FREE ESSAY ON SEPARATION BETWEEN STATE AND RELIGION

SEPARATION BETWEEN STATE AND RELIGION

One of the most common questions asked about public prayer is whether or not it is legal 
to hold it in a public school. It depends on the type of prayer we are talking about, and
who is 
doing the praying, since people are usually talking about organized classroom prayer,
often led 
by a teacher. The Supreme Court has set a law that states that organized prayer in a
public 
school goes against the First Amendment, whether it's in the classroom, over the loud
speaker, or 
even at a graduation ceremony. It also applies for Bible readings and when someone says
now 
we will have a moment of silence, which courts will go against also. People feel it is
not the 
government's business to promote religious exercises, since they can easily be pushed
upon 
young students that have to be at school due to their attendance policies.
A public school has the responsibility to protect every student. This will include
children 
of various religions, as well as children with no religious faith. This does not mean 
the school should be disrespectful of the important role religion plays for many
students. Courts 
have made it clear that students should have the right to practice their religion, with
some 
limitations. Students are free to pray, read their Bibles and even invite others to join
their 
religious group as long as they are not disruptive of the school or disrespectful of the
rights to the 
other students. A student should not be allowed to pressure or other kids in or on public
school 
grounds. For example, a student is allowed to pray before meals, read her Bible during
study 
hall, create an art project with a religious theme or invite other students to attend
church. These 
activities are all allowed. In fact, the school might be guilty of violating the
student's free speech 
and free exercise rights if it tried to stop the religious activities.
Students have the right to hang out with their friends for prayer and other 
religious activities within the rules. .For example, students are permitted to 
gather around the flagpole for prayer before school begins, as many students do 
occasionally, as long as the event is not sponsored or endorsed by the school and other
students 
are not pressured to attend. 
like outside adults, generally have no right to pray with or in the presence of students
in a public 
school. (4) As representatives of the state, teachers are under an obligation to protect
the rights 
of all students including non-believers. A teacher who abuses this position of trust may
be 
terminated. 
Students may also meet for prayer and religious study pursuant to the federal Equal
Access Act. 
If a school permits extracurricular student groups to meet during noninstructional time,
this Act 
requires that religious groups be given equal treatment. Again, the Act does not allow
teachers or 
other adults to lead such meetings.(5) The Act applies only to secondary schools as
defined by 
state law. (See chapter 12 on equal access). 
The most confusing and controversial part of the current school prayer debate involves 
graduation prayer. In the 1992 decision Lee v. Weisman , the Supreme Court addressed this
issue. 
The case involved prayers delivered by clergy at middle school commencement exercises in

Providence, Rhode Island. The school designed the program, provided for the invocation, 
selected the clergy and even provided guidelines for the prayer. The Supreme Court held
that the 
practice violated the First Amendment's prohibition against laws respecting an
establishment of 
religion. The Justices based their 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 coercion was not cured 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. For similar reasons, lower courts have struck
down 
invocations at other public school events such as athletic contests.(6) 
Confusion arose a year later when the Justices refused to grant an appeal in Jones v.
Clear Creek 
Independent School District, a Texas case upholding the practice of graduation prayer.
Although 
the Supreme Court has repeatedly cautioned that its refusal to hear one of the thousands
of cases 
docketed with it annually does not mean that the Justices agree with the decision, some
are 
encouraging schools to use the Texas case as a blueprint for circumventing the Supreme
Court's 
decision in Weisman. And, although the case is binding only in the 5th Federal Circuit
(i.e. 
Texas, Louisiana and Mississippi), it is being urged upon school districts nationwide.
Some state 
legislatures, such as Tennessee's, have passed laws encouraging schools to pattern their

graduation exercises after the Jones decision. 
The distinguishing features of the prayer in Jones were: 
The prayer was student-initiated. That is to say the students voted to have the prayer. 
The prayer was student-led, as opposed to being led by clergy or other adults. 
The prayer was nonsectarian and non-proselytizing. 
Although expert opinion is divided, all three of these factors raise significant
questions. First, it 
is clear that constitutional rights are not subject to vote. To the contrary, 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 he or she professes. Therefore, it is unlikely that students can
vote to 
suspend the no establishment of religion clause and have organized prayer at a
school-sponsored 
event. 
It may also be immaterial that a student, as opposed to an adult, leads the prayer. A
graduation 
exercise is still a school-sponsored event, and the students are still being coerced,
however 
subtly, to participate in a religious exercise that some might find offensive. 
Finally, the requirement that the prayer be nonsectarian and non-proselytizing not only
fails 
to solve the problems addressed in Weisman, it may aggravate them. While some might like
the 
idea of an inclusive, nonsectarian civil religion, many do not. To some Americans the
idea of 
nonsectarian prayer is offensive. Many Americans, for example, feel compelled to pray in

Jesus's name. Moreover the Supreme Court made clear in Weisman that even 
nondenominational prayers may not be established by government in the public schools. In

addition, the Jones decision puts courts and school officials in the difficult position
of evaluating 
the content of prayers to determine if they are too sectarian for use in a public school.
There is 
also the thorny problem of determining whether a particular prayer tends to proselytize.
Such 
entanglement of school officials in religious matters could itself be unconstitutional.
In fact, a 
Texas school district already has been sued for discriminating against those who wish to
offer 
more sectarian prayers at graduation exercises. 
Schools that follow the Jones model should understand the risks involved. If litigation
results, 
those challenging the prayers (outside the 5th circuit) may prevail(7). More importantly,
if 
certain prayers are offered, some students and parents may feel unwelcome in their own
public 
schools . 
At the same time, it would seem possible for a school to provide a forum for student
speech 
within a graduation ceremony during which time prayer might occur. For example, a school

might choose to allow the valedictorian or class president to open the ceremony in
whatever 
manner he or she wished. If such a student chose to utter a prayer, it seems unlikely it
would be 
found unconstitutional unless the school had suggested or otherwise encouraged the
prayer. It 
would also seem permissible for the school to allow students to vote whether to include
such a 
forum for student speech during the graduation ceremony. 
Again, there is a risk to such an approach. By creating a forum for student speech, the
school 
may be stuck with most anything the student wishes to say. While 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. 
A far better approach to the graduation prayer dilemma would seem to be a privately
sponsored, 
voluntarily attended baccalaureate service held after school hours, perhaps at a local
church. The 
school can announce the event and even allow it to be held on campus if other community 
groups are given similar privileges. In fact, the school is prohibited from
discriminating against 
religious groups in the after-hours use of its facilities. Schools may not, however,
sponsor such 
religious exercises. If a school board continues to insist on some accommodation of
religion at 
the graduation exercise, a genuinely neutral moment of silence might be considered. 
Although the school prayer debate has caused much confusion for teachers, administrators
and 
board members, most questions are easily resolved if the school will keep in mind the
distinction 
between government (in this case school) speech endorsing religion which the
Establishment 
clause prohibits and private (in this case student) speech endorsing religion which the
Free 
Speech and Free Exercise clauses protect. 
Distribution of Religious Literature 
An increasing number of students are requesting permission to distribute fliers and
religious 
literature on public school campuses. This distribution of nonschool publications is not
a new 
phenomenon but was common during the Vietnam War. Nevertheless, many schools are 
uncertain about the proper response to such requests, especially when the subject matter
involves 
religion. 
Court decisions on the issue generally fall into two categories. A minority of decisions
hold that 
schools can prohibit the distribution of any publication that is not sponsored by the
school. Of 
course, the ban must be applied even-handedly to all student publications. A school could
not, 
for example, allow the distribution of political literature while barring religious
publications. 
This is particularly evident in light of the Supreme Court's decision in Westside
Community 
School Board v. Mergens, upholding the federal Equal Access Act. Under this minority
view, 
however, a blanket prohibition on all student publications would be permissible. 
The majority of courts take a different view. These courts hold that while schools may
place 
some restrictions of the distribution of student publications, they may not ban them
altogether. 
The courts base their decisions on the landmark case of Tinker v. Des Moines School
District, 
which upheld the right of students to wear black armbands protesting the Vietnam War,
even in 
a public school. Included in this right of free speech is not only the right to speak for
oneself but 
also to distribute the writings (i.e., speech) of others. Thus, courts have generally
upheld the 
rights of students to distribute nonschool publications subject to the school's right to
suppress 
such publications if they create substantial disruption, harm the rights of other
students or 
infringe upon other compelling interests of the school. Again, the Mergens decision makes
clear 
that the fear of a First Amendment violation is not sufficient justification to suppress
a student 
publication that happens to be religious. 
Just because schools may not prohibit the distribution of all student materials does not
mean that 
schools have no control over what may be distributed on school premises. On the contrary,

courts have repeatedly held that schools may place reasonable time, place and manner 
restrictions on all student materials distributed on campus. Thus, schools may specify
when the 
distribution can occur (e.g., lunch hour or before or after classes begin), where it can
occur (e.g., 
outside the school office) and how it can occur (e.g., from fixed locations as opposed to
roving 
distribution). One recent decision upheld a policy confining the distribution of student
literature 
to a table placed in a location designated by the principal and to the sidewalks adjacent
to school 
property. Of course, any such restriction must be reasonable. 
It is also likely that schools may insist on screening all student materials prior to
distribution to ensure their appropriateness for a public school. Any such screening
policy should provide for a speedy decision, a statement of reasons for rejecting the
literature and a prompt appeals process. Because the speech rights of students are not
coextensive with those of adults, schools may prohibit the distribution of some types of
student literature altogether. Included in this category would be: 
materials that would be likely to cause substantial disruption of the operation of the
school. Literature that uses fighting words or other inflammatory language about students
or groups of students would be an example of this type of material; 
material that violates the rights of others. Included in this category would be
literature that was libelous, invaded the privacy of others or infringed on a copyright;

materials that are obscene, lewd or sexually explicit; 
commercial materials that advertise products unsuitable for minors; 
materials that students would reasonably believe to be sponsored or endorsed by the
school. One recent example of this category of speech was a religious newspaper that was
formatted to look like the school newspaper. 
In addition, 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. 
While schools have considerable latitude in prohibiting the distribution of materials
that conflict with their educational mission, schools generally may not ban materials
based solely on their content. Similarly, schools should not allow a heckler's veto by
prohibiting the distribution only of those materials that are unpopular or controversial.
If Christian students are allowed to distribute their newsletters, Buddhists, Muslims and
even Wiccans must be given the same privilege. 
Adults and teachers from outside the school, on the other hand, have no right to
distribute materials to students in a public school. Moreover, schools generally may not
give the Gideons and other religious groups access to distribute their materials on
campus. At least one state attorney general has suggested outside religious groups could
distribute materials on campus if the distribution were passive(i.e. materials were left
for students to browse through and take if they wished), a wide variety of other outside
community groups were given similar privileges and school personnel did not promote the
materials. 
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. 
Released Time Programs 
Many states have laws authorizing students to be released periodically for off-campus
religious instruction during the school day. Such off-campus released time programs have
been ruled constitutional by the United States Supreme Court. In an opinion by staunch
separationist William O. Douglas, the court stated: When the state encourages religious
instruction or cooperates with religious authorities by adjusting the schedule of public
events to accommodate sectarian needs, it follows the best of our traditions. 
Earlier, the justices had been asked to rule on a released-time program that provided for
on-campus religious instruction. In this program, students were released from classes
once a week to receive religious training in the public school. There were separate
classes for Protestants, Catholics and Jews, and all religious instructors were under the
supervision of the superintendent of schools. Students who did not wish to receive
religious instruction were required to leave their classrooms and go elsewhere in the
school for additional nonreligious studies. The Supreme Court held that the use of public
schools and compulsory-attendance laws for religious training violated the First
Amendment's ban against laws respecting an establishment of religion.(8) In the words of
Justice Hugo Black: Here not only are the State's tax-supported public school buildings
used for the dissemination of religious doctrines. The State also affords sectarian
groups an invaluable aid in that it helps to provide pupils for their religious classes
through use of the state's compulsory public school machinery. This is not separation of
Church and State. 
Returning to the off-campus, released-time programs upheld by the Supreme Court, schools
are under no obligation to create such programs. The Court's decision simply permits
them. States are free to allow released-time programs when they are requested by students
and their parents, but most states leave this decision up to individual school districts.
If a released-time program is created, schools may not discriminate among religious
groups. That is to say, the program must be administered in a fair and even-handed manner
so that all religious groups are treated the same. 
It should be noted that schools are not permitted to endorse or promote religious
instruction, even when it is held off campus. Solicitation of students to attend
religious classes may not be done at the expense of the school,(9) and only those
students whose parents have signed permission slips should be allowed to attend. Students
who do not wish to attend may not be penalized. Of course, schools may not rent their
facilities to religious groups for religious instruction during the school day.(10) 
The question has arisen whether schools may give academic credit for released-time
courses. Although the answer remains unclear, it is likely such a program would be
unconstitutional, especially if credit is not given for other nonschool courses. There is
very little to distinguish many of these religious courses from a religious education
class, a nonacademic exercise for which schools could almost certainly not give
credit.(11)