Wallace v. Jaffree (1985) and the Reagan Revolution
In Everson v. Board of Education (1947), the Court determined it was perfectly acceptable for the state to reimburse parents for transportation costs of getting their children to school, whether public or private, sectarian or secular.
Then came Engel v. Vitale (1962), in which the Court made clear that the state could NOT require – or even promote – prayer in public schools as part of the school day. It was followed closely by Abington v. Schempp (1963) in which the same decision applied to the reading of Bible verses or the recitation of the Lord’s Prayer.
In both of these cases, the Court sought to prevent either the power of government or the foibles of politicians from unduly interfering in man’s reach for the Almighty. This was how they interpreted the Framers’ concerns as expressed in the First Amendment, applicable to the states via the Fourteenth – an evolutionary process commonly referred to as “incorporation.”
In Lemon v. Kurtzman (1971), the Court established a “checklist” by which interested parties could determine whether or not something violated the “Establishment Clause” or the “Free Exercise Clause” of the First Amendment. While neither exclusive nor absolute, the “Lemon Test” is still regularly referenced today.
In Stone v. Graham (1980), the Court said “booo!” to the required posting of the Ten Commandments in public school classrooms. The trend was clear – go easy on pushing your faith via mandatory common education.
But then Reagan took office, and a conservative revolution of sorts swept the nation. I don’t want to overstate the case – it’s not a CW series – but for those of you who weren’t there or don’t remember, the Reagan Era wasn’t just a presidential administration. It was a social movement, a political shift, a new dynamic comparable to Kennedy’s “Camelot” in impact – although very different in flavor.
Evangelicals were emboldened and the media and courts demonized as liberals – disgusting and dishonorable, both deceived and deceptive. They were dangers to the nation and everyone in it. Reagan wasn’t evil, at least by modern standards, but he did epitomize a sort of American Exceptionalism marinated in Book-of-Revelation Sauce. The passion and conviction of Reagan and his adherents could border on self-righteousness, occasionally preempting reason, law, or precedent.
It was in this climate that Alabama decided it was time to test yet again just how much of their preferred theology they could force into public school classrooms and perhaps better shape the young people in their care.
They’d already passed a 1978 law providing for a “moment of silence” each school day “for meditation,” and they weren’t the only ones to test this route. Many states or districts instituted some variation of the “moment of silence” after Vitale (1962) and Schempp (1963) made it clear that institutional prayer or other overt Bible-izing was a no-no.
State legislators sponsoring these efforts acknowledged that the “moment of silence” was as much a symbolic move as anything. It served and serves no real purpose or function beyond stepping right up to the line of church-state separation and daring the courts to do something about it. Nor was this a surprise; many had openly run on a platform of getting prayer back into public schools.
Based on the “Lemon Test” instituted in Lemon v. Kurtzman (1971), that alone should have been enough to quash the idea. But no.
Alabama took things a step further in 1981, legislating that the moment of silence was to be used “for mediation and voluntary prayer.” Their momentum building, they upped their game yet again in 1982 and instructed teachers to lead “willing students” in a state-written prayer.
Ishmael Jaffree had three kids in Mobile County Public Schools – two in second grade and one in kindergarten. He protested the state-designed prayer, and had plenty of established case law on his side. But that’s not what stands out about his complaint.
Jaffree's concerns stemmed not from abstract constitutional issues, but from his kindergartener being targeted by other kids for not participating in the prayers. His five-year-old was essentially bullied for not falling into line with state-mandated religious activities.
He wasn’t alone. In a similar case going on in West Virginia at the same time, a Jewish student was challenged by peers for quietly reading during the “moment of silence.” He needed to pray, they told him, or he’d “go to hell with the rest of the Jews.”
Yes, the prayer was technically voluntary – but as anyone in education knows, “voluntary” can mean many different things. In this case, it was legal cover for bad law, an effort to create enough of a loophole to allow Alabama to belittle children for quietly holding to their family’s religious beliefs without the state running afoul of those darned liberal judges.
There comes a time in life – even public school life – when students must be expected to grow up and accept that not everything works the way they want it to and not everyone is nice. We can’t and shouldn’t stop kids from ever saying an unkind word to one another.
That doesn’t mean, however, that the abuse has to be state-sanctioned. That doesn’t mean the state should throw the first few pebbles, then disclaim responsibility when the very children it seeks to influence continue that work by throwing much larger stones of their own.
In an interesting wrinkle, the federal district judge who heard this case as it worked its way through the system chose to ignore precedent and declared the Alabama laws perfectly constitutional, stating in his decision that “Alabama has the power to establish a State religion if it chooses to do so.” I’m all for waving your little flag at the tank as it rolls through the square, but this wasn’t the powerless standing up to the powerful – this was power trying to take more power.
It’s very unlikely it could have happened a decade before. Whatever the positives of the conservative revival of the 1980s (and there were many), it helped fuel the idea that America could be in some way “reclaimed” by straight white upper-middle-class evangelicals – God’s Chosen People.
In their minds, things had been going downhill ever since God was kicked out of schools and yucky people were let in. Desegregation was bad enough, but then came the unshaven, the unkempt, and finally – god help us – the overly-intellectualized liberals and their weirdo demands that everyone cater to their godless perversions.
The Historically Privileged didn’t see inequalities being slowly reduced. When others began climbing the mountain, they could only feel a panicked sense they were falling. And what do you do when you think you’re falling?
You grab on and hold tight to whatever you’ve got handy.
It would be grossly unfair to blame every error of modern right wingery on Ronald Reagan. He brought much-needed confidence and optimism to a nation which had clearly lost its way, and challenged the cancerous idea that more government is somehow the answer to everything – all without a Twitter account or the compulsive need to overtly belittle entire demographics of American citizens.
He also seemed to genuinely believe most of what he said. That’s… a positive, right?
But he was wrong when early in his Presidency he proposed a constitutional amendment permitting organized prayer in public schools. He was wrong in his 1984 State of the Union when he asked why “freedom to acknowledge God” couldn’t “be enjoyed again by children in every schoolroom across this land?”
It’s always problematic when we use “freedom” to mean “giving me the power to force you to comply with my beliefs.” Students have always been free to acknowledge God in whatever schoolroom they happen to be. They’ve never been prohibited from praying at appropriate times or discussing their faith with other students, as long as we can have school along the way.
Imagine that President Bush had insisted that school intercoms, choirs, and bands be used to broadcast, sing, and play Led Zeppelin exclusively, and at least once a day. Is that “bringing back freedom”?
It’s no dis on Zeppelin to suggest that some people much prefer Supertramp, or the Police, or even Etta James. And you have to suspect that it wouldn't be long before not just ANY Zeppelin would work. If your local Congressman happens to be partial to the B-side of In Through The Out Door, then THAT becomes the only acceptable Zeppelin from here on out. You don't even get "In The Evening" that way!
Of course you’re free “not to listen,” but then… why do you hate freedom? Can you even play the guitar? You want to go to hell with Polka and Disco?
The 1980s were a very different cultural and political time than the 1960s. The Supreme Court strives to be above such things, but the members of the Court change over time, and cases are decided in the times in which they exist.
The Court’s decision in Wallace v. Jaffree was a 6-3 split. The “moment of silence” survived; the “voluntary” prayer as led by teachers or other staff did not. It was still unconstitutional. The Court thus drew a relatively clear line between what was and wasn’t acceptable in terms of promoting even symbolic acts of faith in the classroom.
But the times continued to change and the Court continued to evolve. I’m sure you won’t be surprised, then, to discover that this issue will come up again in the 21st century.
RELATED POST: Stone v. Graham (1980)
RELATED POST: Lemon v. Kurtzman (1971) & "The Lemon Test"