May 20, 2009
Answering Email: Prayer in Schools
In light of my previous discussion on the Establishment Clause, a commenter emailed me to ask about the status of student-led prayers in public schools. As you (may) know, the common refrain that the Supreme Court “banned prayer in public school” is incorrect; students may pray voluntarily and may otherwise engage in religious activities on school properties on an equal footing with secular activities as a part of their First Amendment rights to the free exercise of religion. (And — although you wouldn’t know it from folks like Jay Sekulow — the ACLU is actually the biggest defender of Christians and other religious people in these sorts of free exercise cases.)
But as you also probably know, the Free Exercise clause has its limits, and those limits come into play when a governmental policy seems to prefer religious behavior to secular behavior. Thus, what the Supreme Court did in Engel v. Vitale, 370 U.S. 421 (1962) — surprisingly, the Wikipedia article on this is pretty good — was to prohibit state-led and other mandatory prayers in public school.
So that led one commenter to ask me:
Andrew – What about prayers that are led by students in front of the other students at, say, a football game or a graduation?
I thought this was such a great question that it deserved to be front-paged. Here’s my take:
These are precisely the sort of questions that become Supreme Court cases, because these situations are almost exactly on the line between the Establishment and Free Exercise clauses. My instinct is that the graduation speech probably is constitutional, while the football prayer isn’t — but that it wouldn’t surprise me if it were the other way around.
Let me try to walk through each one.
1. The graduation speech. This has a lot going for it under the constitution; schools typically allow the valedictorian (and other speakers) to give secular inspirational speeches. Thus, so long as the selection of the speakers is truly neutral — that is, there is no preference to religious or to secular speakers — and the prayer is truly student-initiated, then I would say that this is probably permissible. The flip side is that graduation, while not a mandatory event, does implicate a captive audience to some degree. You can’t very well tell families to “just skip graduation if you don’t want to hear a prayer,” and the event certainly carries with it the implicit endorsement of the school. So the administration should be careful and sensitive with how prayers are handled in this context.
If I were a school administrator, I would work with the Christian student speaker and encourage him to frame his speech as more of a personal testimony and less of a mass prayer. Thus, even though people in the audience might disagree with the subject matter, it would at least be clear that it was student-initiated and not official school policy.
2. The football game. This seems to me to fall on the other side of the line, unless you mean the very narrow question of whether Christian football players can pray quietly in the locker room before a game. That’s obviously constitutional on the grounds I outline above. But if you mean a public prayer, in front of the spectators, I think the answer to that is no. Schools do not typically allow secular motivational speeches by students before football games, so the mere fact that time has been made for a student to lead a prayer seems to be an institutional preference for religion.
Put another way: if I’m valedictorian, I get to give my speech whether I’m a Christian or an atheist. But if I’m an atheist football player, the likelihood that I would get to give a 2-minute speech on, say, David Hume or Richard Dawkins before a football game seems pretty remote, doesn’t it?
The counter-argument is that the football game has more of a voluntary quality to it than does the graduation event (though neither are mandatory), and more of an opportunity for individuals to remove themselves. As I’ve said, these are close calls. But for me, the asymmetry at the football game puts it on the other side of the line, and if I were an administrator, I would probably not permit such behavior.