Congress talks prayer in public schools following violence in Colorado

Thursday, May 20, 1999

Since the high school shooting in Colorado, members of Congress have been talking a lot about the role of religion in public schools. But they are mischaracterizing the First Amendment and related legal cases, some observers say.

Earlier this week U.S. senators overwhelmingly approved an amendment to the “Violent and Repeat Juvenile Offender Accountability and Rehabilitation Act.” The amendment states that the First Amendment permits prayer and religious services on public school grounds following the slaying of a student or teacher.

The amendment, introduced by Sen. Wayne Allard, R-Colo., says Congress “finds that the saying of a prayer, the reading of a scripture, or the performance of religious music, as part of a memorial service that is held on the campus of a public school in order to honor the memory of any person slain on that campus, does not violate the First Amendment to the Constitution of the United States, and that the design and construction of any memorial that is placed on the campus of a public school in order to honor the memory of any person slain on that campus, a part of which includes religious symbols, motifs, or sayings, does not violate the First Amendment to the Constitution of the United States.”

Moreover, the amendment notes that if any citizen challenges such public-school religious performances or shrines as violations of the separation of church and state, “the Attorney General of the United States is authorized to provide legal assistance to the school district or other governmental entity” to defend them.

The amendment passed 85-13. Its passage comes only weeks after Rep. James A. Traficant, D-Ohio, told House members that “Littleton is much to do with Congress.” From the House floor, Traficant added that: “A Congress that allows God to be banned from our schools while our schools can teach about cults, Hitler, and even devil worship is wrong, out of touch, and needs some common sense. It is time for Congress to look in the mirror, and it is time for Congress to allow local school boards to make those decisions.”

In defense of his amendment to the juvenile-offenders act, Allard said it merely “empowers the local community and does not tamper with constitutional separation of church and state.”

Rob Boston, assistant communications director for Americans United for Separation of Church and State, said he was “amazed that 85 senators could vote for something this foolish.”

Boston pointed out that it is the judiciary, not Congress, that would ultimately decide whether the First Amendment allows prayer and religious performances on school grounds after the death of a teacher or student. Moreover, Boston noted, the U.S. Supreme Court has already ruled that public schools are not the place for government-sponsored sectarian worship.

In 1948, the high court in McCollum v. Board of Education invalidated an Illinois public school district plan that required students to undergo weekly religious instruction. Writing for the majority, Justice Felix Frankfurter said that “Illinois has here authorized the commingling of sectarian with secular instruction in the public schools. The Constitution of the United States forbids this.”

Explaining the meaning of the establishment clause of the First Amendment, Frankfurter said that “separation means separation, not something less. (Thomas) Jefferson's metaphor in describing the relation between Church and State speaks of a 'wall of separation,' not of a fine line easily overstepped. The public schools (are) at once the symbol of our democracy and the most pervasive means for promoting our common destiny. In no activity of the State is it more vital to keep out divisive forces than it its schools, to avoid confusing, not to say fusing, what the Constitution sought to keep strictly apart.”

Public school-sponsored Bible reading did not get past the high court, either. In 1963 in Abington School District v. Schempp, the court struck down a Pennsylvania law that required “at least ten verses from the Holy Bible shall be read, without comment, at the opening of each public school on each school day.” Moreover, in some Pennsylvania public schools the Bible reading was followed by Christian prayer. In striking down the law, Justice Thomas C. Clark called the actions “religious exercises” by the state “in violation of the command of the First Amendment that the government maintain strict neutrality, neither aiding nor opposing religion.”

Boston says Allard's amendment ignores establishment-clause jurisprudence.

He said that “a major concern with this amendment is that even tragedy does not suspend the Constitution. Public schools are not allowed to sponsor religious worship and are not allowed to erect permanent religious displays.”

Public school teachers, however, are allowed to teach about religion and students are permitted to pray on their own as well as wear religious garb and write about their faith in school assignments. In Abington, Clark noted that “study of the Bible or of religion, when presented objectively as part of a secular program of education,” is constitutionally permissible.

Boston also says that Congress is sending the wrong message to young people. “The amendment sends a misguided message for students who already feel alienated. Adding more sectarian divisions to the public schools is not going solve anything and can only make matters worse.”

Marc Stern, an attorney with the American Jewish Congress, called the Allard amendment “the worst kind of political grandstanding.” Stern said the amendment was in response to criticism of the Protestant-led memorial services that followed the Columbine High School shootings last month.

“There were some complaints that the (post-shooting) prayer meetings at Littleton were slanted and unfair,” Stern said. Allard's amendment attempts to immunize such events and memorials against criticism by calling them constitutional. It is bizarre that Congress would make such a statement and particularly regrettable that it sanctions practices that should not be practiced — that is truly disturbing.”

Stern also added that the amendment improperly “injects Congress into deciding constitutional jurisprudence,” which clearly is not within in its enumerated powers.

Elliot Mincberg, an executive vice president and the legal director for People for the American Way, said that it “was deplorable” of Congress to make a divisive statement after the Columbine tragedy. “Why doesn't Congress do something to unify people after such tragedies? It is very sad that the Allard amendment was one of the out-growths of this situation.”

Mincberg also says that Congress does not have the authority to make findings that certain government-sponsored religious activities do not run afoul of the First Amendment. “If Congress did have such an authority, it could act as a court and legislator in one fell swoop.”

The juvenile-offenders bill, sponsored by Sen. Orrin Hatch, R-Utah, was being debated today on the Senate floor.