An unconstitutional future

Andrew Seidel, FFRF Constitutional Consultant

Florida Senate Bill 0098, a bill that will authorize prayers in schools, at graduations, and at school events, has made it out of committee. The Education, Judiciary, and Rules Committees all voted to approve the bill with some minor amendments; none of which cured its constitutional problems. Despite its obvious flaws, the Florida Senate has scheduled this bill for a vote. FFRF has already pointed out the numerous legal issues with this bill. The ACLU of Florida, the Anti-Defamation League, and Americans United, stand with FFRF, who issued its first letter of protest more than two months ago.

Essentially, this bill is a convoluted chain of power delegations that allows school boards to allow students to initiate prayers at graduation and assemblies. The law on school prayer is very clear: any policy of prayer in public schools is unconstitutional. See, e.g., Engel v. Vitale, 370 U.S. 421 (1962)(declaring prayers in public schools unconstitutional); Abington Township Sch. Dist. v. Schempp, 374 U.S. 203 (1963)(declaring Bible reading and prayer in public schools unconstitutional.)

Let’s look at how the bill would operate in practice. The bill is passed and takes effect in July; school boards now are authorized to allow prayer at graduation. A school board from a small, insular community, not having the legal awareness and resources of the legislature, passes a resolution allowing prayers at graduation because “the legislature said we could.” Come graduation time, the Freedom From Religion Foundation (FFRF) or the ACLU get a complaint from a student. Perhaps this student is a young girl, let’s call her Jessica. FFRF and Jessica take the school board to court.

A Christian legal group, let’s call them the ADFCLJ (Alliance to Demand and Force Christ’s Law into Jurisprudence), will offer its services to the school board… for free! They do this to push their own agenda with no care for the financial well being of the school district or the quality of education it can provide. Their entrance drowns out the voices of reason, perhaps the lawyers for the school district urging the board to avoid losing litigation, and a court battle that could have easily been settled, goes on for a few years.

During that battle, Jessica is harassed, threatened, and alienated by her teachers, community, and even her state legislature. (If you think this is a stretch I urge you to read more here.) This same scenario has already played itself out in Rhode Island. FFRF has just started a fund to reward students who are ostracized for having the courage to stand up for their constitutional rights—you can donate here, select “Atheist in Foxhole Support Fund” from the “special project” menu.)

Now, the foregone conclusion: the Supreme Court has ruled time and again that our Constitution prohibits school prayers, and particularly prayers at graduation. In keeping with that precedent, the court declares the school board policy is unconstitutional. In the process, the school district loses hundreds of thousands of dollars or possibly, as happened in Dover v. Kitzmiller, over $1 million. ADFCLJ, the group that offers its services to the school district, doesn’t charge the school district for their services but nor do they pick up the court costs and plaintiff’s attorneys’ fees that the district is required to pay. What seemed like a no lose situation to the school board (“I thought we had pro bono representation?”) has suddenly bankrupted them.  

FFRF is among the many groups that have warned the Florida legislature about the dangers of passing this bill. In the end, all they will have to show for it is a financial crisis in a school system already in trouble and the alienation of a young student who was brave enough to stand up for her constitutional rights.

The sneaky part of this bill is that the legislature will probably not be held accountable for causing the mess in spite of all the warnings. Judicial standing requirements will make it easier for a challenge to the school board policy allowing prayer than it will be to challenge the law that allows school boards to allow prayer. True, the law will probably get overturned in the process, but the school board will pay the financial and electoral bills and many will forget that it was this insidious little bill that started it all.

Prayer does not belong in our schools, nor is it constitutionally permitted at graduations, assemblies, or school sporting events. Prayer belongs in the private life of the individual, at home or in church. The right to prayer is not in danger; the same First Amendment that mandates keeping public schools free of religion also protects prayer. So let’s forgo the costly lawsuit, avoid ostracizing children, and honor our Constitution by refusing to pass this bill.

Andrew Seidel is the newest member of FFRF’s legal team and our first Constitutional Consultant. He joined FFRF in November and absolutely loves his job. 

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