
                         Roanoke Times
                 Copyright (c) 1995, Landmark Communications, Inc.

DATE: FRIDAY, July 9, 1993                   TAG: 9307090361
SECTION: EDITORIAL                    PAGE: A-8   EDITION: METRO 
SOURCE: JAY ALLAN SEKULOW
DATELINE:                                 LENGTH: Medium

STUDENT PRAYER IS A LEGAL-RIGHTS ISSUE

IT WAS 1969. The nation had been torn apart by the Vietnam War. The controversy was still raging in the streets and on the campuses of America and had reached into the high schools. Yet on Feb. 24, 1969, the Supreme Court ruled in Tinker vs. Des Moines School District that student expression against the Vietnam War could not be squashed in public schools. A lower court had concluded that the schools could prohibit the wearing of armbands because of the threat of disturbance. The Supreme Court disagreed: "In our system, undifferentiated fear or apprehension of disturbance is not enough to overcome the right to freedom of expression." The court ruled that neither "students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate."

It is now 1993, and once again there are those who speak to limit student speech. The censors again invoke both a legal argument and an argument based on fear. They claim that student-led prayers at graduation somehow violate the Establishment Clause. They also seek to raise the specter of rabid fundamentalists abroad in the land imposing their morality on the great mass of unwilling American citizens. Neither of these arguments holds any water.

The invoking of Pat Robertson as some sort of an anti-civil-liberties bogeyman is a smoke screen to hide the weakness of their position. He had no involvement with our "special bulletin," which was sent to 15,000 public-school districts to inform them of the rights of students to speak freely at graduation. Robertson's name appears nowhere on it. My name and those of 10 other attorneys do appear. I have served as counsel or co-counsel on 10 U.S. Supreme Court cases and have conducted the oral arguments in six of them. The bulletin is not the uninformed opinion of rabid fundamentalists; it is an accurate analysis of the law.

Similarly, the Establishment Clause argument is spurious. The First Amendment prohibits government from establishing religion. It leaves untouched private expression. In Westside Community Schools vs. Mergens, the Supreme Court held: "There is a crucial difference between government speech endorsing religion, which the Establishment Clause prohibits, and private speech endorsing religion, which the Free Speech and Free Exercise Clauses protect." The so-called civil libertarians claim this language from Mergens is not relevant. It is absolutely relevant.

Since last year's Lee vs. Weisman case, in which the Supreme Court ruled that prayer by state actors is unconstitutional, only one court has addressed student-led and student-initiated prayer. In Jones vs. Clear Creek Independent School Districts, the Fifth Circuit relied in large part on Mergens to rule that student prayer was different from prayer by state actors and was constitutional. Graduating seniors can understand that the schools are not endorsing what they do not censor. They understand that the government must protect freedom of religion, but that it cannot promote freedom from religion. That would promote hostility toward religion.

We sent our bulletin to inform Americans of their rights. Remember, the republican form of government protects the minority from the majority and the majority from the minority. Allowing students to decide whether or not to conduct a prayer represents that tradition. The government is not involved, and those students who do not wish to participate are neither compelled to do so nor suffer any consequences for failing to do so.

However, denying religious students the right to pray produces a vile form of discrimination that we have seen in America before. There was a time when African-Americans were forced to the back of the bus. Now, religious students are not merely being forced to the back of the auditorium, they are being told they are not welcome in the auditorium.

The nation survived the Vietnam War protests, some of which posed very real threats to life and property. That expression was permitted. Should not students' prayers, which pose no threat to the Establishment Clause and which the American people want, also be permitted? The answer has to be yes.

Jay Alan Sekulow is chief counsel for the American Center for Law and Justice in Virginia Beach.

by CNB