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It's not a moot point

As badly split as it seems to be on all civil liberties issues, it is no surprise that the Supreme Court has ducked another chance to say something definitive about student-led school prayer. It may be that neither wing is sure enough of its votes to want to bring it up.

But the old dodge of "mootness," which the justices cited Monday to avoid ruling on the merits of an appeal from Idaho, is an intellectually weak excuse under the particular circumstances of such a case. The student who filed the lawsuit has since graduated. So what? Any student with legal standing to object to a prayer at his or her graduation has to be, by definition, a graduating senior _ who will of course have graduated long before the appeals courts finish with the case.

The Supreme Court will have to rule on the merits eventually. Despite its cop-out in the western case, student-led graduation prayers still are presumptively constitutional in Texas, Louisiana and Mississippi owing to an earlier ruling of the 5th U.S. Circuit Court of Appeals, which the Supreme Court had refused to review. Monday's inaction will pump more steam into Pat Robertson's campaign to have them everywhere. There'll be more ill feelings on either side of the question and, obviously, more lawsuits. Inevitably, some school board or legislature will take the bait (as Florida's Legislature nearly did last month) and impose prayers upon younger students, whose cases wouldn't turn moot so quickly.

As it happens, a Florida case already argued before the 11th Circuit Court of Appeals, challenging the Duval County School Board's graduation prayer policy, could present the Supreme Court rather soon with a case that's not moot. Though all four of the objecting seniors have graduated, two sets of their parents, who were plaintiffs also, have younger children in school.

Duval sets aside two minutes at commencement ceremonies for each school's senior class to use as they please. According to Gray Thomas, a Jacksonville lawyer representing the objectors, all seniors vote at some schools while at others the class officers make the decision. A few classes have chosen poetry readings while some offered nondenominational prayers. But others, said Thomas, have been "very sectarian," invoking the name of Jesus with total disdain for the sensitivities of non-Christian classmates.

"Essentially, it was majority rule," he said. "One of our arguments is that the Bill of Rights is designed to protect the minority from the will of the majority, that delegating a constitutional decision to a majoritarian decisionmaker is by itself unconstitutional."

Last Friday's congressional hearing in Tampa should have demonstrated to everyone there why Thomas is right. One of the witnesses scheduled by Rep. Charles Canady, R-Lakeland, who chairs the House subcommittee on the Constitution, was a young woman named Jennifer Green. A college student now, she was a high school senior in Jacksonville when the suit was filed. With the help of a conservative legal foundation, she intervened in the suit on the school board's side. She came across as a personable and sincere young woman, but an utter stranger to what any American high school graduate ought to know about her country's Constitution.

"The majority rules in the U.S. Congress," she argued, "so why shouldn't it also rule in our public schools? . . .

"The reason I wanted prayer in my graduation was because I didn't want the most important person in my life to go unmentioned on my graduation day. Jesus Christ lives in my heart, and when I can't share him it's like not sharing myself."

It seemed that she could not possibly see anything wrong, questionable or unfair in forcing her non-Christian classmates to share Jesus whether or not they wanted to. This is why majority rule and religion don't mix.

When she went on to blame the absence of prayer in schools to a decline in scholastic achievement scores, some catcalls came from the audience _ which was unfair to her _ and Canady slammed his gavel on the table. He knew, however, that her testimony had not helped his side. Though he asked friendly follow-up questions to all his other witnesses, he let her go with only a "Thank you." He wasn't about to dig himself in any deeper.

Canady's hearing failed to make a case for a so-called "religious equality" amendment that would open the door to compulsory school prayers in the guise of stopping teachers and principals from bending too far the other way _ as in seizing Bibles and religious tracts from children who have every right to have them.

"We must educate the educators, not change the Constitution," said the Rev. Henry Green, a Baptist pastor from St. Petersburg. He might have added that we need to educate the politicians too. Especially those such as Canady who somehow never worried about the necessity or cost of lawsuits when it was Jewish or Islamic families or other minorities who, as in Jacksonville, were the ones forced to file them.

Martin Dyckman is associate editor of the Times.