by Donald L. Drakeman

Mr. Drakeman is an attorney living in Montclair, New Jersey. This article appeared in the Christian Century May 2, 1984, p. 462. Copyright by the Christian Century Foundation and used by permission. Current articles and subscription information can be found at www.christiancentury.org. This material was prepared for Religion Online by Ted & Winnie Brock.

The relationship of public schools and religion is an ongoing and unresolved problem for this nation. Recently (1984) the Senate defeated a proposed constitutional amendment to allow organized prayer in classrooms; however, it is virtually certain that this issue will be raised again in the next Congress. In the meantime, the debate continues. Here, Donald Drakeman discusses two aspects of the general topic.

Recently I represented the New Jersey Council of Churches in a federal lawsuit challenging New Jersey’s “moment-of-silence” legislation -- a law requiring public-school teachers to provide a minute of silence at the beginning of the school day for students to engage in “contemplation or introspection.”

The American Civil Liberties Union immediately sued to have the law declared unconstitutional on the grounds that it was designed to bring back prayer into the public schools -- something the U. S. Supreme Court had outlawed 20 years ago. There was a great deal of evidence showing that the New Jersey legislators wanted to return prayer to the classroom, but had left the word out of the bill in hopes of avoiding the court’s pronouncements. To the surprise of many, the New Jersey Council of Churches, an interdenominational Christian body, intervened in the case as a “friend of the Court” to oppose the law.

At the same time, religious and civil liberties groups have been in a quandary over what to do about cases involving students who want to meet for religious purposes during non-instructional times at the public schools. Two federal appellate courts have declared such practices unconstitutional, saying that they are not qualitatively different from the school-sponsored prayers held unconstitutional in the 1960s. The issue remains open, however, and it is not clear -- at least to me -- that a mandatory moment of silence (or prayer) is the same thing as permitting students to elect a religious activity in place of the chess club or debating team.

Once again in American history, the public schools are at the intersection of church and state (or, perhaps more accurately, religion and government). This issue of when and where students may pray at school not only raises thorny questions of constitutional interpretation, but also asks us how we should relate our Christian faith to a world that has been called secular, amoral, modern, post-modem and even anti-Christian. Or, as ethicist Paul Ramsey has eloquently put it, “How shall we sing the Lord’s song in a pluralistic land?”

To try to come to terms with this problem, we will need to look briefly at its legal dimensions, since the Constitution has set the parameters within which we must act, and then to relate the constitutional issues to the role of the Christian in our society.

The language of the Constitution is deceptively simple: The federal government and the states may not make laws “respecting an establishment of religion or prohibiting the free exercise thereof.” In two famous cases in the early ‘60s. the United States Supreme Court declared that school-sponsored prayer and Bible reading in the public schools violate the Constitution’s establishment clause. These decisions brought a shower of public wrath upon the court. Many religious leaders feared that a godless, atheistic empire would soon take the place of the Christian republic that has been built on a foundation of faith and Scripture. The governors of every state but New York called for a constitutional amendment reversing the court’s decisions, and the justices soon became the Grinches that stole Christmas from our children’s school pageants.

Subsequently, the Supreme Court struck down a Kentucky law requiring that the Ten Commandments be posted in public-school classrooms, and other federal courts have outlawed school-sponsored grace before meals, student-led classroom prayer and mandatory moments of silence. In each case, the courts have tried to follow the Supreme Court’s conclusion that religious activities supported and sponsored by the schools are contrary to the Constitution even if the activities are “nondenominational” and voluntary.

Thus, the primary constitutional issues are (1) is the activity religious, and (2) is it supported and sponsored by the school? Or, as the Supreme Court has expressed it, does the state’s action have a clearly secular purpose? Does it have a primary effect that neither advances nor inhibits religion? And does it avoid excessive government entanglement with religion? Each of these tests must be met for an action of the government to be constitutional.

Three federal courts have already decided that the moment-of-silence laws are unconstitutional. The evidence for these findings is compelling, despite legislative efforts to use neutral language such as “introspection,” “contemplation” or “meditation” to avoid having the bill appear to be clearly religious. In every case, the moment-of-silence bills have evolved within the context of returning prayer to the classroom. Not only is the moment of silence directly within the long tradition of commencing the school day with a prayer (a practice still found in many schools despite Supreme Court pronouncements). but it is also legislatively designed to be a religious activity. In every state that has recently enacted a moment-of-silence law, the floor debate has been almost exclusively devoted to the topic of putting prayer, and religion generally, back into the minds and hearts of our public-school students. Only then, posit our lawmakers, will America return to its former days of glory.

Faced with this evidence of the legislators’ religious intent (which is enough, under Supreme Court precedents, to invalidate the moment-of-silence laws), lawyers defending the laws have created a variety of after-the-fact secular rationales for commencing the school day with a quiet moment. These arguments simply do not work; legislative history cannot so easily be rewritten. But, more important, the public cannot help but see the moment of silence as morning prayer. In many schools, most of the parents and teachers alike must have begun their own school days by saying prayers or reading the Bible. The moment-of-silence laws cannot be evaluated without taking into account this cultural fact that will unavoidably give a religious coloring to an ostensibly neutral law.

Although the moment-of-silence laws run afoul of the establishment clause, does it necessarily follow that we, as Christians, should oppose religion in the schools? After all, many religious groups are calling for a constitutional amendment that would permit teachers and students to lead prayers in public-school classrooms.

The crux of this issue is whether we think the state should have the power to favor one religion (or type of religion) over another. By having a time set aside for prayer during the part of the school day when teachers have virtually total control over their students, the schools are putting their imprimatur on those religions that believe in prayer. Moreover, if we admit that the state, through its schools, may regulate religion by encouraging prayer, we are tacitly giving it the authority to regulate the exercise of our religion by excluding, limiting or defining the kinds of prayer in which we, or our children, may engage.

As our nation becomes increasingly diverse and secular, the likelihood that school-supported religious activities will correspond with the students’ particular beliefs will diminish. Most of those who support school-prayer hope for a return to the “Judeo-Christian” prayers of our educational past. But what if in some schools prayers are addressed instead to Shiva, the Ayatollah Khomeini or Sun Myung Moon? For all of us, believers and nonbelievers alike, the safest course is to keep the schools out of the religion business.

Now that I have taken prayer out of the schools, I would like to put it back in under different auspices. Many public schools, particularly at the junior and senior high school levels, have non-instructional periods during which students are free to choose from among a variety of activities -- sports, service clubs, language societies and the like. In a number of communities, voluntary student religious groups have sought to meet during these activity periods. As I noted earlier, several federal courts have made no distinction between these requests and legislative attempts to bring back school-sponsored prayer. I think they are wrong.

During the instructional portion of the school day, teachers have almost complete control over the students’ activities, Inserting prayer during those parts of the day clearly runs contrary to the mandates of the Constitution. But when students are asked to select from a wide variety of extracurricular activities, the school’s role changes dramatically. No longer the domineering ruler of the students’ every move, it becomes the host for a great number of (theoretically) socially enriching activities. To deny students the opportunity to meet for religious purposes is to say that religion cannot stand as an equal with football, debating, cheerleading and the classics club. It is to single out religion as the one activity always inappropriate within the schools. (Legislation for so-called “equal access’’ is pending in both the Senate -- S. 815, introduced by Oregon Republican Mark Hatfield -- and the House -- HR. 4996.)

Even if we agree that voluntary, student-initiated religious groups may meet during non-instructional periods, will our present Constitution countenance it, or must we join those calling for a constitutional amendment? Fortunately, the Constitution provides ample support for allowing such student groups. While our government may not “establish” religion, it may not prohibit the free exercise of religion or restrict the free speech of its citizens (including students). When the school prescribes prayer, it is establishing religion; when it proscribes prayer, it is prohibiting students from freely exercising their religions.

Although there is some element of religious establishment when a school allows students to meet for religious purposes, the state support of religion is minimal. If the meetings are truly voluntary, the school must only exercise the basic supervision necessary to ensure that the students do not damage themselves or public property. On balance, this degree of “establishment’’ is insignificant compared to the detrimental impact on religious exercise and speech if students are told that they may elect any activity but prayer and discuss any subject but God.

There is no question that the public schools are important purveyors of our culture and its fundamental values. Teachers have control over our children for a vast portion of their formative and impressionable years. Precisely for this reason we must he particularly concerned about the schools’ interaction with our faith and the faith of others. We must urge the schools to let religion compete on an equal footing with secular extracurricular activities. But at the same time, we must be wary of any attempt to make the schools transmitters of religious beliefs and practices. It is the place of churches and families to guide us in the ways of faith. The schools must not be given the power to tell our children when, where, or how to pray.