Public School Prayer Information Letter - 2004

Public School Prayer

This informational letter tells students about their rights to pray in public schools as well as the need for schools to acknowledge and permit religious activity on campus.

Dear Concerned Citizens:

In the wake of the terrorist attack on America on September 11, many Americans are sensing and responding to a call to prayer. Despite the long history of official government acknowledgment of the role of religion in American life, some may challenge the right of private citizens to participate in prayer on public property or in the public schools. We have received a number of inquiries about the rights of students - young people who understandably are disturbed and perplexed about the attacks and their aftermath - to pray at the public schools they attend. The purpose of this letter is to set out the general principles regarding student prayer in public schools as well as official acknowledgement of religion by the school itself.

By way of introduction, the ACLJ is a not for profit, public interest law and educational group. Our organization exists to educate the public and the government about the constitutional rights of citizens, particularly in the context of the expression of religious sentiments.

I. OFFICIAL SCHOOL ACKNOWLEDGEMENT OF RELIGION

Despite a national history replete with official acknowledgments of religious belief in the public sector, many school officials mistakenly believe that participation in or observation of religious events, songs, slogans, and the like, result in violation of the Establishment Clause. That is simply not the case.

Our religious heritage is manifested in many ways that openly reflect government acknowledgement and yet do not create an "establishment" problem. The employment of congressional Chaplains to offer daily prayers in the Congress is a practice that has spanned two centuries. The government has recognized as national holidays days with undeniable religious significance, such as Christmas and Thanksgiving. "In God we trust" is statutorily prescribed as our national motto to be inscribed on our currency. The language "one nation under God" is included as part of the Pledge of Allegiance to the American flag. Congress has directed the President to proclaim a National Day of Prayer each year. It is the current practice in every federal court to open proceedings with an announcement that concludes, "God save the United States and this Honorable Court." A portrayal of the Ten Commandments decorates the courtroom of the United States Supreme Court, directly above the bench where the Justices are seated.

The Supreme Court has discussed the historical role of religion in our society and concluded that "[t]here is an unbroken history of official acknowledgment by all three branches of government of the role of religion in American life from at least 1789." Lynch v. Donnelly, 465 U.S. 668, 674 (1984). In Abington v. Schempp, 374 U.S. 203, 212 (1963), the Court recognized that "religion has been closely identified with our history and government."

In Zorach v. Clausen, 343 U.S. 306 (1952), the Court urged government cooperation with religious authorities in the context of release time programs: "For it then respects the religious nature of our people and accommodates the public service to their spiritual needs." Id. at 313-14 (emphasis added). It is quite clear from the Supreme Court's Establishment Clause jurisprudence that the Constitution is not to be interpreted in a manner that would purge religion or religious reference from society. "Government policies of accommodation, acknowledgment, and support for religion are an accepted part of our political and cultural heritage." Allegheny County v. ACLU, 492 U.S. 573, 657 (1989) (Kennedy, J., dissenting).

Schools, like government, are free to acknowledge the religious heritage of our nation as long as they do it in a way that does not endorse religion. Thus, the Constitution permits public schools to officially recognize such events as the National Day of Prayer announced on Friday, September 14. Likewise, there is no constitutional barrier to school participation in the singing of the national anthem or other patriotic songs or the use of patriotic slogans such as "God Bless America." These are examples of constitutionally acceptable recognition of the historical importance of religion in this country.

II. STUDENT PRAYER IN PUBLIC SCHOOLS

The law regarding the First Amendment rights of students is well established, with the unmistakable directive that student speech cannot be restricted solely because of the content of that speech. It is well settled that religious speech is protected by the First Amendment of the Constitution. Widmar v. Vincent, 454 U.S. 263, 269 (1981). School districts must allow religious speech on the same terms as they allow other speech. In other words, students have the same right to engage in individual or group prayer and religious discussion during the school day as they do to engage in other comparable activities.

Some school officials, however, have been led to believe that they may (or perhaps even must) restrict student prayer because to allow student prayer on campus would violate the First Amendment's Establishment Clause. No United States Supreme Court precedent supports that conclusion. Two principles are important here. First, the Court has made 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." Board of Education of the Westside Community School v. Mergens, 496 U.S. 226, 250 (1990). The Court also has made clear that to restrict religious speech because it is religious (that is, to treat religious speech less favorably than other speech) amounts to unconstitutional viewpoint-based discrimination. See Good News v. Milford Central School., 121 S. Ct. 2093 (2001); Lamb's Chapel v. Center Moriches Union Free Sch. Dist., 508 U.S. 384, 394 (1993). 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.

The Supreme Court has directly affirmed public school students' First Amendment right to free speech. "It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate. This has been the unmistakable holding of this Court for almost 50 years." Tinker v. Des Moines Indep. Community Sch. Dist., 393 U.S. 503, 506 (1969). This right to religious speech (including prayer) applies "in the cafeteria, or on the playing field, or on the campus during authorized hours," id. at 512 - in short, anywhere on school grounds where students have a right to be. The Supreme Court recently reiterated the broad protection afforded to voluntary student prayer in Santa Fe Independent School District v. Doe, 120 S. Ct. 2266 (2000). In Santa Fe, the Court explained that such voluntary prayer is permissible "at any time before, during or after the schoolday." Id. at 2281.

While student speech rights are not absolute, the Court in Tinker made clear that schools must have very weighty reasons to censor student speech. The Court explained that school administrators 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. Therefore, undifferentiated fear that other students may be offended, for instance, is not a sufficient reason to stifle student speech rights.

Thus, students are free to express their beliefs about religion in the form of homework, artwork, and other written or oral assignments without fear of censorship based on the religious content of their work. They have a right to distribute religious literature to their schoolmates on the same terms as they are permitted to distribute other literature. The Supreme Court has stated that "[t]he vigilant protection of constitutional freedoms is nowhere more vital than in the community of American schools." Tinker, 393 U.S. at 512.

The Supreme Court has also clearly established the right of students to organize and participate in Bible Clubs. In Board of Education of Westside Community Schools v. Mergens, 496 U.S. 226 (1990), the Court upheld the constitutionality of the Equal Access Act which allows Bible Clubs or Prayer Groups to meet on public school campuses. Congress enacted the Equal Access Act to cure pervasive anti-religious sentiment exhibited by public secondary schools in the aftermath of the Supreme Court's school prayer cases. "[T]he Act was intended to address perceived widespread discrimination against religious speech in public schools." Mergens, 496 U.S. at 239.

Within these Bible Clubs, students are free to discuss any topic and may observe the events such as a National Day of Prayer without fear of interference by school officials, provided that the observation does not substantially interfere with school discipline. The Equal Access Act specifically protects the religious content of such meetings from regulation by school officials. In fact, school administrators are in danger of violating the Equal Access Act and the Constitution if they forbid, censor, or inhibit the prayer activities of Bible Clubs or Prayer Groups, absent a substantial disruption.

The bottom line is that the Establishment Clause requires government neutrality toward religion and does not permit the government to acknowledge only the secular and exclude the religious. The Supreme Court has held that such viewpoint discrimination violates the First Amendment: "The principle that has emerged from our cases 'is that the First Amendment forbids the government to regulate speech in ways that favor some viewpoints or ideas at the expense of others.'" Lamb's Chapel, 508 U.S. at 394 (quoting City Council of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 804 (1984)). Discrimination against speech because it is religious violates the principle of neutrality and, instead, exhibits hostility toward religion in violation of the Establishment Clause. Consequently, schools who do not choose to participate in or acknowledge events or occasions with religious significance must be careful not to tread on the First Amendment rights of students who do choose to participate.

CONCLUSION

It is imperative that school officials respect the constitutional and statutory rights of students to express their private religious views. The United States Supreme Court has stated that "[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)). 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.

It is also important that school administrators understand their rights and obligations. 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.

We hope this letter has helped clarify the rights of students to engage in religious speech in public schools as well as the right of public schools themselves to acknowledge and participate in national traditions or events which may possess religious components. The American Center for Law and Justice is committed to defending the rights of individuals in the public arena. Because of our commitment, we are available to answer any questions you might have concerning this letter. Please feel free to share this informational letter with your local government officials, school officials, and others in your community.

Sincerely,

AMERICAN CENTER FOR LAW AND JUSTICE
Jay A. Sekulow
Chief Counsel