New legal guidance from the Department of Education on “constitutionally protected prayer” in public schools drew praise last week from religious conservatives. But some school lawyers and advocates of strict church-state separation argued that some of the guidelines go beyond settled law.
“Guidance on Constitutionally Protected Prayer in Public Elementary and Secondary Schools,” is available from the Department of Education. (Requires Adobe’s Acrobat Reader.)
“They are really pushing the envelope on religion in public schools,” Joseph Conn of Americans United for Separation of Church and State, said of the department’s guidelines.
The guidance was issued Feb. 7 by Secretary of Education Rod Paige, who was required to do so as part of the “No Child Left Behind” Act of 2001. “Public schools,” Mr. Paige said in a letter to educators announcing the legal advice, “should not be hostile to the religious rights of their students and their families.”
The guidelines discuss nine specific situations involving religious expression in public schools that have led to debate, and lawsuits, in recent years. For example, the guidance says schools should not bar students from saying grace before meals or reading personal Bibles during lunch or other noninstructional times.
Consensus exists among legal experts that school administrators sometimes go too far in limiting student religious expression.
“School officials tend to err on the side of suppression of religious speech,” said Mathew D. Staver, the president of Liberty Counsel, an Orlando, Fla.-based organization that has sued school districts in religious-expression cases.
Mr. Staver said he was pleased with the department’s guidelines because “they promote neutrality on the part of public schools.”
But other legal experts were troubled by the department’s advice in some areas.
Americans United cited the section on student-initiated prayers at student assemblies and extracurricular events. The department advises that when student speakers are selected using “neutral, evenhanded” criteria, administrators may not restrict religious content in their speeches.
“That’s not clear at all” from various rulings on student-initiated prayers from the U.S. Supreme Court and lower federal courts, Mr. Conn said. “It seems that wherever they felt they could, [the guidance’s authors] leaned in the direction of allowing more religious expression.”
Jay Worona, the general counsel of the New York State School Boards Association, expressed worry about the department’s guidance that students should not be restricted from bringing religious articles to “show and tell.”
“What if a kindergartner starts to proselytize the whole class?” he said. “The guidance suggests school districts can simply disconnect themselves from the message, but I’m not sure that’s possible with very young, impressionable students.”
A Matter of Money
President Clinton’s administration made a similar attempt to help public schools sort through the thicket of religious issues. In 1995, the Education Department issued guidance that covered similar topics. (“President Offers Guidance on Religion in Schools,” Aug. 2, 1995.)
But there is a key difference with the new guidance. Under the No Child Left Behind Act, districts and states receiving federal funds must certify to the department that none of their policies prevents “constitutionally protected prayer in public elementary and secondary schools as set forth in this guidance.” The department could, in theory, withhold federal aid from districts that don’t observe the guidelines.
“There’s an element of intimidation here,” Mr. Conn said. “School administrators are going to have to lean the way the department wants them to lean.”
Mr. Worona said it appears that some districts will face conflicts between the department’s guidance and the prevailing federal court rulings in their areas.
Districts must certify to their states by March 15 that they will abide by the department’s guidance, and then annually by each Nov. 1 after that.