Is it legal for students to pray in public schools?

Yes. Contrary to popular myth, the Supreme Court has never outlawed “prayer in schools.” Students are free to pray alone or in groups, as long as such prayers are not disruptive and do not infringe upon the rights of others. But this right “to engage in voluntary prayer does not include the right to have a captive audience listen or to compel other students to participate.” (This is the language supported by a broad range of civil liberties and religious groups in a joint statement of current law.)

What the Supreme Court has repeatedly struck down are state-sponsored or state-organized prayers in public schools.

The Supreme Court has made clear that prayers organized or sponsored by a public school — even when delivered by a student — violate the First Amendment, whether in a classroom, over the public address system, at a graduation exercise, or even at a high school football game. (Engel v. Vitale, 1962; School Dist. of Abington Township v. Schempp, 1963; Lee v. Weisman, 1992; Santa Fe Independent School. Dist. v. Doe, 2000)

May students share their religious faith in public schools?

Yes. Students are free to share their faith with their peers, as long as the activity is not disruptive and does not infringe upon the rights of others.

School officials possess substantial discretion to impose rules of order and other pedagogical restrictions on student activities. But they may not structure or administer such rules to discriminate against religious activity or speech.

This means that students have the same right to engage in individual or group prayer and religious discussion during the school day as they do to engage in other comparable activities. For example, students may read their Bibles or other scriptures, say grace before meals, and pray before tests. Generally, students may share their faith or pray in a nondisruptive manner when not engaged in school activities or instruction, subject to the rules that normally pertain in the applicable setting. Specifically, students in informal settings, such as cafeterias and hallways, may pray and discuss their religious views with each other, subject to the same rules of order as applied to other student activities and speech. Students may also speak to and attempt to persuade their peers about religious topics just as they do with regard to political topics. School officials, however, should intercede if a student’s speech begins to constitute harassment of a student or group of students.

Students may also participate in before- or after-school events with religious content, such as “See You at the Pole” gatherings, on the same terms as they may participate in other noncurriculum activities on school premises. School officials may neither discourage nor encourage participation in such an event. Keep in mind, however, that the right to engage in voluntary prayer or religious discussion free from discrimination does not necessarily include the right to preach to a “captive audience,” like an assembly, or to compel other students to participate. To that end, teachers and school administrators should work to ensure that no student is in any way coerced — either psychologically or physically — to participate in a religious activity (see Lee v. Weisman, 1992).

May students express their beliefs about religion in classroom assignments or at school-sponsored events?

Yes, within limits. Generally, if it is relevant to the subject under consideration and meets the requirements of the assignment, students should be allowed to express their religious or nonreligious views during a class discussion, as part of a written assignment, or as part of an art activity.

This does not mean, however, that students have the right to compel a captive audience to participate in prayer or listen to a proselytizing sermon. School officials should allow students to express their views about religion, but should draw the line when students wish to invite others to participate in religious practices or want to give a speech that is primarily proselytizing. There is no bright legal line that can be drawn between permissible and impermissible student religious expression in a classroom assignment or at a school-sponsored event. In recent lower court decisions, judges have deferred to the judgment of educators to determine where to draw the line. (C.H. v. Olivia, 2nd Cir. 2000)

What about the power of schools to control speech in the classroom?

Schools have great latitude to control the speech that occurs in a classroom and, in that setting, can probably prohibit the distribution of student publications altogether. Similarly, schools may impose any reasonable constraint on student speech in a school-sponsored publication such as the school newspaper.

How do schools resolve the tension between freedom of speech and the need for discipline and control?

Preserving the speech rights of students and maintaining the integrity of public education are not mutually exclusive. Schools should model First Amendment principles by encouraging and supporting the rights of students to express their ideas in writing. On the other hand, students should not expect to have unfettered access to their classmates and should be prepared to abide by reasonable time, place and manner restrictions. Schools must continue to maintain order, discipline and the educational mission of the school as they seek to accommodate the rights of students.

Is it constitutional for a public school to require a 'moment of silence'?

Yes, if, and only if, the moment of silence is genuinely neutral. A neutral moment of silence that does not encourage prayer over any other quiet, contemplative activity will not be struck down, even though some students may choose to use the time for prayer. (See Bown v. Gwinnett County School Dist., 11th Cir. 1997)

If a moment of silence is used to promote prayer, it will be struck down by the courts. In Wallace v. Jaffree (1985) the Supreme Court struck down an Alabama “moment of silence” law because it was enacted for the express purpose of promoting prayer in public schools. At the same time, however, the Court indicated that a moment of silence would be constitutional if it is genuinely neutral. Many states and local school districts currently have moment-of-silence policies in place.

May a student pray at graduation exercises or at other school-sponsored events?

This is one of the most confusing and controversial areas of the current school-prayer debate. While the courts have not clarified all of the issues, some are clearer than others.

For instance, inviting outside adults to lead prayers at graduation ceremonies is clearly unconstitutional. The Supreme Court resolved this issue in the 1992 case Lee v. Weisman, which began when prayers were delivered by clergy at a middle school’s commencement exercises in Providence, Rhode Island. The school designed the program, provided for the invocation, selected the clergy, and even supplied guidelines for the prayer.

Therefore, the Supreme Court held that the practice violated the First Amendment’s prohibition against laws “respecting an establishment of religion.” The majority based its decision on the fact that (1) it is not the business of schools to sponsor or organize religious activities, and (2) students who might have objected to the prayer were subtly coerced to participate. This psychological coercion was not resolved by the fact that attendance at the graduation was “voluntary.” In the Court’s view, few students would want to miss the culminating event of their academic career.

A murkier issue is student-initiated, student-led prayer at school-sponsored events. On one side of the debate are those who believe that student religious speech at graduation ceremonies or other school-sponsored events violates the establishment clause. They are bolstered by the 2000 Supreme Court case Santa Fe v. Doe, which involved the traditional practice of student-led prayers over the public-address system before high school football games.

According to the district, students would vote each year on whether they would have prayers at home football games. If they decided to do so, they would then select a student to deliver the prayers. To ensure fairness, the school district said it required these prayers to be “non-sectarian [and] non-proselytizing.”

A 6-to-3 majority of the Supreme Court still found the Santa Fe policy to be unconstitutional. The majority opinion first pointed out that constitutional rights are not subject to a vote. To the contrary, the judges said the purpose of the Bill of Rights was to place some rights beyond the reach of political majorities. Thus, the Constitution protects a person’s right to freedom of speech, press, or religion even if no one else agrees with the ideas a person professes.

In addition, the Court found that having a student, as opposed to an adult, lead the prayer did not solve the constitutional dilemma. A football game is still a school-sponsored event, they held, and the school was still coercing the students, however subtly, to participate in a religious exercise.

Finally, the Court ruled that the requirement that the prayer be “non-sectarian” and “non-proselytizing” not only failed to solve the problems addressed in Lee v. Weisman, it may have aggravated them. In other words, while some might like the idea of an inclusive, nonsectarian “civil” religion, others might not. To some people, the idea of nonsectarian prayer is offensive, as though a prayer were being addressed “to whom it may concern.” Moreover, the Supreme Court made clear in Lee v. Weisman that even nondenominational prayers or generic religiosity may not be established by the government at graduation exercises.

Another thorny part of this issue is determining whether a particular prayer tends to proselytize. Such determinations entangle school officials in religious matters in unconstitutional ways. In fact, one Texas school district was sued for discriminating against those who wished to offer more-sectarian prayers at graduation exercises.

On the other side of this debate are those who contend that not allowing students to express themselves religiously at school events violates the students’ free exercise of religion and free speech.

Case law indicates, however, that this may be true only in instances involving strictly student speech, and not when a student is conveying a message controlled or endorsed by the school. As the 11th Circuit case of Adler v. Duval County (2001) suggests, it would seem possible for a school to provide a forum for student speech within a graduation ceremony when prayer or religious speech might occur.

For example, a school might allow the valedictorian or class president an opportunity to speak during the ceremony. If such a student chose to express a religious viewpoint, it seems unlikely it would be found unconstitutional unless the school had suggested or otherwise encouraged the religious speech. (See Doe v. Madison School Dist., 9th Cir. 1998.) In effect, this means that in order to distance itself from the student’s remarks, the school must create a limited open forum for student speech in the graduation program.

Again, there is a risk for school officials in this approach. By creating a limited open forum for student speech, the school may have to accept almost anything the student wishes to say. Although the school would not be required to allow speech that was profane, sexually explicit, defamatory, or disruptive, the speech could include political or religious views offensive to many, as well as speech critical of school officials.

If school officials feel a solemnizing event needs to occur at a graduation exercise, a neutral moment of silence might be the best option. This way, everyone could pray, meditate, or silently reflect on the previous year’s efforts in her own way.