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Debate: Prohibition of school prayer

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Should formal prayer in schools be prohibited?

Background and context

The debate concerning the legitimacy of formal prayer in public schools channels two raging currents of American constitutional law. Namely, the regulation of education and the protection of religious liberty. The Republic was founded by emigrants from Europe who sought to escape the bondage of laws which compelled their support and attendance at government sponsored churches. Accordingly, the First Amendment of the Constitution of the United States provides inter alia that: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof”. Thus religious liberty receives the dual protection of the establishment clause, that demands the separation of government and governmental functions from religious doctrine, and the free exercise clause, that precludes government interference with the exercise of religion. On behalf of the Court, Chief Justice Warren in Brown v. Board of Education (‘Brown I’) 347 U.S. 483, 74 S. Ct. 686 held that education is “perhaps the most important function of state and local governments”. It is therefore unsurprising that the Court has consistently struck down school prayer initiated by school officials as a violation of the establishment clause. However, the strictness of scrutiny devoted to apparently innocuous religious practice remains remarkable. The Court has rejected non-denominational prayers as unconstitutional: Engel v. Vitale 370 U.S. 421, 82 S. Ct. 1261. It has also found that non-sectarian prayers violate the establishment clause: Lee v. Weisman 505 U.S. 577, 112 S. Ct. 2649. The Court has struck down an Alabaman law authorizing schools to set aside one minute at the start of each day for meditation or voluntary prayer: Wallace v. Jaffree 42 U.S. 38, 105 S. Ct. 2479. Not even a high school program that empowered the student body to elect a student speaker who would precede varsity football games by delivering a short speech to “solemnize the event” survived the scrutiny of the justi...[1]

Contents

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Consent: Is a pupil able to give or withhold consent for school prayer?

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Yes

  • Pupils are unable to consent to school prayer This is because the school environment does not facilitate the free exercise of consent. It mandates attendance, it is delivered in an inherently instructional facility, and its subjects are immature, having underdeveloped faculties of resistance and consent, and being subject to the pressure of their peers. The Supreme Court in Santa Fe Independent School District v. Doe recognised that such social influence upon pupils, exerted by colleagues and staff, can render even attendance at voluntary extra-curricular events, such as a football game, a matter of compulsion. A pupil does not opt into the practice of prayer. The practice typically takes place in the context of an assembly at which attendance is compulsory. The consent of the pupil to the prayer is not sought but merely presumed.[2]


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No

  • The provision of formal prayer does not invalidate the consent of the child concerned. Should a child or parent of guardian object to the practice of prayer, the child is entitled to refrain from participation. Pupils consistently exercise their consent in their education, from the curricular and extra-curricular options chosen, to the dress worn, to the food eaten. No one ought to defend a school curriculum or staff member that is considered to manipulate the consent of the child concerned. However, there is nothing inherent in the school environment that impairs the consent of a child to prayer. A child might of course feel a small and perhaps significant degree of social isolation from not participating in the prayer. Nevertheless, this sentiment is the necessary price of conscience or nonconformity.[3]


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Parental authority: Does school prayer undermine parental authority?

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Yes

  • School prayer fundamentally undermines the authority of parents: The Court in Pierce v. Society of Sisters and Wisconsin v. Yoder recognised that the liberty of parents and guardians to direct the upbringing of children under their control extends to the religious faith that is imparted to the children. The proper purpose of schooling is not indoctrination. Should religion be considered a valuable part of a balanced curriculum, it ought to be taught in a broad and critical context in the classroom. A formal prayer instils obedience to a faith that the child might neither understand nor accept and to which the parent or guardian might properly object. The practice does not stimulate discussion or debate.[4]
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No

  • Parents have the authority to prevent children from praying. First, the primary caregiver of the child can simply direct the child not to attend the prayer, in the alternative or in addition to requesting the school not to permit the child to participate in this activity. Second, the proposition argument tends heavily towards the hysterical. An American public high school does not typically embrace the Jesuit aphorism of taking a child and building a believer for life. A brief prayer, perhaps even conveying a nondenominational message, is exceedingly unlikely to confuse a child or damage the teaching of the parents or guardians. Third, a school necessarily and properly stands in loco parentis of its pupils. It is entirely proper that, in the absence of expression to the contrary on behalf of the parent or guardian, the school should make the deliberately paternalistic choice to hold a school prayer for the pupils. Fourth, if a court or legislator could ever be so presumptuous as to tender a definition of the ‘purpose’ of schooling, it should reasonably include the spiritual development of its subjects. A moment of prayer or reflection is consequently a valuable and not supererogatory element of the curriculum.[5]
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Religious liberty: Is the prohibition of school prayer consistent religious liberty?

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Yes

  • Prohibiting school prayer is compatible with freedom of religion. The dynamic tension between the free establishment and free exercise clauses of the First Amendment is neither novel nor insoluble. A formal school prayer cannot properly be considered as the free exercise of religion. The practice is directed by an ordinance of the local board of education. The staff of the school implement the ordinance. By participating in the prayer, the pupils simply obey it. The free exercise clause protects religious liberty and not religious compulsion. In the alternative, it might be assumed that banning school prayer impairs to some degree free exercise. Yet, this infringement is exceedingly minor given that the pupil is not precluded from engaging into private or group prayer of her own accord.[6]


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No

  • The prohibition of school prayer violates religious liberty. The First Amendment precludes state interference in the free exercise of religion. Formal school prayer merely assists pupils in the free exercise of their religious beliefs The suggestion that those children who wish to engage in prayer could initiate spontaneous prayer without the direction of staff is hopelessly unrealistic. When a congregation attends any formal service of worship they are engaged in the free exercise of religion, notwithstanding the fact that the members did not write the prayers or hymns or passages they hear, speak, sing or recite.[7]


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Establishment clause: Does prohibiting school prayer meet the establishment clause?

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Yes

  • The slightest involvement of religion is state is dangerous. The Founding Fathers, the Framers of the Constitution and the Justices of the Supreme Court for over two hundred years have recognised that even seemingly the slightest integration of religion and government "tends to destroy government and degrade religion": Engel v. Vitale. Justice Black expounded in this case the unfortunate historical fact that governmentally established religions and religious persecutions have tended "to go hand in hand". To insist on the separation of church and state even in the school assembly is not to conjure a slippery slope and a pair of skis. It is to practise awareness of the tragic experience that founded the Republic and informed the Constitution.[8]


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No

  • There can be no complete separation of Church and State. As Justice Douglas held in Zorach v. Clauson, a case pertaining to the constitutionality of ‘released time programs’ that allowed pupils to leave public schools to receive religious instruction, the First Amendment does not say that in every and all aspects there should be such separation. Were it to be otherwise, churches would not pay property taxes, policemen could not protect mosques, and the name of God would be banished from the courtroom, Congress and the oath of allegiance. Persecution and purges of the faithful are not a phenomena commonly associated with the modern American school system. They are unlikely to have their genesis in a non-sectarian prayer at morning assembly. In the dictum of Justice Douglas: "The constitutional standard is the separation of Church and State, the problem is one of degree". The rejection of a state-sponsored religion is completely coextensive with the permission of school prayer.[9]


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Religious discrimination: Does prayer in school lead to faith-based discrimination?

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Yes

  • Religious discrimination is unacceptable and should not be facilitated by a school. Prayer, in order to be meaningful, a prayer must also be discriminatory between different religious beliefs. The imprecation of one deity (as opposed to another or several others), the choice of language and the supplication sought are distinctive to each faith. The incorporation of any or all such addresses into a single prayer at best confuses its meaning, and at worst renders it meaningless. Where the practical precatory choice is between discrimination and equivocation no school prayer should be permitted.[10]


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No

  • Non-denominational prayer preserves an equilibrium between different faiths: It can even offer a valuable moment of reflection for the atheist. Moreover, the prohibition of school prayer does in fact amount to religious discrimination. The practice simply prefers the atheist, who does not adhere to formal religious worship, to the followers of any religious faith.[11]


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Democratic choice -

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Yes

  • Neither democracy nor taxation is sufficient for the scientific management of a school: The majority of voters are unlikely to be expert in the constitutional issues of the separation of church and state, or free exercise and free establishment. The majority is also unlikely to select candidates for the board of education on account of their attitude towards school prayer and the candidates equally unlikely to seek such a mandate. Mere payment of taxes does not qualify or entitle a majority of residents to determine the circumstances of local education. Few would suggest that simple non-violation of tax laws also allowed taxpayers to choose, say, the amount of time devoted to the teaching of history, the opening hours of the school, or the appointment and dismissal of the members of staff. The facts that the local board of education is elected and that local property taxes fund schools are simply irrelevant to the specific discussion of school prayer.[12]
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No

  • The prohibition of school prayer violates the democratic choice of the local population: The school board that is commonly responsible for approval or direction of the practice of prayer is formally elected. The public schools are financed primarily through the payment of local property taxes. Many of the constituency of voters and taxpayers send their children to the schools or might choose so to do in the future. It is not unreasonable that those who select the management of a school and fund its operation should also be permitted some small voice in its curriculum. The election of the local board of education properly allows schools to reflect both the local conditions and the wishes of the parents or guardians whose children attend these facilities.[13]
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Pro/con resources

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Yes

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No

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