George W. Dent, Jr. (1)

Lee v. Weisman,(2) the Supreme Court's most recent (1992) decision on religious speech in public schools, forbade prayer in a public school graduation ceremony. Since then legislatures and courts have struggled with the question of the constitutional status of other forms of religious speech in public schools.

One such challenge was Chandler v. James. In 1993 Alabama enacted Ala. Code § 16-1-20.3(b), permitting "non-sectarian, non-proselytizing student-initiated voluntary prayer" in public schools. A public school vice-principal, and his son, a public school student, claimed that the law violated the Establishment Clause of the First Amendment. U.S. District Judge Ira De Ment agreed. He enjoined enforcement of the statute and appointed a monitor to oversee compliance with the injunction. 958 F. Supp. 1550, 985 F. Supp. 1062.

Not surprisingly, the 11th Circuit affirmed that part of the injunction that forbade schools to aid or abet religious activity. The court reversed, however, the part of the injunction against schools' "permitting . . . all prayer or other devotional speech in situations which are not purely private, such as aloud in the classroom, over the public address system, or as part of" school-related events. The appeals court said the injunction improperly "require[d] school officials to forbid students or other private individuals" to take such actions.

In reversing this part of the injunction the court quoted the Supreme Court's post-Lee v. Weisman statement in Capitol Square Review and Advisory Bd. v. Pinette, 515 U.S. 753, 760 (1995), that "[p]rivate religious speech, far from being a First Amendment orphan, is as fully protected under the Free Speech Clause as secular private expression." The court also recognized, however, that the state may not use private parties as "surrogates to accomplish what the State may not do" by, for example, delegating to them power to require others to recite prayers. Nor may the state let private parties speak but limit their speech to prayer. Rather, "government must be neutral with respect to religion." When government maintains a "sphere . . . open to ideas and symbols representing nonreligious viewpoints, culture and ideological commitment, to exclude all those whose basis is `religious' would profoundly distort public culture."(3) Such an exclusion, as the court put it, "implies . . . an unconstitutional disapproval of religion."

The court then said: "The real issue is what sort of time, place and manner limits may be imposed upon genuinely student-initiated religious speech in schools?" It noted that "religious speech may constitute state action if the State participates in or supervises the speech. . . . Therefore, student religious speech must be without oversight, without supervision . . ."

Yet, the court continued, a student may not "us[e] the machinery of the state as a vehicle for converting his audience. . . . The Constitution requires that schools permit religious expression, not religious proselytizing," which the court called "inherently coercive." In this case the record revealed "many sincere, but unconstitutional efforts by school personnel to do just what the injunction prohibits — to endorse, encourage, or participate in student religious activity. For this reason, the appointment of a monitor by the district court was not an abuse of discretion."

Chandler is, as far as it goes, a major victory for religious liberty. It threw out a lower court injunction that grossly violated freedom of religion and speech. Under that injunction prayer was the only prohibited form of speech. If in a class discussion of a disaster a student said "I pray for the victims," the school would have had to impose a serious penalty in order literally to obey the court order. If students were given free time to engage in nondisruptive activities of their choice, teachers would have had to single out prayer for prohibition and monitor students for compliance.

On the other hand, the decision has consequences that will not please some advocates of religious expression in the public sphere. As the court made clear, school officials must permit atheistic as well as religious speech. Moreover, religious speech includes faiths that are strange or even offensive to most Americans. Thus schools must treat witchery and devil worship equally with mainstream Judaism and Christianity. Further, when religious speech is permitted, nonreligious speech must also be allowed. Thus if students are permitted to say prayers, they must also be allowed to make political or other non-religious statements. [See Carl Esbeck's essay in this issue for a critical analysis of what he maintains is a false analogy from religious to non-religious expression. _ Ed.]

A sour note in Chandler is the prohibition on proselytizing. This ban requires schools to draw a line, presumably in published rules, between prayer and proselytizing and to monitor compliance with these rules. Since any enthusiastic profession of faith may be deemed proselytizing, the line is so vague as to be hard to draw and enforce. But the reason for the bar is unclear. Certainly schools can and should forbid verbal harassment: students (and school employees) should not persist in any proselytizing — either political, religious, or otherwise — if someone makes it clear that he wants it to stop. But there is no constitutional objection to proselytizing students who welcome it.

A bigger problem is an issue the court left open: Where is the line between merely permitting religious speech and aiding or endorsing it? May schools have students vote on who can speak on school loudspeakers, even though that may limit the messages to a narrow range? Can school officials place any neutral restrictions on the content of speech, religious or other, such as forbidding expressions of hatred, racism, or criticism of other religions?

These questions raise another, fundamental, question: May schools forbid all vocal prayer? Suppose some students demand a few minutes for group prayer during the school day. They ask school officials to select the time, but say they will choose their own time if the school does not do so. May a school forbid the group to pray at any time? The 11th Circuit was right to leave these questions to be handled by the district court subject to appeal. The result, though, will be uncertainty and friction among students, school officials, and the district judge.

Courts have long been badly divided over the constitutional status of prayer in public schools. Some, like the district court in Chandler, have perversely construed the First Amendment to require discrimination against religious speech. The 11th Circuit's decision in Chandler is so sane and well-reasoned that it should help to end this distortion of the Constitution. That decision leaves unresolved, however, innumerable questions about how religious neutrality is to be defined and maintained.

1. Schott-van den Eynden Professor of Law, Case Western Reserve University School of Law.
2. 2505 U.S. 577 (1992).
3. Quoting Michael W. McConnell, Religious Freedom at the Crossroads, 59 U. Chi. L. Rev. 115, 189 (1992).