Civil Liberties #379, Fall 1993

As The ACLJ Cries "Censorship," The ACLU Cries "Foul"

by Lynn Decker

Around the country, the Class of '93 departed public high schools under a
cloud of rancorous dispute over whether prayer should be allowed at
graduation ceremonies.  The dust should have settled following the Supreme
Court's June 1992 decision in _Lee v. Weisman_, which was crystal clear in
its holding that the First Amendment prohibits the inclusion of even non-
denominational prayers in such government-sponsored venues as public school
graduation ceremonies.

However, encouraged by a Scalia dissent that seemed to keep  the question
open, religious pressure groups and school boards have been hunting for
loopholes ever since the _Lee_ decision came down.  Foremost among the
hunters are televangelist Pat Robertson and his American Center for Law and
Justice (see sidebar), which mailed letters to thousands of school
officials advising them that student requests to offer prayer themselves,
in place of clergy members, must be honored.

In support of this claim, the ACLJ and others cite a post _Lee_ ruling that
allows Texas school officials to assign graduating seniors the decision
whether to have prayer and the option of electing a student volunteer to
deliver it.  This ruling, which the Supreme Court let stand without review,
recognizes "solemnization" as an acceptable purpose of prayer, and the
student decision-making process as sufficient for disassociating school
officials from the activity.  The ACLJ has suggested that the Texas ruling
should have expanded application to homerooms, a proposal that envisions
the comeback of daily classroom prayer.

The ACLJ argues that, unlike invited clergy who can be perceived as
officially endorsed "state actors," students are citizens with free speech
rights.  Thus, a ban on "student-initiated, student-led" prayers amounts to
censorship.  Of course, this ruse not only evades the clear meaning of
_Lee_, but it also highlights religious differences among students in a way
that could lead to division and discord.

In keeping with our mission to set the record straight as often as may be
necessary, the ACLU countered the ACLJ's misleading advice with its own,
corrective mailing.  It is not the "who," we wrote to school officials, but
the "what" of official prayer that violates Constitutional protections -- a
reading of _Lee_ that the ACLU shares with numerous state officials who
have circulated their own advisory opinions on the subject.

ACLU affiliates in Indiana, Pennsylvania and Montana headed off plans for
prayer, underway in various school districts, by negotiating settlements
that forbid any officially-sponsored prayer, but that allow for separate
and private baccalaureate ceremonies.  Cases in which we have sought
injunctions are pending in several other states, including Idaho and
Virginia.

In New Jersey, on the occasion of granting the ACLU's request for a
preliminary injunction, a federal appeals court offered this pointed rebuke
to students-decide schemes:

+---------------------------------------------------------------------+
  "Graduation is a school sponsored event; the fact that the school  
   board has chosen to delegate the decision regarding one segment   
   of the ceremony to the members of the graduating class does not   
   alter that sponsorship, does not diminish the effect of a prayer  
   on the students who do not share the same or any religious        
   perspective, and does not serve to distinguish, in any material   
   way, the facts of this case from the facts of _Lee v. Weisman_."  
+---------------------------------------------------------------------+

These words notwithstanding, the ACLJ will persist in promoting publicly-
sponsored Christmas creches, school pageants, graduation prayer and such
other concoctions as "See You at the Pole."  The latter event, in which
students gather before school hours to pray around the flagpole, first
surfaced amid debate over the issue of equal access to school facilities. 
Schools that permit other extra-curricular uses of their facilities must
permit such events, which are legal as long as school officials do not
organize or facilitate them.

Heavy promotion of "See You at the Pole" by the ACLJ and other groups
reveals its purpose: to insinuate religious observance into the fabric of
public school life.  And what is the religious right's ultimate goal? 
Clearly, it is to bring about what the Constitution explicitly forbids:
governmental establishment of religion in the United States.

The ACLU, meanwhile, is in court, in the mail and on-screen providing
further information to school superintendents and their legal counsel, as
well as a video and brochures to parents and students (see sidebar). 
Hopefully, come next graduation season the Constitution's timeless lesson
of respect for everyone's rights of conscience will have been learned by
all.

===========================================================
SIDEBAR: Imitation Is (NOT) The Sincerest Form of Flattery 
===========================================================

The American Center for Law and Justice, established in 1990, mimics the
ACLU in more than name.  In their own words, the ACLJ

+--------------------------------------------------------------------+
  "... is a not-for profit public interest law firm dedicated to    
   the promotion of pro-liberty, pro-life and pro-family causes.    
                                                                    
   The Center engages in litigation, provides legal services,       
   renders advice and counsel to clients, and supports attorneys    
   who are involved in defending the religious and civil liberties  
   of Americans.                                                    
                                                                    
   The Center is also developing a national network of attorneys    
   who are committed to the defense of traditional values, and      
   cooperates with other organizations that are committed to a      
   similar mission and serves the public through educational        
   efforts concerning First Amendment and religious freedom issues. 
                                                                    
   As a not-for-profit organization that does not charge for its    
   legal services, the American Center for Law and Justice is       
   dependent upon God and the resources He provides through the     
   time, talent and gifts of people who share our concerns over     
   the erosion of our religious and civil liberties."               
+--------------------------------------------------------------------+

Last year, Pat Robertson's broadcasting resources met and married the legal
strategies of Jay Sekulow, an attorney credited with several high-profile
wins in the Supreme Court who is the ACLJ's senior counsel.  That
combination has brought growth and recognition to the group, which now has
14 lawyers and a budget of $6 million.

But make no mistake about it, the ACLJ is no mirror image of the ACLU.  One
ACLJ brochure, _In Defense of Liberty_, exhorts readers to claim and defend
their rights against authoritarian government -- a theme familiar to ACLU
members -- but then goes on to identify the ACLU as leading the "pro-death,
anti-liberty, anti-family forces." Another brochure, _Religious Cleansing
in the American Republic_, equates the "ethnic cleansing" perpetrated
against Muslims in Bosnia with alleged religious persecution of the
faithful by secular forces in the U.S.

Lynn Decker is staff writer in the Publications Office of the ACLU's Public
Education Department.
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