Is Silence Golden? Giving Students a Choice in Matters of Faith

Do moments of silence and the Pledge of Allegiance infringe on students’ rights? Tanenbaum and Teaching Tolerance revisit this and other important questions through a set of blog posts based on our ongoing webinar series Religious Diversity in the Classroom.

Teachers are leaders in their classrooms who rally their students toward a single goal and encourage group participation. However, when religion and religious diversity come into play, a different dimension is added to this responsibility because students are allowed great individual choice regarding their religious expression. According to the U.S. Department of Education’s guidelines on the topic, “Teachers and school administrators should ensure that no student is in any way coerced to participate in religious activity.” 

This blog post aims to summarize the legal issues related to two types of classroom activities that have the potential to be perceived as religiously coercive: moments of silence and the Pledge of Allegiance.


Moments of Silence

The Freedom Forum Institute states that it is constitutional for a public school to lead a moment of silence, as long as it is “genuinely neutral” and “does not encourage prayer over any other quiet, contemplative activity.” Some students may use this time for prayer, but they have the right to do so. The Establishment Clause of the First Amendment, which prevents the state and its representatives (e.g., public school teachers) from promoting religious or antireligious beliefs, does not prohibit purely private religious speech by students.

Controversy over the moment-of-silence issue came to the forefront in 2007 when the Illinois State Legislature passed the Silent Reflection and Student Prayer Act, which required public schools to take a moment of silence at the beginning of each school day. As reported in the Huffington Post, a prominent atheist challenged the constitutionality of the act, and in 2009 District Judge Robert Gettleman ruled in his favor on the grounds that the act “suggests an intent to force the introduction of the concept of prayer into the schools.” 

This ruling was overturned two years later by judges on the 7th District Court of Appeals because the Act did not mandate prayer, only silence. (According to Pew Research, the Supreme Court has not heard a moment-of-silence case since 1985, when it suggested to the lower courts that they may uphold such moment-of-silence laws when the purpose is secular.)  

When we apply this decision to the classroom setting, it means that teachers can lead a moment of silence for such purposes as commemorating a death or tragedy, or simply as part of a daily routine, as long as the purpose is explicitly secular and there are no constraints on students’ thoughts. Students are allowed to use the quiet time as they see fit, whether it’s for prayer or for reflecting on another topic of their choosing.


Pledge of Allegiance

According to the Freedom Forum Institute, there are two major legal issues related to reciting the Pledge of Allegiance in public schools:

  1. Whether students can be compelled to recite the pledge without infringing on their First Amendment rights
  2. Whether the inclusion of the phrase “under God”—added in 1954—violates the Establishment Clause

The first issue entered the U.S. Supreme Court in the mid-1930s when two Jehovah’s Witnesses were expelled from a Pennsylvania school for refusing to salute the flag and recite the pledge. The family argued that these activities violated their religious beliefs because their only allegiance was to God. 

In 1940, the court ruled against them, claiming that national unity and security take priority over religious liberty. In the wake of this ruling, Jehovah’s Witnesses became victims of widespread intolerance and violence, getting beaten up in hundreds of riots across several states. Three years later, a landmark U.S. Supreme Court decision, West Virginia Board of Education v. Barnette, reversed the earlier ruling and firmly established to this day that students could not be forced to recite the Pledge of Allegiance.

Even though students can opt out of the pledge, the question remains as to whether public schools can require teachers to lead the pledge in its current form. Federal courts have engaged in numerous intense debates over whether the phrase “under God” constitutes a government endorsement of a religious belief. Some judges believe so, whereas others consider it a secular vow with patriotic, rather than religious, significance. The U.S. Supreme Court has not yet ruled on an Establishment Clause challenge. According to David Hudson of the Freedom Forum Institute, previous opinions of the justices indicate that such a challenge “would face some high hurdles.”


Inclusiveness and the Law Can Coexist

The complexity and controversy surrounding the topic of religion in public schools can be overwhelming, so it’s helpful when someone distills all the details into a general guiding principle. In the 1943 Pledge of Allegiance case, Justice Robert Jackson delivered the opinion of the court:

If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.

Educators aiming to promote respect for religious diversity can do so by researching the constraints of the law and fostering an environment that is inclusive of all students. It takes effort and education, but both are necessary if we are truly committed to respecting students’ choices in matters of faith.

For a packet containing resources for teaching about religious diversity, including lessons on the First Amendment, please click here.

Fasciano is an Education Program Associate at the Tanenbaum Center for Interreligious Understanding.