Schultz D. Encyclopedia of the United States Constitution

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Scalia, Antonin Gregory (1936– ) Supreme

Court justice

Antonin Gregory Scalia presently serves as a U.S.

Supreme Court justice; his appointment was in

1986. Scalia was born March 11, 1936, in Trenton,

New Jersey, the only child of S. Eugene Scalia and

Catherine Scalia. Scalia’s father was born in Sicily

and immigrated to the United States as a young

man. He was a professor of Romance languages.

His mother, born to immigrant Italian parents,

was a schoolteacher.

Scalia’s family moved to Elmhurst, a section of

Queens, New York. He attended public school in

Queens and later at St. Francis Xavier, a military

prep school in Manhattan, where he graduated

ﬁ rst in his class. He received his B.A. summa cum

laude in history in 1957 from Georgetown Uni-

versity and was the valedictorian of his class. He

attended Harvard Law School, where he received

his LL.B. magna cum laude. Following gradua-

tion, he spent a year traveling in Europe as a Shel-

don Fellow of Harvard.

Scalia began his legal career in 1961 as an asso-

ciate at the law ﬁ rm of Jones, Day, Cockley, and

Reavis in Cleveland, Ohio. He worked in a number

of practice areas, including real estate, corporate

ﬁ nancing, labor, and antitrust. In 1967 he decided

to teach law and became a professor at the Univer-

sity of Virginia Law School.

Four years later, Scalia took leave from Virginia

to begin a career in government service. Various

positions included: general counsel, Ofﬁ ce of Tele-

communications Policy; chairman of the Admin-

istrative Conference of the United States; and

assistant attorney general for the Ofﬁ ce of Legal

Counsel at the Justice Department.

After he left government service, Scalia

returned to teaching law, brieﬂ y at Georgetown

University Law Center and then at the University

of Chicago from 1977 to 1982. In 1982 President

Ronald Reagan appointed Scalia to the U.S. Court

of Appeals for the District of Columbia Cir-

cuit. He served on this court, considered second

in importance only to the Supreme Court, for four

years.

On June 17, 1986, President Reagan nomi-

nated Scalia to the Supreme Court, to ﬁ ll the seat

left vacant by the elevation of William Hubbs

Rehnquist to chief justice. In his testimony

before the Senate Judiciary Committee, Scalia said

he considered the most important part of the Con-

stitution to be the system of “checks and bal-

ances among the three branches, . . . so that not

one of them is able to run roughshod over the lib-

erties of the people.” Scalia was conﬁ rmed unani-

mously (98-0) by the Senate on September 17.

An important case during his early years

demonstrated his conviction concerning the

“checks and balances” necessary among the three

branches. Morrison v. Olson, 487 U.S. 654 (1988),

was a suit challenging the constitutionality of the

independent counsel, an individual selected by

the judiciary to investigate senior ofﬁ cials of the

executive branch. The Court upheld the legisla-

tion creating the post, but Scalia wrote a forceful

dissent, arguing that Congress had impermissi-

bly vested some of the traditional power to pros-

ecute in the hands of someone not fully within

the supervision and control of the president—an

arrangement that had no support in the Constitu-

tion. Scalia asked, “Once we depart from the text

of the Constitution, just where short of that do we

stop?” (id. at 711).

Scalia is considered a formalist, following a

“textualist” and/or “originalist” approach when

interpreting the Constitution. He is unwilling to

ﬁ nd constitutional rights that are not plainly set

forth in the language of the Constitution or ﬁ rmly

grounded in American tradition. Both approaches

emphasize careful adherence to the text of both

the Constitution of the United States and federal

statutes, as their meaning would have been under-

stood when adopted. Some applaud Scalia’s view;

others believe the Constitution is a “living docu-

ment” that entails more than the mere words with

which it is written.

Scalia’s strict adherence to originalism has

led him to support many rights associated with a

liberal viewpoint. One example is his support for

the Court’s holding in T

EXAS V. JOHNSON, 491 U.S.

397 (1989), that ﬂ ag burning is a form of political

expression protected under the First Amend-

ment, despite his personal contempt for ﬂ ag burn-

ers. By contrast, Scalia’s decisions on abortion or

642 Scalia, Antonin Gregory

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gay and lesbian rights issues could be char-

acterized as opposing a libertarian viewpoint; e.g.,

in LAWRENCE V. TEXAS, 539 U.S. 558 (2003), Scalia

denied that the Constitution protected the right to

engage in sodomy.

Although Scalia’s views are not endorsed by a

majority of the Court, he is well respected for his

strong intellect, analytical ability, and obvious pas-

sion for the law.

For more information: Schultz, David, and

Christopher Smith. The Jurisprudential Vision of

Justice Antonin Scalia. Lanham, Md.: Rowman &

Littleﬁ eld, 1996.

—Randy W. Hagedorn

Schechter Poultry Corporation v.

United States

295 U.S. 495 (1935)

In Schechter Poultry Corporation v. United States

the Supreme Court held that rules drafted under

the National Industrial Act to regulate competi-

tion were an unconstitutional delegation of power.

The importance of this case was that it struck

down some of the ﬁ rst sets of laws drafted during

the New Deal.

In Schechter Poultry, the Supreme Court

was asked to determine the constitutionality of a

section of the National Industrial Recovery Act

of 1933. In the act, Congress gave the National

Recovery Administration (NRA) the authority to

establish fair codes for competition—including

wages, hours, and working conditions—in vari-

ous industries nationwide. By establishing these

codes, the hope was that conditions in a host of

industries would stabilize, thus ameliorating the

ongoing economic depression affecting the coun-

try at the time.

In this case, the Schechter brothers operated a

number of slaughterhouses in New York City. They

imported chickens from out of state, slaughtered

them, and then sold the chickens locally. At the

federal district court level, the Schechters were

found in violation of various codes established by

the NRA, with the conviction being upheld by the

appellate court. The Schechters challenged their

conviction to the Supreme Court, claiming that

the act surpassed congressional powers per the

commerce clause and that the authority dele-

gated to the NRA was unconstitutional due to the

lack of speciﬁ c standards to guide the NRA.

A unanimous Court, in an opinion written by

Chief Justice Hughes, ﬁ rst held that the Schech-

ter’s business activities, particularly after receiving

the chickens, were intrastate, and thus had little

direct impact upon interstate commerce. As

such, the Court concluded Congress did not have

the authority to regulate the Schechter brothers’

enterprises under its commerce clause authority.

Next, the Court addressed the claim that the

authority Congress granted the NRA was uncon-

stitutional. Speciﬁ cally, the Schechters contended

that the authority given the NRA to establish fair

competition codes was done so without giving

the executive branch standards on which to base

the codes. The Court, after an extensive review

of the law, agreed with the Schechters, determin-

ing that Congress had not deﬁ ned what it meant

by fair competition, had not established a stan-

dard to guide executive branch action, and had

not required any ﬁ nding of fact by the executive

branch before it exercised the authority found

in the law. In the end, the Court concluded that

Congress left to the executive branch’s discretion

the determination of what was or was not fair

competition for a number of industries. As Justice

Cardozo wrote in a concurring opinion, “(T)his

was delegation running riot.”

A broader issue surrounding this case was the

question of what the Constitution demanded from

the executive and legislative branches as expecta-

tions placed upon the federal government grew in

the aftermath of the Great Depression in the late

1920s and throughout the 1930s. The Court in

Schechter, like in PANAMA REFINING COMPANY V. RYAN,

293 U.S. 388 (1935), recognized that Congress had

authority in the Constitution to pass legislation that

gave the government an opportunity to adapt to

complex situations that the legislative branch could

not foresee. However, the Court also stressed how

the Constitution ﬁ rmly rests legislative authority in

Congress and not the executive branch.

Nevertheless, the Court’s rulings in Panama

Reﬁ ning and Schechter Poultry were the last two

Schechter Poultry Corporation v. United States 643

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cases in which it limited the delegation of author-

ity from Congress to the executive branch. The

nondelegation doctrine, as these rulings came to

be known, gave way to the Court typically ratify-

ing broad congressional delegations of authority to

the executive branch throughout the 20th century

and into the next century.

Finally, by the late 1930s and early 1940s,

the Court began to allow congressional efforts

to regulate activities that had an indirect, albeit

substantial, effect on the national economy (see

NITED STATES V. DARBY, 312 U.S. 100 [1941], and

WICKARD V. FILBURN, 317 U.S. 111 [1941]). Whereas

the Court was quite reluctant in the ﬁ rst years of

the New Deal to read the Constitution as giving

the political branches the authority to regulate

areas of the economy that had previously been the

purview of state governments (if at all), the Court

changed course in 1937 (see NATIONAL LABOR RELA-

TIONS BOARD V. JONES & LAUGHLIN STEEL CORP., 301

U.S. 1 [1937]) and began to deem such legislation

as constitutional.

For more information: Leuchtenburg, William

E. The Supreme Court Reborn: The Constitu-

tional Revolution in the Age of Roosevelt. New

York: Oxford University Press, 1995.

—John M. Aughenbaugh

Scheidler v. National Organization for

Women, Inc.

547 U.S. 9, 126 S.Ct. 1264

(2006)

In Scheidler v. National Organization for

Women, Inc., the Supreme Court considered lim-

its on antiabortion protests under the 1970 Rack-

eteer Inﬂ uenced and Corrupt Organizations Act

(RICO). It ruled that, to win a civil RICO case,

plaintiffs must prove that defendants committed

at least two or more speciﬁ ed criminal acts within

10 years.

In 1986, the National Organization for Women

(NOW) ﬁ led a civil RICO action against antiabor-

tion protestors, charging that they were part of a

nationwide conspiracy to close abortion clinics by

engaging in racketeering activities that included

blocking clinic entrances, arson, harassing clinic

personnel and clients, destruction of property,

physical injuries, bombings, extortion, threats, and

intimidation. They claimed that the defendants

violated the 1948 Hobbs Act, a federal anti-extor-

tion law that forbids anyone from interfering with

interstate commerce “by robbery or extortion

or . . . commits or threatens physical violence to

any person or property in furtherance of a plan or

purpose” to violate the act.

The circuit court dismissed the case, ruling

that the plaintiffs had not shown that the defen-

dants were economically motivated. The Supreme

Court unanimously reversed, holding that RICO

was not restricted to conspiracies that furthered

economic interests.

Four years later, a federal court jury in Chi-

cago found the defendants guilty of violating

numerous counts of the Hobbs Act; the judge also

issued a nationwide order barring protestors from

blocking access to clinics, trespassing, damaging

clinic property, and threatening or using violence

against clinic personnel or patients. The defen-

dants appealed, arguing that they had not violated

the Hobbs Act because they had not “obtained”

clinic property and were not guilty of extortion.

The circuit court rejected their argument, ruling

that they may be found guilty under the Hobbs

Act for disrupting or interfering with the victim’s

business even if they had not physically “obtained”

the victim’s property.

In 2003, the Supreme Court reversed the

appellate court. Chief Justice William Hubbs

Rehnquist found that the defendants had not

committed extortion because they did not “obtain”

the abortion providers’ property. Interfering with

property is not extortion, he said, even if it succeeds

in closing down clinics. Rehnquist concluded that

because the defendants were not guilty of extor-

tion, they had not violated the Hobbs Act.

Although the Supreme Court absolved the

defendants of the extortion charge, NOW argued

that they had still violated RICO by committing

acts or threats of violence to persons or property

associated with abortion clinics. Because NOW

had not raised this issue before the Supreme

Court, the appellate court remanded the case to

the district court to allow it to determine whether

644 Scheidler v. National Organization for Women, Inc.

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threats or acts of violence constituted crimes

under the Hobbs Act.

On appeal once again, the High Court ruled

against NOW. Speaking for a unanimous Court,

Justice Stephen G. Breyer stated that threat-

ening or committing acts of physical violence that

were unrelated to extortion or robbery did not

violate the Hobbs Act. He said that the “plan or

purpose” speciﬁ ed in the statute must affect inter-

state commerce through robbery or extortion.

After more than a decade, NOW ultimately

failed in its attempt to use civil RICO to halt the

actions of the antiabortion protestors who tried to

disrupt the work of abortion clinics.

For more information: Nero, Autumn. “Where

Are We Now?: Clinic Protection in the Wake of

Scheidler v. National Organization for Women,

Inc.” Wisconsin Women’s Law Journal 21 (2006):

73–109; Schriver, Steven. “Applying Civil Rico to

Antiabortion Demonstrators: National Organiza-

tion for Women v. Scheidler,” Maryland Journal

of Contemporary Legal Issues 6 (1994–95): 179–

204; Wentzel, Suzanne. “National Organization

for Women v. Scheidler: RICO a Valuable Tool for

Controlling Violent Protest,” Akron Law Review

28 (1995): 391–408.

—Susan Gluck Mezey

Schenck v. United States 249 U.S. 247

(1919)

In Schenck v. United States, Justice Oliver Wen-

dell Holmes, writing for a unanimous Supreme

Court, held that the prosecution of two Social-

ist Party organizers under the World War I–era

Espionage Act for distributing leaﬂ ets opposing

conscription did not violate the First Amend-

ment. Schenck is notable as the ﬁ rst case in which

Justice Holmes set forth the clear and present

danger test.

The case grew out of opposition to U.S. entry

into World War I. A number of Socialist Party

ofﬁ cials, including Eugene Debs, made speeches

opposing the war and military conscription.

Charles T. Schenck, general secretary of the Social-

ist Party, was charged with a conspiracy to violate

the Espionage Act by mailing leaflets opposing

conscription to men who had been called up for

military service. He was sentenced to six months

imprisonment.

The leaﬂ ets called conscription “despotic” and

likened it to involuntary servitude, banned by the

Thirteenth Amendment. They said that con-

scription served the interests of Wall Street’s cho-

sen few and told the reader to “Assert Your Rights”

and not “submit to intimidation.” But the leaﬂ ets

stopped short of calling for violence—or even for

draftees to resist induction. Instead, the leaﬂ ets

called for peaceful measures such as repealing the

Selective Draft Act by petition.

In upholding the convictions, Justice Holmes,

conceding that “in many places and in ordinary

times” the First Amendment would have protected

the defendant’s speech, observed that “the charac-

ter of every act depends upon the circumstances

in which it is done.” Then, in a famous analogy,

Justice Holmes said that “even the most strin-

gent protection would not protect a man in falsely

shouting ﬁ re in a theatre and causing panic.” Nor,

he continued, did the First Amendment allow

someone to utter “words that may well have the

effect of force.”

Instead, the key question was whether the

words, and the surrounding circumstances, cre-

ated “a clear and present danger that they will

bring about the substantive evils that Congress

has a right to prevent.” Justice Holmes empha-

sized that in wartime a nation cannot endure

acts that hinder the war effort. Nor did it matter

whether the leaﬂ ets persuaded anyone to obstruct

recruitment—if the intent, tendency, and act are

the same, Justice Holmes saw “no ground for say-

ing that success alone warrants making the act a

crime.”

The week after Schenck, the Court upheld the

Espionage Act conviction of Eugene Debs. How-

ever, in Abrams v. United States, 250 U.S. 616

(1919), Justice Holmes changed course and dis-

sented against a majority opinion upholding a con-

viction under the Espionage Act. Signiﬁ cantly, he

used the “clear and present danger” test developed

in Schenck to protect speech—the beginning of a

long career for this test.

Schenck v. United States 645

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The phrase “fire in a crowed theater” has

entered the lexicon as a stock example of speech

that can be restricted. Finally, Justice Holmes’s

concerns about the limits of political speech in

wartime remain with us today.

For more information: Bobertz, Bradley C.

“The Brandeis Gambit: The Making of America’s

‘First Freedom,’ 1909–1931.” William and Mary

Law Review 40 (February 1999): 557–651; Kal-

ven, Harry, Jr. A Worthy Tradition: Freedom of

Speech in America. New York: Harper & Row,

1974.

—Robert A. Kahn

Schmerber v. California 384 U.S. 757 (1966)

Just ﬁ ve years after its decision in Mapp v. Ohio,

367 U.S. 643 (1961), extending the application

of the exclusionary rule to all state criminal

court proceedings, the U.S. Supreme Court in

Schmerber v. California signiﬁ cantly limited the

rule’s reach in the context of drunk driving inves-

tigations and rejected constitutional challenges to

an involuntary blood-alcohol test.

The petitioner in Schmerber v. California was

taken to a hospital after sustaining injuries when

the car he was driving struck a tree. At the hospi-

tal, he was placed under arrest and subjected to

a blood test over his objection. He was convicted

of driving under the influence based largely on

the fact that his blood-alcohol level exceeded the

legally permissible level.

In a 5-4 decision, Justice William J. Brennan,

Jr., writing for the majority, held that Schmerber’s

involuntary blood test did not violate the Fourth,

Fifth, or Fourteenth Amendments. Turning to

the substantive due process issue, he found

that the blood extraction, made by a physician in

a hygienic hospital environment, did not offend

that “sense of justice” underlying a Fourteenth

Amendment claim. With regard to Schmerber’s

contention that his Fifth Amendment privilege

against self-incrimination had been violated, the

Court held that the withdrawal of blood did not

involve “evidence of a testimonial or communi-

cative nature,” and, as with the taking of ﬁ nger-

prints, the Fifth Amendment does not exclude the

use of the accused’s physical person when it is the

source of evidence.

The Fourth Amendment claim, however, proved

more troublesome for the Court. Brennan acknowl-

edged that the warrantless invasion of Schmerber’s

body implicated the proscription against “unrea-

sonable” searches and seizures. Although the police

ofﬁ cer had probable cause to arrest the suspect in

light of Schmerber’s conduct at the scene of the

accident and later at the hospital, the “search inci-

dent to arrest” exception to the warrant require-

ment was inapplicable. The exception is based on

the need for ofﬁ cers to protect themselves and to

prevent the imminent destruction of evidence;

however, such concerns are unlikely to be relevant

to searches below the body surface.

Nevertheless, the Court found the search

was reasonable under the circumstances. First,

because of the evanescent nature of alcohol in the

bloodstream, the ofﬁ cer did not have time to take

the accused to the hospital, investigate the scene

of the accident, and then seek out a judicial ofﬁ -

cer and secure a warrant. Second, citing the com-

monplace nature of blood tests and the medically

acceptable circumstances under which the extrac-

tion was performed, Brennan held that this minor

intrusion into the suspect’s body did not constitute

an unreasonable search and seizure.

Legal commentators widely considered Schmer-

ber to be the death knell for self-incrimination

claims involving physical evidence obtained from

the suspect’s person and a major retreat in exclu-

sionary rule application. However, subsequent case

law indicated that the Court’s emphasis on the

“minimally intrusive” nature of the physical inva-

sion was to be taken seriously; in Winston v. Lee,

470 U.S. 753 (1985), the Supreme Court refused to

allow nonconsensual surgery under general anes-

thesia to remove a bullet for forensic purposes.

For more information: LaFave, Wayne R.

Criminal Law. 4th ed. St. Paul, Minn.: Thomson/

West, 2003; LaFave, Wayne R., Jerold H. Israel,

and Nancy J. King. Criminal Procedure. 2d ed. St.

Paul, Minn.: West Group, 1999.

—Virginia Mellema

646 Schmerber v. California

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school busing

School busing refers to the use of school buses to

transport children to schools outside their neigh-

borhood in order to promote racial and ethnic

integration. It was most common during the 1970s,

and its use declined thereafter. School busing, also

sometimes called “forced busing” or “mandatory

reassignment,” is a development of the desegre-

gation cases and is extremely controversial and

politically contentious.

In B

ROWN V. BOARD OF EDUCATION OF TOPEKA,

KANSAS, 347 U.S. 483 (1954), the United States

Supreme Court ruled that segregated schools were

a violation of the Fourteenth Amendment’s

equal protection clause. The case originally

applied only to areas where schoolchildren were

required to attend racially separate schools. In

SWANN V. CHARLOTTE-MECKLENBURG BOARD OF

EDUCATION, 402 U.S. 1 (1971), the Supreme Court

ruled that busing was a legitimate method for

integrating students, if assigning students to their

neighborhood schools did not provide integration.

The desegregation debate moved outside the

South with the Supreme Court’s decision in Keyes

v. School District No. 1, Denver, Colorado, 413

U.S. 189 (1973). The Denver case was an example

of segregation that existed due to the drawing of

district lines, placement of new schools, and other

ofﬁ cial actions that were less obvious than the tra-

ditional dual school systems of Brown and other

cases. After Keyes, other federal judges began to

require school desegregation within their own

boundaries. Perhaps the most noted instance of

school busing occurred in Boston, when Judge

Garrity ruled in Morgan v. Hennigan, 379 F.

Supp. 410 (1974), that Boston schools were segre-

gated. With the requirement that Boston schools

undergo segregation, the city saw school boycotts

and riots.

Federal courts, however, were not the only

institution to require school busing. In 1963, the

California State Supreme Court ruled in Jackson

v. Pasadena City School District, 59 Cal 2d. 876

(1963), that the state constitution required all pub-

lic schools to be integrated. This was a step further

than the federal courts had ever gone, as they had

required desegregation only in cases of de jure (by

law) segregation, not in cases of de facto (by fact)

segregation.

The Jackson case was followed by Crawford

v. Board of Education of the City of Los Ange-

les, 130 Cal. Rptr. 724 (1976), also a California

State Supreme Court case. In this case, the court

applied the Jackson doctrine to the city of Los

Angeles and required that the district integrate

the city’s schools. Although Los Angeles did not

experience the violence that occurred in Boston,

there were school boycotts and protests through-

out the city. Los Angeles had a school busing plan

in place only for a brief time in the late 1970s; in

1979, voters of the state of California overwhelm-

ingly passed (70 percent) Proposition 1, which

forbade the use of busing to remedy de facto seg-

regation. Proposition 1 was upheld and went into

effect in 1981, marking the end of the Los Angeles

busing program.

Although school busing was used in many com-

munities, the Supreme Court ruled in Milliken v.

Bradley, 418 U.S. 717 (1974), that cross-district

busing was not required. The decision came from a

case based in Detroit, where students were bused

across district lines between Detroit and several

suburbs. This plan was used because the Detroit

schools were predominantly black and the subur-

ban schools were predominantly white; interdis-

trict busing was seen as the only way to integrate

either area. The Supreme Court, however, ruled

that this was not required unless the suburbs had

contributed to de jure segregation.

Some people argue that school busing was

successful because it ended, in many communi-

ties, the continuance of segregated schools. Oth-

ers, however, point to the development of “white

flight.” Under this phenomenon, white families

left public school systems in high numbers, either

by enrolling their children in private schools or by

moving to the suburbs.

Although “school busing” generally refers to

mandatory programs, more recent policies tend

to be based on voluntary actions. In Boston,

students may participate in a voluntary transfer

program from the inner city to the suburbs. Los

Angeles maintains a popular magnet school pro-

gram (which also arose during the desegregation

school busing 647

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debate), and students who attend magnet schools

are offered transportation by school bus.

For more information: Orﬁ eld, Gary. Must We

Bus?: Segregated Schools and National Policy.

Washington, D.C.: Brookings Institution, 1978;

Orﬁ eld, Gary, and Susan E. Eaton. Dismantling

Desegregation: The Quiet Reversal of Brown

v. Board of Education. New York: Free Press,

1996.

—Ryane McAuliffe Straus

school prayer

“School prayer” has become the common phrase

for referring to government-sponsored prayer,

whether recited or silent, in public school set-

tings that include classrooms, graduations, sports

events, or other parts of school life. As addressed

by the courts, it does not include the freedom of

a student to pray silently in school in a nondisrup-

tive manner, nor does it apply to sectarian or pri-

vate schools.

Many proponents of school prayer argue that

this practice dates back to the founding of the

United States. While there is some truth to this,

today’s public school system and compulsory edu-

cation laws did not begin to take shape until the

19th century. Therefore it is impossible to say with

certainty what the Founders would have approved

of in such settings, and it is likely that they would

not have all agreed.

As public schools developed into a standard part

of American life, they tended to carry forward the

goal of a moral upbringing of children intertwined

with educational instruction in the manner of the

schools that had existed since colonial times. This

was likely to include prayer and Bible reading with

a distinctly Protestant ﬂ avor.

The Supreme Court did not begin to address

school prayer until after the establishment

clause had been “incorporated” in 1947 to apply

to the states. The Court’s ﬁ rst school prayer case

was ENGEL V. VITALE, 370 U.S. 421 (1962), disal-

lowing a government-composed prayer to be

recited by schoolchildren, followed one year later

by ABINGTON TOWNSHIP V. SCHEMPP, 374 U.S. 203

(1963), which struck down devotional prayer and

Bible reading in public schools.

Since the Schempp and Engel decisions, advo-

cates of school prayer have continued to seek ways

in which to include ofﬁ cial prayers at various school

functions, and in response there has been a series

of cases further delineating the limits to state-

sponsored school prayer. In WALLACE V. JAFFREE,

472 U.S. 38 (1985), the Court held that Alabama’s

“moment of silence for meditation or voluntary

prayer” violated the establishment clause, while

strongly suggesting that a legislatively mandated

“moment of silence” with no mention of prayer

might pass constitutional muster. In LEE V. WEIS-

MAN, 505 U.S. 577 (1992), the Court invalidated

clergy-led prayer at a middle school graduation,

and in Santa Fe v. Doe, 530 U.S. 290 (2000), the

Court struck down ofﬁ cially sponsored student-

led prayers at high school football games.

The rulings in these cases suggest a consistent

stance by the Court from 1962 to 2000; how-

ever, the votes tell a more complex story. While

only one justice dissented in the two early land-

mark prayer cases, recent cases reflect a much

more divided Court. The separationist rulings

on “school prayer” have also differed from (a) the

accomodationist positions of the Court on prayer

in legislatures and (b) the Court’s more permissive

role toward a presence of religion in higher educa-

tion. The Court’s explanation for this is that public

K–12 education is compulsory, and that children

are more impressionable than college students or

legislators. Children are also sensitive to social

pressure and ostracism for being perceived as dif-

ferent, and psychological pressure can be a form

of indirect coercion to conform.

The Court’s refusal to back down on this issue

has also led to various attempts in Congress and

by groups supporting religious content in public

schools to try other routes, such as posting the

Ten Commandments, to achieve their goals.

In 1984, Congress passed the Equal Access

law, requiring schools receiving federal funds to

allow religious organizations to meet for prayer

and other religious activities when they also allow

similar noncurricular clubs to form. Unlike the

types of prayers at issue in Engel, Schempp, and

648 school prayer

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the other school prayer cases, these activities are

meant to involve student-led prayers and other

religious activities with teachers present only in

a nonparticipatory role. This was upheld by the

Court in West Side Community School v. Mer-

gens, 496 U.S. 226 (1990).

Detractors of the Court’s rulings in school

prayer cases have labeled the justices as hostile to

religion. However, a careful reading of the major-

ity opinions suggests otherwise. In fact, the jus-

tices have tried to address the sensitive nature of

the issue by patiently explaining how their deci-

sions are consistent with America’s religious tradi-

tions, by discussing the risks of trivializing prayer,

and by reminding the public of all the activities in

schools and elsewhere that they were not striking

down in these decisions.

The topic, along with other similar controver-

sies about religion in schools, has also spawned

considerable misunderstanding about what is

and is not allowed in public schools, leading to

publications in the mid-1990s by liberal and

conservative advocacy groups: “Religion in the

Public Schools: A Joint Statement of Current

Law” was followed by a similar document by the

Clinton administration to be disseminated to

public schools. The latter was revised in 2003 by

the Bush administration in a document entitled

“Guidance on Constitutionally Protected Prayer

in Public Elementary and Secondary Schools.” It

provides a much more accommodationist inter-

pretation of what is allowed in schools than did

its predecessor, and it has been criticized by

separationists for making assertions about legally

Football players at Odessa High School in Odessa, Texas, pray in their locker room, September 1, 2000, in an

unsanctioned prayer session. On June 19, 2000, the Supreme Court handed down a ruling banning school-

sanctioned pregame prayer.

(Joe Raedle/Newsmakers)

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allowable prayer in school situations that remain

unresolved in the courts.

Several advocacy groups exist on both the

separationist and accommodationist side of the

school prayer issue. The most visible and vocal

separationist groups include Americans United for

Separation of Church and State and the Ameri-

can Civil Liberties Union. Accommodation-

ist groups have included the Christian Coalition

and the Eagle Forum, among others. Among

religious denominations, “mainline” Protestant

groups, Jews, Unitarians, and many Roman Cath-

olics oppose school prayer, while fundamentalists

and evangelicals would prefer some type of for-

mal prayer or prayer time. While many Baptists,

particularly in the South, fall in the latter group,

others—in the Roger Williams tradition—have

endorsed the Court’s school prayer decisions.

School prayer cases keep coming into the Court

because, with changing personnel, it is impossible

to know what the Court will allow, and because

accommodationists keep seeking ways to circum-

vent or defy previous rulings. For example, there

has not yet been a deﬁ nitive Supreme Court rul-

ing on voluntary prayers by students at gradua-

tion (analogous to what the Court struck down in

Santa Fe), and this continues to cause conﬂ ict in

schools. Recent high school graduations have seen

students “spontaneously” begin reciting the Lord’s

Prayer at a prearranged point in the ceremony.

School prayer is an issue that resonates emo-

tionally with large segments of the population.

Polls have consistently shown that a majority of the

public wants some type of formal school prayer;

thus the topic has provided a handy “political foot-

ball” for politicians. Many members of Congress,

presidential candidates, and other elected ofﬁ cials

have touted school prayer as a “quick ﬁ x” to the

problems of youth, have resurrected it in election

campaigns, and have proposed legislation. In so

doing, they have been accused of distracting vot-

ers from more serious public policy issues. Local

ofﬁ cials, sometimes against the advice of their own

attorneys, have risked costly litigation by either

ignoring or seeking to circumvent Court rulings.

A series of constitutional amendments have been

proposed ever since the 1960s, but none received

the necessary two-thirds vote in each House of

Congress that would bring them before the states

for ratiﬁ cation. One reason is that even some sup-

porters of “school prayer” shy away from tamper-

ing in this way with the First Amendment,

something that has never been done.

The establishment clause in general is in a

period of transition along with changing Court

personnel, and it is possible that future “school

prayer” rulings will lower the “wall of separation”

in public schools. However, with an increasingly

diverse population, including not only the non-

religious but also many non-Christians with their

own prayer traditions, a lowering of the “wall” is

likely to meet with some resistance.

For more information: Alley, Robert S. Without

a Prayer: Religious Expression in Public Schools.

Amherst, N.Y.: Prometheus Books, 1996; Fen-

wick, Lynda Beck. Should the Children Pray?: A

Historical, Judicial, and Political Examination of

Public School Prayer. Waco, Tex.: Markham Press

Fund of Baylor University Press, 1989; Ravitch,

Frank S. School Prayer and Discrimination: The

Civil Rights of Religious Minorities and Dissent-

ers. Boston: Northeastern University Press, 2001.

—Jane G. Rainey and Rick A. Swanson

school vouchers

Government ﬁ nancial aid provided to parents to

partially or completely defray the cost of educat-

ing their children at a public or non-public school

of their choice.

Supporters argue that voucher programs give

individuals the ability to seek out superior schools

and escape inferior ones. From this view, vouchers

fuel a healthy competition among public and reli-

gious and nonreligious private schools, promoting

educational diversity while gradually weeding out

poorly performing institutions. It is also argued

that low-income families, who might not other-

wise be able to afford private school tuition, would

particularly benefit. In the face of a global and

fiercely competitive job marketplace, vouchers

level the playing ﬁ eld by providing more educa-

tional options to every child.

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School voucher opponents attack the programs

on two broad fronts. First, vouchers divert funds

from an already beleaguered public school sys-

tem, making their poor performances relative to

private schools a self-fulﬁ lling prophecy. Public

schools are put at another disadvantage because

they legally have to accept all students who apply,

while private schools can “cherry pick” the better

students. Vouchers therefore unnecessarily hobble

public education and give private schools unfair

advantages.

Supporters decry the current system as unfair

because it imposes a “double tax” on those parents

who pay tuition to private schools as well as school

taxes to support the public school system. Voucher

opponents justify this burden by claiming that the

beneﬁ ts of a common education rebound to the

community as a whole. All property owners pay

school taxes, whether they have children in the

school system—or even have children—but the

product of a public education is a more law-abid-

ing, employable citizenry. If government is will-

ing to provide an education to all, it should not

feel compelled to compensate those who choose

go outside the system. From this perspective, the

state should not have to put its own school system

at a disadvantage by providing monetary incen-

tives to its competition.

A second criticism leveled against vouchers

is not directed at all private schools, but only

at vouchers that are given to religious schools.

Many separationists argue that the establish-

ment clause of the First Amendment forbids

state support of religion. Even if aid ﬁ rst goes to

parents, religious schools are the ultimate bene-

ﬁ ciaries. Even more egregious, many voucher pro-

grams favor only a few religious schools or even a

single religious denomination, or provide aid to a

few private secular schools.

An attempt by government to be evenhanded

among religious schools may be even more prob-

lematic. Because of this nation’s considerable

religious diversity, efforts to equitably fund all

religious schools might lead to bitter sectarian

quarrels and administrative headaches. Also,

vouchers may require greater regulation of reli-

gious schools as a condition for participating in

such programs, something voucher supporters

might ﬁ nd objectionable.

Supporters argue that denying religious schools

funding is discrimination, not government neu-

trality. Denying vouchers to religious schools

would also threaten the survival of some of the

best schools in the community.

This debate over the constitutionality and

appropriateness of government ﬁ nancial support

for religious schools has a long history.

Prominent men from the founding era such as

Thomas Jefferson were opposed to government

money going to any religious institution—even if

a taxpayer ended up supporting her own house

of worship. Others, like Patrick Henry, believed

that government should support religious bodies

and even restrict such largesse to Protestant insti-

tutions. Language in the Northwest Ordinance

of 1789 also seemed to indicate that government

support for religious schools was important for

promoting morality.

Prior to the First Amendment’s incorporation

to the states in the middle of the 20th century,

they were free to subsidize religious schools, and

even houses of worship, and many did so until the

middle of the 19th century.

Arguments that the establishment clause fore-

closed subsidization were seemingly belied by a

campaign in the early 1800s to pass a constitu-

tional amendment that would explicitly prohibit

all funding of religious schools—whether through

parental choice or direct subsidization of religious

schools. This fear grew up in response to the enor-

mous inﬂ ux of Catholic immigration at that time

and the immigrants’ desire to educate their chil-

dren in their own parochial schools. Many Catho-

lics felt, with some justiﬁ cation, that the public

school system was biased toward Protestantism.

The effort to amend the U.S. Constitution

ultimately fell short of votes. However, 37 states

eventually passed amendments to their own con-

stitutions, prohibiting the funding of religious

schools. Most of these “Blaine Amendments,”

named after James Blaine, the man who spear-

headed the campaign, are still in force today.

The ﬁ rst Supreme Court case to deal with fund-

ing of religious schools did not occur until 1947 in

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