Few constitutional issues have generated as much public controversy, and as much confusion, as the question of prayer in public schools. The Supreme Court's 1962 decision in engel v. vitale concerned an official prayer that had been composed by a group of politically appointed officials, the New York State Board of Regents. The defendant school district required every school principal to direct that the Regents' prayer be recited in unison in every classroom at the beginning of each school day. The Court held that even though individual students were permitted to abstain from participating in the recitation, the program violated the establishment clause because it "officially establishe[d] the religious beliefs embodied in the Regents' prayer."
One year later the Court applied the principle of Engel to religious readings selected by public officials. Laws in Pennsylvania and Baltimore required every public school to begin each day with the reading of verses from the Holy Bible and group recital of the Lord's Prayer. Students were permitted to be excused from participation upon written request of a parent or guardian. In abington township school district v. schempp, the Court held that these programs also violated the establishment clause, which the Court interpreted to preclude actions by state or federal governments that had the purpose or primary effect of either advancing or inhibiting religion. The Court noted that while the first amendment permitted the study of the Bible or religion as part of its program of education, it did not permit government to organize devotional religious exercises. The fact that the particular devotionals had been selected by government officials, rather than composed by them as in Engel, was not a difference of constitutional import.
The school prayer and Bible reading decisions sparked a substantial public outcry, and repeated, unsuccessful efforts were made to overturn the decisions by amending the Constitution. The decisions were misinterpreted by some to mean that even the utterance of a private prayer by an individual student while at school was unconstitutional. What the establishment clause actually prohibited was action by government officials that endorsed or inhibited religion, and not religious activity initiated by students and not encouraged or promoted by school officials.
As subsequent decisions would make clear, the Court had never held that prayer itself was necessarily precluded in public schools or other public buildings, as long as the prayer resulted wholly from the private choice of individual citizens. Although the Court in wallace v. jaffree (1985) invalidated an Alabama law providing for a moment of silence "for meditation or voluntary prayer," a majority of the Court strongly suggested that some laws providing for a moment of silence would be constitutional. Alabama had previously enacted a statute, sustained by the lower court and not challenged before the Supreme Court, which authorized a one-minute period of silence for meditation. The new statute before the Court in Jaffree added "prayer" as an expressly approved activity. Because students were provided an opportunity to pray under the earlier moment-of-silence statute, the new law's only additional purpose appeared to be "the State's endorsement and promotion of religion and a particular religious practice." This, the Court held, crossed the line into impermissible endorsement by the government. A majority of the Justices indicated, however, that they would sustain moment-of-silence laws that did not expressly single out prayer as one of the officially preferred activities.
When a statute creates an open, undesignated silent time, government itself has not undertaken to favor or disfavor religion. The seemingly trivial addition of the words "for prayer" to a moment-of-silence law crosses the line of constitutionality precisely because it is unnecessary to the goal of creating an opportunity for students to choose to pray. If a simple moment of silence is created at school, parents and religious leaders may, if they wish, suggest to their children or parishioners that they use the moment of silence for prayer. Expressly providing in the state's code of laws that "prayer" is a designated activity unnecessarily takes the state itself into the improper business of official endorsement and promotion of a religious exercise.
Ideally, a simple moment of silence is functionally a one-minute open forum which each student can fill as she chooses. Implementation of such a policy in a truly neutral fashion is, however, difficult in practice. The facts of some lower court cases suggest that teachers and school officials in some districts have encouraged or coerced students to pray during the silent moment. Teachers may appropriately ask students to remain quiet for the moment of silence; if teachers suggest or insist that students pray or adopt a prayerful attitude, they have invoked the authority of the state for an impermissible end.
The Court has also used the concept of the open forum to permit students at school to engage in spoken, group prayers as long as the religious activities are not encouraged, endorsed, or promoted by government or school officials. In widmar v. vincent (1981), the Court held that a state university that allowed a wide range of voluntary student activity groups to meet in university facilities was not required by the establishment clause to deny access to student-initiated religious clubs whose meetings on school property included prayer and other devotionals. Indeed, such clubs had a free speech right of equal access to the school's facilities on the same basis as volunteer student groups engaged in other speech activities. In board of education of westside community schools v. mergens (1990) the Court sustained the federal Equal Access Act that extended this principle to public secondary schools. The act provides that when a public school creates a "limited open forum" by allowing student-initiated, noncurriculum groups to meet at the school, it may not deny access to the school for meetings of other student-initiated groups on the basis of the "religious, political, philosophical, or other content of the speech at such meetings." One effect of the act is to give student religious clubs (whose meetings may include prayer) the same right to meet on campus as other noncurricular, student-initiated organizations like the chess club or the Young Democrats.
Even though many in the public remain unreconciled to the original school prayer and Bible reading decisions, and even though some recent decisions suggest that the Supreme Court is becoming more tolerant of some governmental promotion of religion, it seems unlikely that the Court's original decisions will soon be overturned either by the Court or by constitutional amendment. The constitutional principle remains for now, as it was when Justice hugo black wrote for the Court in Engel : "it is no part of the business of government to compose official prayers for any group of the American people to recite as part of a religious program carried on by government."
Dellinger, Walter 1986 The Sound of Silence: An Epistle on Prayer and the Constitution. Yale Law Journal 95:1631–1646.
Laycock, Douglas 1986 Equal Access and Moments of Silence: The Equal Status of Religious Speech by Private Speakers. Northwestern University Law Review 81:1–67.