Supreme Court education-related rulings
Recent decisions blur the lines between religious expression, public schools and speech rights
full front view of the US Supreme Court building
In its most recent term, the United States Supreme Court ruled on two cases related to education: Carson v. Makin and Kennedy v. Bremerton School District. Both cases relate to the interaction of religion and public schools and consider what is constitutional when allowing for the free exercise of an individual’s religious beliefs and speech rights.

The Court held in Carson v. Makin that limiting Maine’s tuition assistance program to “nonsectarian” only schools violated the Free Exercise Clause of the Constitution. In Maine, because less than half of the school districts offer secondary education, the state created a tuition assistance program for students to enroll in private secondary schools. To receive the tuition directly from the state, schools had to be “nonsectarian.” Here, the Court agreed with the students and parents who chose to enroll in a private religious school by finding that Maine could not provide “tuition” to private schools that are not religious without also providing such assistance to private religious schools. By doing so, the Court held this constituted “discrimination against religion.”

This decision impacts school funding programs such as vouchers that provide tuition reimbursements from states to private schools. Although the Makin case may impact many states throughout the nation, because California does not have “tuition assistance” or voucher programs for private schools much less for its public charter schools, the impact of the Makin case is not of great consequence here in California, but the same cannot be said for Bremerton.

The Supreme Court also in June issued its decision in Kennedy v. Bremerton School District. The Court ruled that the assistant football coach at Bremerton High School had a constitutional right to engage in a personal, quiet prayer at the 50-yard line right after high school football games. In a 6-3 decision, the Court determined that the coach’s rights to free exercise of religion and free speech were suppressed and infringed upon when the district placed him on administrative leave and did not rehire him for the following year.

Much remains to be determined and will be likely tested in the future as courts navigate the new standards and tests given in Bremerton and the holding in Makin.
Related to the free speech and free exercise arguments, the Court explained that the coach sufficiently showed that his desire to give thanks through prayer after the game on the 50-yard line was sincere and the district’s actions prohibiting him doing so were unconstitutional since the coach was found to be acting as a private citizen and not a district employee during his prayer. The Court specifically found that prayer “during the postgame period when coaches were free to attend briefly to personal matters” such as “speak[ing] with a friend, call[ing] for a reservation at a restaurant, [and] check[ing] email” was not an issue because the players he was required to supervise were “otherwise occupied” in post-game activities. The Court also held that the district’s policy prohibiting the coach’s conduct was not a “neutral” policy, but was directed specifically toward religion, which violated the coach’s overlapping First Amendment rights of free speech and religious expression.

As to the district’s argument that allowing the coach’s prayers violated the Establishment Clause, the Court, in line with some of its prior decisions, overturned the long-standing precedent, which the district had followed, regarding the Establishment Clause as set forth in 1971 in Lemon v. Kurtzman. (403 U.S. 602 (1971).) The Court determined that the Lemon Test, was too “ambitious, abstract, and ahistorical.” The Court created a test based on “original meaning and history of the Constitution.” In reviewing the actions by a public agency, courts are now to “reference to historical practices and understandings.” Based on this test, the Court found that the coach’s private and quiet prayer at the 50-yard line, surrounded by players and coaches from the other team and by members of the public who joined as he was praying, was not a violation of the Establishment Clause. In so doing, the Court found that his silent, private prayers did not impermissibly coerce students to participate in a religious exercise.

a teacher stands at the head of an elementary aged class
The dissent disputed some of the key facts relied on by the majority and described the coach’s prayers as “a public, communicative display of [an] employee’s personal religious beliefs.” The briefs filed by CSBA’s Education Legal Alliance relied on facts similar to those discussed by the dissent. Namely, that the district made several efforts to accommodate the coach’s religious beliefs and right to express those beliefs while on duty in a manner permissible under the Establishment Clause. The different factual scenarios represented by the majority opinion and the dissent, as well as the Court’s new test to evaluate Establishment Clause issues, may create challenges for districts in addressing these matters moving forward.

In addition to extracurricular activities covered by Bremerton, included below are examples of possible scenarios that districts may encounter in response to these two cases.

Prayer in classrooms
In various decisions, the Court has emphasized the special role that public schools play in our republic. For example, the Supreme Court has said that “the public school is at once the symbol for our democracy and the most pervasive means for promoting our common destiny.” (Illinois ex rel. McCollum v. Board of Education, 333 U.S. 203, 231 (1948).) In consideration of the involuntary nature of school attendance, the Court has gone on to say that “Families entrust public schools with the education of their children but condition their trust on the understanding that the classroom will not be purposely used to advance religious views.” (Edwards v. Aguillard, 482 U.S. 578, 584 (1987).) As a result, open, public prayer in the classroom by teachers or teacher led prayer was found unconstitutional because it violated the Establishment Clause.

For example, in Engel v. Vitale (370 U.S. 421 (1962)), the Court ruled that daily recitation of a prayer in all classrooms of a New York school district was unconstitutional because “neither the fact that the prayer may be denominationally neutral nor the fact that its observance on the part of the students is voluntary can serve to free it from the limitations the Establishment Clause.” As described by the Court, the coach’s prayer in Bremerton is distinct from the prayer in Vitale because it was a silent, private prayer offered by the coach during a moment when he was not engaged in his supervisorial duties. Therefore, the facts and decision of Bremerton arguably do not change the prohibition on demonstrative prayer in classrooms that the Court has emphasized frequently in the past.

Prayer at graduation ceremonies
Lee v. Weisman (505 U.S. 577 (1992).) focused on the specific importance of school graduations. In that case, the principal of a high school selected a rabbi to lead an invocation during the graduation ceremony. The Supreme Court reasoned that the rite of passage that a graduation provides and the pressure to participate when a prayer is read aloud at the ceremony to a captive audience makes it impermissible to include a formal prayer at a graduation without violating the Establishment Clause. These are distinct facts from those stated by the majority in Bremerton (i.e., a private, personal prayer) and, as a result, the Bremerton opinion has not changed this requirement. However, former Justice Antonin Scalia’s dissent in this case emphasized several arguments that align closely with the reasoning in Bremerton. Justice Scalia noted that, “The history and tradition of our Nation are replete with public ceremonies featuring prayers of thanksgiving and petition.” (Id. at 633.) Due to these similarities, it is not unreasonable to question whether the Court may allow for prayers at graduation ceremonies in the future, but for now Lee continues to limit organized prayer at graduation ceremonies.
Prayer at school board meetings
The Supreme Court has held that opening meetings of legislative bodies with prayer is permissible. (Town of Greece, N.Y. v. Galloway, 572 U.S. 565, 578 (2014).) However, the Supreme Court has not ruled specifically on whether prayer to open a school board meeting violates the Establishment Clause, which has likely resulted in a variety of practices across the nation. But in 2018, the Ninth Circuit Court of Appeals held that a school district policy of opening board meetings with prayers by clergy members violated the Establishment Clause. (Freedom From Religion Foundation, Inc. v. Chino Valley Unified School District Board of Education (9th Cir. 2018) 896 F.3d 1132.) The Court held that the Town of Greece analysis was not appropriate for prayers before a school board meeting because of the differences between the town council meetings in Town of Greece and school board meetings. The Court relied on the fact that students were present at all board meetings, including student board members. (Id. at 1138 and 1142.) In contrast, in Town of Greece, prayers were delivered to an audience of “mature adults” who were “firm in their own beliefs” and who were free to enter and leave the meeting without penalty. (Id. at 1143-1145.) However, based on the Court’s analysis in Bremerton, this may be subject to change because the Court both overturned the Lemon Test and favorably cited to Town of Greece in its analysis.

As exemplified in the scenarios above, much remains to be determined and will be likely tested in the future as courts navigate the new standards and tests given in Bremerton and the holding in Makin.