The Devilish Details of School Prayer

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When it's an expression of a student's free speech, it is protected. When it's endorsed by officials, it's illegal. But a Supreme Court ruling muddies this boundary.

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In Craryville, New York, 8th grader A.M., co-president of her class, is barred by school officials from offering a prayer during her speech at an extra-curricular middle school ceremony. She sues to vindicate her First Amendment rights; a federal court deems censorship of the prayer reasonable and dismisses her claim.

In Cranston, Rhode Island, 16-year-old Jessica Ahlquist is subjected to threats and public condemnation after successfully suing to remove an 8-foot-high prayer mural from the wall of her high school auditorium. Once again, teenagers display a better understanding of their rights than the adults who run their schools.

God's inclusion or exclusion from public school are perennial sources of complaint, confusion, and litigation, but defining the perimeters of religious expression in school is not all that complicated. Speaking for herself, a student generally has, or should have, the right to pray or disdain praying -- whether or not her profession of faith or skepticism offends other students, parents, or school officials. Speaking for school and state, officials have no rights; their power is subject to constitutional prohibitions on establishing religion and constitutional guarantees of individual religious freedom.

Formal school prayers have been officially unconstitutional for some 50 years. In 1962, in Engle v Vitale, the Supreme Court rightly struck down the New York State Regents prayer, which I was required to recite in grade school: "Almighty God we acknowledge our dependence upon thee and beg they blessings on us, our parents, our teachers and our country. Amen." This was supposed to be a non-sectarian prayer, but I always assumed it was a Christian prayer, simply because it didn't sound Jewish. 


The prayer mural in Jessica Ahlquist's school was more obviously sectarian, invoking "Heavenly Father." It had been installed (illegally) shortly after the Supreme Court's school prayer decision and for decades, it enjoyed majority support. But the long duration of a constitutional violation does not mitigate its seriousness and, as the Court in Ahlquist's case suggested, prohibitions on establishing religion are intended to protect minorities from majority faiths.

Jessica Ahlquist, an avowed atheist (raised Catholic), belongs to a most maligned irreligious minority; one state representative called her "an evil little thing," the New York Times reported. Perhaps she is so inherently "evil" that she was immune to the moralizing influence of the prayer mural, or perhaps prayer in school does not make students good.

I doubt that reciting the New York State Regents prayer throughout my childhood made me a good person or that not reciting it in high school made me a bad one, but compulsory recitation did help make me a civil libertarian. "It's not right to make somebody say something," I recall explaining to the school principal when I declined to say the Pledge of Allegiance in the 7th grade.

It's also "not right to prevent somebody from saying something," the federal court might have reminded A.M.'s principal after he excised a prayer from her speech. But in upholding the principal's power to censor her speech, the court was relying on a lamentable 1987 Supreme Court decision that greatly limited student speech rights, Hazelwood School District v Kuhlmeier. In Hazelwood, the Court held that a high school principal could summarily censor articles in a student newspaper describing the experiences of several students with pregnancy and divorce.

In order to uphold the principal's power to censor, the Court had to distinguish its 1969 ruling in Tinker v Des Moines Independent Community School District, upholding the right of students to wear armbands to school protesting the Vietnam War. Students do not "shed their constitutional rights to freedom of speech or expression at the schoolhouse gate," the Court famously declared in Tinker. They have no right to substantially disrupt or interfere with school activities, but they do have a right to express opinions that offend or unsettle administrators.

In Hazelwood, however, the Court drew a fine, barely perceptible line between the obligation  school officials have to "tolerate" student speech they dislike and their prerogative not to "promote" it. A school newspaper was a school sponsored publication that bore the school's implicit "imprimatur," the Court held. Administrators were empowered to censor student speech in "school-sponsored expressive events," so long as the censorship reflected "reasonable pedagogical concerns."  

The dissent in Hazelwood stressed that the school had promised to respect the rights of student journalists to engage in non-disruptive speech, as guaranteed by Tinker, and noted that the principal had summarily censored articles on teen pregnancy and divorce simply because he deemed them "inappropriate personal, sensitive, and unsuitable." The dissent characterized "potential topic insensitivity," the basis for the censorship, as a "vaporous non-standard," adding that, in fact, "topic sensitivity" was a mere pretext for censorship, since the principal did not censor material on teen pregnancy and contraception that expressed viewpoints to which he did not object.

Religious conservatives might approve of censoring "unsuitable" student discussions of teenage sexuality, but the ruling in Hazelwood haunts them: religion, like sex, is a "sensitive" topic in public school. A.M.'s school principal excised a prayer from her speech partly because he had been fielding religious complaints about the school's Christmas tree and its Halloween celebrations; he worried that her prayer "might offend people" and could conceivably violate the establishment clause.  

There are, however, obvious differences between an official Christmas tree (or an official prayer mural) and a student speech. The school erected the tree and created or designed Halloween activities, but A.M. wrote her speech. If school officials worried that her prayer might be imputed to them, they could simply have prefaced her speech with a disclaimer, stating that she was speaking for herself and not the school.

But relying on Hazelwood, the court in A.M.'s case ruled that "the availability of an oral or written disclaimer is irrelevant." Hazelwood does not require that school officials adopt the least restrictive means of regulating speech; it requires only that their regulations be "reasonable" -- a requirement that timid and autocratic officials alike will often meet. A.M.'s principal censored her speech because he "sought to avoid controversy," the court noted approvingly. Here's hoping that A.M. and Jessica Ahlquist continue to create controversy and never fear to seek it out.

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Wendy Kaminer is an author, lawyer, and civil libertarian. She is the author of I'm Dysfunctional, You're Dysfunctional.

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