School prayer has been an issue facing school districts for decades, especially when it comes to before or after sporting events. Cases have arisen in the lower courts in which public school educators or students have wanted to pray in various contexts and, as a result, the courts created a reasonably helpful — albeit far from perfect — set of tests and factors to be considered to determine when praying on school property is appropriate. Until June 2022, the law was reasonably clear, but due to pressure from various sources, school administrators are now grappling with the issue.
Frank S. Ravitch is a professor of law and the Walter H. Stowers Chair of Law and Religion at Michigan State University’s College of Law, where he also directs the Kyoto Japan Program. He is a world-renowned law and religion scholar and has studied how the First Amendment applies in school settings. Ravitch answers questions on the balance of school prayer and what the First Amendment protects.
Answers are excerpts from an article originally published in The Conversation.
Question: What is the history of previous rulings?
Answer: Prior to the 1960s, public school prayer was common in some states, and it was connected to significant discrimination against Catholics and other religious groups. Several state courts held that public school prayer violated state constitutions by favoring one religion over others. Still, in many states the practice continued until 1962 and 1963, when the U.S. Supreme Court ruled that school-sponsored classroom prayer and Bible reading violates the First Amendment of the U.S. Constitution. Contrary to assertions made by modern school prayer advocates, however, this does not mean students can never pray in schools. Students have a constitutionally protected right to say private prayers and the school cannot interfere with this unless the prayer how infringes on the rights of other students.
A good way to view the distinction is through the example of a group of devout students who want to say grace before lunch in the school cafeteria. These students would have the right to do so individually or as a group at the same table or area. They would not have the right, however, to go to the front of the cafeteria and do it, thus interfering with other students’ lunchtime. Nor would the school be able to have a student do so. Or at least that is the understanding based on every Supreme Court precedent from 1962-2022.
In June 2022, the Supreme Court decided that a public school football coach could pray at the 50-yard line right after games. In that case, because the coach prayed after the game at a time when players and coaches were free to do what they wanted before heading to the locker room, the primary issue was about freedom of speech when the speech is religious. The court treated the coach’s prayer as private speech with which the government cannot interfere under the Free Speech Clause and the Free Exercise Clause of the First Amendment without meeting strict requirements. Yet, for some reason the court decided to also use the case as an opportunity to overturn nearly fifty years of precedent under the Establishment Clause, including precedent relevant to school prayer. That case has been highly criticized, and the Supreme Court did not explain the impact of the decision for other situations such as school prayer in classrooms or school events, which had been addressed in several earlier cases.
Q: What are the constitutional issues at hand?
A: Freedom of religion was important to the framers who wrote the U.S. Constitution. That’s why the First Amendment contains two separate provisions dealing with religion: the Establishment Clause and the Free Exercise Clause.
The Establishment Clause forbids the government from “establishing” a religion. That is, the government cannot set up a religion, promote or favor one religion over another or — at least until June 2022 — endorse one religion over others or over nonreligion.
The Free Exercise Clause states Congress cannot make a law that prohibits the “free exercise” of religion: As citizens, we have the right to follow the practices of the religion of our choice. The government, generally, cannot interfere with how we practice our religious beliefs, within reason, and cannot force citizens to practice religion.
Q: What can students do if they want to practice religion in school?
A: Students do have the right, within limits, to pray in school. But a student’s right to pray cannot interfere with the rights of other students. As explained above, if a student wants to say grace before meals or pray before a class or between classes, that is protected by the Constitution.
Moreover, if a student wants to say a silent prayer anytime, including in class — before taking an exam, for instance — that’s their right. The Constitution doesn’t restrict private thought. Many states have interpreted their constitutions, or passed laws, to require schools to work with students so they can practice their faith and still meet class requirements.
But what about students who need accommodation to pray during the school day? If a rule or law applies the same to everyone, the Free Exercise Clause does not require a state or a public school to make exceptions to accommodate someone’s religious practices, according to the Supreme Court.
Most public school students who need an exception will usually get one either because the school chooses to accommodate them or because the state has passed a religious freedom restoration act (or interprets the state constitution) to require accommodations for religious practices that are substantially interfered with by general laws or rules. In most schools, a devout Jewish student who needs to pray three times a day facing toward Jerusalem, or a Muslim student who prays five times a day while facing toward Mecca, will be allowed to do so. They might get a short break during class, for example, or a class schedule that allows time outside of class for prayer.
Q: When can the government’s interests prevail?
A: Sometimes a state — or a public school — will have a “compelling interest,” that is, a really strong reason, for telling people they can’t follow their religious beliefs. For example, the state’s interest in making sure a seriously ill child receives medical care is a strong enough reason to deny the free exercise rights of parents who believe seeking medical attention is against God’s will, even if it means their child dies.
Even when there is a really good reason for a law or rule, the state — or the school — must show there isn’t some other way of getting the same result that doesn’t have as big an impact on a religious practice. For example, if the parents object to only one form of medical treatment based on religion, but there is another treatment that could help their child equally well, the state could not interfere.
Therefore, religious students who need accommodations will usually be able to get them, but those accommodations cannot violate a compelling government interest unless there is no other way for the government to meet that interest without interfering with the religious practice.
Q: How does the type of school affect school prayer policy?
A: To be clear, the First Amendment of the Constitution applies to actions by the government. Because public schools are funded by the state, their actions are viewed as state actions. Private schools do not usually receive direct state funding, so the requirements of the First Amendment do not apply to most private schools. This is why, for example, a Catholic school can require all students to attend Mass.
