A Reader’s Legal Question: Student-Led Prayers

Reader questions are edited to eliminate references to specific people and places, unless there’s a need to call out the cavalry. If you see something here that almost resembles your question, but your main concern isn’t addressed, go ahead and ask again in the comments. I’ll do my best to respond.

 

Reader Question:

I was talking at a conference recently with a hotshot in the atheist movement, and she told me thought that student led prayer etc. was not really legit. With a strict interpretation of separation of church and state would that not be true? What is the principle with which students are allowed but adults are not?

- Jimbo

Answer:

In public primary and secondary schools, the adults are employed by and acting for the government. The students are not. That means that adult religious speech is restricted and student religious speech is not – usually. This answer is restricted to public schools run by the government, which account for most schools in the U.S. In this answer, when I say “school,” I mean a public, government-run school, not a private or parochial school. The rules are different for those.

We know that schools cannot start the school day with a prayer, and we know that prayer is not allowed at school functions like school board meetings, athletic events, and graduations. These are events organized and led by the adults at those schools, though. What about when students take the initiative?

Mary Beth and John Tinker with their black armbands advocating peace in Vietnam

A significant United Supreme Court case, Tinker v. Des Moines School District, decided in 1969, was not a religious freedom case, but controls freedom of speech by public school students, including their religious speech. The Tinker students wore black armbands to protest the Vietnam War, and were suspended when they refused not to wear them. The Supreme Court decided that the First Amendment applies to public school children, and that school administrators have to demonstrate a constitutionally valid reason for restricting student speech. If the school wanted to restrict the students’ speech, it had to prove that it had more reason than just to “avoid the discomfort and unpleasantness that always accompany an unpleasant viewpoint.”

So, the general rule is that if a voluntary group of students wants to pray at school, and voluntarily gather for that purpose, they can. The key term in that rule is the word “voluntary.”

As long as there are tests and oral reports, there will be prayer in schools – just not coordinated, formal prayer. Student-led or -initiated prayer over the school’s PA system, for example, is not a voluntary association of students agreeing to come together to exercise religious freedom, free speech, or freedom of association.  Nor is a student-led prayer – even a non-denominational and non-proselytizing one – over the PA system at a football game. “Moments of silence” for secular purposes, such as a meditative moment to calm rowdiness, are fine; moments of silence during which students are encouraged to pray are not permitted. Even non-denominational prayer is forbidden because the Establishment Clause requires absolute religious neutrality on the part of government.

A “See You at the Pole” (SYAP) prayer movement began years ago, and students from all over the world participate annually, on the fourth Wednesday of September. Students who choose to do so gather at the school’s flagpole before classes begin for a student-led prayer. Unfortunately, SYAP events and other student-led religious clubs can serve as a vehicle to promote bullying of non-religious students, or even students who are not evangelical Christians. Public schools must protect their students from “subtle coercive pressure” in elementary and secondary schools, so administrators may be justified in stopping the campus meetings of these student groups if bullying actually does result.

Because of the coercive pressure exerted when the authority figures at a school participate in prayer, teachers, administrators, and coaches should not join the voluntary prayers of the students. There has not been a Supreme Court decision on this issue, but the various federal district and appellate court decisions on the subject tend to agree that adult participation lends too much emphasis to the religious activity.

 

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Got a legal question? Email me at anne@aramink.com. I’m a lawyer, but there’s only a 2% chance I’m licensed in your state. Whether I answer your question or not, sending me an email or reading this blog post does not create an attorney-client relationship between us. I’m on Twitter as @aramink, and you can see my regular blog at www.aramink.com, where I write book reviews, ruminate on Life, the Universe, and Everything, and occasionally – frequently – rant about Stuff.

About Anne

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Got a legal question related to religion? Contact me at anne@aramink.com

  • eric

    A minor side issue in the ongoing (seems like forever) Freshwater case is that he was the faculty sponsor for a student organization, the Fellowship of Christian Athletes. Even though the organization is a perfectly legal student one, and an obviously Christian one at that, as the faculty sponsor it was illegal for him to lead, encourage, or even participate in the club’s prayers. IANAL but AIUI faculty are technically limited to monitoring such club activities.

    So, to relate back to Jimbo’s question, student-formed clubs with faculty monitors would be an example of another ‘on-grounds’ High School activity where students could lead prayers but the monitoring adult could not.

    • Enric

      Christian Athletes? What do they do? Cross Throwing?

      • http://www.aramink.com Anne

        Yeah… it’s kind of like the javelin, just with more blood and gore. Crowns of thorns are the athletic garb de rigueur.

      • Baal

        It’s been a while now but one of the several reasons I skipped team sports in high school was the ‘christian athlete’ coach. In practice (no pun intended), he required the students to pray (it’s the xian thing to do)(. If you wouldn’t, you sat on the bench. I didn’t like those options so I didn’t join in.

  • Jasper

    I think it gets more ambiguous when members of sports teams, for instance, start doing things – like the Kountze Cheerleaders’ Bible Banners – where at that point, if one is acting on behalf on an official school function, the students are sort of de-facto employees – just unpaid.

    • Nate Frein

      I’m not so sure. I think that fairly unambiguously falls under the same concept as using the PA system or leading a prayer before a function. The cheerleaders are the mouthpiece of the team, and therefor the institution. As such, their usage of religious imagery is wrong.

    • Baal

      It’s closer to the line of OK – Student stuff but Kountze Cheerleaders isn’t a close case. They do the ‘praying’ on the field, in front of everyone, and all of the team runs through the ritual blessing space. The entire teams (football and cheer-leading) then seem to be on board with xtianity. Either that school district is atypical or at least 1-2 of those kids are not xtian. Given that it’s so in-your-face, it’s hard to imagine that the school system is endorsing the public religious sectarian ritual. Imagine that the cheerleaders wrote different messages. Say, “Bong hits for Jesus” or “We find all men to be rapists, Girls protect yourselves!” I can’t imagine the school allowing those to go up. If the school would ever block controversial content, then they have control and by not blocking the prayer banners, they are endorsing the message.
      Had a third of the cheerleaders worn a “we love jesus” tea-shirt and posted to pic to FB and the school actioned for it, the school would be wrong. That’s a private act in a private (in theory) space. You can slightly modify the facts from one situation to the other and think about what the school could stop or not. That line is pretty much the place between what’s constitutional free speech or religious expression and what unconstitutional governmental based establishment of a preferred religion.

      • eric

        Yes, this is one of those ‘hoist by our own petard’ situations. Schools have fought long and hard in courts to make the case that any speech even vaguely related to a school function is somethnig they have the authority to regulate. Well, if it yours, its yours. If the administration can regulate it, then they can’t whine when someone points out that an administration with regulatory power over speech that lets the speech happen = endorsement.

  • JohnH

    The “Who would Jesus bully” picture is based on an LDS held copyright company (IRI) image of Jesus blessing the children during his visit to the Americas (as found in 3 Nephi).


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