The First Amendment protects the right of public school students to pray at school and during school activities and events, as long as those prayers don’t significantly disrupt school activities.
Courts have held that the First Amendment also prohibits school employees from leading prayers, encouraging students to participate or giving the impression that praying is preferable to not praying – or vice-versa.
Courts have even found the overt participation of school employees and representatives in student-led prayer to be unconstitutional.
Recently a national atheist organization,the Freedom From Religion Foundation, sent a letter to the Coweta County School System, alleging that ECHS Head Coach John Small had been leading his players in prayer, in violation of the U.S. Constitution.
The organization cited a video from a recent game, which shows ECHS football players kneeling while three adults, including Small, stand over them with heads bowed. The men have their hands either on players or on each other’s shoulders. One of the adults, not Small, is seen speaking.
After receiving the letter, Coweta School Superintendent Steve Barker asked school board attorney Nathan Lee to put together some information laying out what is and isn’t permissible when it comes to prayer at school activities. Barker met with high school coaches last week, and distributed a memo from Lee to all school principals Monday.
Small was not leading the prayer, according to school officials. Instead, a volunteer community coach was. Though community coaches aren’t paid, they are school representatives and the same rules apply.
The First Amendment’s Establishment Clause, which states that Congress may make no law regarding the establishment of religion, is what is at issue when government employees or representatives are involved in religious activities.
According to Lee’s memo, there are some tests to determine an Establishment Clause violation.
One is coercion. That can mean that a student is required – or feels forced – to participate or not participate in prayer or other religious activity. Broadcasting prayers to a large group, such as using a loudspeaker for prayers at a sporting event, has also been found to be coercion.
The most relevant test in this case is “endorsement.”
Something fails the endorsement test if a school or school representative’s actions could be seen to display government endorsement of religion, and that’s when participation in student prayer can become an issue.
Lee’s memo states that school representatives cannot participate in any student initiated/student led prayer or other worship while acting in their official capacity.
“For instance, they cannot join hands, bow their heads, take a knee or commit another act that otherwise manifests approval with the students’ religious exercise, as least where it would be perceived by a reasonable observer to display government endorsement of religion,” the memo provided by Lee states.
Courts have also ruled that employees don’t have to “make their non-participation vehemently obvious or to leave or flee the religious observance or prayer.”
Finding ‘that middle space’
In fact, fleeing from a religious observance or making non-participation obvious could be seen as government discrimination against prayer, according to Hiram Sasser, general counsel for First Liberty, a nonprofit law firm that defends freedom of religion cases.
Courts have left open some leeway, but it isn’t clearly defined.
“Accordingly, it is best practice to avoid the perception of government endorsement by all employees refraining from any action that may be perceived as endorsement, silent or otherwise,” Lee writes in the memo.
All of the language in the memo comes directly from case law, Lee said.
Lee was specifically asked if bowing one’s head while prayers are going on is really considered a Constitutional violation. Lee said he is not aware of any legal case that covers only that specific action.
“It would be up to a judge to decide whether or not that violates the Establishment Clause,” Lee said Friday.
That matter wouldn’t be settled until it becomes part of a legal case. And a judge wouldn’t rule on it unless the plaintiffs in the case have standing.
First Liberty attorney Sasser said that, in his opinion, only a player at ECHS would have standing to bring a lawsuit. Sasser said he doesn’t believe local taxpayers or concerned citizens would have standing, and an outside organization certainly would not.
It’s clear that school employees can’t gather students together to lead students in prayer, Sasser said. Nor could they show disapproval of that prayer.
What’s less clear is what employees can do in “that middle space,” Sasser said. “I think the answer is that they can strike a proper balance between decorum and their own particular beliefs and doing the right thing vis a vis what the law requires of them.”
Sasser said he feels that bowing one’s head as a sign of respect as others pray would not be a violation of the Establishment Clause.
“If they want to show cultural respect for what these students are doing, then I don’t think there is any problem with them silently closing their eyes or looking down at the ground in a way that is like bowing their heads. I don’t think that that rises to the level of participating in a prayer,” Sasser said.
In the same way, a woman choosing to cover her hair while visiting a mosque that requires a woman to be covered isn’t endorsing that religion, but simply showing respect, Sasser said. “Showing cultural respect is not the same thing as saying what is going on is good and preferred,” he said.
“I don’t think the law requires everybody to be jerks.”
If a coach wanted to stand a few steps away from his players and bow his head while they pray, “no one is ever going to sue them and certainly no one is ever going to sue them successfully,” Sasser said. But the head bowing should be done out of respect, not endorsement.
As for participating in the way that was shown in the video, “my clients would not do that,” Sasser said.
The Alliance Defending Freedom, a legal organization that primarily represents Christians in religious freedom cases, has a summary of student rights regarding religious expression at school, at https://www.adflegal.org/issue...
First Liberty has a 34-page "Religious Liberty Protection Kit" for students and teachers at https://firstliberty.org/wp-co...