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John Whitehead's Commentary

Does Religious Speech Have a Prayer in Our Schools?

John Whitehead
On Thanksgiving Day, two great American traditions are on display in homes across the country. First, many families give thanks for God's blessings on this country over the past 200 years. Then, stuffed with turkey and mashed potatoes, they settle down on the couch to watch football games.

Prayer and football--two observances that are just as American as mom and apple pie. But a controversy is currently brewing before the Supreme Court over whether the two should mix in public schools.

The dispute comes out of Santa Fe, Texas. The Santa Fe Independent School District allows students to vote for one of their peers to deliver a prayer before the weekly high school football game. But several people took offense to the practice and filed a lawsuit, claiming that the prayers are a violation of the Establishment Clause of the First Amendment, the source of the so-called wall of separation between church and state.

A federal appeals court agreed. This same court had previously found that prayers at graduation were constitutional as long as they were student-initiated, saying they served a secular purpose because they tended to "solemnify" the occasion. Since football games don't need solemnification, the judges ruled in Doe v. Santa Fe Independent School District that prayers in that context were not constitutional.

The Supreme Court has agreed to review this decision. The justices now have a unique opportunity to affirm the free speech rights of religious students in public schools.

Free speech is the crucial constitutional right at stake in this case. Students are completely in control of the prayers. However, critics point out that the government is providing the microphones, the stadium and paying the electric bill for the lights. But the government has absolutely no control over the content of the student's speech. To do so would be a form of government censorship.

A long line of cases support this position, including the famous 1969 Tinker decision. In this case, two high school students and one junior high student were suspended from school because they refused to remove black armbands they wore in protest of the Vietnam War. The Supreme Court held that school officials could not censor this expressive speech just because they disagreed with it.

A familiar argument against prayer at football games is that those attending are a captive audience and may be offended. Carole Shields, president of People for the American Way, puts it this way: "There is really no benefit to giving fans the impression that they must accept a particular religious viewpoint in order to be a part of the team."

But the classmates of the protesting students in Tinker were just as captive an audience as the crowd at a football game. There the Supreme Court realized that free speech rights are more important than individual sensibilities.

By permitting student-initiated free speech, the public schools are actually enforcing the constitutional mandate of government neutrality toward religion. It is not the permitting of religious speech that dooms school policies; rather, it is the requirement that the speech be religious. In the Santa Fe case, the school is merely permitting students to speak religiously.

Clearly, the suppression of student-initiated religious speech does not achieve neutrality toward religion. In fact, it sends the opposite message of hostility. As one federal appeals court recently said: "'Cleansing' our public schools of all religious expression ... inevitably results in the 'establishment' of disbelief--atheism--as the State's religion.... [I]t cannot be the case that government may prefer disbelief over religion."

Over the past year, our nation's schools have been rocked by acts of senseless violence. This has sparked a national debate over how best to communicate a sense of meaning and value to American students. At the heart of this discussion is a growing sense that religion has too long been left on the sidelines in public education.

This isn't to say that we should allow preachers in the classroom. The Constitution does have its limits. But there is a place for the moral values and fundamental ethics that religion teaches us. And making a place for the school students to speak about religion fosters an atmosphere of freedom that could benefit believers and nonbelievers alike.


Constitutional attorney and author John W. Whitehead is founder and president of The Rutherford Institute. His new book Battlefield America: The War on the American People  (SelectBooks, 2015) is available online at Whitehead can be contacted at

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