A couple of weeks ago, I broke a story about State Representative Katrina Jackson’s attempt to pass legislation that would have ensured the daily recitation of the Lord’s Prayer in public schools. The story was picked up nationally. The day after I published the story, it was mentioned on “Overtime” with Bill Maher. Yesterday, it was referenced in a story on Salon.com. Jonathan Turley, the nationally-renowned constitutional law professor (and former Tulane law professor), wrote about it on his blog, arguing that it definitively violated the Establishment Clause. It was also picked up by the Friendly Atheist blog on Patheos, and the David Pakman Show.
Well, I am happy to report that Representative Jackson has completely gutted the bill, removing practically all of its most controversial provisions and amending it, instead, to focus on the rights of public school teachers to participate in student-led prayer groups, as long as these events are held before or after school and the teachers are “off the clock.” The amended bill also includes a provision that would allow for student prayer groups to use public school facilities during “noninstructional” (sic) time during the school day, a proposal that I think is riddled with logistical, constitutional, and legal problems (and one I hope she will scrap). Quoting:
Section 1. R.S. 17:2118 is hereby enacted to read as follows: §2118. Prayer; student-initiated; conditions
A. Upon the request of any public school student or students, the proper school authorities may permit students to gather in a classroom, auditorium, or other space that is not in use for prayer at any time before the school day begins when the school is open and students are allowed on campus, at any time after the school day ends provided that at least one student club or organization is meeting at that time, or at any noninstructional time during the school day. A school employee may be assigned to supervise the gathering if such supervision is also requested by the student or students and the school employee volunteers to supervise the gathering.
B. Any school employee may attend and participate in the gathering if it occurs before the employee’s work day begins or after the employee’s work day ends.
C. Any parent may attend the gathering if the parent adheres to school procedures for approval of visitors on the school campus.
D. The students may invite persons from the community to attend and participate in the gathering if other school organizations and clubs are allowed to make similar invitations. Such persons shall adhere to school procedures for approval of visitors on the school campus.
While there may be some debate over whether her new legislation’s provisions about teacher participation violates the Equal Access Act, at the very least, this is a legitimate debate: Currently, the law prohibits teachers from actively participating in student-led prayer groups; teachers may only “monitor” these events and activities as custodians.
Although it is important for student religious groups to actually be led by students and not by public school employees, Representative Jackson’s retooled legislation, if challenged, would likely provoke a real, substantive discussion on the rights of teachers who are not “on the clock” to pray aloud with students in student-led events before school. The law is a little vague on this, but it would be absurdly naive to think that this isn’t already being done, nearly 100% of the time. The question hinges on the distinctions between “monitoring” and “participating” and the ways in which it applies to prayer and other religious rituals.
That said, much of Representative Jackson’s amended bill is actually just a recapitulation of existing law. The Equal Access Act already provides students with the right to form religious groups and meet on school property before and after school, so long as the school also provides the same rights and privileges to other groups.
Ms. Jackson’s proposed legislation now also contains language about allowing students the ability to use school facilities during non-instructional hours. As I mentioned earlier, I think this particular proposal is somewhat troubling, because I’m unclear how it could effectively and logistically conform with the Equal Access Act. Moreover, school employees are “on the clock,” even during non-instructional periods, so it appears, at least superficially, to be troubling. The problem is this, as held by the 9th JDC:
Student/staff time at high school constituted “actual classroom instruction” under Equal Access Act, and thus school district would not be required to allow high school religious student group to meet during student/staff time, since such time did not qualify as noninstructional under statute; student/staff time was scheduled period where attendance was taken and students could not leave campus, but were allowed to participate in certain student club meetings with prior arrangement. Education for Economic Security Act, § 802 et seq., 20 U.S.C.A. § 4071 et seq.
Prince v. Jacoby, 303 F.3d 1074 (9th Cir. 2002)
The Supreme Court case Lee v. Weisman makes it clear:
A reasonable dissenter of high school age could believe that standing or remaining silent signified her own participation in, or approval of, the group exercise, rather than her respect for it. And the State may not place the student dissenter in the dilemma of participating or protesting. Since adolescents are often susceptible to peer pressure, especially in matters of social convention, the State may no more use social pressure to enforce orthodoxy than it may use direct means. The embarrassment and intrusion of the religious exercise cannot be refuted by arguing that the prayers are of a de minimis character, since that is an affront to the rabbi and those for whom the prayers have meaning, and since any intrusion was both real and a violation of the objectors’ rights. Pp. 2657–2659.
Lee v. Weisman, 505 U.S. 577, 578, 112 S. Ct. 2649, 2651, 120 L. Ed. 2d 467 (1992)
On a final note, though, I want to express my gratitude to Representative Jackson. She and I may not see eye-to-eye on these issues, but almost immediately after I published my first story, Representative Jackson began engaging me (and others) on Twitter and social media. She listened to our concerns, and she responded. Most politicians, when challenged, tend to double-down; Ms. Jackson, however, was receptive, collaborative, and respectful to her critics. I may not like this new legislation, but I like it a lot more than the previous bill. And I sincerely thank her for hearing us out.
CenLamar 
When my daughter (now 33) was in school in Ohio, her public magnet high school had a time period called “common ground,” which was a 30 minute slot between first lunch and second lunch when clubs would meet. One of the clubs that met every Wednesday was a prayer group. They met at the flagpole. It was student led. I don’t know if teachers joined them or not, and I really don’t care if they did. I think they probably did not (this was a large urban district). That sounds very much like what Ms. Jackson is referring to as non-instructional time.