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Schools may pay the price if they ignore new guidelines on religion

Inside the First Amendment

By Charles Haynes
Senior scholar, First Amendment Center

02.16.03

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The news media shrugged and the nation barely noticed. But the new federal guidelines on “school prayer” released on Feb. 7 dramatically raise the stakes in the longest-running conflict in the history of public education.

Guidance on prayer in schools has been issued by the U.S. Department of Education before (three times in the Clinton era). But now — for the first time — the guidelines have teeth. Failure to comply will result in loss of federal funding — something no school district will allow to happen.

It shouldn’t have come to this. But in spite of repeated exhortations to follow the law, school officials in far too many districts still ignore it. Some smart administrators have done the right thing by developing sound policies and practices that guard the First Amendment rights of all students (these are the districts without conflicts and lawsuits).

But many, if not most, school leaders are still afraid to touch religion. Following the “let sleeping dogs lie” approach to school administration, they only begin to think about the First Amendment when a fight erupts — and by then it’s often too late to avoid a lawsuit. That’s why we continue to have so many schools that violate the law either by unconstitutionally promoting religion or by unconstitutionally denying the religious-liberty rights of students.

By now school administrators and school boards should know better. Three years ago, the Department of Education sent every public school principal in the United States a packet of guidelines (including three First Amendment Center publications). But in a poll taken a year later, only 8% of administrators and 2% of teachers were “very familiar” with the guidelines. And a stunning 39% of administrators and 69% of teachers were “not at all familiar.”

All of that is about to change. Now that money is at stake, school officials will have no choice but to take the law seriously. Starting this year, if schools want to receive federal dollars, administrators must certify in writing that they are complying with the guidelines.

Most of what the guidelines require isn’t new — or especially controversial. Unlike the school-prayer debate of decades past, few people in or out of government are pushing for school-sponsored religious practices. Today the guidelines make a clear distinction between school-sponsored speech endorsing religion, which the establishment clause of the First Amendment forbids, and student religious speech, which the free-speech and free-exercise clauses protect.

This means that teachers and administrators must be neutral in their treatment of religion — and may not either encourage or discourage prayer. But the constitutional ground rules are very different for students. During non-instructional time, students are free to pray (alone or in groups), read their scriptures and discuss their faith as long as they aren’t disruptive and don’t infringe upon the rights of others. Moreover, students may express their views about religion in class assignments as long as doing so is relevant to the subject under consideration and meets the requirements of the assignment.

What is new in these guidelines (and likely to stir debate) concerns student speech at school-sponsored functions such as graduation, assembly programs or athletic events. The courts have been divided on where schools may draw the line on student-initiated religious speech in those settings. But the guidelines take the position that schools may not restrict students' religious (or anti-religious) speech if student speakers are selected by “genuinely neutral, evenhanded criteria” and students retain control over the content of their expression.

Although the state of current law on this question is debatable, many First Amendment experts would probably agree with the guidelines. If a public school creates a “free-speech forum” at school-sponsored events, during which time students are free to express themselves religiously or otherwise, schools may not censor religious or anti-religious speech. Of course, many school administrators may see this approach as too risky since such a forum would have to be open to all kinds of speech, including speech critical of religion or the school.

Is there a line that can’t be crossed? What happens if a student tries to turn an assembly program into an altar call? The guidelines are silent on this. But giving a student the right to express his or her beliefs shouldn’t mean that the student has a right to force a captive audience to participate in a religious exercise. In a small number of cases where students are determined to push the envelope, drawing this line won’t be easy.

These guidelines — unlike the last version from the Education Department — also address the rights of teachers. When carrying out their official duties, teachers may not encourage or discourage prayer or actively participate in such activity with students. But during their free time outside the presence of students, teachers may meet with other teachers for prayer or scripture study “to the same extent that they may engage in other conversation or nonreligious activities.”

The new guidelines don’t answer every question — and they won’t end the “school-prayer” debate. Too many people on both ends of the political and religious spectrum have a vested interest in keeping the fight alive. The “restorers” will continue to push for a return to school-sponsored, teacher-led prayer (as long as the prayers are their prayers). And the “removers” will continue to push for ridding public schools of all religious expression.

But I’m convinced that most Americans reject these extremes — and are weary of the endless shouting matches about prayer in public schools.

The new guidelines may not be perfect, and they aren’t the last word. But they represent a common-sense way forward that most Americans can support. The Education Department has sent a wake-up call that no school district can afford to ignore.

Your questions and comments are welcome. Write to:
Charles Haynes
The Freedom Forum First Amendment Center
1101 Wilson Blvd.
Arlington, VA 22209

E-mail: chaynes@freedomforum.org

Related

Education Department releases new school-prayer guidelines
For first time, officials tie federal funding to compliance with policy; critic calls rules a partisan push for more school prayer.  02.10.03

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