Prayer in Public Schools After Santa Fe Independent School District
Mark W. Cordes
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The thesis of this Article is that the distinction between voluntary student prayer, and state-sponsored prayer, has arguably become the central consideration in analyzing school prayer cases. Not only was this distinction emphasized by the Court in Santa Fe and prior cases, but it perhaps best explains the Court's results in the cases. The distinction is one which best balances the competing constitutional concerns potentially present in school prayer cases. In particular, it guards against the primary Establishment Clause concerns. The distinction is also one which overlaps substantially with concerns about state coercion and endorsement of religion. Both coercion and endorsement are predicated on the state's involvement with challenged religious practice. The coercion analysis used in Santa Fe and Lee consists of two parts, the first is showing a substantial state involvement with the challenged prayer. Conversely, where students initiate prayer, the state is not coercing anyone and problems of endorsement are minimized. Yet a focus on the distinction between voluntary student prayer and state-promoted prayer would not require a showing of coercion and therefore prohibits more state activity than a pure coercion test. And while significant endorsement concerns would almost always be predicated on state promotion, to the extent that mere accommodation of student prayer on school property might raise endorsement concerns, focusing on the distinction between voluntary student prayer and state-sponsored prayer is somewhat less restrictive than a pure endorsement standard. Part I of this Article examines the five school cases prior to Santa Fe. Part II examines the Santa Fe decision more in-depth. Part III discusses the dual concerns of accommodating both Establishment and free speech concerns in resolving school prayer issues. Finally, Part IV examines remaining prayer scenarios in public schools, focusing on three particular areas: student religious clubs, moment of silence statutes, and graduation prayers.