Is There a Place For God in School?

By Richard N. Ostling

DURING A SINGLE WEEK LAST MONTH in the District of Columbia public schools, two high school students were shot and seriously wounded, another student was stabbed by a sixth-grade girl, an assistant principal was punched in the face, and a policeman was assaulted by students. Mayor Sharon Pratt Kelly responded to the mayhem as big-city mayors often do: she announced plans to post 60 more cops on campus. But her predecessor in the job is convinced that a higher power is required. Ex-mayor and now councilman Marion Barry has proposed a law allowing students to lead nonsectarian classroom prayers. "Maybe, just maybe, it will turn some of our values around," he says. "We've lost our way."

Barry, who served six months in prison for drug possession after leaving office as mayor, might seem a curious proponent of piety, but his campaign is no oddity. Pressed by voters, legislators around the U.S. are probing for loopholes in Supreme Court rulings that have forbidden mandated school prayers along with "moments of silence" to foster praying and clergy prayers at school graduations. These efforts come, moreover, at a time when the court is re-examining a cornerstone of its rulings on church and state: the so-called Lemon test, which has forbidden virtually all government involvement with religion.

The grass-roots campaign to slip prayer back into school is aimed at a chink in the Supreme Court's rulings: the court has never expressly stated whether voluntary student prayers are permissible. A mail campaign spearheaded by TV evangelist and onetime presidential candidate Pat Robertson has sent every high school principal and attorney general in the nation literature urging that such prayers be allowed as an expression of "free speech" and "equal access to the marketplace of ideas." (His organization does not advocate student prayers on school-wide intercoms, the practice that got Mississippi principal Bishop Knox suspended.)

Anxiety over a breakdown in the nation's moral values is fueling much state legislative activity as well. Georgia just enacted a law to permit moments of silence. Student-led prayers have been approved in Mississippi, Arkansas, Tennessee and Virginia. Similar legislation is under consideration in at least six more states. Congress has caught the fever this year as well. Both the Senate and House passed measures that would strip funds from schools that forbid "voluntary" prayer. Final action on prayer legislation is expected this spring.

The American Civil Liberties Union has vowed to challenge the constitutionality of these new laws. Representative Don Edwards, a California Democrat, argues that student prayer is not really voluntary and amounts to "manipulation by churches and parents." He points to numerous lower-court decisions against such praying.

A pending high-court decision could change the landscape significantly. It revolves around the 1971 Lemon ruling, which bars tax support for salaries and secular textbooks in religious day schools. The decision set up a three-part test to determine whether a government action is an unconstitutional infringement of church-state separation: an action must have a "secular legislative purpose," avoid "excessive government entanglement with religion" and have a "primary effect" that "neither advances nor inhibits religion."

Many legal experts and religious leaders feel that the Lemon test is at best confusing, at worst unfair, and in any event destined to change. The current challenge has come in the case of Kiryas Joel v. Grumet. Kiryas Joel is a municipality in upstate New York where virtually all citizens are in the Satmar sect of Hasidic Orthodox Jewry. Kiryas Joel adheres rigidly to Old World dress and ways and maintains a close-knit, Yiddish-speaking community that tries to shield itself from outside influences. TV, movies and even higher education are shunned.

The children in town attend religious day schools with no government support. The dispute centers on the town's handicapped youngsters. They used to be trained by public school teachers at an annex to a religious school; then, in 1985, the Supreme Court decided that Lemon forbids such cooperation. After busing the handicapped kids to an existing public school for several years, the Satmar parents, seeking to shield the children from harassment, set up their own local public school, where costly special education is made possible by state and federal aid.

Kiryas Joel says its public school for the handicapped operates in a strictly nonsectarian fashion. Opponents, led by Louis Grumet, executive director of the New York State School Boards Association, do not argue that point. But they say Lemon forbids the very existence of a school set up by the & state legislature specifically to help a religious community and perpetuate its life-style. New York's highest court outlawed the school because it creates a "symbolic union" between religion and the state. The Supreme Court last week heard arguments in Kiryas Joel's appeal.

Some scholars believe the time is ripe for the Lemon test to be modified or overturned. Four Supreme Court Justices have soured on Lemon. Two prominent legal experts who filed "friend of the court" briefs expressed dissatisfaction with Lemon: Michael McConnell of the University of Chicago, backing the Satmars on behalf of Evangelical Protestants, and Douglas Laycock of the University of Texas, opposing the Satmars on behalf of the more liberal National Council of Churches.

McConnell and Laycock assert that Lemon's "primary-effect" criterion (the one used to outlaw the Kiryas Joel school) is too fuzzy and has been misused to deny religious Americans rights that are automatically granted to others. The Supreme Court has already overruled lower courts that used the primary- effect criterion to outlaw voluntary religious clubs in public schools, rental of public schools to churches on the same basis as other community groups, and help for blind and deaf students attending religious schools.

McConnell advocates what he calls "substantive neutrality," in which courts would allow government to accommodate religious activity if its policy is "religion-blind" and does not "induce or favor" belief. Laycock, observing that "it is rarely possible for government to achieve absolutely no effect on religion," argues that to find neutrality, courts should balance the benefit to religion stemming from a government action, against the repression of belief that would result if government did the opposite.

The attorney who argued for the Satmars, Nathan Lewin, contends that the Supreme Court will ultimately have to decide: "Is religion a positive force in American society, or is it a menace?" His opponent, educator Grumet, asserts that if the court decides in the Satmars' favor, "the entire underpinning of the public school system would be undermined." Harvard law professor Alan Dershowitz, a strong supporter of church-state separation, is uncharacteristically ambivalent on Kiryas Joel. "It's a close case," he says. Close, and for the always delicate relations between church and state, potentially momentous.

With reporting by Jeff Hooten/Washington