435 U.S. 618, 641 (1978) (Brennan, J., concurring in judgment)).
The Supreme Court has directly affirmed that public school students have the right to discuss religious beliefs, and even share religious materials, with their peers between classes, at break, at lunch, and before and after school, anywhere on school grounds where students have a right to be. Schools can only prohibit protected speech by students when it “materially and substantially interfere[s] with the requirements of appropriate discipline in the operation of the school.” Tinker, 393 U.S. at 509-512.
Accordingly, the First Amendment precludes any governmental effort to single out and censor or otherwise burden the speech of private parties solely because that speech is religious. Although public school officials may not promote or initiate student prayer or require unwilling students to participate in prayer, they may support and give official recognition to this nation’s collective religious heritage without risking a violation of the Establishment Clause.
Important questions arise when it comes to whether students can have student-led prayer at graduation or other school events. The answer depends to a large extent on the particular circumstances of the prayer and the event.
In Lee v. Weisman, 505 U.S. 577 (1992), the Supreme Court held that school officials violated the Establishment Clause by inviting clergy to give prayers at a graduation commencement, but the Court clearly limited its decision to the particular facts that the school organized the prayer at the graduation ceremony. Similarly, in Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290 (2000), the Court concluded that the Establishment Clause prohibits school officials from facilitating prayer at school functions such as school football games. However, in its decision in the Santa Fe case, the Court specifically noted that not every instance in which a religious message or invocation is offered during a school event will violate the Establishment Clause. Santa Fe, 530 U.S. at 302 (“[A]n individual's contribution to a government-created forum was not government speech.”)
Nevertheless, Lee and Santa Fe do not stand for the proposition that all student-led religious speech at graduation and related events is unconstitutional. In Lee, Justice Souter noted that religious students may “organize a privately sponsored baccalaureate if they desire the company of likeminded students.” Lee, 505 U.S. at 629 (Souter, J., concurring). Moreover, in Santa Fe, the Court explained that voluntary prayer is permissible “at any time before, during or after the school day.” Santa Fe, 530 U.S. at 313.
The American Center for Law and Justice has been in the vanguard of protecting the religious liberties of public school students and their families. Over the years, ACLJ attorneys have won countless cases where school officials have, out of ignorance or hostility, attempted to violate the First Amendment rights of public school students. Whether the case involves the discriminatory treatment of a student Bible Club, or the refusal to allow a kindergartner to pray before eating her lunch, ACLJ attorneys work continually to educate public school officials about student rights. Because of our commitment, we are available to answer any questions you might have concerning this matter. Please feel free to share this informational with your local government officials, school officials, and others in your community.
Because you are representing the PTO, a private organization, you have much broader rights than if you were representing the public school. I would inform the school administrator of your intentions, making it clear that this is not an official school event. I would encourage you to contact the leadership of the PTO, let them know exactly what you are planning, and take it from there. As a private organization, as long as the leadership isn't objecting, you should have no constitutional difficulty in saying a prayer. In other words, no one has grounds to say the Establishment Clause prohibits you from praying before a voluntary association of people. The difference, of course, would be if somehow this talent show were deemed an official school event. But as long as it's not an official school event, you should have no difficulty.
Yes, you should have no problem if it's an after-school event. As you said, the prayer needs to be voluntary; but if a group of teachers wants to pray before the meal, there should be no problem whatsoever. What you may have is confusion about the voluntary aspect of the prayer. If the school principal prays, the question can be raised as to whether that implies an endorsement of religion by the state. The Supreme Court of the United States has said that a school doesn't endorse everything it fails to censor, and that high school students are mature enough to understand this; therefore, teachers, getting together for a luncheon would certainly be expected to understand. I think there's an absolute misunderstanding of what the law is with regard to prayer at school events. Interestingly, in 1969 in the Tinker case, the Supreme Court held that "students [nor] teachers shed their constitutional rights . . . at the schoolhouse gate." Prayer is not prohibited activity, and this is a group of adults. You can't compel the prayer; you can't require anybody to pray. But you certainly could have prayed before the beginning of that meal.
The best way to handle this situation is to let the prayer gathering be student-led and student-initiated. Have the players lead the prayer, rather than the coaches. When a coach leads the prayer, the concern for the administration is that the school system will be perceived as somehow involved in the process. But those students on the team who want to pray before the game as a group don't have to do it individually; they have the right to pray as a team. And the administration is wrong if they think students cannot pray. Students do have the right to pray, and coaches can participate by bowing your head and being reverent and respectful. You should not lead the prayer; the students should. But they clearly have the right to do so. Prayer before the game needs to be student-initiated and student-led. In the Santa Fe case, a case involving prayer at football games that I argued several years ago, the Supreme Court did say that the school was too involved in the prayer activity, even in Justice Stevens' opinion. This is not overly helpful in any regard, except for one: the Supreme Court said that students have the right to pray before, during, and after the school day. And there's nothing in the Constitution, or the Supreme Court precedent, that denies that. So there are constitutional rights, even in the Santa Fe case, allowing students to pray collectively as a group. Students are allowed if they so choose-it's up to them.
Allowing a student to pray is not a violation of the law. In fact, representatives of the school system are violating the law if they told him he could not pray - the Supreme Court says you cannot show hostility towards religious expression. The Supreme Court has also held that that students have the right to pray before, during, and after the school day, and nothing in the Supreme Court's precedents or the Constitution prohibits that. The important thing is that praying cannot be done in a way that's going to disrupt the classroom - or in your son's case, the lunchroom. But he can certainly pray quietly, even if a couple of other students want to pray with him. The test is whether it causes disorder to the school environment. Assuming it does not, there should be no problem whatsoever. There are also Department of Education guidelines dealing specifically with this. They are posted to our Website at aclj.org. Any student has the right to say grace. They can even pray for their food with friends during a lunch period, and the school should not be interfering at all with that right to pray. This seven-year-old was within his constitutional rights to engage in saying grace before a meal without fear of reprisal. In the Tinker case, the Supreme Court said, "... students [do not] shed their constitutional rights to freedom of speech or expression at the schoolhouse gate." A few years ago, in a case I argued McConnell v. FEC, the Supreme Court reaffirmed once again -- unanimously, by the way, the most conservative members of the Court and the most liberal -- that "[m]inors enjoy the protection of the First Amendment." And as I said, the Department of Education guidelines have been very clear on this as well. I'm sure once the public school system understands the Department of Education guidelines, as well as existing federal law, they'll comply. They really have no choice but to comply and allow prayer to take place.
It's called political correctness. In the case in California, which took place during the 2001-02 school term, they not only promoted prayer, they encouraged participation in a religious exercise. But even Americans United for Separation of Church and State issued a press release in January 2002 "raising legal questions" about the situation and acknowledged that that was an incorrect motivation for a school district policy. We've gotten a lot of calls on that case. I think the school district there has revised that policy and that's no longer happening. They're teaching about religion, but they're not encouraging or promoting participation in a religious exercise. Can you imagine the lawsuits that would have been filed if, instead of Islamic religious exercises, students had been required to participate in a Catholic Mass? The ACLU, Americans United, etc., would all be raising questions and concerns about the practice. But at the end of the day - and I think you've got to be realistic here - the ongoing debate over the role of religion in schools is going to be just that: ongoing. And at the ACLJ, we're going to continue to litigate these cases. Although I will tell you, we've generally had really great success in this area. As I've said before, it's a misinterpretation of the First Amendment that seems to be at the forefront of all of this.
Actually, in both situations, prayer has been upheld by the Supreme Court as being constitutional. In the case Marsh vs. Chambers, the Supreme Court talked about invocations at legislative deliberations. In that decision in 1980, they held that it was appropriate to allow a paid chaplain to give an invocation for a deliberative body. And the High Court has affirmed again and again that there is nothing in the Constitution, or any Supreme Court decision, that prohibits students from engaging in voluntary, student-led, student-initiated prayer during the school day. The Supreme Court restated that position as recently as the Santa Fe case involving prayer at a football game. Finally, the decision of the Supreme Court in the case Chandler vs. Siegelman, which is one of our cases, gives even more support to the rights of students. It says that student-led expression is protected in the schools.