Know Your Rights: School Prayer

Students are often harassed and even precluded from praying at school, but as we explain in our legal whitepaper, the Constitution and Supreme Court precedent are clear that prayer, just like other speech, is protected.

The United States of America was founded on Judeo-Christian principles. Our highest 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 Sch Dist. of Abington v. Schempp, 374 U.S. 203, 212 (1963), the Supreme Court recognized that “religion has been closely identified with our history and government.”

Despite the long history of official government acknowledgment of the role of religion in American life, some still challenge the right of private citizens to participate in prayer on public property or in public schools.

Unfortunately, most of the challenges arise due to the misunderstanding school officials have about their own responsibilities, the rights of the students, and case law related to the United States Constitution’s First Amendment and the often-quoted proverbial wall of separation of church and state. Sometimes, such challenges also arise due to individual hatred toward religion, especially Christianity.

The relevant part of the First Amendment states: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof . . . .” The Fourteenth Amendment makes the First Amendment applicable to all levels of government – federal, state, and local. As such, government entities, which include public schools, may not violate the Establishment Clause of the First Amendment. Contrarily, they may not prohibit the free exercise of religion either.

Schools, like other areas of the 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. Croft v. Perry, 624 F.3d 157, 168 (5th Cir. 2010). 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. Widmar v. Vincent, 454 U.S. 263, 277 (1981). School districts must allow religious speech on the same terms as they allow other speech. Id. 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. Id.

Some school officials, however, believe that they may (or perhaps even must) restrict student prayer because to allow student prayer on campus would violate the Establishment Clause. This is not true. It is the public school officials who may not promote or initiate student prayer or require students to participate in prayer. Engel v. Vitale, 370 U.S. 421, 430 (1962).

The Supreme 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.” Bd. of Educ. v. Mergens, 496 U.S. 226, 250 (1990). 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 Club v. Milford Cent. Sch., 533 U.S. 98 (2001); Lamb’s Chapel v. Ctr. 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.

Further, students’ right to religious speech (including prayer) applies “in the cafeteria, or on the playing field, or on the campus during the authorized hours.” Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 512 (1969). Students may exercise this right anywhere on school grounds where students have a right to be, id., and “at any time before, during, or after the schoolday.” Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290, 313 (2000).

However, this right is not absolute. 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. But undifferentiated fear that other students may be offended, for instance, is not a sufficient reason to stifle student speech rights. Id.

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. Murdock v. Pennsylvania, 319 U.S. 105, 108–09 (1943).

The Supreme Court has also clearly established the right of students to organize and participate in Bible Clubs like any other secular student group. Mergens, 496 U.S. at 252-53. Within these Bible Clubs, students are free to read the Bible or discuss religious topics, provided such activities do not substantially interfere with school discipline. Tinker, 393 U.S. at 505.

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. Zorach v. Clauson, 343 U.S. 306, 314 (1952). The Supreme Court has held that such viewpoint discrimination violates the First Amendment. Id. Discrimination against speech because it is religious violates the principle of neutrality and, instead, exhibits hostility toward religion in violation of the Establishment Clause. Id. Consequently, schools that 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.

It is imperative that school officials respect the constitutional and statutory rights of students to express their private religious views. The American Center for Law and Justice (ACLJ) is committed to defending the rights of individuals in the public arena, as we have done for decades. ACLJ attorneys have written a legal whitepaper paper on these issues. Because of our commitment, we are available to answer any questions you might have concerning this paper. Please feel free to share this legal whitepaper paper with your local government officials, school officials, and others in your community.

We have been providing assistance and legal representation, at no cost or charge, to people just like you for decades. If your rights are being violated in this area, please contact us at ACLJ.org/HELP.