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What do the school prayer decisions actually say?

Research and writing by Susan Batte

For most of our nation's history the Supreme Court did not get involved in state controversies concerning school prayer. But the Court was not silent, as some might try to argue, because it approved of such practices. Rather, the Court became involved only after it has settled the issue of whether the Fourteenth Amendment incorporated portions of the Bill of Rights (i.e., made the Bill of Rights applicable to the states). The Court began incorporating the Bill of Rights in the late 1800s. In 1947, the Court held that the Fourteenth Amendment incorporated the establishment clause of the First Amendment (Everson v. Board of Education). It was this ruling that ultimately led to the line of cases discussed here.

Two lines of cases have defined most of the law surrounding prayer in schools. One line concerns "released time" programs that let children out of school to be attend religious education either at the school, or elsewhere in the community. The second line of cases concerns state-mandated prayer. We examine both below.

We turn first to the "released time" cases, McCollum v. Board of Education, 333 U.S. 203 (1947), and Zorach v. Clausen, 343 U.S. 306 (1952). In these cases, states had created plans whereby students would be allowed time for religious instruction during school time. In McCollum, a Champaign, Ill. plan allowed for religious teachers to come into the schools and conduct religious classes. In Zorach, a New York City plan called for students to be released from school instruction to attend religious classes off school grounds.

In McCollum, the Court found the plan to be unconstitutional. Allowing religious teachers in the school gave them a "captive audience" and made illegal use of taxpayers dollars.

That a child is offered an alternative may reduce the constraint; it does not eliminate the operation of influence by the school in matters sacred to conscience and outside the school's domain. The result [of the school's 'release-time plan] is an obvious pressure upon the children to attend. Again, while the Champaign school population represents only a fraction of the more than two hundred and fifty sects of the nation, not even all of the practicing sects in Champaign are willing or able to provide religious instruction. The children belonging to these non-participating sects will thus have inculcated in them a feeling of separatism when the school should be the training ground for habits of community, or they will have religious instruction in a faith which is not that of their parents.

In Zorach, a released-time plan which allowed students to leave school grounds during the course of the school day to attend religious classes was held to be constitutional. The Court decided that the plan merely promoted governmental neutrality among competing sects. Three strong dissents were filed in the Zorach case. Justice Black found the Zorach plan to be the same as the McCollum plan. The coercive aspect of the McCollum plan was that children who may not have wanted to participate in the religious exercises would be forced to sit through such programs or risk ridicule by fellow classmates for refusing to participate. The Zorach plan was just as coercive in that the school was required to release children so they could attend religious classes, receive reports on whether or not they attended and hold non-participating students in school until the released-time hour is up. Quoting McCollum, Black continues, "The State also affords sectarian groups an invaluable aid in that it helps to provide pupils for their religious classes through the use of the State's compulsory public school machinery." This is not separation of Church and State.

Justice Jackson addressed the notion that objection to the Zorach plan was antireligious:

As one whose children, as a matter of free choice, have been sent to privately supported Church schools, I may challenge the Court's suggestion that opposition to this plan can only be antireligious, atheistic, or agnostic. My evangelistic brethren confuse an objection to compulsion with an objection to religion. It is possible to hold a faith with enough confidence to believe that what should be rendered to God does not need to be decided and collected by Caesar.

The McCollum and Zorach cases can be seen as an attempt to find the proper place of religious instruction in schools. Released-time plans, however, only indirectly addressed the issue of school prayer. In Engel v. Vitale, the Court confronted head on the constitutionality of organized prayer in school. 370 U.S. 421 (1962).

State law had allowed the reading of the following prayer in each class in the presence of a teacher at the beginning of each school day: "Almighty God, we acknowledge our dependence upon Thee, and we beg Thy blessings upon us, our parents, our teachers and our Country." Parents of ten students sued the school Board of Education in New York State Court claiming that the prayer was unconstitutional.

Justice Black wrote the opinion for the Court which determined that compulsion - an important factor in the McCollum and Zorach cases) was not necessary to show a violation of the Establishment Clause.

... we think that the constitutional prohibition against laws respecting an establishment of religion must at least mean that in this country it is not part of the business of government to composes official prayers for any group of the American people to recite as a part of a religious program carried on by government. ... The New York laws officially prescribing the Regents' prayer are inconsistent both with the purposes of the Establishment Clause and with the Establishment Clause itself.

It is important to stress that the Court found official recite as part of a religious program carried on by government was unconstitutional. Only Government mandated or required programs of prayer and Bible reading violated the Establishment Clause. No other type of prayer activity was prohibited by the Engel Case.

The case Abington Township School District v. Schempp was a combination of the Schempp and Murray v. Curlett cases. 374 U.S. 203 (1963). In Schempp, a Pennsylvania law allowed for the reading of ten Bible verses every day at the beginning of class. In Murray v. Curlett, Maryland had passed a law requiring the reading of a passage out of the Bible or the recitation of the Lord's Prayer during the school's opening exercises. As a result of the Schempp decision, the Court created the "secular purpose" and "primary effect" tests for interpreting the Establishment Clause. Instead of relying solely on some element of coercion or compulsion inherent in a school prayer plan, the Court began its attempt at devising a test which could be to determine constitutionality.

The test may be stated as follows: what are the purpose and the primary effect of the enactment? If either is the advancement or inhibition of religion then the enactment exceeds the scope of legislative power as circumscribed by the Constitution. That is to say that to withstand the strictures of the Establishment Clause there must be a secular legislative purpose and a primary effect that neither advances nor inhibits religion.

Schempp did not stand for the proposition that school teachers cannot teach about religion in the public schools. In fact, quite the opposite, the Court recognized that teaching religion in the context of history and other secular subjects was not only constitutional but desirable.

In effect, these cases are the law governing school prayer. None said that a student was absolutely prohibited from partaking in his or her daily prayer rituals in school. None has said that a prayer in the morning, at lunch time, at recess, before a test or with other students after school is unconstitutional. Students may distribute religious literature to students and talk to students about their religious beliefs. Students may discuss religion in class and write reports concerning religion for class assignments. They may wear religious clothing and symbols.

For a more detailed list of what is and is not legal in the public schools, please consult the following document: Religion in the Public Schools: A Joint Statement of Current Law.

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