Posted on 05/02/2003 7:41:10 AM PDT by bedolido
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 funds.
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 graduation speakers.
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 www.saferschools.org).
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.
This is the unconstitutional stranglehold that the Federal government has on this country and our rights. By financial fiat alone the Feds tell states and local populations what they can and cannot do in their own towns and schools.
Everyone needs to vote "NO" for anything and anybody that grows this insidious monster.
Overview of Governing Constitutional Principles
The relationship between religion and government in the United States is governed by the First Amendment to the Constitution, which both prevents the government from establishing religion and protects privately initiated religious expression and activities from government interference and discrimination. [ 1 ] The First Amendment thus establishes certain limits on the conduct of public school officials as it relates to religious activity, including prayer.
The legal rules that govern the issue of constitutionally protected prayer in the public schools are similar to those that govern religious expression generally. Thus, in discussing the operation of Section 9524 of the ESEA, this guidance sometimes speaks in terms of "religious expression." There are a variety of issues relating to religion in the public schools, however, that this guidance is not intended to address.
The Supreme Court has repeatedly held that the First Amendment requires public school officials to be neutral in their treatment of religion, showing neither favoritism toward nor hostility against religious expression such as prayer. [ 2 ] Accordingly, the First Amendment forbids religious activity that is sponsored by the government but protects religious activity that is initiated by private individuals, and the line between government-sponsored and privately initiated religious expression is vital to a proper understanding of the First Amendment's scope. As the Court has explained in several cases, "there is a crucial difference between government speech endorsing religion, which the Establishment Clause forbids, and private speech endorsing religion, which the Free Speech and Free Exercise Clauses protect." [ 3 ]
The Supreme Court's decisions over the past forty years set forth principles that distinguish impermissible governmental religious speech from the constitutionally protected private religious speech of students. For example, teachers and other public school officials may not lead their classes in prayer, devotional readings from the Bible, or other religious activities. [ 4 ] Nor may school officials attempt to persuade or compel students to participate in prayer or other religious activities. [ 5 ] Such conduct is "attributable to the State" and thus violates the Establishment Clause. [ 6 ]
Similarly, public school officials may not themselves decide that prayer should be included in school-sponsored events. In Lee v. Weisman [ 7 ], for example, the Supreme Court held that public school officials violated the Constitution in inviting a member of the clergy to deliver a prayer at a graduation ceremony. Nor may school officials grant religious speakers preferential access to public audiences, or otherwise select public speakers on a basis that favors religious speech. In Santa Fe Independent School District v. Doe [ 8 ], for example, the Court invalidated a school's football game speaker policy on the ground that it was designed by school officials to result in pregame prayer, thus favoring religious expression over secular expression.
Although the Constitution forbids public school officials from directing or favoring prayer, students do not "shed their constitutional rights to freedom of speech or expression at the schoolhouse gate," [ 9 ] and the Supreme Court has made clear that "private religious speech, far from being a First Amendment orphan, is as fully protected under the Free Speech Clause as secular private expression." [ 10 ] Moreover, not all religious speech that takes place in the public schools or at school-sponsored events is governmental speech. [ 11 ] For example, "nothing in the Constitution ... prohibits any public school student from voluntarily praying at any time before, during, or after the school day," [ 12 ] and students may pray with fellow students during the school day on the same terms and conditions that they may engage in other conversation or speech. Likewise, local school authorities possess substantial discretion to impose rules of order and pedagogical restrictions on student activities, [ 13 ] but they may not structure or administer such rules to discriminate against student prayer or religious speech. For instance, where schools permit student expression on the basis of genuinely neutral criteria and students retain primary control over the content of their expression, the speech of students who choose to express themselves through religious means such as prayer is not attributable to the state and therefore may not be restricted because of its religious content. [ 14 ] Student remarks are not attributable to the state simply because they are delivered in a public setting or to a public audience. [ 15 ] As the Supreme Court has explained: "The proposition that schools do not endorse everything they fail to censor is not complicated," [ 16 ] and the Constitution mandates neutrality rather than hostility toward privately initiated religious expression. [ 17 ]
Applying the Governing Principles in Particular Contexts
Prayer During Noninstructional Time
Students may pray when not engaged in school activities or instruction, subject to the same rules designed to prevent material disruption of the educational program that are applied to other privately initiated expressive activities. Among other things, students may read their Bibles or other scriptures, say grace before meals, and pray or study religious materials with fellow students during recess, the lunch hour, or other noninstructional time to the same extent that they may engage in nonreligious activities. While school authorities may impose rules of order and pedagogical restrictions on student activities, they may not discriminate against student prayer or religious speech in applying such rules and restrictions.
Organized Prayer Groups and Activities
Students may organize prayer groups, religious clubs, and "see you at the pole" gatherings before school to the same extent that students are permitted to organize other non-curricular student activities groups. Such groups must be given the same access to school facilities for assembling as is given to other non-curricular groups, without discrimination because of the religious content of their expression. School authorities possess substantial discretion concerning whether to permit the use of school media for student advertising or announcements regarding non-curricular activities. However, where student groups that meet for nonreligious activities are permitted to advertise or announce their meetings—for example, by advertising in a student newspaper, making announcements on a student activities bulletin board or public address system, or handing out leaflets—school authorities may not discriminate against groups who meet to pray. School authorities may disclaim sponsorship of non-curricular groups and events, provided they administer such disclaimers in a manner that neither favors nor disfavors groups that meet to engage in prayer or religious speech.
Teachers, Administrators, and other School Employees
When acting in their official capacities as representatives of the state, teachers, school administrators, and other school employees are prohibited by the Establishment Clause from encouraging or discouraging prayer, and from actively participating in such activity with students. Teachers may, however, take part in religious activities where the overall context makes clear that they are not participating in their official capacities. Before school or during lunch, for example, teachers may meet with other teachers for prayer or Bible study to the same extent that they may engage in other conversation or nonreligious activities. Similarly, teachers may participate in their personal capacities in privately sponsored baccalaureate ceremonies.
Moments of Silence
If a school has a "minute of silence" or other quiet periods during the school day, students are free to pray silently, or not to pray, during these periods of time. Teachers and other school employees may neither encourage nor discourage students from praying during such time periods.
Accommodation of Prayer During Instructional Time
It has long been established that schools have the discretion to dismiss students to off-premises religious instruction, provided that schools do not encourage or discourage participation in such instruction or penalize students for attending or not attending. Similarly, schools may excuse students from class to remove a significant burden on their religious exercise, where doing so would not impose material burdens on other students. For example, it would be lawful for schools to excuse Muslim students briefly from class to enable them to fulfill their religious obligations to pray during Ramadan.
Where school officials have a practice of excusing students from class on the basis of parents' requests for accommodation of nonreligious needs, religiously motivated requests for excusal may not be accorded less favorable treatment. In addition, in some circumstances, based on federal or state constitutional law or pursuant to state statutes, schools may be required to make accommodations that relieve substantial burdens on students' religious exercise. Schools officials are therefore encouraged to consult with their attorneys regarding such obligations.
Religious Expression and Prayer in Class Assignments
Students may express their beliefs about religion in homework, artwork, and other written and oral assignments free from discrimination based on the religious content of their submissions. Such home and classroom work should be judged by ordinary academic standards of substance and relevance and against other legitimate pedagogical concerns identified by the school. Thus, if a teacher's assignment involves writing a poem, the work of a student who submits a poem in the form of a prayer (for example, a psalm) should be judged on the basis of academic standards (such as literary quality) and neither penalized nor rewarded on account of its religious content.
Student Assemblies and Extracurricular Events
Student speakers at student assemblies and extracurricular activities such as sporting events may not be selected on a basis that either favors or disfavors religious 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 (or anti-religious) content. By contrast, where school officials determine or substantially control the content of what is expressed, such speech is attributable to the school and may not include prayer or other specifically religious (or anti-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 (whether religious or nonreligious) is the speaker's and not the school's.
Prayer at Graduation
School officials may not mandate or organize prayer at graduation or select speakers for such events in a manner that favors religious speech such as prayer. Where students or other private graduation speakers are selected on the basis of genuinely neutral, evenhanded criteria and retain primary control over the content of their expression, however, that expression is not attributable to the school and therefore may not be restricted because of its religious (or anti-religious) content. To avoid any mistaken perception that a school endorses student or other private speech that is not in fact attributable to the school, school officials may make appropriate, neutral disclaimers to clarify that such speech (whether religious or nonreligious) is the speaker's and not the school's.
Baccalaureate Ceremonies
School officials may not mandate or organize religious ceremonies. However, if a school makes its facilities and related services available to other private groups, it must make its facilities and services available on the same terms to organizers of privately sponsored religious baccalaureate ceremonies. In addition, a school may disclaim official endorsement of events sponsored by private groups, provided it does so in a manner that neither favors nor disfavors groups that meet to engage in prayer or religious speech.
That's exactly the way it should be. Excellent!
the aclu is blantantly anti 1st and 2nd amendment and fr posters work full time for them ---
gun and bible grabbers !
361 posted on 05/01/2003 8:28 PM PDT by gore3000
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.