Expelling God From School

Lee Boothby
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They put the Negroes in the schools," said Representative George W. Andrews of Alabama after the 1962 Engel prayer decision, "and now they've driven God out."

Of course, in the 35 years since then, the nation has progressed enough in race relations that no serious politician would utter such crudities. Yet America doesn't seem to have progressed much regarding what is said about religion in public schools. In fact, according to the rhetoric, the U.S. Supreme Court is utterly determined to eradicate faith from the classroom and to turn public schools into religion-free zones where any expression of faith is deemed illegal and must be brutally and swiftly suppressed.

Yet the truth is that the courts' rulings about religion in public classrooms and the rhetoric about them radically differ. What has the U.S. Supreme Court really said about religion in public schools, and what has the Court tried to accomplish with those decisions?

In McCollum v. Board of Education, 333 U.S. 203 (1948), one of the first religion-in-public-school cases, the Court held that a public school may not permit part-time religious instruction on its premises as a part of the school program, even if participation in that instruction is entirely voluntary and is conducted only by nonpublic school personnel.

In contrast, in Zorach v. Clauson, 343 U.S. 306 (1952), the court held that a program similar to McCollum conducted off the premises of the public school passed constitutional muster. In explaining the difference between its decisions in McCollum and Zorach, the Court, in Grand Rapids School District v. Ball, 473 U.S. 373, 390, 391 (1985), explained that "the difference in symbolic impact helps to explain the differences between the cases. The symbolic connection of church and state in the McCollum program (where religion was taught in the school itself) presented the students with a graphic symbol of the 'concert of union or dependency' of church and state, . . . This very symbolic union was conspicuously absent in the Zorach program."

In another case, the State Board of Regents of New York prepared an official prayer for public schools. Principals were directed to cause the following prayer to be said aloud by each class in the presence of a teacher at the beginning of each school day: "Almighty God, we acknowledge our dependence upon Thee, and we beg Thy blessings upon us, our parents, our teachers and our Country."

The Supreme Court, in Engel v. Vitale, 370 U.S. 421 (1962), held that this state-prescribed prayer violated the Establishment Clause, because a prayer composed by governmental officials as part of a governmental program breached the wall of separation between church and state. The Court concluded 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" (ibid., p. 425).

One year later in Abington School District v. Schempp, 374 U.S. 203 (1963), the Court held that state requirements providing that schools begin each day with readings from the Bible was unconstitutional. The Court did note the argument that "unless these religious exercises are permitted a 'religion of secularism' is established in the schools" (ibid., p. 225). The Court could have, but did not, indicate that the watered-down prayer in Engel and the recitation of a few passages from the Bible at issue in Abington were steps toward the adoption of a "civil religion" in this country, which would create an atmosphere of hostility for all those who did not adopt the tenets of a civil religion formed and shaped by those in political power.

For many, these Supreme Court decisions, particularly the last two, are indicative of overt hostility to religion. Yet is that an accurate description of the Court's rationale?

"When schools conduct official religious exercises, an audience gathered by the state power is lent, however briefly, to a religious cause," explained Harvard law professor Laurence Tribe. "Even where dissenting students are entirely free to leave the room, state power remains at issue. The choice presented to students - either to take part in a particular religious exercise or to wait passively elsewhere - implies that the exercise is a valid element of a legally required education; the norm is religion and dissenters must opt out. In addition, the combination of official ceremony and peer pressure is likely to make any such religious session inherently coercive" (American Constitutional Law, 2nd ed. [1988], p. 1170).

Tribe also said that "such programs not only turn state power over to religion; they also turn fundamentally religious power over to the state" (ibid.) But perhaps more important is the warning by Professor Tribe: "In addition, the inclusion of prayer as part of the official school program may borrow the aura of religious authority to shore up the power and prestige of a coercive government program - compulsory education. Such an alliance presents several potential problems. It may compromise the religion itself as political figures, many of whom enjoy greater visibility than the religion's leaders, reshape the religion's beliefs for their own purposes. The alliance may also link the religion's fortunes with the fortunes of political leaders. As the playwright Arthur Miller has written, 'Public skepticism towards politicians when they fail, as ours are bound to from time to time, can extend out toward the religion that seeks to sanctify them quite as easily as it once shielded them.' The alliance may undermine free political discourse: The more political leaders wrap themselves in the mantle of religion, the more readily those who oppose them may be accused of opposing God. That, in turn, may polarize citizens and leaders around a religious axis, creating the sort of divisiveness that the First Amendment was partly intended to minimize" (ibid., p. 1171).

What these decisions say simply is that students can pray as individuals in the classroom all they want, and even perhaps use an empty classroom for prayer as a group before the school day begins or even during recess or another activity in which students are there only because they choose to be. What religious students can't do is use their free exercise rights to impose their religion on others who are forced by compulsory education laws to be in a classroom. Nor can they put others to a choice between attending officially sanctioned religious observance, or, as Tribe has written, to "visibly opting out" (ibid., p. 1172).

In Widmar v. Vincent, 454 U.S. 263, 274 (1981), the Court found unconstitutional the University of Missouri policy that prohibited a student group from using university facilities for religious worship and discussion when the same facilities were generally available for other student activities. In rejecting the university's Establishment Clause argument, the Court stated: "First, an open forum in a public university does not confer any imprimatur of state approval on religious sects or practices. As the court of appeals quite aptly stated, such a policy 'would no more commit the University . . . to religious goals' than it is 'now committed to the goals of the Students for a Democratic Society, the Young Socialist Alliance,' or any other group eligible to use its facilities."

The Court indicated that "at least in the absence of empirical evidence that religious groups will dominate UMKC's open forum, we agree with the Court of Appeals that the advancement of religion would not be the forum's primary effect" (ibid., p. 275).

The Court more recently, in Board of Education v. Mergens, 110 S. Ct. 2356 (1990), held that under the Equal Access Act a public secondary school with a "limited open forum" is prohibited from discriminating against students who wish to conduct a meeting within that forum on the basis of the "religious, political, philosophical, or other content of the speech at such meetings" under 20 U.S.C. sections 4071-4074.

In Mergens petitioners argued that the act had the primary effect of advancing religion and that "an objective observer in the position of a secondary school student will perceive official school support for such religious meetings" (Mergens, 496 U.S. at 2371). Justice O'Connor said: "We disagree. First, although we have invalidated the use of public funds to pay for teaching state required subjects at public schools, in part because of the risk of creating 'a crucial symbolic link between government and religion,' thereby enlisting - at least in the eyes of impressionable youngsters - the powers of government to the support of the religious denomination operating the school. . . . 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. "We think that secondary school students are mature enough and are likely to understand that a school does not endorse or support student speech that it merely permits on a nondiscriminatory basis" (ibid., pp. 2371, 2372).

Those licking their wounds after Engel and Schempp concluded that the Supreme Court was on the verge of reversing its stand with regard to state-sanctioned religious exercises in public schools. They concluded that the Free Speech Clause of the First Amendment trumped the no-establishment proscriptions and thus argued for religious exercises at school-sponsored sporting events and at graduation exercises.

The issue came to a head in Providence, Rhode Island, when Deborah Weisman graduated from the Nathan Bishop Middle School, a public school. For many years the Providence School Committee and the superintendent of schools had permitted principals to invite members of the clergy to give invocations and benedictions at middle school and high school graduations. Acting for himself and his daughter, Daniel Weisman objected to any prayer at Deborah's graduation. However, the school principal invited a rabbi to deliver prayers at the graduation exercise anyway, and Weisman sued.

The school district argued that there was no violation of the no-establishment principles of the First Amendment, because Rabbi Gutterman's invocation and benediction with his reference to God in no way compelled the nonadherent attenders to change their beliefs. Of course, the same argument could have been made with regard to the regents' prayer in Engel. At least the regents' prayer was prewritten, sanitized, and free of surprises. In the case of graduation prayers, however, either the clergy would have to be precensored or students and parents would have to await the predilection of the cleric to find out in what way, offensively or nonoffensively, he or she wished to celebrate the community's religious tradition.

A brief in Lee v. Weisman, 112 S. Ct. 2649 (1992), submitted by the Council on Religious Freedom, a religious liberty advocacy organization, argued against the claim that prayers at graduation exercises are protected by the Free Speech Clause of the First Amendment. The brief pointed out that in Weisman they were speaking of worship, one of the most sacred of all religious events. Prayer, after all, is people directly calling upon God. The brief noted it is ironic that those supporting prayers at public school graduations should not understand the distinction between a speech given at a graduation exercise and an act of religious worship, whether conducted in a classroom, an auditorium at graduation, or at a church or synagogue.

Justice White, in his dissent in Widmar v. Vincent, 450 U.S. at 284, argued against the concept that religious worship is no different from any other variety of protected speech. He logically asserted that if this were so, "the Religion Clauses would be emptied of any independent meaning in circumstances in which religious practice took the form of speech" (ibid.) Justice White further explained that "talk about religion and about religious beliefs . . . is not the same as religious services of worship" (ibid., p. 284 n. 2).

Though the Supreme Court concluded that the prayer at the school graduation exercise was unconstitutional, the justices differed in how they reached their conclusions. Justice Kennedy, writing for the Court, argued that prayers at public school graduation ceremonies indirectly coerce religious observance. Other justices, agreeing that indirect coercion was present, concluded that a finding of coercion was not required and that the Establishment Clause proscribes public schools from attempting to convey a message that religion or a particular religious belief is favored or preferred. In a concurring opinion Justice Blackmun stated: "The mixing of government and religion can be a threat to free government, even if no one is forced to participate. When the government puts its imprimatur on a particular religion, it conveys a message of exclusion to all those who do not adhere to the favored beliefs" (Lee v. Weisman, 112 S. Ct. 2649, 2665 [1992]).

Justice Scalia, in his Lee dissent, predicted that religious exercises in the context of the public school had not been laid to rest. "Given the odd basis for the Court's decision," he wrote, "invocations and benedictions will be able to be given at public school graduations next June, as they have for the past century and a half, so long as school authorities make clear that anyone who abstains from screaming in protest does not necessarily participate in the prayers. All that is seemingly needed is an announcement, or perhaps a written insertion at the beginning of the graduation program, to the effect that, while all are asked to rise for the invocation and benediction, none is compelled to join in them, nor will be assumed, by rising, to have done so. That obvious fact recited, the graduates and their parents may proceed to thank God, as Americans have always done, for the blessings He has generously bestowed on them and on their country" (ibid., p. 2685).

Although probably no school has accepted Justice Scalia's suggestion for the preparation of its graduation bulletin, many argue that seniors can vote for a graduation exercise, or that individual students exercising free-speech rights may pray as part of the graduation exercises, because the imprimatur of the state will not be impressed upon their actions. Though this argument hasn't reached the Supreme Court, at least not yet, it's not inconceivable that it would still fail to pass constitutional muster, for the same reason that other attempts to conduct worship services during official events have: even if voted by a majority of students, the act would still violate the basic premise of the Establishment Clause, and would still place pressure - perhaps even more, since it was voted by a majority of peers - on those students who for whatever reason don't want to participate.

A fair look at those U.S. Supreme Court decisions should dispel the false rhetoric that the Court is hostile to the expression of faith in public schools. Instead, the Court has in a consistent manner ruled unconstitutional religious exercises that in any manner, no matter how subtle, might place pressure upon students who don't want to participate. Far from being hostile to religious freedom, these decisions have been protecting it. After all, religious freedom means nothing if it doesn't protect people from religious coercion. At the same time the Court has paved a way that allows religious activities in public schools to take place on the same level as other activities. In other words, organized religious activity in public schools shouldn't automatically be equated with school endorsement, and could be allowed just as long as there is no pressure on students to participate.

No one claims the U.S. Supreme Court decisions are perfect or without ambiguity. Given the nature of the issues involved, the decisions could hardly be perfect or unambiguous.

Nevertheless, the religion in school cases don't reflect hostility to religious practice, and claims that they do belong in the same category as Representative George W. Andrews' comment on the same subject more than 30 years ago.
Lee Boothby is an attorney in Washington, D.C.

Article Author: Lee Boothby