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.
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.
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.
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.
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.