Religion in Public Schools (Update 2)

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The place of religion in public schools has been the subject of significant controversy in America for well over a century. A number of different issues related to this general subject have come to the fore in recent years. First, the question of publicly sponsored worship exercises in public schools has remained prominent. In 1998, the U.S. house of representatives defeated a proposed constitutional amendment that, if enacted, would have legalized state-sponsored worship in public facilities, including schools. In lee v. weisman (1992), the Supreme Court ruled that the establishment clause prohibited officially sponsored prayer at public middle school commencement ceremonies. Although the ruling in Lee clearly extended to all public schools through and including high school, many state universities have continued to have prayer at commencements. For those who believe that the primary focus of the establishment clause is to forbid state coercion on matters of religion, the age and maturity difference between university graduates and younger students may be sufficient reason to permit state universities to do what lower schools may not. A broader view of nonestablishment, focusing on the dangers of government sponsorship of religious exercise, would suggest that state university commencement prayers are no less unconstitutional than their counterparts at high school or below.

Another issue that followed in the wake of Lee is whether schools may arrange to have students decide whether to have student-led prayers at commencement. Although lower courts have divided on this question, most have held that school officials are responsible for the content of graduation ceremonies, and that official initiation of student-led prayers at commencement is also unconstitutional. Whether student speakers acting entirely on their own at commencement may engage in worship is a more difficult question, although words of personal spiritual commitment would be a constitutionally safer course than a student-led prayer involving the entire class or audience.

The issue of student-initiated prayers is connected to a larger question about student religious expression at school. Although student worship as an official part of the program at school-sponsored public events (athletic events and assemblies as well as commencements) is constitutionally questionable, much student religious expression in public schools is private rather than government speech and is therefore perfectly permissible. So long as religious speech by students is not school-sponsored, and does not constitute harassment of others, there are no grounds to suppress the speech simply because it occurs on school property. Of course, what constitutes school sponsorship, and what amounts to harassment, are frequently open to debate and controversy. School sponsorship implies active support, rather than a passive refusal by school officials to censor the speech. Harassment, too, requires more than trivial annoyance or an atmosphere of discomfort for some caused by the religious practices of others; for student religious speech to constitute harassment, ordinarily it must be personally hostile toward a particular individual or group.

Constitutional tolerance for private religious speech on school property extends beyond students in the years of compulsory education. In lamb ' schapelv. center moriches union free school district (1993), a unanimous Supreme Court held that school officials could not exclude a community-based religious group from access to school property for evening meeting space permitted to other community groups. In a more controversial decision, a closely divided Court in rosenberger v. rector & visitors of the university of virginia (1995) held that the university could not exclude a student-written journal of religious opinion from a program, financed by student fees, designed to subsidize the printing costs of student journals generally. Justice david h. souter'sdissenting opinion in Rosenberger argued strenuously that the subsidy involved taxation to finance the publication of proselytizing religious messages, which he deemed forbidden by the establishment clause. Both Lamb's Chapel and Rosenberger represent the Court's continued rejection of government reliance on the establishment clause as a reason for permitting discrimination against private religious expression on government property, including schools.

In a different twist on religion in the public schools, the Court's decision in board of education of kiryas joel village school district v. grumet (1994) invalidated the New York legislature's attempt to create a public school district in a community populated entirely by a group of Satmar Hasidic Jews, who live according to traditional European Orthodox Jewish folkways. The legislature had created the district so as to permit public financing of a school for learning-disabled children in the village; all other children in the village attended private Hebrew academies. Despite the attractiveness of this objective, the Court treated the law that set up the district as a form of sectarian religious favoritism, which the Constitution forbids. The need for the special district evaporated with the Court's decision in agostini v. felton (1997), which over-ruled a prior decision that had forbidden publicly financed remedial teaching of religious school students on religious school premises. As a result of Agostini, the village of Kiryas Joel no longer needs a public school district within its borders; it may now obtain state support for teaching learning disabled children at the sites of the religious academies in the village.

Ira C. Lupu

(see also: Accommodation of Religion; Establishment of Religion; Government Aid to Religious Institutions; Religion and Free Speech; Religious Diversity and the Constitution; Religious Liberty; School Prayers.)


Lupu, Ira C. 1996 Uncovering the Village of Kiryas Joel. Columbia Law Review 96:104–120.

Paulsen, Michael S. 1993 Lemon Is Dead. Case Western Reserve Law Review 43:795–863.

Sherry, Suzanna 1992 Lee v. Weisman: Paradox Redux. Supreme Court Review 1992:123–153.

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Religion in Public Schools (Update 2)

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Religion in Public Schools (Update 2)