Last week’s renewed push to get prayer back in our public schools - first, when Sarah Palin announced a new book about the war on Christmas; and next, when Mississippi Governor Phil Bryant signed a bill to allow student-led prayer at school-wide events - would be a newsworthy new chapter in America’s ongoing culture wars, except for one thing.
Despite what you’ve been told, student prayer in school never actually left.
The confusion - and the conflict - dates back to two U.S. Supreme Court cases in the 1960s. The first came about when the parents of ten children in New York challenged the constitutionality of a state law that required public schools to begin each day with a state authorized prayer that was drafted by the New York Board of Regents. State-sponsored prayers in public schools, the parents argued, violate the Establishment Clause (“Congress shall make no law respecting an establishment of religion,”). And in 1962, the highest court in the land agreed, by a 6-1 decision. As Justice Hugo Black wrote, “We think that the constitutional prohibition against laws respecting an establishment of religion must at least mean that in this country it is no part of the business of government to compose official prayers for any group of the American people to recite as a part of a religious program carried on by government.”
A year later, another religion case made it all the way to Washington, courtesy of two Pennsylvania parents who challenged a law in their state that required “at least ten verses from the Holy Bible shall be read, without comment, at the opening of each public school on each school day.” Once again, the parents argued that this was a violation of the Establishment Clause. And once again, by a wide margin (8-1), the Court agreed.
In its majority opinion, the Court tried to clarify a central point we’ve been misunderstanding ever since. “It might well be said that one’s education is not complete without a study of comparative religion or the history of religion and its relationship to the advancement of civilization,” wrote Justice Tom Clark. “It certainly may be said that the Bible is worthy of study for its literary and historic qualities. Nothing we have said here indicates that such study of the Bible or of religion, when presented objectively as part of a secular program of education, may not be effected consistently with the First Amendment. But the exercises here do not fall into those categories. They are religious exercises, required by the States in violation of the command of the First Amendment that the Government maintain strict neutrality, neither aiding nor opposing religion.”
In other words, the Court saw clearly the distinction between the Establishment Clause, which forbids state actors (from politicians to principals to classroom teachers) from establishing one religion above others, and the Free Exercise Clause (“or prohibiting the free exercise thereof,”) , which is designed to protect the individual rights of children to bring their religious views with them to public school.
If it still doesn’t seem clear, consider the distinction drawn by the First Amendment Center’s Charles Haynes, an expert on religious liberty issues. “For almost two decades,” Haynes writes, “education, religious and civil liberties groups, as well as the U.S. Department of Education, have disseminated First Amendment guidelines explaining that although teachers may teach about religion, they may neither inculcate nor denigrate religion.
“Teachers should have more academic freedom than they presently enjoy,” he continued. “But when religion is involved, teachers should not be free to impose either a religious or an anti-religious viewpoint on students.”
To help sort through the confusion, Haynes has articulated useful ground rules for schools serious about striking the right balance between No Establishment and Free Exercise. Among his keys to look for are the following:
- The school’s approach to religion is academic, not devotional.
- The school strives for student awareness of religions, but does not press for student acceptance of any religion.
- The school sponsors study about religion, not the practice of religion.
- The school may expose students to a diversity of religious views, but may not impose any particular view.
- The school educates about all religions; it does not promote or denigrate religion.
- The school informs students about various beliefs; it does not seek to conform students to any particular belief.
Is that what’s happening in Mississippi?
Governor Bryant certainly thinks so. Commenting on the proposed law, which would force school districts to let students express their religious beliefs at school-wide events - along with a disclaimer that such student speech “does not reflect the endorsement, sponsorship, position or expression of the district” - Bryant said: “We believe that we’re on firm ground here with our opportunity for religious expression in a limited forum within public schools.”
Time will tell, of course, but Bear Atwood, the legal director for the ACLU’s efforts in Mississippi, has her doubts. “At the end of the day, do I think there will be a legal challenge? Yes, which is unfortunate because it is not the governor or the Legislature that will get sued but the individual school district and that’s not a very good way for them (to) spend their limited education dollars -- especially given that this is a pretty well-settled area of law.”
Once again, it appears there is more mileage to be gained from perpetuating the illusion that religion has been kicked out of America’s public schools. Which leads us to Sarah Palin . . .
On second thought, nevermind.