Robert S. Peck

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With the Supreme Court unlikely to overturn its public school prayer decisions, those who seek a greater religious presence in education have launched two complementary strategies intended to expand existing guarantees of school-related worship rights.

The first strategy is a renewed effort to pass a school prayer constitutional amendment utilizing the political muscle that conservative religious interests demonstrated in the 1994 elections and which resulted in the first Republican controlled Congress in forty years. The amendment movement dangerously attempts to authorize the use of government offices for purposes of religious indoctrination. Though previous efforts at authorizing public school prayer through a constitutional amendment have failed,' the new political landscape forces those concerned with constitutional freedoms to take today's effort seriously.

The second approach being pursued is a litigation strategy that seeks to avoid traditional Establishment Clause' concerns by emphasizing the ostensible private status of the religious speaker in the public setting, minimizing the actual involvement of public authority, and framing the issue as one implicating only freedom of speech. This is a more sophisticated philosophical and legal effort than the constitutional amendment drive and is not without its appeal to civil liberties advocates. Yet, it too is flawed because it has the potential to reduce religious exercise to the status of mere expression, to convert the Establishment Clause into a largely meaningless exhortation, and to transform our public schools into arenas of religious rivalry None of these results would be beneficial to the purportedly explicit goal of guaranteeing religious liberty proffered by the policy's advocates.

There is a strong likelihood that these efforts, started as separate enterprises, will converge, reconfiguring the constitutional amendment movement into one about freedom of religious expression. The arguments against the two strategies will also then converge.

This article will examine the folly of attempting to amend the Constitution to establish some greater right to engage in prayer in school than currently exists, as well as the stalking horse nature of attempting to denominate the issue as one of free -expression. It will survey the development of the American idea of religious liberty as one that sees government and religion operating in largely autonomous spheres and how today's proposals amount to a rejection of that heritage. Furthermore, it will examine the insufficiency of declaring all student speech private speech in order to bring it under the rubric of the First Amendment's free expression protections. This article will demonstrate that although the First Amendment does afford religious expression some status as constitutionally protected free speech, the Establishment Clause uniquely operates as a limitation on certain types of religious expression in the classroom, an impediment that is not present when the speech falls within other subject areas.