In Michigan, the recent decision of Dearborn Public Schools to permit Muslim prayer during school hours has sparked heated debate. Specifically, opponents argue that the policy may run afoul of the First Amendment. Exacerbating the controversy is the fact that the group lobbying for this permission, the Council on American-Islamic Relations (CAIR), is an unindicted co-conspirator in a Hamas funding trial. According to former FBI Assistant Director Steve Pomerantz, “any objective assessment… leads to the conclusion that CAIR, its leaders, and its activities effectively give aid to international terrorist groups.”
Last month, the Arab American News released a statement by CAIR describing a negotiated arrangement with the school board in Dearborn. The district has agreed to a policy that “fully accommodates student-led prayer” and allows for “unexcused absences for students who leave early on Friday for Jumu’ah prayers,” which occur every Friday. When contacted, an unnamed source from CAIR Michigan described the agreement as providing for student-led, student-initiated prayer “between classes, in spare time and during lunch breaks” that is “not led by any school official.”
The announcement comes three years after CAIR campaigned against Huron Park Elementary School in Roseville, Michigan, because teachers distributed permission slips to excuse student absences for Bible classes at a local Baptist church. In that instance, CAIR objected to the seeming preference of one religion over others by a public school. The school district admitted its error and terminated the activity. Critics have opined that these two cases are contradictory, with CAIR lobbying against schools permitting Christian activity yet advocating for the permission of Muslim prayer. When it comes to the legality of prayer in public school, exactly what does the First Amendment prohibit and what does it allow?
The First Amendment of the U.S. Constitution — specifically, the Establishment Clause — states, “Congress shall make no law respecting an establishment of religion.” In effect, this means that no state institution can endorse one religion over another. Consequently, no staff member of a public school can be directly involved in any religious activity.
The current matter diverges markedly from the Huron Park situation because the Dearborn policy is student-initiated, not staff-directed. According to Westside School District v. Mergens, this is a crucial difference. That case concerned a public school’s refusal to allow a Christian bible and prayer club to form, stemming largely from fears that the school might appear to be endorsing one religion over another in violation of the Establishment Clause. However, the U.S. Supreme Court quashed such concerns. They reasoned that, because the club at issue was “student-led” (that is, the activity was initiated by students rather than teachers), its activities would not be associated with the school and were therefore “private.” Furthermore, although several justices recognized that allowing the club to continue risked associating the school with a particular religion, the risk was seen as minimal provided the school actively disassociated itself from the club. For example, the school could extricate itself from the religious activity by ensuring that no teacher was directly involved in the club, although an employee of the school could supervise in a non-participatory capacity.
Another constitutional consideration is the timing of the prayer during the school day. In the Westside School District case, the Court applied the provisions of the 1984 Equal Access Act in determining that Bible clubs could meet as long as sessions occurred during lunch or after school. Further, in Good News Club v. Milford Central School, the Court held that public schools could not prevent religious conduct on school grounds during “non-school hours.” The only time during which students have been legally allowed to pray during instructional hours has been as part of released time programs, which, since the 1952 case of Zorach v. Clauson, have been ruled constitutional as a method for students to leave school premises under certain conditions. The case ruled that students are allowed to engage in independent religious education and practice off school grounds for a set amount of time each week, subject to parental permission and attendance records being provided by places of worship. Therefore, a legitimate constitutional issue arises from CAIR’s request because Dearborn Public Schools have been lobbied to, and have agreed to permit unexcused absences, which may violate the Establishment Clause. The justices in Zorach explicitly ruled that students are only allowed to miss school after the submission of a written request by parents. Therefore, if the school agrees to a policy in which the permission of parents is sought before allowing students to leave for Friday prayers, this issue likely becomes moot.
Hence, case law indicates that Muslim student-initiated prayer is permissible on school grounds during non-instructional hours as long as the school distances itself from the activity, and Friday Jumu’ah prayer may take place off from school premises once a week, provided parental permission and attendance criteria are met.
Despite the fact that student-led prayer in public schools that adheres to the above criteria can be carried out within the law, Muslim students undermine their cause by directly inviting the assistance of CAIR, an organization that has been accused of financially supporting the terrorist activities of Hamas. CAIR was named an unindicted co-conspirator in the 2007 Holy Land Foundation for Relief and Development (HLF) trial where HLF was found guilty of funding the terrorist group Hamas to the sum of $12 million. Hamas is a U.S.-designated foreign terrorist organization whose goals include inflicting mass casualties on civilians and the destruction of the West. Moreover, Hamas strategically indoctrinates and recruits innocent Muslim youths as suicide-homicide bombers and uses children and other civilians as human shields. CAIR and the HLF have enjoyed an intimate relationship: the latter's chairman founded CAIR's Texas chapter and provided $5,000 seed capital to the lobby group in 1994. In a 2009 Fifth Circuit case, Judge Jorge Solis explicitly stated that, "The government has produced ample evidence to establish the associations of CAIR… with Hamas." Numerous respected authorities have lodged parallel accusations, including retired FBI agent Mike Rolf, who explained, "It is clear… CAIR has had a number of people in positions of power within the organization that have been directly connected to terrorism."
Moreover, as CAIR has frequently engaged in lawfare, by filing malicious lawsuits to punish the exercise of free speech, their general involvement in the Dearborn situation taints the Muslim students’ position. For instance, “[CAIR] frivolously sued former Representative Cass Ballenger after he reported CAIR as the fundraising arm for Hezbollah." An additional example of such tactics may be seen in 2007, when “seven Dallas-area Islamist organizations… all affiliated with the Council on American Islamic Relations… filed a meritless defamation lawsuit against [investigative journalist Joe] Kaufman,” reacting to Kaufman’s peaceful protest against the Islamic Circle of North America (ICNA) at Six Flags Over Texas theme park. In 2011, CAIR “brought a class action suit against the FBI,” simultaneously “working to hamper federal investigations into terrorism” by dissuading Muslims from coordinating with federal agents. Most tellingly, a CAIR spokesman stated last year “that the organization would likely challenge the legality of a Kansas law” that even-handedly prohibited Kansas tribunals from basing their decisions on any foreign law. In effect, CAIR's challenge would have required a court to find that the Constitution is not the supreme law of the land! A particularly troubling position to square with CAIR’s current advocacy for Muslim students’ constitutional right to free worship.
Given the abundance of evidence exposing CAIR as a terror-front organization, it is of paramount importance that Dearborn’s Muslim students distance their cause from CAIR and its advocacy. Although school-led and initiated prayer conforming with the Supreme Court’s conditions is constitutional, the support of a known lawfare proponent negatively impacts the legitimacy of the Muslim cause. The result is a confused and somewhat unfair interpretation of a salient debate, systemically counter-productive to those students who wish to act in accordance with both law and religion.