Re-Examining the Constitutionality of Prayer in School in Light of the Resignation of Justice O'Connor

I. INTRODUCTION When Justice Sandra Day O'Connor resigned from the United States Supreme Court in June of 2005, she ushered in a period of speculation. What would the Court be like without her? Will either of the new appointees, Chief Justice John Roberts or Associate Justice Samuel Alito, take her place in the ideological center of the Court, or will the Court shift further to the conservative right? While the nation at present may be focused on the impact of this change at the head of the Judicial Branch on the robustness of the Court's precedent in Roe v. Wade,1 for those who follow education law O'Connor's position as the swing vote in numerous school cases focuses attention on other areas of jurisprudence, in particular, the principles guiding the application of the Establishment of Religion Clause of the First Amendment2 to instances of school prayer. Since the landmark decision in McCollum v. Board of Education? the Supreme Court has analyzed three categories of school prayer cases: devotional activities, curricular choices, and ceremonial prayers. Each category has required the Court to examine the application of the Establishment Clause, often in balance with other First Amendment provisions including the right to free exercise of religion4 and the right to free speech.5 In McCollum and subsequent decisions,6 the Court has established boundaries for school prayer. It has instructed that permissibility of school prayer depends on the following: first, who is praying (school employees or others);7 second, whether students are compelled or coerced into participation or acceptance of the prayer;8 and third, in what forum or context the prayer occurs.9 However, with the exception of two cases,10 each decision has been issued by a divided Court. That division raises questions regarding the robustness of the principles governing school prayer and whether changes in the Court's composition could alter the jurisprudential logic applied to situations involving some form of prayer in schools. The purpose of this paper is to explore the question of the constitutionality of various forms of school prayer given the expected shift to the right with the newly constituted Roberts Court. Ultimately, the paper examines the following question: Is it possible that the Court could reverse the decisions of the last decade and a half and find that various forms of school prayer11 are constitutional? To address this question, the paper first provides an historical overview of the Court's jurisprudence with respect to prayer in public elementary and secondary schools. The next section of the paper reviews available writings of Chief Justice Roberts and Justice Alito to determine where on the ideological spectrum of the Court each is likely to position himself. Finally, the paper concludes with an examination of the question posed with particular attention to the school prayer issues that may confront the Roberts Court and the implications for school leaders if any shift in Establishment Clause jurisprudence results. II. HISTORICAL OVERVIEW OF THE COURT'S JURISPRUDENCE WHEN PRAYER IN SCHOOL IS AT ISSUE Since 1948, the Supreme Court has decided thirteen cases that presented questions of whether and under what circumstances religious doctrine or prayer have a place in public schools as an accommodation to individual beliefs.12 Table 1 lists those cases, the issues litigated, the judicial holding and the manner in which the nine members of the Court voted. The first case the Court heard in 1948 involved public schools in Champaign, Illinois that allowed local churches and sectarian groups to send individuals into the schools for thirty minutes each week to teach religion.13 The Court found the practice violated the Establishment Clause and explained its rationale in the following way: [T]he First Amendment rests upon the premise that both religion and government can best work to achieve their lofty aims if each is left free from the other within its respective sphere. …