Peter N. Herndon
Two decades after the Supreme Court had ruled in
Engel v. Vitale
that teacher-led prayer was unconstitutional, President Ronald Reagan proposed a Prayer Amendment to the United States Constitution. Reagan reasoned, “I think what most people in this country--and the polls show that it is overwhelming, the percentage of people who want prayer restored--is the idea that by doing away with it, was almost as if there was an anti-religious bias. It was as if saying to the children that this is no longer important.” (quoted in Fraser, p. 179). .
Though the Prayer Amendment died in committee, Congress did pass the Equal Access Act in 1984 to make it clear that students could attend religious meetings in schools during non-instructional time. The Act stated: “It shall be unlawful for any public secondary school which receives Federal financial assistance and which has a limited open forum to deny equal access or a fair opportunity to, or discriminate against, any students who wish to conduct a meeting … on the basis of (religion).”
Also, the law stated (1) that a school system could not require teachers to attend student organized religious meetings and (2) the school district could not use student-run meetings to further their own religious programs.
The United States Supreme Court validated the Equal Access Act in 1990 when it ruled in favor of high school student Bridget Mergens who requested permission to form a Christian club open to students who wanted to study the Bible and pray together. The Court’s ruling in
Board of
Education of the Westside Community Schools v. Mergens
made it clear that public schools had to treat student-organized religious organizations on an equal basis with other student clubs.
Early in President Clinton’s Presidency the prayer controversy resurfaced when a Democratic Congress passed the Religious Freedom Restoration Act (RFRA) in 1993, only to be overturned four years later by a Supreme Court that declared that “Congress does not enforce a constitutional right by changing what the right is.” People were confused. One historian, Edwin Scott Gaustad, writing in 1990, studied the Court decisions regarding religion in schools since
Everson
and found a lot of 5-to-4 decisions, little apparent consistency and a very unclear map for the road ahead. (see Gaustead,
A
Religious History of America
, pp. 324-327)
The mixed messages from the Court continued into the 1990s. In 1992, Daniel Weisman, who was Jewish, objected to a Baptist minister saying a prayer at his daughter’s middle school graduation. The Court majority decision in
Lee v. Weisman
(a 5 to 4 decision) agreed with the plaintiff that official prayers at public school commencement exercises were a violation of the establishment clause and were therefore unconstitutional. The four dissenting justices sought an accommodationist solution; Justice Rehnquist wrote:
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Nothing, absolutely nothing, is so inclined to foster among religious believers of various faiths a toleration, no, an affection for one another than voluntarily joining in prayer together to the God whom they all worship and seek…. To deprive our society of that important unifying mechanism in order to spare the non believer what seems to be the minimal inconvenience of standing or even sitting in respectful nonparticipation is senseless. (quoted in Fraser, p. 203)
Even though Justice Rehnquist was not properly acknowledging the plaintiff’s arguments against prayer, the Court seemed hopelessly divided over school prayer. To add to the confusion, a year later, the Court let stand a lower court decision to allow student-led prayers at graduation. The lines on the road map remained confusing to most students, teachers and school administrators. During the 1980s and 1990s there were cases of students being denied the right to exercise private prayer, to carry or read their Bibles in school, and meet for after school prayer meetings or Bible study.
Enter President Bill Clinton. To clarify the official government position on religious expression protections in public schools, in 1995 Clinton published a list of federal legal protections enjoyed by public school students. He remarked that
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The Establishment Clause of the First Amendment does not prohibit purely private religious speech by students…. Students may read their Bibles or other scriptures, say grace before meals, and pray before tests to the same extent they may engage in comparable nondisruptive activities. Local school authorities … may not discriminate against religious activity or speech.
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(www.ed.gov/Speeches/08-1995/religion.html)
A number of incidents in the fall of 1997 heightened tensions. In defiance of a federal judge’s court order, school officials in Alabama approved measures such as student-led prayers in classes, at assemblies, over the school intercom and at school football games. Large numbers of students got involved in public prayer vigils and school prayer walkouts. The November 8 issue of the
New York Times
carried a large photo of high school students with heads bowed in front of Sardis (Alabama) High School. At another Alabama High School, a senior told a
Times
reporter, “Everyone around here is God-believing… Having Jesus in our school is something that we need. It gives us strength.” Another student at the high school declared, “We can’t let this judge keep us from praying.” Other incidents occurred in nearby states, including a shooting spree by a fourteen year old freshman at Heath High School in West Paducha, Kentucky, who sprayed bullets into a circle of praying students outside the school, resulting in three students dead and five wounded. The nation was becoming increasingly divided over the issue of the proper place of prayer and the public schools.
Then, on June 4, 1998, the United States House of Representatives debated and voted on a proposed Religious Freedom Amendment to the Constitution. The amendment would have allowed voluntary school prayer, in accordance with a recent poll in which 70% of American voters agreed that such an amendment was needed. The amendment would “secure the people’s right to acknowledge God… [and] the people’s right to pray and recognize their religious beliefs, heritage, or traditions on public property, including schools.” Of course, no person would be required “to join in prayer or other religious activity.” Lastly, the government could not “deny equal access to a benefit on account of religion.” This apparently meant that the government could not refuse funding to religious or sectarian agencies, including religious private schools. By the end of the debate, often acrimonious, sometimes personal, the ayes had it, but not by the required two-thirds majority to begin the amendment process.
