Rep. Newt Gingrich's call for a constitutional amendment to allow prayer in public school has rekindled the smoldering debate over this issue. The resulting conflagration on Capitol Hill will burn up much time, money, and political capital as religious and nonreligious constituents vent their passions in letters, lobbying, and legal analyses.
The process leading to a vote promises to divide believers and generate more heat and smoke than light. So the end product needs to be worth the investment and the risk. A clarification of students' rights to all forms of religious expression would be worth the fight; an amendment simply permitting audible prayer in the classroom would not.
Revising the Bill of Rights sets a potentially dangerous precedent. Yet if school officials persist in their disrespect for, and outright denial of, student religious expression, such a drastic measure may be called for. Too many teachers, administrators, and lawyers adhere to the insidious notion that the First Amendment's prohibition on establishment of religion requires them to keep their schools "religion-free." In many schools, that means no singing of religious songs at choir concerts (there go most of the classics), no sharing of religious literature on campus, and no wearing of T-shirts with a religious message. All too frequently, principals and school boards deny student Bible clubs' request for meeting space, despite the ten-year-old federal statute that expressly guarantees equal access to campus facilities. The time has come for an amendment to stop this foolishness.
PROTECT ALL STUDENT RELIGIOUS EXPRESSION
So what should a constitutional solution look like? It should primarily be a restoration (rather than a modification) of First Amendment law. The Free Speech and Free Exercise of Religion clauses of the Constitution already provide some protection for student religious expression in public schools. Yet school officials sometimes conclude that the Establishment Clause "trumps" those other freedoms and legitimizes suppression of religious speech. Any proposal should address this bankrupt analysis and educate school officials about what the Establishment Clause actually permits and protects.
Give credit to Rep. Ernest Istook (R-Okla.) for focusing much-needed national scrutiny on student religious speech, an overlitigated, underexercised civil liberty on today's campuses. However, his proposed language goes both too far and not far enough. It should clarify that student prayer (at least outside compulsory classroom time) is a constitutional right. By stating that "[n]othing in this [federal] Constitution shall be construed to prohibit individual or group prayer in public schools," the proposal does not prevent courts from concluding that state constitutions do prohibit prayer in schools. Even the most resolute advocate of states' rights would concede that free speech is not a privilege that should be at the mercy of state or local law.
The Istook proposal is also underinclusive; it should protect all student religious expression, not just "individual and group prayer." Thankfully, because he is interested in crafting a useful tool, Rep. Istook is open to considering broader language. If we are going to take the serious step of amending the Constitution, we ought to help students who want to share their faith with other students, to pray at their graduations, to include religious content in their homework assignments, and to set up Bible clubs.
These issues have tied up Christians in courtrooms nationwide for decades, and a constitutional amendment not limited to the "prayer issue" could put most of them to rest. America's schools could redirect taxpayers' dollars from legal fees to education. And future generations would start learning firsthand the correct civics lesson: that religious expression by students is protected (not prohibited) speech, in and outside the classroom.
Finally, there is the question of audible student prayer during class, which the current Istook proposal would allow. From the vantage point of the Golden Rule, it is undesirable. A lone Baptist student in a mostly Mormon classroom in Salt Lake City would quickly come to empathize with the Jewish pupil surrounded by Southern Baptists in Tennessee. True, both would learn more about the majority faith (at least how they pray). But do we want elementary school children getting the message that their faith is unacceptable and foreign to their classmates? The fact that a student could walk out of class will neither deflect the stigma nor ameliorate the coercive, indoctrinating nature of this exercise. The student of the minority faith—which increasingly could be your child—will have three choices: insult her classmates and teacher (and embarrass herself) by leaving the room, plug her ears and try to pray her own prayer, or else listen to others' prayers every day for 12 years of public schooling.
If the teacher were permitted to "organize" the prayer time (Protestant prayers on Monday, Jewish prayers on Tuesday, New Age or Hindu mantras on Wednesday, etc.), then the government would be fostering the myth that all paths lead to the same Place or Deity, and students would see their constitutional right evaporate into a once-a-week window. Official, daily, audible prayer in the classroom should not be part of any amendment to the Constitution.
The incoming House leadership floated the current proposal with little prior input from evangelical Christians. If such input had been solicited, most individuals and organizations concerned about religion in the public schools would have targeted all the barriers to robust student expression of their faith and witness. There is still time to think carefully and cooperatively. A sober respect for the foundational document they propose to amend requires no less.
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Steve T. McFarland is director of the Center for Law and Religious Freedom, the legal advocacy and information arm of the Christian Legal Society, Annandale, Virginia.
Copyright (c) 1995 CHRISTIANITY TODAY, Inc./CHRISTIANITY TODAYMagazine
