Fla. ‘school prayer’ bill seems redundant

Friday, March 2, 2012

WASHINGTON — The so-called “school prayer” bill passed by the Florida Legislature yesterday appears to be aimed at urging public schools to do what they already may do under current law.

In 2001, the 11th U.S. Circuit Court of Appeals in Adler v. Duval upheld a Florida school district’s policy that gave a forum for student speech within a graduation ceremony when prayer or religious speech might occur.

Then in 2003, guidance from the U.S. Department of Education on “constitutionally protected prayer” followed that model. According to the DOE, “where student speakers are selected on the basis of genuinely neutral, evenhanded criteria and retain primary control over the content of their expression, that expression is not attributable to the school and therefore may not be restricted because of its religious (or anti-religious) content.”

Many advocates of a strong separation of church and state argue that even under the circumstances described by the DOE guidelines, student prayers at school-sponsored events are still government prayers — and therefore unconstitutional. But in the 11th Circuit, at least, it appears legal for student speakers to offer a prayer — if they retain “primary control” over their speech.

Advocates of prayers at school events in Florida and elsewhere see the 11th Circuit decision (which the U.S. Supreme Court declined to review) and the DOE guidance as openings to advance their cause. Texas, Tennessee and other states have passed laws that instruct school districts to let students (chosen by neutral criteria) say what they want. The Florida legislation attempts to follow the outlines of what already can be allowed under current law.

Of course, legislators understand that this “free speech” forum is a risky business. By creating a limited open forum for student speech, the school may have to accept almost anything a student wishes to say. That’s why in Texas, the Legislature specified the pool of students from which speakers could be drawn (sports team captains, student government leaders, etc.) — a limitation of dubious constitutionality.

Florida lawmakers are hedging their bets by specifying “inspirational messages,” no doubt in the hope that the selected students will take the strong hint and say a prayer. Whether the courts will agree that requiring that the speech be “inspirational” is truly a forum for free student expression — or a ruse to get prayer back at school events — remains to be seen.

The bill, S.B. 98, went to Gov. Rick Scott yesterday.

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