The relationship between religion and government in the United States is governed by the First Amendment to the U.S. Constitution, which the Supreme Court has held both prevents the government from establishing religion and protects privately initiated religious expression and activities from government interference and discrimination.
The legal rules that govern the issue of constitutionally protected prayer in the public schools are similar to those that govern religious expression generally. The Supreme Court has repeatedly held that the First Amendment requires public school officials to show neither favoritism toward nor hostility against religious expression such as prayer.
The line between government-sponsored and privately initiated religious expression is vital to a proper understanding of the First Amendment's scope. As the Court has explained in several cases, "there is a crucial difference between government speech endorsing religion, which the Establishment Clause forbids, and private speech endorsing religion, which the Free Speech and Free Exercise Clauses protect.”
The Supreme Court's decisions set forth principles that distinguish impermissible governmental religious speech from constitutionally protected private religious speech. For example, teachers and other public school officials, acting in their official capacities, may not lead their classes in prayer, devotional readings from the Bible, or other religious activities, nor may school officials use their authority to attempt to persuade or compel students to participate in prayer or other religious activities.
The Supreme Court has held, for example, that public school officials violated the Establishment Clause by inviting a rabbi to deliver a prayer at a graduation ceremony because such conduct was "attributable to the State" and applied "subtle coercive pressures," "where the student had no real alternative which would have allowed her to avoid the fact or appearance of participation." Accordingly, school officials may not select public speakers on a basis that favors religious speech.
Although the Constitution forbids public school officials from directing or favoring prayer in their official capacities, students and teachers do not "shed their constitutional rights to freedom of speech or expression at the schoolhouse gate." The Supreme Court has made clear that "private religious speech, far from being a First Amendment orphan, is as fully protected under the Free Speech Clause as secular private expression."
Moreover, not all religious speech that takes place in the public schools or at school-sponsored events is governmental speech. For example, "nothing in the Constitution . . . prohibits any public school student from voluntarily praying at any time before, during, or after the school day," and students may pray with fellow students during the school day on the same terms and conditions that they may engage in other conversation or speech. Students may also speak to and attempt to persuade their peers about religious topics just as they do regarding political topics.
Local school authorities possess substantial discretion to impose rules of order and educational restrictions on student activities, but they may not structure or administer such rules to discriminate against speech with a religious perspective. Where schools permit student expression on the basis of genuinely content-neutral criteria and students retain primary control over the content of their expression, the speech of students who choose to express themselves through religious means such as prayer is not attributable to the State and may not be restricted because of its religious content.
Public schools also may not restrict or censor prayers on the ground that they might be deemed "too religious" to others. The Establishment Clause prohibits State officials from making judgments about what constitutes an appropriate prayer and from favoring or disfavoring certain types of prayers—be they "nonsectarian" and "nonproselytizing" or the opposite.
Student remarks are not attributable to the school simply because they are delivered in a public setting or to a public audience. As the Supreme Court has explained, "[t]he proposition that schools do not endorse everything they fail to censor is not complicated," and the Constitution mandates neutrality rather than hostility toward privately initiated religious expression.
