Posted on 05/13/2003 6:26:39 AM PDT by Between the Lines
WASHINGTON---Threatened with the loss of federal money, the vast majority of the nation's schools have declared that they allow prayer wherever and however the Constitution permits.
For the first time, federal law requires school districts to prove that they have no policy stifling court-protected prayer by students or teachers. Those that don't comply risk losing a share of $23 billion in elementary and secondary school money.
Initial responses, due April 15, showed some states had dozens of schools out of compliance; other states failed to reply at all.
But leaders in those states say paperwork problems accounted for the delay. Most of the more than 15,000 school districts have since certified they follow the law, and federal officials seem content the states have shown good faith.
"We're not at the point where we're talking about taking funding away from schools or states," said Education Department spokeswoman Susan Aspey. "The goal all along has been to make sure local school districts do not have any policies in place that sanction religion -- or policies that prohibit voluntary religious expression by students."
Generally, prayer is permitted provided it happens outside of class instruction and is not initiated by school officials, federal guidelines say. As examples, students may pray during recess and teachers may hold their own Bible study at lunch, but teachers may not lead their classes in prayer or try to persuade students to join religious activities.
Texas law currently gives school districts the option of holding a moment of silence and reciting the pledge. A move to make that mandatory is working its way through the Legislature.
As of late Friday, 42 states had certified that all of their schools follow the law.
Five states -- Arizona, California, Ohio, Illinois and New York -- combined showed 150 to 200 school districts out of compliance. All those states expect the number to be zero soon.
Indiana, Nevada and New Hampshire haven't reported, but assure federal officials they expect to send clean reports soon. District of Columbia officials have not responded.
The process of checking in with every school has prompted grumbles from state leaders about lost time and money.
· Students may say grace before meals, pray with fellow students during recess and generally take part in religious expression outside of class instruction.
· Students may organize prayer groups, religious groups and "see you at the pole" gatherings before school to the same extent as other noncurricular activities.
· Teachers may not encourage or discourage students from praying during moments of silence or other quiet periods scheduled by schools.
· Students may express religious beliefs in homework and artwork.
· Teachers, in their role as school officials, may not participate in prayer with students. They may take part in religious activities, such as prayer meetings with other teachers, if they make clear they are not doing so in their official capacities.
· Schools may not organize prayer at graduations or choose speakers in a way that favors religious speech.
OK, I do wonder about the "no organizing prayer at graduation", but I guess I can live with it.
-Eric
1. Congress assumed that the Court is properly the enforcer of the First Amendment.
This is by now a very old error, and one so venerable that to speak in correction of it is to raise questions about one's sanity in most circles. So deep runs the popular myth that the Supreme Court is properly the final authority in enforcing virtually every provision of the Constitution that a digression is necessary here into the more general question of judicial review. As Professor Robert Clinton has shown, the judicial power to invalidate the actions of other branches of the national government was widely understood at the founding to be ''departmental'' or ''coordinate''—a power he calls ''functional review'' enabling the judiciary to pronounce authoritatively on the constitutionality of laws touching on the integrity of the courts' own functions, for instance where a case concerns jurisdictional issues, standards of evidence, or the provision of simple due process. This limited version of judicial review was all that was either exercised or claimed for the Court by John Marshall in the 1803 case of Marbury v. Madison.(see footnote 131) On the other hand, the legislative and executive branches have a like authority to have the ''last word'' on those constitutional questions bearing on the exercise of their own powers, arising from the provisions of the Constitution addressed to themselves. Thus, that same John Marshall, for instance, held that the reach of Congress's power over commerce among the states was to be controlled authoritatively not by the judiciary, but by the people through democratic processes: such are ''the restraints on which the people must often rely solely, in all representative governments.''(see footnote 132)
Now obviously, the terms of the First Amendment address themselves to the Congress and not to the judiciary, and in no way would an infringement of one of the rights therein have an adverse effect on the proper functioning of judicial processes. Moreover, if the First Amendment had been expected to be the subject of routine judicial enforcement, we would expect the subject to have come up frequently in the First Congress that debated and drafted the Bill of Rights. Yet, in his brilliant account of how the Bill of Rights came to be added to the Constitution, Professor Robert Goldwin manages to tell the whole story in complete detail without ever once mentioning that the subject of judicial enforcement of the Bill arose at all. The point of the Bill of Rights was not to trigger judicial review, but to weave a love of liberty into the American political culture. Here ''is how it works,'' Goldwin tells us in his recent book:
[T]o the extent that these principles of free government [in the Bill of Rights] have become a part of our ''national sentiment,'' they do, indeed, often enable us, the majority, to restrain ourselves, the majority, from oppressive actions. That is the import of the first five words of the Bill of Rights: ''Congress shall make no law'' that attempts to accomplish certain prohibited things. It means that even if a majority in Congress, representing a majority of us, the people, wants to make a law that the Constitution forbids it to make, we, all of us, superior to any majority, say it must not be done, because the Constitution is the will of all of us, not just a majority of us.(see footnote 133)
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