See You At The Pole: An Opportunity To Review Students’ Religious Freedom Rights

Politicians like to lament the supposed lack of prayer in schools and blame society’s ills on this purported void.

Just last month, former Alabama Supreme Court justice Roy Moore, the Republican nominee to fill the state’s vacant seat in the U.S. Senate, told a conservative Christian group: “You wonder why we're having shootings, and killings here in 2017? Because we’ve asked for it. We’ve taken God out of everything. We’ve taken prayer out of school, we’ve taken prayer out of council meetings.”

Kentucky Gov. Matt Bevin (R) told a West Virginia radio show host that the violence spurred by white supremacist rallies in Charlottesville, Va., could have been avoided if school kids were taught the Bible:  “When you go back a couple hundred years, in most instances, the only textbooks that were actually in our public schools were the Bible. …the more we’ve removed things that are biblically taught from society, the more we’ve seen the kind of mayhem that we were just discussing.”

But as a national event on Wednesday demonstrated, public school students are able to voluntarily express their faith. Google “See You At The Pole” and you will find news stories and pictures from all over the country of students praying around flag poles before the school day.

A more than 20-year-old campaign promoted by conservative Christian organizations like Alliance Defending Freedom, Focus on the Family and Liberty Institute, “See You At The Pole” encourages students to pray around a school flag pole either before or after school every September.

Although the sponsoring organizations’ intentions clearly include proselytization – they encourage people to pray for “the non-Christian students that could be reached through See You at the Pole” – as long as students and not school employees are organizing and participating in the events, they occur during non-instructional time and participation is voluntary, these are constitutional expressions of students’ religious freedom.

There are other ways young people can practice their faith in school. Students can individually pray, they can read religious texts during study halls or other free time and they can form and join religious clubs as long these clubs are treated the same as other extracurricular clubs.

Students have the right to participate in voluntary, student-initiated prayer before the school day.

Where some schools cross the line is when they allow students to deliver prayers during school activities or at school-sponsored events. Even if students initiate the prayers and are voluntarily giving them, other students who may not share the same beliefs are being coerced to listen and participate. Compelling students to participate in religious activities violates their constitutional rights and creates the appearance of school-sponsored religion, also a constitutional violation.

This is the situation AU is challenging at a Louisiana school district. In Benton High School, which is part of Bossier Parish Schools near Shreveport, students delivered prayers at the beginning and end of a graduation ceremony in May. As we explained in a letter to the district, the prayers violated the First Amendment because they communicate the public school district’s endorsement of a particular faith and coerce participation in a religious exercise. Schools must be inclusive, and students shouldn’t have to choose between going to graduation and being exposed to prayers that conflict with their personal beliefs.

A concerned person informed AU, and we’ve asked Bossier Parish Schools to end the graduation prayers. We’ve not yet received a formal response from the district, but Shreveport-area news reports indicated the district does not intend to stop the prayer practice. Alex Luchenitser, AU’s associate legal director, told The Shreveport Times our attorneys will talk with the complainant about potential next steps.

Public school employees also should not be leading students in prayer, either during class time or at school-sponsored events. Last month, the 9th U.S. Circuit Court of Appeals affirmed that a Washington high school had the right to stop former football coach Joseph Kennedy from leading students in prayer on the football field after games.

Bremerton School District’s superintendent asked Kennedy to stop, recognizing that Kennedy’s prayers pressured students to participate and created the impression that the school district endorsed his faith. When Kennedy ignored the superintendent and continued the prayer practice, he was placed on paid leave in 2015. He didn’t reapply for his coaching job when his contract expired at the end of the season; instead, he sued, claiming the school district had violated his constitutional rights.

But Kennedy was no victim. In reality, it was Bremerton’s students whose constitutional rights were violated. AU filed a friend-of-the-court brief in the case, Kennedy v. Bremerton School District, in support of the school district, and AU Legal Fellow Andrew Nellis participated in an oral argument before the court to explain why the prayer practice violated the First Amendment.

The 9th Circuit agreed, noting “such activity can promote disunity along religious lines, and risks alienating valued community members from an environment that must be open and welcoming to all.”

“Teachers and coaches don’t get to pressure students to pray,” Richard B. Katskee, AU’s legal director, said in response to the court’s opinion. “Students and families have the right to decide whether and how to practice their faith. Public schools should be welcoming places for all students and families, and no student should feel like an outsider at his or her school.”

In response to an earlier “See You At The Pole” event, AU’s Communications Director Rob Boston wrote this helpful summary of what religious activities are and aren’t permissible at schools. If you’re concerned that your school may be violating students’ constitutional rights, please report the potential violation to us and our attorneys will review it.