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Background on School Prayer

Organized school prayer continues to be one of the most controversial issues in the U.S. today. Many people see organized prayer in schools as a necessary part of the struggle to curtail violence, drug abuse, and other social ills that plague our nation in general and schools in particular. Yet, the danger of the entanglement of church and state is significant since public tax dollars collected from individuals of every religious faith and no religious faith finance our public schools. In June 2000, in Santa Fe Independent School District v. Doe, the U.S. Supreme Court ruled that school sponsored prayer- even if student-led- is a violation of the First Amendment.

Teaching about religion in public schools is a similarly complex issue. It would be difficult to comprehend the history of the Crusades, the art of the Renaissance, or the literary references made by Shakespeare without some understanding of the history, symbolism, or texts of Christianity. It would be difficult to appreciate the complex history of the Arab-Israeli Conflict without even the most basic knowledge of the histories of the Muslim and Jewish peoples. However, there is a fine line between teaching religion in public schools, a violation of the Establishment Clause of the First Amendment, and teaching about religion in public schools, which is constitutionally permissible. In Abington v. Schempp (1963), one of the many Supreme Court cases in the 1960's on the role of religion in public schools, the Court ruled that "when presented objectively as part of a secular program of education," teaching about religion can be done "consistently with the First Amendment."

Supreme Court Rulings on School Prayer
The U.S. Supreme Court first ruled against school-sponsored prayer in 1962 in Engel v. Vitale. Since then, the Justices have consistently ruled against school-sponsored worship, while permitting voluntary student-initiated religious activities.

Santa Fe Independent School District v. Doe began in 1995 when the parents of two students - one Roman Catholic and one Mormon - sued their Texas school district in federal court following adoption of a policy allowing students to elect a classmate to deliver a prayer over the stadium's public address system prior to football games. The case made its way to the U.S. Supreme Court , which upheld the common-sense notion that public school athletic events are school-sponsored activities. The Court made clear that there is not one Constitution for football players and one for all other public-school students. We welcomed the Court's holding that school-sponsored worship, even in the guise of a student-initiated event, is an infringement upon the Establishment Clause of the First Amendment, and a threat to true religious freedom.

This case does not conclude - and we are not arguing - that students do not have the right to pray in public schools. Private, voluntary prayer is not only permitted in public schools, but it is constitutionally protected. What is impermissible is school officials organizing or conducting prayer or permitting such activities at school-sponsored events. Prayers for the safety or the success of high school football players may be spoken within the heart of each student and family member. Just as students may pray privately before class or during lunch, a quarterback can pray that his pass will be completed, a field goal kicker that his aim is true, or a group of students can step aside to say a prayer if it does not interfere with the activity. The Supreme Court has wisely maintained that this type of prayer is not the same as officially supported and conducted prayers read over a loudspeaker on behalf of all those present. Such individual, voluntary prayer is different not in degree but in kind from officially selected and sanctioned public prayer.


Elementary and Secondary Education Act (ESEA) and Department of Education Guidelines on School Prayer

In October 30, 2001 the House and Senate passed the Elementary and Secondary Education Act (ESEA), the major educational legislation that allocated federal funding for public education. However, in doing so they effectively opened the floodgates for unconstitutional prayer in public schools by stating that federal funds will be denied to any local school district that prevents or otherwise denies students participation in "constitutionally protected school prayer." Current law quite sufficiently provides adequate constitutional and statutory protections against violations of the right to voluntary prayer. However, the passage of this law directed the Education Department to issue new guidelines on the issue of school prayer, subject to approval only by the Department of Justice. Guidelines were released by the Education Department on February 7, 2003 and can be found here.

Although the Reform Movement believes that these guidelines are in line with previous court rulings, we still have reservations as to how they were formulated since they attempt to single-handedly resolve longstanding constitutional debates without conferring with other members of the community. Furthermore, the passage of ESEA marked the first time Congress has approved taking federal funds from school districts that do not follow Education Department guidelines. The threat of having their funding revoked for refusing or failing to comply with such guidelines has the potential of greatly intimidating local education agencies and causing them to err on the side of allowing unconstitutional types of prayer in schools, such as coercive school-supervised or teacher-led prayer in public classrooms.

Status of Current Law on the Public Posting of the Ten Commandments

The idea of posting the Ten Commandments in a public school or other public entity is a contentious issue to which the Reform Movement remains firmly opposed. To see this sacred text used in political maneuvering is both inappropriate and distressing, and does religion a great disservice as a pretext for undermining the separation of church and state. Furthermore, the question arises as to whose version of the Ten Commandments would be posted since there are various versions for different faiths.

Supreme Court Rulings on the Ten Commandments
In 1980 in the case Stone v. Graham the Supreme Court struck down a Kentucky law that required public schools to display the Ten Commandments despite a notation below the text which read: "secular application of the Ten Commandments is clearly seen in its adoption as the fundamental legal code of Western civilization and the Common Law of the United States." The Justices held that the Commandments are "undeniably a sacred text" and that posting them has a religious purpose. Lower federal courts have struck down Decalogue displays at public buildings as well.

In 2005 the Supreme Court handed down two decisions - one in McCreary County v. ACLU, involving the posting of a framed copy of the Ten Commandments in local Kentucky courthouses, and one in Van Orden v. Perry, involving a monument of the Ten Commandments at the Texas State Capitol in Austin. The Supreme Court issued a split decision on the acceptability of public displays of the Ten Commandments in these cases finding the Kentucky case to be unconstitutional because it inherently favored monotheistic religions but that the Texas case was acceptable because it conveyed both a religious and secular message.

Regardless of the 2005 Supreme Court split decision, the fact remains that a Ten Commandments display is generally viewed as a religious display and is therefore unconstitutional and a violation of the Establishment Clause of the First Amendment.

Status of Current Law on Teaching Religion 

Two Supreme Court cases in particular yielded the main tests for whether a government action (and by extension, the action of a public school teacher or administrator), is a violation of the Establishment Clause: the Lemon Test from Lemon v. Kurtzman (1971) and the Endorsement Test from Lynch v. Donnely (1984).

In Lemon v. Kurtzman the Court struck down Pennsylvania's 1968 Nonpublic Elementary and Secondary Education Act as a violation of the Establishment Clause. This act had enabled the state's Superintendent of Public Instruction to reimburse private schools (including parochial schools) for their teachers' salaries and the textbooks used in the classroom. The Lemon Test consists of three questions and if the answer to even one of the questions with regard to the government action or law in question is "no," then the provision is unconstitutional. The three criteria are:

  • Does the challenged law, or other governmental action, have a bona fide secular (non-religious) or civic purpose?
  • Does the primary effect of the law or action neither advance nor inhibit religion? In other words, is it neutral?
  • Does the law or action avoid excessive entanglement of government with religion?

The second major test regarding teaching about religion in public schools is the Endorsement Test, first proposed by Supreme Court Justice Sandra Day O'Conner in her concurring opinion in Lynch v. Donnelly. This test asks whether the law or government action amounts to an endorsement or disapproval of religion. As Justice O'Connor wrote:

"Endorsement sends a message to non-adherents that they are outsiders, not full members of the political community, and an accompanying message to adherents that they are insiders, favored members of the political community. ... What is crucial is that the government practices not have the effect of communicating a message of government endorsement or disapproval of religion."

For more information about the teaching of religion in public schools, see "A Teacher's Guide to Religion in the Public Schools," a guide compiled by a number of religious liberty organizations including the Union for Reform Judaism.