In 1997, United States district judge Ira DeMent issued an injunction against the DeKalb County, Alabama, school board from organizing, sponsoring, or encouraging school-sanctioned religious activity. Fair enough. Most of us can agree or at least live comfortably with the notion that public schools shouldn't endorse religious activity. But the court went further, issuing an additional injunction prohibiting the school from permitting any prayer or devotional speech that was uttered aloud-even if it was voluntary. Under the order, any prayers spoken "aloud in the classroom, over the public address system, or as part of the program at school-related assemblies and sporting events, or at a graduation ceremony" were prohibited-even if the school in no way endorsed them. The court also appointed an attorney to serve as a prayer monitor to oversee the school to make sure the order was carried out.
Happily, on two separate occasions, the Eleventh U.S. Circuit Court of Appeals vacated that part of the district judge's order prohibiting voluntary, vocal prayer. The court did not, however, reverse the order appointing the prayer monitor." Over a period of eight months alone the court-appointed prayer policeman cost the school some $62,000.
But before you get too sanguine about our courts allowing voluntary or student-initiated prayer, understand that it is not all that clear what constitutes "voluntary" in our mucked-up First Amendment jurisprudence. And it became less clear after the Supreme Court issued its ruling in Santa Fe Independent School District v. Doe (2000). There, the court, in a 6-3 decision, struck down a Texas school district's policy that allowed a student, elected by his classmates, to deliver a public invocation before the home high school football game.
The controversy initially arose when Santa Fe's student council chaplain delivered a prayer over the public address system prior to every home varsity football game. This upset certain Mormon and Catholic students, who sued to challenge the practice. Before the hearing, the school board changed its policy and provided for two separate student elections, presumably to dissociate the school from the process. In the first, the students would decide whether an invocation or message should be given at all. If so, the second election would determine which student would deliver it. But this bifurcated procedure turned out not to be enough to insulate the prayer. Both the Fifth Circuit Court of Appeals and the United States Supreme Court invalidated the policy as violating the Establishment Clause of the First Amendment.
The Supreme Court did not buy the school district's argument that the invocation was private speech because the students, not the school administration, voted to have it. The court reasoned that because the district sanctioned the election, which permitted the majority to prevail, the religious views of the minority candidates "will never prevail" and "their views will be effectively silenced." Nor was the court persuaded that the invocation should be considered private because it was delivered at an extracurricular event where student attendance was not mandatory. "For some students, such as cheerleaders, members of the band, and the team members themselves, attendance at football games is mandated, sometimes for class credit." The court also factored in the peer pressure driving many students to the game. "The Constitution demands that schools not force on students the difficult choice between whether to attend these games or to risk facing a personally offensive religious ritual."
Chief Justice Rehnquist, in his stinging dissent, joined by justices Scalia and Thomas, said that the majority had distorted existing precedent to invalidate the policy. He said that the policy "permits many types of messages, including invocations. That a policy tolerates religion does not mean that it improperly endorses it." But Justice Rehnquist got to the real nub of the problem when he commented on the majority's overt antipathy toward religion in public life, an antipathy-as this case alone shows-that has permeated the highest reaches of our judicial system. Rehnquist wrote:
"But even more disturbing than its holding is the tone of the Court's opinion; it bristles with hostility to all things religious in public life. Neither the holding nor the tone of the opinion is faithful to the meaning of the Establishment Clause, when it is recalled that George Washington himself, at the request of the very Congress which passed the Bill of Rights, proclaimed a day of 'public thanksgiving and prayer, to be observed by acknowledging with grateful hearts the many and signal favors of Almighty God."
Rehnquist might have gone further. Not only did Congress proclaim a public day of prayer, it did so just one day after it passed the First Amendment itself. As scholar M. Stanton Evans poignantly observed, "Indeed, in one of the greatest ironies of this historical record, we see the practice [officially sponsored prayer] closely linked with the passage of the First Amendment-supplying a refutation of the Court's position as definitive as could be wished."
This case dealt a significant blow to religious freedom by holding that a public school, merely by allowing students to hold an election to determine whether there would be a prayer at all, violated the Establishment Clause. But the flipside of the coin and what the court failed to acknowledge was that by invalidating the school's election process, the state-through the agency of the court-denied students their religious freedom. The court's assertion that the election would effectively silence the views of the minority was unimpressive. To allow the majority of students to enjoy a prayer of their choosing does not silence those who elect not to participate or prevent them from praying their own prayer. They are free to worship or not as they please, including silently to themselves during the majority prayer. Why should a minority deprive the majority of their religious freedoms just because they don't want to participate? While the Bill of Rights certainly aims to protect the minority against the "tyranny" of the majority, it is not intended to oppress the majority at the hands of a vocal minority. Banning this prayer denied the majority of students their free exercise rights while doing nothing to protect the killjoy minority.
The court's ruling in Santa Fe Independent School District v. Doe, it should be noted, sparked some student defiance around the country. In Poca High School in West Virginia, for instance, more than 200 students and parents at a football game stood up on cue and joined in when placekicker Jason Legg began the Lord's Prayer from the fifty-yard line. He said, "For me, it's the only time some fans will see somebody witness to them. They come to watch a football game, and they see the teenagers doing something good, maybe it will spark something in them-maybe that's something they will want to check into."
Legg was not trying to violate the Supreme Court's decision, but to organize a method to lead students in prayer without running afoul of the Santa Fe case. The students even avoided using the school's intercom system to broadcast the prayer. The school's superintendent, Sam Sentelle, who approved of the student-led prayer, acknowledged that "a government institution cannot foster religion. I cannot tell you what to pray, or not to pray. As long as the principal doesn't tell them to go out, or it's not disruptive, it's okay," said Sentelle.
The proscription against "public" prayer has extended beyond high school classrooms, auditoriums, and sporting events. Now we see it rearing its head in kindergarten settings, where the prayer police are on the beat to suppress any renegade attempts at vocal prayer. On January 15, 2002, kindergartner Kayla Broadus recited a familiar prayer at her school in Saratoga
Springs, New York, while holding hands with two students sitting next to her at her snack table. "God is good. God is great. Thank you, God, for my food." This didn't sit well with her teacher, who silenced and scolded her, then dutifully reported the infraction to the school's lawyer, Gregg T. Johnson. Johnson concluded Kayla's behavior was a violation of the "separation of church and state." The school principal sent a letter saying, "Please be advised that Kayla will not be permitted to ask other students to join her in prayer prior to snacktime or lunchtime. Kayla is certainly free to silently say her prayer before a snack or lunch." The school board then launched into action, issuing a press release stating that Kayla was prohibited from praying aloud in school. Kayla's mother, Cheryl Broadus, filed a federal lawsuit on Kayla's behalf through the Rutherford Institute, and obtained a temporary restraining order against the school. Rutherford president John W. Whitehead observed that the school officials' understanding of the First Amendment religion clauses was upside down. "Saratoga Springs school officials claim the Constitution requires them to be alert to personal student discussions and immediately censor any student expression that appears religious," said Whitehead. "In fact, the Constitution requires the opposite."
The lawsuit was settled without trial, with the school district acknowledging Kayla's right to pray out loud, so long as she did not disturb her classmates or invite them to pray with her. Whitehead was pleased with the settlement, but expressed regret that it took a federal lawsuit to vindicate Kayla's civil rights. Whitehead had it just right when he said, "Any censorship of personal religious speech in a public school-even though it is couched in terms of separation of church and state-teaches children that religious persons are second-class citizens, and this is fundamentally wrong." Following the settlement, a defiant school board refused to admit any wrongdoing, claiming that it had always permitted "nondisruptive audible prayer at school.' But Thomas Marcelle, another attorney representing the Broadus family, disputed that claim. "The school district," said Marcelle, "said she could only say grace silently." There seems to be a recurring pattern in religious discrimination cases. When its perpetrators are caught in the act they invariably offer some excuse for suppressing the students' freedoms. In Kayla's case, this wasn't about disruption and the school should be ashamed for suggesting so. It was about the district's hyperventilation over "church and state" issues, a hyperventilation caused by a combination of prejudice against the free exercise of religion and ignorance that this right is guaranteed by the Constitution.
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