SCHOOL PRAYER AND FOOTBALL

By WALTER DELLINGER

I recall very little about the fifth grade, but to this day I remember awakening every Thursday with a dull, aching pain in the pit of my stomach. On Thursdays, the Bible teacher came to class. When she arrived, I left the room.

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In the 1950s, the public school system in Charlotte, North Carolina, provided Bible instruction to elementary school children for one hour each week. The instruction was labeled "non-denominational," which meant that it was generically Protestant. Pupils whose parents filed a written statement could be "excused" during the instruction. The few Catholics in Charlotte public schools were urged by the local church not to participate. My devout Irish Catholic mother agonized over whether to write the note requesting that I be sent out of the room, but in the end she felt she had no choice.

So every Thursday came the Bible teacher, eagerly anticipated by my classmates, and laden with Bible comics, films, cookies and Kool-Aid. And every Thursday came the announcement from our regular teacher: "Walter and Victor should now leave the room."

I envied Victor K. Burg -- the only Jewish child in the class -- for his seat close to the door. From my seat in the back corner, it seemed to take forever to make my exit. The stares of my classmates reflected their bewilderment that Vic and I could not stay for such normal activities as eating cookies, coloring pictures of Jesus, singing hymns and reciting prayers. One girl always turned her head as I left; I knew from seeing her at Mass that she was also a Catholic.

Vic waited for me outside the door, but we always walked in silence to the school's library where we were instructed to spend the hour shelving books. Although we became close friends, I don't believe we ever spoke of our feelings about leaving the room. We were, after all, eleven-year-old boys.

I have recounted this episode once before, in the Washington Post in 1991. At the time, the Supreme Court was considering whether a school board could invite local clergy to deliver prayers at public school graduations, in Lee v. Weisman. My hope was that my grade-school experience might help to illustrate for the Court the effects on young children of being singled out from among their peers and excluded from some school activity because of their religion. Though the Lee issue is settled -- with the Court ruling that the graduation prayers in question were unconstitutional -- it seems that the general point is worth returning to now; once again, the Supreme Court is reviewing the role of prayer at public school events, this time at football games, in the case of Santa Fe v. Doe.

I was a junior at the University of North Carolina when Engel was decided. This was the first judicial opinion I ever read, and it rested on a principle that made a lot of sense to me -- that government itself may not seek either to promote or discourage religion. But this does not mean, as is sometimes claimed, that God has been "expelled" from the public schools, and it is only one part of the standard that applies to expressions of religious faith in the public schools. The principle against official support or endorsement of religion is coupled with a second and equally important principle, protecting expressions of religious belief by private individuals and associations. As Justice O'Connor explained in 1990, in an opinion in Westside Community Schools v. Mergens sustaining equal access in public schools for student religious groups, "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."

That "crucial difference" is what is at stake in Santa Fe v. Doe. For years, Santa Fe High School in Texas has opened each home football game with an invocation, delivered over the public address system by the "student council chaplain," a student elected each year for the express purpose of leading prayers at school events. When the school was sued in 1995 -- for this and other practices, including official graduation prayer, on-campus distribution of Bibles by the Gideons, and the promotion of specific religious views by teachers in the classroom -- the Santa Fe School Board reformulated its policy. After one false start -- a policy allowing for "invocations" if approved by a student referendum -- the Board settled on the Football Policy now under review: students may vote to open games with an "invocation and/or message," delivered by a student elected each year for that purpose.

Distinguishing genuinely private from officially-sponsored religious expression can give rise to close and difficult cases, especially in the public school context. But this is not such a case. Whatever the precise location of the line between private and official prayer in the public schools, prayer delivered under the Santa Fe Football Policy falls on the wrong side of the line -- and by a wide margin.

The Santa Fe Football Policy gives two things to the designated speaker. First, it gives that student the official responsibility for introducing school football games. The student "invocation and/or message" is delivered as an integral part of a school-sponsored event, and it must, under the terms of the Policy, "solemnize" the event, promote good sportsmanship, and create the "appropriate environment" for the function to follow. This Policy does not create a forum for speech of the student speaker's choosing, allowing for a broad range of ideas and views that includes religious views. Instead, it restricts expression to a very few preferred messages, and then puts prayer, by its own terms, into that specially approved category. The expression "Winning isn't everything; winning is the only thing" is out of bounds, but prayer is in, and in expressly. That kind of favoritism takes the government over the constitutional line between protecting private expressions of faith and promoting faith itself.

The other thing the Policy gives the student speaker is an audience. By linking the speech in question to football games, school officials have created a kind of "tie-in": all students who want to participate in the school event, including the pre-game festivities, must also sit through the "invocation and/or message." And as most of us remember, asking students to give up the football experience -- nowhere more so than in Texas -- is asking a lot.

When student religious speech occurs in settings that are separate from any other school activity -- when, for instance, student religious groups meet after school on school premises -- then students who wish to avoid the religious activity may easily do so. But when the school ties student religious speech to some other important activity, as it has done here, then the school itself is responsible for what is effectively a captive audience to religious activity.

This is not the kind of help that religion wants or needs from government. Government-sponsored religious exercises hurt religious believers as well as non-believers. In communities sensitive to religious minorities, government involvement in religious activity leads inevitably to watered-down "nonsectarian" prayer, satisfying to few who take their religious commitments seriously. In other communities, official sectarian prayers track outright the beliefs of the dominant sect, excluding local religious minorities and making them outsiders in their own towns and schools. There is no good choice for government here, and no good role for government to play in the sponsorship of religious observances. The twin principles of religious freedom spare the government this dilemma, by proscribing all forms of official prayer while preserving and protecting prayer that is truly private.

Looking back now, I find it difficult to understand why my own experience was so painful. I suppose that most eleven-year-olds desperately want to be seen as "regular" and "normal." By my final year in elementary school, the death of my father and the fact that we were poorer than my classmates' families (all of which in the placid 1950s seemed to be middle class and intact) contributed to my sense of isolation. But nothing compared to the sense of strangeness that arose from my weekly exit from the classroom.

Only recently have I gained enough perspective to realize that my experience may have had positive value. Growing up as a white male Christian in the American south afforded me few opportunities to experience what it means to be an outsider to the dominant culture.

Walter Dellinger is the Maggs Professor of Law at Duke University and a partner in the Washington, DC office of O'Melveny & Myers, LLP. He wrote this article with Pamela Harris, who is also an attorney with O'Melveny & Myers. Harris and Dellinger are counsel for a number of religious and civil liberties groups who filed an amicus brief in the Santa Fe case now pending before the Supreme Court.

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