Capital Commentary is the weekly current-affairs publication of CPJ, written to encourage the pursuit of public justice.

Public Schools, Prayer and Creatures of the State



July 3, 2000

In Pierce v. Society of Sisters (1925), the Supreme Court ruled that children could not be forced to attend a public school. The child is not a "mere creature of the state." Since then the precise extent to which public school children are creatures of the state has been up for grabs. But not any longer. In June, the Court ruled in Santa Fe v. Doe, that not only are prayer and other religious expressions outlawed for government employees—teachers, administrators, and coaches—but for students as well, even voluntary prayer during voluntary extracurricular activities.

In 1995, the school board of the Santa Fe (Texas) School District decided "to permit students to deliver a brief invocation and/or message to be delivered during the pre-game ceremonies of home varsity football games to solemnize the event, to promote good sportsmanship and student safety, and to establish the appropriate environment for the competition." The students would hold an election to determine if the students wanted to deliver such a message or invocation. If they so decided, they would hold another election to pick the students to give the address from a list of volunteers. The Court determined that by permitting a student to give this message/invocation, the school district would "endorse" it, thereby establishing religion in violation of the First Amendment.

Because many think that public schools are repositories of "community values" and not really a "department of state," they often object when public schools are called "government schools." But public school teachers, coaches, and administrators have been forbidden to do things their independent school counterparts are perfectly free to do because the former are government employees. This decision should evaporate any lingering doubts about public schools being departments of state. As Justice Stevens says in the decision, "The Santa Fe Independent School District is a political subdivision of the State of Texas."

It will do no good to bemoan the fact that, as Chief Justice Rehnquist said in his dissent, Stevens' opinion "bristles with hostility to all things religious in public life." True enough, but Santa Fe merely extends the logic of forbidding "religious expression" in govern-ment-run schools from employees to students. All official school-sponsored events, whether curricular or extracurricular, voluntary or required, are in fact, government-run events, including football games and their attendant pre-game ceremonies. After all, the Court reasoned, the public address system is government-owned as are the uniforms worn by players and cheerleaders. It follows quite reasonably that the game is a government-sponsored event and official participants, including students, are representing the government. They are creatures of the state.

Accept the undeniable premise that a public school is a department of state and the subsequent logic is impeccable. Just as it is illegal for a teacher to lead her class in prayer or worship, or to allow a student to do the same, so it must be illegal for the school's football coach (as a state employee) to lead his team in prayer before a game, or to permit one of his players to do so. And just as it would be illegal for an administrator or teacher to offer an invocation during pre-game ceremonies, it must be illegal to allow a student to give such a message.

Of course, the state allows students to pray and express themselves religiously in private. And thanks to Pierce, parents can always opt for a non-government ("private") school. Meanwhile, government ("public") schools and the resultant secularism are privileged (established) by state funding. That's one injustice.

Can't afford an independent school? Too bad. You'll have to settle for being a creature of the state. That's the second injustice!

School choice, anyone?

—Keith Pavlischek, Fellow
   Center for Public Justice


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Capital Commentary is a weekly current-affairs publication of the Center for Public Justice. Published since 1996, it is written to encourage the pursuit of justice. Commentaries do not necessarily represent an official position of the Center for Public Justice but are intended to help advance discussion. Articles, with attribution, may be republished according to our publishing guidelines.”