Shock and awe of a resurgence in school prayer
By KELLY J. COGHLAN
April 30, 2003, 7:31PM
The prayer wars have ended and students are the winners. In
early February, the U.S. Departments of Education and Justice issued
Guidance on Constitutionally Protected Prayer in Public Elementary and
Secondary Schools (available at www.ed.gov), a seven-page set of rules
that junior high and high schools must follow to receive federal
The guidelines clarify that public schools are not religion-free
zones, school officials are not prayer police and students of faith
are not enemies of the state. Now students will be able to open their
school activities with prayer. Out loud. And without fear of
punishment by their schools.
That is hard to believe when just this time last year a New York
school was in the news for stopping three kindergartners from joining
hands and saying grace over their cupcakes, a Texas school was
defending its policy of "prayers, blessings, invocations and
references to a deity are prohibited," and numerous schools were
advising class valedictorians to refrain from religious references.
But the rules have changed. On this, our National Day of Prayer, we
should give thanks.
The guidelines provide that with basic safeguards in place, student
prayer over school microphones, on school property, at
school-sponsored events is protected constitutional speech: "Where
student speakers are selected on the basis of genuinely neutral,
evenhanded criteria and retain primary control over the content of
their expression, that expression is not attributable to the school
and therefore may not be restricted because of its religious content.
To avoid any mistaken perception that a school endorses student speech
that is not in fact attributable to the school, school officials may
make appropriate, neutral disclaimers to clarify that such speech is
the speaker's and not the school's." The same rule applies to
There are even provisions permitting students to actually pray
meaningful prayers: "Public schools may not restrict or censor
[students'] prayers on the ground that they might be deemed `too
religious' to others. The Establishment Clause prohibits state
officials from making judgments about what constitutes an appropriate
prayer, and from favoring or disfavoring certain types of prayers -- be they
`nonsectarian' and `nonproselytizing' or the opposite -- over others."
In March, Texas schools joined the thousands of other public
schools across the nation in signing promises to follow the
guidelines. It is up to students and the public to assure compliance.
Anyone may complain to the Texas Education Agency of a school's
violation of the guidelines and an investigation and report of
findings will be made to the U.S. Department of Education.
The guidelines were issued pursuant to the No Child Left Behind Act
of 2001. And lest anyone believe this a right-wing conspiracy, the
bill was drafted by Sen. Edward Kennedy's Education Committee and
passed by a Democratically controlled Senate.
But the guidelines should surprise no one. They are merely a
summary of the current state of the law based on U.S. Supreme Court
decisions. For 40 years the Supreme Court has adhered to the rule it
crystallized in Santa Fe v. Doe: "[T]he Constitution is abridged when
the state affirmatively sponsors the particular religious practice of
prayer," but "nothing in the Constitution prohibits any public school
student from voluntarily praying at any time before, during or after
the school day." Affirmative sponsorship occurs when a school
expressly or subtly coerces students to pray. Voluntary student prayer
occurs when the coercion is absent. Government's duty is to protect
both religious and secular speech equally and to remain neutral
between the two. That is what the guidelines accomplish.
Adherence to the guidelines will require most schools to adopt new
policies for selecting student speakers "on the basis of genuinely
neutral, evenhanded criteria" and eliminate policies that provide
selection of speakers "on a basis that either favors or disfavors
religious speech." To accomplish this end, school districts need to
adopt student speaker policies like those recommended by the State
Board of Education (see
Once students realize they may use speaking opportunities to honor
God without the fear of government reprisals, a resurgence of prayer
may break out in America's schools. Now that would be shock and awe.
Coghlan is a Houston trial attorney. He has represented 159
students and parents as amici curiae before the U.S. Supreme
Court on faith-based issues, and was consulted by the U.S. Department
of Education regarding the content of the prayer guidelines of the No
Child Left Behind Act.