Column: Inside the First Amendment, by Charles C. Haynes

Students are free to pray in public schools — except when they aren’t.

If this sounds confusing, pity school administrators charged with figuring out if and when to draw the line on student prayers.

Current controversies in two regions of the county illustrate how complicated this line-drawing has become:

School officials in Birdville School District, near Fort Worth, Texas, allow students to offer prayers before football games, claiming that since the students freely choose to do so, the prayers are not endorsed by the school.

Meanwhile school officials in Taconic Hills Central District in Craryville, N.Y., recently barred a student from closing her middle school graduation speech with a prayer, claiming that prayers at graduation — even when given by a student — constitute school-sponsored religion in violation of the First Amendment.

Before sorting out who got it right or wrong, let’s remind ourselves of what we know about the constitutionality of student prayers in public schools under current law:

According to the U.S. Supreme Court, school officials may not sponsor or promote religious exercises in public schools. At the same time, however, no Supreme Court decision prohibits public school students from praying alone or in groups, as long as such prayers don’t disrupt the school or interfere with the rights of others.

So far, so good.

But what do school administrators do when a student speaker decides to offer a prayer before a captive audience at graduation or some other school-sponsored event?

Is a prayer given by a student school-sponsored religion prohibited by the Establishment clause — or is it religious expression protected by the Free Exercise and Free Speech clauses?

In the culture wars, one side argues that all prayers at public school events are school promotion of religion, even if delivered by a student. But the other side insists that student prayers are always free speech, whatever the setting or circumstances.

Although the Supreme Court has yet to draw a bright line on this issue, past decisions make clear that when school officials arrange for prayers at school events, those prayers are the unconstitutional government endorsement of religion — even when delivered by outside speakers or students.

Some lower courts, however, have allowed student prayers at school events under certain conditions: If a student speaker is chosen by genuinely neutral, evenhanded criteria (i.e., without regard to the student’s religious or non-religious views) and given primary control over the content of the speech, then the student is free to give a religious or anti-religious message.

Relying on these court rulings, the U.S. Department of Education (USDOE) issued guidelines in 2003 on “constitutionally protected prayer” stating that schools should allow student prayers under those circumstances. And a few states, including Texas, have passed laws urging schools to turn the podium over to students at school events without controlling the content of their speech.

That brings us back to Birdville, where school officials claim that student speakers at football games aren’t selected to give prayers, but are free to give any message they choose. If they happen to give a prayer, then the district argues that Texas law and the USDOE guidelines support their right to do so.

What isn’t known from news reports is exactly how the students are selected to speak at the games — and whether school officials actually allow student speakers to say whatever they like.

But if the Birdville School District really does give students a “free speech moment,” then it is likely that the courts would uphold the practice should the policy be challenged.

But in Taconic Hills, school administrators retain control over the content of student speeches. Permitting students to pray, the district argues, would put the schools in the position of endorsing religion. Earlier this month, the 2nd Circuit Court of Appeals upheld Taconic Hill’s right to bar student prayers.

It’s possible, then, that both school districts got it right under current law.

Whether we’ll see more students praying at school events is difficult to predict. After all, many school officials are understandably reluctant to adopt policies that create a free speech forum at graduations and assemblies.

Turning the microphone over to student speakers can be a risky business for school officials, especially when religious expression is involved.

What I can predict is that when the inevitable happens and a student delivers a prayer from an unpopular religion — or gives a message promoting atheism — public enthusiasm for the free-speech model will wane.

In other words, it might not take long for Birdville to decide that Toconic Hills got it right after all.

 

Charles C. Haynes is director of the Religious Freedom Education Project at the Newseum, 555 Pennsylvania Ave., N.W., Washington, D.C., 20001. Web: firstamendmentcenter.org. Email: chaynes@freedomforum.org.