Legal Commentary

I recently wrapped up my Con Law II (civil liberties) course here at Georgia. We ended the semester by spending a couple of days discussing the religion in schools cases including Lee v. Weisman (prohibiting clergy-led prayer at public school graduations) and Santa Fe Indep. Sch. Dist. v. Doe (holding that a system providing for student-led prayer at school football games was unconstitutional).

This was my third time teaching this material and each time the classes have ended with a swarm of students meeting me at the podium. Student after student tells me that they went to a public high school (usually in the South) and they had a minister lead a prayer at their graduation or they had a school-sponsored baccalaureate with sermons and prayers. Just as many of them had prayers before school football games. The students are confused. They want to know how their school could do this after the Supreme Court found such actions to be unconstitutional. They often assume that there is some subtle distinction between what their school did and what the Court held violated the Constitution, and they're eager for me to explain. I can think of no other topic where my answers are so direct and unqualified. "That was very likely unconstitutional," I tell them, and your school officials are simply waiting for someone to formally complain or even to sue before changing their ways.

I've found this to be an interesting teaching moment -- one that is not about the Establishment Clause but about the sometimes questionable influence of the Court's words. When my class read Brown v. Board of Education earlier in the semester, we talked about the ten-year saga that followed before the Court's decision was put into action. The story of the power struggle between the states and the federal government during desegregation is riveting, and we're all familiar with the incredible show of force that was ultimately necessary to maintain the integrity of the Court's role as final interpreter of the Constitution. Today, however, there are repeated acts of defiance quietly going on in public schools all across the country when it comes to these school prayer cases. I'm wondering if there are more examples in other areas of the law where there has been such a broad and sustained rejection of the Court's rulings. It can make you question exactly what it means when the Court declares: "It is so ordered."