School prayer ruling in Alabama

[Thomas C. Berg]

I have read Judge DeMent's order, and it's generally right
on the mark, correctly distinguishing between
government-sponsored religious exercises in the
public schools and the speech or religious activity of
students without school encouragement or sponsorship.
There is widespread flouting of the First Amendment in
parts of Alabama, from the statements of the governor on
down to classroom teachers, and the judge's order is
appropriately wide-ranging.  It also gives detailed
guidance and directs school officials' attention to
balanced sources of information like the joint statement on
religion in the schools done by the Christian Legal
Society, the ACLU, and others.

There are only three places in the order where I would
raise questions about whether the judge went too far in
enjoining conduct that could more convincingly be seen as
individual rather than government speech.  Two of them are
minor issues but possibly interesting to this list; the
third seems more substantial and likely to recur.  I don't
have the order in front of me at this moment, so I may get
some of the exact language wrong; but I think I have its
gist.

1.  First, a minor point:  the order says that student
religious activity during noninstructional time, protected
by the Equal Access Act, is not enjoined unless it impedes
the rights of others to pass through the halls etc. (which
seems correct), or unless it "calls undue attention to
itself" (or some phrase like that).  Is that last phrase
objectionable?  Vague?  Does it mean that the student
religious club can't put up "too many" posters around the
school?

2.  Second, another minor point:  the order says,
correctly, that the school may not conduct or sponsor a
baccalaureate service or encourage students to attend a
service sponsored by churches.  One sentence in the
order, however, could read to go further, I believe, and
prohibit the school from giving information (in its own
commencement program) about where annd when a
church-sponsored baccalaureate service will be held.
Why should there be any objection to such an item if it is
purely informative?  Or is it inevitable that providing
such information constitutes encouragement in this context?

3.  The third, and most major, issue:  the order says that
a valedictorian or other student speaker, presumably chosen
without reference to religion and receiving no
encouragement from the school, may include a "brief"
religious reference in her speech (the judge provides
the specific example of the valedictorian attributing
her success or talents to God).  But the order says the
student speaker may go not further and in particular may
not invite people in the audience to pray with her
during her speech.  If she does so, the school is obligated
to take disciplinary action against the student.

Does this condition interfere with the free speech rights
of the valedictorian?  The judge's order applies even if
the prayer comes entirely from her own initiative, and
school policy neither encourages prayer nor even
specifically authorizes it but leaves the content
of the speech up to the valedictorian.  (It applies even
outside those cases where the school district says "We'll
have a prayer if the majority of the students want it.")
Preventing the valedictorian from saying a prayer in her
speech and inviting others to join her thus can be seen as
enjoining an individual's speech simply to prevent offense
to others, not to prevent government pressure or coercion.

On the other hand, there are "captive audience" arguments
here.  Even under a coercion-oriented approach to the
Establishment Clause, perhaps the school must take
affirmative steps to keep attendees from being pushed to
participate in a religious exercise like a prayer led by
someone who has been given the platform by the school.
(Listening to religious speech, and being asked to
participate in a prayer, could be seen as different.)

I regard this as a hard issue.  It also may be the case
that the judge is understandably responding to a history of
subtle (and not-so-subtle) attempts by school officials to
promote Christianity.  Perhaps there is room for a somewhat
broadened injunction because of past disregard of court
orders.

Tom Berg, Cumberland Law School, Samford University



On Thu, 30 Oct 1997 19:21:48 -0500 Joel Sogol
<JLSatty at AOL.COM> wrote:

> District Judge Ira DeMent issued a permanent injunction against an Alabama
> school district in Chandler v. James yesterday.  This is the case in which
> Gov. James said the 1st Amendment did not apply to Alabama.  In part the
> ruling says the Defendants are enjoined "from aiding, abetting, commanding,
> counseling, inducing, ordering, procuring, or permitting school organized or
> officially sanctioned religious activities in the classrooms of DeKalb County
> schools including, but not limited to: vocal prayer, Bible and religious
> devotional or scripture readings, distribution of religious materials, texts,
> or announcements, ..."etc.
>
> Judge DeMent provides examples of what types of conduct will or will not
> violate the injunction in a 17 page opinion.  It deals with graduation
> exercises (prohibits school officials from requiring attendence at religious
> baccalaureate services as a condition of attendence at commencement, which
> they were doing), use of the P A systems for religious addresses, school
> assemblies and events (including atheletic events), passing out of bibles and
> religious tracts (specifically addreses Gideons forcing bibles on kids on
> school property),  alludes to consequences for harassment of the parties or
> witnesses, and directs that a monitor be appointed to ensure complience.  The
> Defendants had agreed to cease certain conduct at one point in the
> litigation, then did not, and got caught.
>
> For more information, contact me.
>
> Joel L. Sogol
> Attorney at Law
> 609 28th Ave.
> Tuscaloosa, Alabama 35401
> e-mail -- JLSatty@ aol.com
> 205-345-0966

-----------------------------------------
Thomas C. Berg, Cumberland Law School
Samford University
Email: tcberg at samford.edu