The Constitutional Principle: Separation of Church and State
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School Prayer in Alabama 1999

This article comes from Pamela L. Sumners civil rights/constitutional attorney in Alabama. She has handled the recent Alabama church-state cases (the school-prayer case, the federal court prayer case, the state court prayer case). In addition, Ms Sumners handled the Herring case, a case involving four Jewish children from Pike County who were subjected to "Happy Birthday Jesus" parties, swastikas drawn on their clothing and possessions, forcibly having their heads bowed to christian prayers at school assemblies, fundamental preaching during school hours.

The views expressed here are those of the author, Pamela L. Sumners, and not necessarily those of the ACLU.

Last Tuesday [July 13, 1999], the Eleventh Circuit handed down a decision in Alabama's school-prayer case. As a member of the team of lawyers for the Chandler family in that lawsuit, we were disappointed to see a court ignore the Constitution and law as we know it. We had to read all the way to the end of the opinion to find out that everything DeKalb County school officials had done was unconstitutional, just as we said. Then we had to listen to the Attorney General -- the same guy who fought tooth and nail to make sure that groups of gay students were denied their First Amendment rights -- trumpet the ruling as a victory for student speech.

Since the decision came out, we've spent hours trying to explain what it means and why it's partly wrong. Everyone seems to have forgotten that Judge DeMent said in 1997 that students were free to pray in school, alone or in groups, as long as they didn't make anyone else pray along. Judge DeMent said that teachers and school officials can't lead students in prayer. That's still true. The new ruling is only about students praying as part of a school program, using school equipment and praying to a captive audience provided by the school.

Some parents tell us that they have no problem with government officials leading their children in prayer. Usually those parents assume that the prayers will be prayers they approve of, and, if they are Protestants living in rural Alabama, they're probably right. But under such a system, parents of different faiths or who are unbelievers or parents who believe that they alone should teach their children about belief are out of luck. As four Jewish children and their parents painfully learned in the Pike County schools, if you are the only Jews in a sea of Christians, you may get to hear in school that you will burn in a lake of fire unless you convert. Worse, once your fellow students realize that you are not the "correct" religion, they may feel free to put into practice the message school officials have sent, so that even if they can't send you to the hell they've been told is your destiny, they can give you a little foretaste here on earth, by drawing swastikas on your property.

Some would have you believe that conflict over religion in public schools is a modern problem caused by troublemakers who should learn to be tolerant of the wishes of the majority. But these problems are as old as public schools themselves. In 1840s Philadelphia, Catholic parents rioted when their children were forced to listen to daily readings from the Protestant Bible as part of their public education. More than 50 people were killed. Modern dissenters have taken to the courts instead of the streets, but have expressed the same sense of outrage as those Catholic parents did 150 years ago.

Before last week's ruling, the solution to this problem was clear. Teachers, principals and coaches should act neutrally toward religion, not favoring it by praying and offering sermons at school events, and not disfavoring it by denigrating members of one religion or religion itself. But the Eleventh Circuit has now said that silence = atheism, ignoring the Supreme Court's and its own precedent. It has said there is not enough religion in modern life and that schools should get back into the religion business by opening their doors to student prayers at official school events. The court held that public schools are what lawyers call "public forums."

A public forum is a place, like a park or a street corner, where anyone can come and set up a soapbox and preach on any topic they choose because the government isn't in charge of what gets said. Anyone standing there can interrupt or set up a rival soapbox. Anyone standing there can walk on if they don't like what they hear.

But this is the first time that any federal appellate court has ever said that a public school is a public forum. Not the school-grounds which might resemble parks. Not school hallways, which might resemble a public street. No, the court meant classes, not just classrooms; assemblies, not just vacant gymnasiums; crowds at football games and not just empty fields.

The problem is that schools don't operate like street corners. There are people in charge of schools teachers and principals who make decisions about what gets said and done in the schoolhouse. Second, as many students discover to their chagrin, one is not free to say and do what one would like in the average schoolroom or during the average graduation ceremony. Finally (and every student knows this for sure) you are not free to walk away from school if you don't like the message. So when teachers and principals and other school officials decide, for example when to turn on the intercom, who can use the intercom and who has to listen to it, how long they can speak, and what the intercom will be used for (i.e., announcements of school-related activities, not the playing of Garth Brooks songs), it isn't students speaking anymore. It's the school officials who decide what message is conveyed and who send it to a captive audience.

Which brings us to DeKalb County where this started. Teachers led their students in prayers, picked students to pray, encouraged students to pray at assemblies, sporting events, graduations, over the intercoms, and in classrooms and called this "student-initiated speech." No one from any religion other than Christianity ever got to pray and no one ever got to give any other sort of message. DeKalb County was the exact opposite of a street corner, where everybody gets their say. When Michael Chandler protested, school officials told him that he was going to hell.

We cherish all of the values of the First Amendment, including the free-speech clause. But we must cherish the establishment clause of the First Amendment in a public school setting where children are captives of the state's public-address system and the classroom and cannot absent themselves from prayer. The Constitution demands that the machinery of the state not be used to promote religion, by any speaker.
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