prayer in public school

North American Philosophical Publications

Prayer in Public SchoolAuthor(s): Stephen GriffithSource: Public Affairs Quarterly, Vol. 1, No. 2 (Apr., 1987), pp. 97-109Published by: University of Illinois Press on behalf of North American Philosophical PublicationsStable URL: http://www.jstor.org/stable/40435644 .

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Public Affairs Quarterly Volume 1, Number 2, April 1987

PRAYER IN PUBLIC SCHOOL

Stephen Griffith

First Amendment to the American Constitution states, among other things, that "Congress shall make no law respect-

ing the establishment of religion or prohibiting the free exercise thereof." Ever since the Engle v. Vitale Supreme Court decision in 19621, the prevailing attitude among the American judiciary has been that any policy which requires or evenpermits prayer in public school is in violation of this amendment and, therefore, unconstitutional. Although the Constitution is not necessarily defini- tive of our moral rights and values, it nevertheless reflects or em- bodies many of them, and to say that prayer in public school not only may but must be prohibited is at least to suggest that if we allow students to pray in school, we (or they) will be violating the rights of others or threatening our basic values in some other way, a sugges- tion that most Americans are not willing to accept. I shall argue that although there may be some policies affecting school prayer which could not be followed without violating the Constitution, it is nevertheless possible to devise policies consistent with the pro- visions of the First Amendment as interpreted by the courts which would in effect permit students to pray in school. Although the Con- stitution may not require us to devise policies which permit school prayer, it would be within the spirit of the First Amendment to devise and implement such policies, especially if there are no strong non -constitutional grounds for not doing so.

The best place to begin in any attempt to clarify the controversy concerning prayer in public school is with the First Amendment itself. There are two distinct clauses in this amendment, each of which is clearly intended to limit the power of government to influence religious practice. According to the first of these clauses, commonly referred to as the "establishment" clause, Congress shall make no law "respecting the establishment" of religion. According to the sec-

97



98 PUBLIC AFFAIRS QUARTERLY

ond of these clauses, commonly referred to as the "free exercise" clause, Congress shall make no law "prohibiting the free exercise" of religion. I shall consider these clauses separately.

With regard to the establishment clause, it is not entirely ob- vious, just from reading this clause in itself, what it is supposed to mean. How are we supposed to determine whether a proposed policy or piece of legislation is one "respecting the establishment of religion"? As it turns out, the establishment clause has long been interpreted as a constitutional manifestation of the doctrine of the separation of church and state, and has been the basis for most of the court decisions which have collectively and rather effectively banned prayer in public school.

With regard to the free exercise clause, on the other hand, there seems to be little difficulty in understanding what it means. At least part of its meaning is that no governmental entity shall enact any legislation or put into effect any policy which prohibits anyone from practicing his or her religion. Since, however, praying is obviously one way, and a very important way, of exercising one's religion, it would appear that this clause should rule out any policy which prohibits prayer, including prayer in public school. Thus it seems that there is at least a prima facie conflict between these two clauses.2 How can we reconcile the separation of church and state, which seems to require that we ban prayer from public school, and the freedom of religion, which seems to require that we permit it?

The courts have recognized the tension between these two clauses. According to Chief Justice Warren Burger, for example,

"The Court has struggled to find a neutral course between the two religion clauses, both of which are cast in absolute terms, and either of which, if extended to a logical extreme, would tend to clash with the other."3

Justice Burger, in my opinion, understates the problem here. In the United States today, most of us can practice our religion "in our spare time," so that any restrictions put upon us by our government or by our employers do not present a problem. We can easily imagine, however, a religion which requires its adherents to spend a much higher percentage of their time engaged in religious activities and at regular intervals throughout each day, in which case some accommodation would have to be made.4 We can also imagine our government, ostensibly in order to improve the quality of education, deciding to dramatically increase the length of the school day, or the school year, or both, to the point at which it is no longer possible for



PRAYER IN PUBLIC SCHOOL 99

students to satisfy their religious needs outside of school; in the extreme case, we might even imagine children being taken from their parents at an early age to be raised in governmental institutions, as certain totalitarian countries have sometimes been accused of doing. The point here is that, if religion is completely banned from our public institutions, the degree of religious freedom which we enjoy is inversely proportional to the degree to which these institutions influence or control our lives. In other words, even if we exclude sup- posedly "religious" activities which appear to violate the rights of others, total religious freedom is incompatible with a separation of church and state which totally bans religion from all public institutions. The courts have implicitly recognized this by ruling that prayer must be permitted in prisons, military bases, and public universities, since those who reside in those places could not practice their religion at all if it were not.5 The problem, then, is this: How do we balance individual religious freedom with governmental neu- trality toward religion? The courts have wrestled long and hard with this problem, and have come to certain conclusions.

First, with regard to the establishment clause, they have come up with a "tripartite test" to determine whether a law or policy violates this clause. According to this test, such a law or policy is constitutional if and only if

1. it has a secular legislative purpose, 2. its principle or primary effect neither advances nor hinders

religion, and 3. it involves no excessive governmental entanglement.6

The first part of this test simply states that any law or policy must have a completely secular purpose. Thus, any law or policy which is obviously designed either to advance or to hinder religion cannot be permitted.

The second part of this test states that even if a law or policy has a completely secular purpose, its principle or primary effect must neither advance nor hinder religion. It is important to point out that in this particular context, the courts have seen fit to distinguish between the "advancement" of religion and the "accommodation" of religion.7 Thus, for example, they have consistently maintained that police and fire protection, garbage collection, and all the other serv- ices which are extended to businesses and private homes may be extended to church buildings and parsonages at taxpayers' expense without violating the establishment clause, since this is an accommodation rather than an advancement of religion. One unresolved




issue concerning this particular part of the test is whether the government is "advancing" religion when it puts its "imprimatur" on some religious practices by permitting them to occur in public places.8

The third part of the test simply states that even if there is a completely secular justification for a particular law or policy, and its principle effect neither advances nor hinders religion, there must be no "excessive governmental entanglement" with religion. This part of the test is rather vague, but it is presumably designed to limit the extent to which government can be permitted to accommodate religion.

Second, with regard to the free exercise clause, which is easier to understand, the courts have seen no need to develop a com- plicated test to determine its applicability, as they have with respect to the establishment clause, but have been content to simply sharpen its meaning and draw out its implications. Clearly, the free exercise clause prohibits the government from directly prohibiting or requiring any sort of activity for purely religious reasons. Thus, the courts have held that there can be no compulsion of religious belief9 and no imposition of penalties for religious belief.10 More- over, they have held that the state may not "condition the receipt of an important benefit upon conduct prescribed by a religious faith," nor may it "deny such a benefit because of conduct mandated by religious belief."11 It is for this reason that ministers and priests cannot be required to give up their professions in order to run for and hold public office.12 The courts have also held that no one may be compelled to conform to a governmental policy which is contrary to one's religion unless there is a "compelling interest," which may in- clude the protection of other sorts of rights, which requires the implementation of this policy, only if there is something which the state feels it must do, and there is no other means of doing it.13 Thus, the mere fact that a policy might be in the public interest does not justify its implementation in such cases unless this interest is sufficiently "compelling." It is for this reason that members of the Amish sect cannot be required to finish high school, even though the law requires others to do so.14

We are now in a position to begin formulating the major issues concerning prayer in public school, but there is at least one more source of confusion that must be dealt with before we can make any further progress - namely, the matter of what sort of prayer we are talking about. There are some public figures, such as Senator Weick- er of Connecticut, who have maintained that prayer has never been banned from public schools, and others have joked that as long as




students are required to study mathematics, there will be prayer in public schools. Presumably, when these people say that there is in fact prayer in public schools, they are thinking of silent, individual prayer. Others claim that prayer in public school violates the free exercise clause and involves imposing religious values on students against their will. Presumably, these people are thinking of mandatory group prayer. Still others argue that we ought to permit voluntary prayer in schools, and these people are presumably referring to something other than individual silent prayer or mandatory group prayer. They are referring, obviously, to voluntary, audible prayer, engaged in either by groups of students or by individuals, and it is this sort of prayer that I shall be discussing in this paper.

Many of us remember when each school day began with morn- ing exercises, either in a "chapel" program or in our home rooms, which consisted of a Bible reading, group recitation of the Lord's prayer, and the pledge of allegiance to the flag. Some people found this offensive, especially to religious minorities, but it is interesting to note that the "Engle vs. Vitale" Supreme Court Decision which ultimately led to a nationwide ban on prayer in public school did not arise as a result of any legal dispute concerning this very common practice. The court case that brought about this decision involved a situation in which a state legislature had composed an inter- denominational prayer which all students were required to recite.15 Since this situation was obviously one in which a branch of government was prescribing religious behavior, it was clearly in violation of both the free exercise and the establishment clause, and the Su- preme Court was clearly correct in its decision to invalidate this practice. In rendering its decision, however, the court went beyond this and stated that there could be no voluntary prayer either.

Most of us could probably agree that no one should be required to recite a prayer against his or her will, but why should voluntary prayer be prohibited? The court's reasoning in this case was that even voluntary prayer had to be prohibited, because students who might not otherwise wish to participate might be unduly influenced by an authority figure, such as a teacher or principal, or subjected to an intolerable degree of peer pressure to do so, and this would be a violation of the free exercise clause.16 Given the common practice at that time, this argument had a great deal of plausibility, even though an argument based on something as vague and uncertain as peer pressure is somewhat problematic, but what if we eliminate peer pressure as a consideration?

Consider the following case, which occurred in Lubbock, Tex-




as.17 In the Lubbock case, a court ruled against a policy according to which groups of students would be permitted to meet on school property either before or after school for "any educational, moral, religious, or ethical purpose,"18 under the condition that such meetings would be entirely voluntary and would be conducted under the supervision of school district personnel. In view of the fact that attendance at these meetings was not even to be recorded, much less required, and that they were to be held either before the time at which the earliest school buses were scheduled to arrive in the morn- ing or after the time at which the latest buses were scheduled to depart in the afternoon, it is difficult to argue that this policy would subject students to an intolerable degree of pressure from authority figures or peers to attend these meetings. Authority figures would obviously not be involved, and the only sort of peer pressure which could be exerted in this situation would be analogous to that experi- enced by male students, especially in smaller schools, concerning participation in interscholastic sports. It might, of course, be objec- tionable if a public school district required all of its students to participate in interscholastic sports, especially if there were some students for whom such participation would be contrary to their religious beliefs. It is difficult to imagine, however, that a court would prohibit a school district from offering a voluntary program in interscholastic sports, simply on the grounds that there might be some students who would prefer not to participate on religious grounds and might be subjected to peer pressure to do so if there were such a program. Even if there were persons of this sort, it is difficult to imagine that the mere existence of a program in interscholastic athletics would be a violation of their rights, the possi- bility of peer pressure notwithstanding, especially since they would not only be required to participate, but would also not be required to witness such activities nor even to be on school premises when such activities took place. In the Lubbock case, however, the court reasoned that since the policy in question would have permitted groups of students to meet on school property for the purpose of prayer, it was an impermissible advancement of religion, and was thus in violation of the establishment clause.19 Although the policy adopted in Lubbock may or may not have had a "secular purpose," the court reasoned that the "primary effect" of the policy was to "advance religion."

The difficulty with this argument is this: requiring prayer in public school could quite plausibly be regarded as an "impermissible advancement"20 of religion; if so, prohibiting prayer in public school, by parity of reasoning, ought to be regarded as an "imper-




missible hindrance" of religion. But to say that prayer cannot beper- mitted is in effect to prohibit it, since in the context of a public school, anything which is not either implicitly or explicitly permitted is at least implicitly prohibited. It could be argued, of course, that to officially permit religious activity as an explicit part of a written policy is to officially sanction such activity, and that it is this official sanction which impermissibly advances religion. It is one thing to publicly state that a certain sort of activity will be permitted to occur; it is another to simply refrain from interfering when it does. The difficulty with this argument is that the "principle and primary effect" of a policy of non-interference and of a policy like that adopted in Lubbock would presumably be the same; an "impermissible advancement of religion." But what about an impermissible hindrance of religion? Consider the following excerpt from a recent brief filed in support of voluntary prayer in public school:

When children go from a religious environment at home to a secular school environment sanitized of all religious expression, they must submerge their religious beliefs and suffer the psy- chological and theological dislocation necessarily entailed. Such an environment - that is, one which permits all views to be aired except religious views - in fact undermines the values of the Es- tablishment Clause by inhibiting and showing a tacit hostility to religion and religious sentiment. The hostility may not be open, but it is definitely felt. For people for whom religion and theological convictions affect the very essence of their lives, having their children placed in an environment which treats these life-directing principles as unimportant or irrelevant is, in fact, an exertion of official influence against these beliefs. School days are carefully set to coincide with the periods during which children are most alert and active. To convey to a child, and his parents, that his religion is not welcome on government-owned premises, and that the government considers a child's life complete without religion is affirma- tive State opposition to religion, in contravention of the Establish- ment Clause.21

The line of argument here, of course, is that banning prayer in public school, far from being required by the establishment clause, is actually a violation of that clause, since it constitutes a hindrance of religion. My criticism of the Lubbock case, however, is directed not at the decision of the court, but at its reasoning. There may be good grounds for ruling the Lubbock policy unconstitutional, but the




mere fact that it permits prayer is not one of them. Requiring prayer "advances" religion, prohibiting prayer "hinders" religion, permitting prayer does neither.

Let us now consider another sort of example. A common practice among public school basketball players who happen to be of the Roman Catholic faith is to bless themselves by making the sign of the cross before they attempt foul shots. This may or may not be theologically appropriate, and it may or may not be regarded as a form of prayer, but it is in any case a form of expression which is not only religious in nature but is (I believe) unique to those of a particular religious persuasion. Moreover, it occurs in circumstances in which the attention of the spectators and other players tends to be focussed upon the player in question, so that anyone who does not wish to witness such behavior must either forego attendance at basketball games or somehow learn to avert his or her gaze from certain players at times when those players are engaged in activities which might be crucial to the outcome of the game.22 Should this form of behavior be prohibited for this reason?

Let us now consider a slightly different form of behavior. Let us suppose that a player who happens to be a devout member of some fundamentalist sect prefaces his foul shots with the words "Thy will be done, oh Lord!", and for good measure, utters the words "Praise the Lord!" whenever his efforts are successful. Should this form of behavior be prohibited? Apart from the fact that this form of behavior, unlike the former, is verbal and is thus obviously a form of prayer, there does not seem to be any relevant difference between these two cases from the point of view of whether or not they may be prohibited on the grounds that they are religious in nature. Finally, let us suppose that an overwhelming majority of the spectators in the "Praise the Lord" example are supporters of the team of which the player in question is a member and share his religious beliefs as well, and let us suppose that upon hearing the words "Praise the Lord!", they all spontaneously, i.e., without being prompted in any way, utter the word "Amen!" loudly, and in unison. Should this be prohibited? Although any one or all of these sorts of behavior might be regarded as inappropriate or offensive by many people, it is difficult to see how we could justify their prohibition. It would seem that in each case, the persons engaging in the behavior in question have every right to do so, and that their doing so does not violate the rights of any other person. None of these forms of behavior can be construed as an attempt to influence or control the religious beliefs or activities of any other person, (although they might be construed as attempts to influence or control the outcome of the game,) nor do




they have any significant effect on the conduct or pace of the game itself. (Otherwise, spectators might argue that they had unjustifiably been forced to pay in part for the privilege of witnessing a religious ceremony, and taxpayers might similarly argue that their taxes had unjustifiably been used to support religion).

School policies governing athletic events which fail to prohibit religious activities of the sort referred to above nonetheless obviously have a purely secular purpose, and the fact that these activities occur as they do is obviously a purely incidental effect, not a principle or primary effect, of these policies. There is no excessive governmental entanglement with religion, and it cannot plausibly be maintained that such policies generate an intolerable degree of pressure from peers or authority figures to participate in these activities. It would therefore seem that they could not be prohibited on constitutional grounds.

The same considerations, however, could be applied with little change to a case which actually occurred.23 This case involved a high school in which members of the student council are permitted to plan, schedule, and conduct periodic student assemblies which occur during the school day. No classes occur during these assemblies, but students who do not wish to attend are permitted to report to a supervised study hall for the duration of the assemblies. The court case arose when several members of the student council re- quested and were granted permission to open these assemblies with a prayer. A citizen of the district subsequently sued the district, and a court ruled that this sort of activity could not be permitted. Athletic contests, of course, do not typically take place during school hours, as these assemblies did, but everything in my example could be true of an intramural contest voluntarily witnessed by non-playing students during school hours. If individual athletes can be permitted to voluntarily exercise their religion in a publicly observable man- ner during school hours, then why should other students be denied the same privilege?

Here again, of course, it could be argued that the students in the "assembly" case, unlike those in the "basketball" example, reques- ted permission to pray, so that to grant it would be to officially sanction prayer, but here again, the actual reasoning used by the court did not depend on this distinction. The court argued that simply lis- tening to a student leader engaged in audible prayer would have the effect of coercing other students to pray24, and if this is true, (which seems highly unlikely), it would be true whether or not this student had asked permission to do so. Here again, my criticism is directed at the reasoning of the court and not at this decision. There are all




sorts of legitimate justifications for controlling the verbal behavior of student leaders during assemblies which may or may not apply to the behavior of student athletes during athletic contests, but the mere fact that the behavior in question happens to be an audible prayer is not one of them.

Let us now consider a slightly different sort of example. Con- sider the case of a devout fundamentalist student whose religion requires him to audibly give thanks to his God even for such food as is generally available in public school cafeterias. Should this be prohibited?25 Let us further suppose that students in this particular school are permitted to sit with their chosen companions at any available table in the cafeteria, and that some choose to sit together and to give thanks audibly, in unison. Should this be prohibited? Finally, suppose that these students are ridiculed and harassed by their fellow students as a result of this behavior. Should they be protected? It is seldom noticed by those who are opposed to prayer in public school that peer pressure, or, for that matter, pressure from authority figures, is just as likely to work against particularly devout students who wish to engage in voluntary prayer as it is to work against those who would prefer not to, perhaps even more so. If peer pressure to pray is a threat to religious freedom, then so is peer pressure not to pray, so it would seem that in this particular case, those who profess a concern for religious freedom should want to protect rather than to prohibit this sort of activity. If a school district elected to provide protection for such a group of students by, e.g., allowing them to eat in a separate part of the cafeteria or in a room by themselves, would this be unconstitutional? The secular purpose of such a policy would be to protect these students from harassment, and the principle and primary effect would be the same. Nor would there be any significant governmental "entanglement" with religion.

This example, like our "basketball" example, is similar in most relevant respects to a related example which has actually occurred. Consider a case in which a school provides students with an activities period during which groups of students are permitted and even encouraged to engage in any sort of activity which they choose, so long as these activities are legal, moral, non-disruptive, and do not violate the rights of other students. Suppose, in other words, that they are in effect permitted to form "clubs" which meet on school property during school hours and are monitored, but only in order to ensure orderliness, by school personnel, just as police officers are employed to direct traffic and ensure order at religious revival meetings.26 Thus, for example, they might form a fly-tying club, a stamp collecting club, a glee club, a drama club, etc. Under these cir-




cumstances, assuming that no club is permitted to restrict its mem- bership in any way, should a group of students be permitted to form a "prayer" club? If students are to be given free time in school to pursue other sorts of extracurricular interests at their own initiative, it is difficult to see why they should be prohibited from forming this particular type of club. Permitting such a club to exist would not seem to violate anyone's rights, whereas prohibiting such a club would seem to discriminate against those who would prefer to engage in this particular type of activity. Is prayer, among volunteers separated from anyone who might conceivably be offended or unduly influenced by their behavior, disruptive? Is it immoral? Does it violate the rights of others? Since all students must be situated in some room or other throughout the school day and be supervised by school personnel in any case, there would be no additional public expense involved, so it could not plausibly be argued that governmental funds were being used to support religion. From a constitutional point of view, the purpose of the policy in question is clearly secular in nature, and in view of the numbers of different activities involved, it is clear that its principle and primary effect is neither to hinder nor to advance religion. The governmental "entanglement" with religion is minimal, and there is clearly no significant peer pressure or pressure from authority figures to participate in religious activities. Here again, it would seem that students would have a right to pray in public school, which entails that it would be wrong to prohibit them from doing so.

The remarks of the preceding paragraphs seem to suggest, and it is important to emphasize that this is all that they do, that voluntary prayer in public school could and perhaps should be permitted under certain carefully defined circumstances. Even if this is true, however, it must be pointed out that none of the considerations suggested by these remarks should give any comfort to those who would like to return prayer to the public schools in the same form that it once existed. No one should be required to pray, nor should anyone be required to participate in any exercise which is in part or wholly religious in nature. Moreover, students should not be put into a position in which they would be required to initiate non-participation or to isolate themselves from their fellow students as a result of this non-participation. Finally, none of these remarks suggest that students have a right to pray in any way or under any circumstances that would significantly and unnecessarily disrupt the educational process, e.g., by reciting an audible prayer in the middle of algebra class. What has been suggested is simply that, assuming that students have a right to pray simpliciter, there might be some




sorts of circumstances in which students ought to be permitted to pray, audibly, in public school, both individually and in groups.27

Lycoming College Received September 9, 1986

NOTES

1. Engte v. Vitale, 370 U.S. 431 (1962). 2. There are, of course, potential conflicts between both of these

clauses and other parts of the Constitution, but I shall ignore these for my present purposes.

3. Walz ν. Tax Commission, 397 U.S. at 668-669. 4. Cf. Stein v. Oshinky, supra 348 F.2d. 1001-1002 (1965) "We are

not here [i.e., in a typical case] required to consider such cases as that of a Moslem, obliged to prostrate himself five times daily in the direction of Mecca, or of a child whose beliefs forbade his partaking of milk and cookies without saying the blessings of his faith," and Brandon v. Board of Educa- tion of Guilderland Central School, 635 F.2d. 977 (1980), "If faced with these religious demands [i.e., demands of the sort referred to in the case above] from students, a school board might have to make additional ac- commodations to permit the students to withdraw momentarily from the class."

5. School District of Abington Township v. Schempp, supra, 374 U.S. at 296-99, 83 S.Ct. at 1610-1612 (Brennan, J., concurring), (prisons and military bases), and Chess v. Widmar, 480 F. Supp. 907 (W.D. Mo. 1979), rev'd and remanded, 635 F.2d 1310 (8th Cir. 1980), äff d sub nom. Widmar v. Vincent, 102 S. Ct. 269 (1981), (universities).

6. Lemon v. Kurtzmann, 403 U.S. 602, 612-13, 91 S. Ct. 2105, 2111, 29 L.Ed.2d 745 (1971).

7. Cf., e.g., Zorach v. Clausen, 343 U.S. 306 (1952). 8. "To an impressionable student, even the mere appearance of

secular involvement in religious activities might indicate that the state has placed its imprimatur on a particular religious creed. This symbolic in- ference is too dangerous to permit." Brandon v. Board of Education of Guilderland Cent. Sch., 635 F.2d. 971,978 (1980) See also Roemer v. Board of Public Works, supra, 426 U.S. at 750, 764, 96 S.Ct. at 2346, 2353 (197 6); Abington, supra; Engle, supra; Chess v. Widmar, supra, 635 F.2d 1310; Tribe, supra; para. 14-5 at 825.

9. Torcaso v. Watkins, 367 U.S. 488 (1971). 10. Fowler v. Rhode Island, 345 U.S. 67 (1953). 11. Thomas v. Review Board of the Indiana Employment Security

Division, 450 U.S. 707, 717-18 (1981). Presumably the state might be permitted to reward or penalize such conduct for independently justifiable secular reasons, but the court did not say so in this case.

12. Wisconsin v. Yoder, 406 U.S. 205,215 (1972); Sherbert v. Ver· ner, 374 U.S. at 407-09.




13. Wisconsin v. Yoder, 406, U.S. (1972). 14. McDaniel v. Paty, 435 U.S. 618 (1978). 15. Ende v. Vitale, 370 U.S. (1962). 16. Engle v. Vitale, 370 U.S. 431 (1962), "the indirect coercive pres-

sure upon religious minorities to conform to the prevailing officially ap- proved religion is plain."

17. Lubbock Civil Liberties Union v. Lubbock Independent School District, et ai, 669 F.2d. (5th Cir. 1982), cert, denied, 103 S. Ct. 800 (1983).

18. Id. at 1038. 19. "In the case before us, the articulated policy of allowing religious

meetings . . . renders the primary effect of the policy impermissible advancement of religion" (my emphasis). Id. at 1045. In fairness to the court, it should be pointed out that there had been a long history of attempts to defy or circumvent the judicial ban on prayer in school in this case.

20. "Advancement" in this context must obviously be understood in a purely technical sense. The question as to whether such a requirement would be truly beneficial to religion is at best problematic.

21. Brief for Bluman, et. al., as Amici Curiae, at 5,6 Bender v. Williamsport Area School District, 741 F.2d. 538 (1984).

22. LI. the tollowing language, taken trom a court decision to be dis- cussed below, "students must either listen to a prayer chosen by a select group of students or forego the opportunity to attend a major school func- tion. It is difficult to conceive how this choice would not coerce a student wishing to be part of the social mainstream and, thus, advance one group's religious beliefs," Collins v. Chandler Unified School District, 644 F.2d. at 762 (1981).

23. Collins v. Chandler Unified School District, 644 F.2d. (1981). 24. Cf. note 22. 25. Cf. note 4 above. It is significant that if a student were to mock-

ingly give thanks as a way of commenting sarcastically on the quality of the food, his right to do so might very well be protected on the grounds that he would be exercising his right to freely express his opinions. This shows that the same overt behavior could be religious in one instance and secular in another.

26. Cf. Bender v. Williamsport Area School District 741 F.2d. 538 (1984) This case has recently been appealed to the Supreme Court.

27. 1 am indebted to Owen Herring tor many helpful suggestions and criticisms of this paper, and to John Whelan for helpful comments on an earlier version.



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