doing the praying, since people are usually talking about organized classroom prayer, often led
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
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
Students may also meet for prayer and religious study pursuant to the federal Equal Access Act.
requires that religious groups be given equal treatment. Again, the Act does not allow teachers or
state law. (See chapter 12 on equal access).
selected the clergy and even provided guidelines for the prayer. The Supreme Court held that the
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
invocations at other public school events such as athletic contests.(6)
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.
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
of Rights was to place some rights beyond the reach of political majorities. Thus, the
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
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
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,
certain prayers are offered, some students and parents may feel unwelcome in their own public
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
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
A far better approach to the graduation prayer dilemma would seem to be a privately sponsored,
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
uncertain about the proper response to such requests, especially when the subject matter involves
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,
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
publication that happens to be religious.
Just because schools may not prohibit the distribution of all student materials does not mean that
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)