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a journal of analysis and comment advancing public understanding of religion and education
(more on the Journal)

Vol. 30 No. 2  Fall 2003

Religion and Public Schools:
A Forty Year Retrospective

Charles J. Russo

Introduction

Keeping in mind that the First Amendment was added to the Constitution as part of the Bill of Rights in 1791, it is worth noting that judicial interpretation of the Establishment Clause, especially with regard to religion and public education, has a relatively short history. In fact, the Courtís 1947 ruling in Everson v. Board of Education (Everson), under which it upheld a statute from New Jersey that permitted local school boards to reimburse parents for the cost of transporting their children to non-public schools, was its first case on the merits of the Establishment Clause.

Prior to Everson, the Court resolved its few cases on religion and education, however broadly interpreted, on the basis of the Fourteenth Amendmentís Due Process Clause, dealing with the deprivation of property, rather than the Establishment Clause. Following Everson, the Court went through a lengthy period during which it interpreted the Establishment Clause as prohibiting governmental aid to religious schools other than transportation or text books. However, in Zobrest v. Catalina Foothills School District, wherein it reasoned that a deaf student was entitled to the services of a hearing interpreter on-site in his Catholic high school in Arizona, the Court signaled a shift in its attitude toward aid. In the interim, the Court permitted the on-site delivery of Title I services for poor children in New York City who attended religiously affiliated non-public schools in Agostini v. Felton and in Zelman v. Simmons-Harris upheld the use of vouchers to permit parents of poor students in Clevelandís failing public schools to use vouchers to send their children to the non-public schools, all of which are religiously affiliated, of their choice. This very brief overview of the Courtís extensive history of dealing with aid to religious schools serves as an introduction to the topic of this article, prayer and religious activities in public schools because the judicial tests in such disputes often overlap.

While the Courtís attitude with regard to aid has varied, there is no appreciable shift in its stance toward prayer in the schools, having largely adhered to the Jeffersonian metaphor calling for a "wall of separation between church and state," language that does not appear in the text of the constitution, since 1962. Put another way, since its first case on prayer in schools, Engel v.Vitale, the Court has consistently prohibited school sponsored prayer and religious activities in public schools. At the same time, recognizing that religious speech is a subset of free speech, the Court has softened its restrictions, notably in terms of student led activities in schools and granting access to school facilities by outside groups.

At the outset, as with most issues that come before it, it is important to recognize that the Supreme Court is highly fragmented into three distinct camps with regard to the place of religion in schools. At one end are the accommodationists, Chief Justice Rehnquist and Justices Scalia and Thomas, members of the Court who do not believe in an absolute separation of church and state and who consistently vote in favor of permitting prayer and religious activity in public school. At the other end are the separationists, Justices Stevens, Ginsberg, Souter, and Breyer10  who vote to exclude religious activities in public schools. In the middle are the two moderate or swing votes, Justices OíConnor and Kennedy. These Justices have reached mixed results with regard to religious activity in school settings. For example, Justice OíConnor joined Justice Kennedyís majority opinion in striking down graduation prayer in Lee v. Weisman11  and both joined the Courtís majority in Santa Fe Independent School District v. Doe,12  invalidating student led prayer before high school football games. Yet, both Justices joined the majority in Good News Club v. Milford Central School13  wherein the Court upheld the right of a Christian club to meet in public school facilities after hours since secular groups had access to do the same.

In light of the many issues associated with prayer and religious activities in schools, the remainder of this article is divided into five sections. The first section examines school sponsored prayer and activity in the schools. The second part reviews moments of silence. The third section considers student sponsored activities. The fourth part looks at access to school facilities by religious groups. The fifth section reflects on the place of prayer and religious activities in schools. The article rounds out with a brief conclusion.

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