Establishment Clause Jurisprudence and the Constitutional Limits on Religion in Public Schools
By
By
Maya Gardner[1]*
II. Incorporation and Early Interpretations of the Establishment Clause 591
III. Establishment Clause Jurisprudence Concerning School Prayer 595
A. The “Secular Purpose” Requirement 595
B. The Three-Pronged Lemon Test 596
IV. A Gradual Return to Interpretation by Reference to “History and Tradition” 599
A. Government Display of Religious Symbols 599
V. Overturning Lemon in Kennedy v. Bremerton (2022) 603
B. The Majority’s Free Exercise Analysis 606
C. The Dissent’s Establishment Concerns 607
D. Kennedy’s Effect on the Establishment Clause 609
VI. Constitutionality of Legislation Regarding Religion in Public Schools 611
A. The History and Tradition of Religion in Public Schools 611
2. Old and New Testament Classes 621
E. Displaying the National Motto 623
In Kennedy v. Bremerton School District, the Supreme Court concluded that a school district unconstitutionally violated a high school football coach’s Free Exercise rights by recommending that he not be rehired after he refused to stop engaging in mid-field prayer.[2] The Court denounced the school district’s assertion that its actions were justified in order to prevent a potential Establishment Clause violation and summarily dismissed the notion that the coach’s actions could have a coercive effect on students.[3]
Kennedy is consistent with the Court’s recent trend of strengthening Free Exercise rights while weakening the constitutionally required boundaries between church and state.[4] However, the case represents a departure from existing school prayer jurisprudence, leaving questions regarding what remains of the Establishment Clause, how school districts should adjust policies regarding religious exercise by employees, and the extent to which governing bodies may authorize, require, or restrict religious expression in public schools.
Before Kennedy was decided, several states passed laws that seem to challenge the status quo—and perhaps test the boundaries of Establishment Clause jurisprudence—regarding religion in public schools. At least twenty-six states have considered bills that would require the national motto, “In God We Trust,” to be displayed in public schools.[5] In 2022, South Carolina became one of seven states to pass the legislation, requiring all public schools to display the national motto in a “prominent place.”[6]
Following Kennedy, efforts to revitalize school prayer have become more emboldened.[7] Three states have passed legislation authorizing school districts to adopt a policy permitting school chaplains to provide services to students.[8] Further, Louisiana passed a law requiring the Ten Commandments, along with several other “historical documents,” to be displayed in each public school classroom.[9] Most recently, Oklahoma’s State Superintendent of Public Instruction (“OSPI”) directed educators to incorporate the Bible into the curriculum beginning in fifth grade, citing the historical significance of the religious text.[10]
In an effort to understand the constitutional limits on religion in public schools, this Note analyzes the historical development of Establishment Clause jurisprudence, contextualizes the doctrinal significance of Kennedy, and draws conclusions regarding the probable fate of controversial state laws according to the Court’s precedent.
Following Kennedy, courts must examine practices that implicate Establishment Clause concerns in light of the nation’s history and traditions. A historical analysis of the relationship between religion and public schools reveals that the principle of anti-divisiveness was fundamental in shaping a system of public education designed to safeguard religious diversity and promote civic unity.[11] With these competing interests in mind, public school policies that implicate Establishment Clause concerns must be evaluated with regard to the policy’s coercive effects, relation to long-held traditions, and impacts on the effective diffusion of civic education, in addition to binding precedent.[12]
First, recent policies allowing public schools to employ school chaplains violate the Establishment Clause according to Illinois ex rel. McCollum v. Board of Education.[13] Specifically, these policies wield the state’s authority to advance religion through publicly funded institutions—official conduct which falls squarely within the prohibitions of the Establishment Clause. Similarly, laws requiring public schools to display the Ten Commandments along with other historical documents in each classroom are prohibited according to Stone v. Graham, are not consistent with any broader history or tradition within public schools, and serve the impermissible purpose of inducing students to read, appreciate, and perhaps obey the religious doctrine.[14]
Further, the OSPI’s directive to incorporate the Bible into public school curricula violates the Establishment Clause by presenting an unbalanced and far-reaching study of the Bible that is better suited to advance a distinctly Christian worldview than to provide students with a more well-rounded secular education. While the directive fairly recognizes the historical significance of the Bible to the nation’s development, relying on the tradition of incorporating religious literature into the public school curriculum to rebut constitutional concerns, the directive ultimately represents a top-down effort to impose the state’s preferred religious values onto citizens rather than a sincere effort to bolster secular education or recognize widely held religious beliefs of the broader community.
Finally, laws authorizing public schools to offer elective courses on the Bible do not offend the Establishment Clause in the absence of evidence that the class is religious rather than academic in nature. In contrast to the OSPI’s directive, permitting local school boards to offer elective courses on the Bible in an effort to tailor the curriculum to the widespread beliefs of community members is entirely in accord with the history of religion in public schools.[15] Likewise, laws requiring schools to display the national motto, “In God We Trust,” are unlikely to offend the Establishment Clause due to the nation’s history of displaying the motto in a nationalistic rather than religious manner.[16]
The Establishment Clause was first applied to the states through the Fourteenth Amendment in 1947.[17] The following year, in Illinois ex rel. McCollum v. Board of Education, eight members of the Court held that Illinois’ “released time” program for religious instruction violated the Establishment Clause.[18] However, the Court upheld New York’s released time program only four years later in Zorach v. Clauson.[19] In deciding both McCollum and Zorach, the justices drew conclusions about the purpose and meaning of the Establishment Clause with reference to the America’s founding principles and historical practices.[20]
McCollum and Zorach demonstrate how the Court applied a historical analysis to reach two different conclusions regarding two similarly structured released time programs.[21] In McCollum, the Court held that a released time program allowing students to receive weekly religious instruction from religious teachers who visited public school classrooms at no cost to schools violated the Establishment Clause.[22] The 8-to-1 decision featured several opinions: Justice Black delivered the opinion of the Court, Justice Frankfurter wrote a concurring opinion in which three justices joined, Justice Jackson wrote a concurring opinion, and Justice Reed dissented.[23] The Black opinion reasoned that, although the religious instruction was optional and occurred at no cost to the school, the use of “the tax-supported public school system to aid religious groups to spread their faith … falls squarely under the ban of the First Amendment.”[24] The opinion emphasized that the state had a compulsory education law, allowed religious instructors to teach in regular classrooms during the school day, and enforced attendance for students whose parents consented to the instruction.[25] Further, the opinion rejected the contention that prohibiting use of the “public school system to aid any or all religious faiths or sects in the dissemination of their doctrines and ideals . . . manifest[s] a governmental hostility to religion . . . .”[26]
The Frankfurter opinion analyzed whether the released time program violated the Establishment Clause using a historical analysis.[27] The opinion describes how religious education, once common in the small, church-based schools of the founding era, did not take root as states established public school systems and compulsory education laws.[28] Rather, state constitutions prohibited the provision of public funds for parochial schools, legislatures confined public school systems to secular education, and the duty of providing religious education was relegated to the home and church.[29] Churches, feeling that schools monopolized the youths’ attention, responded by advocating for “released time” programs, which increased in popularity during the early twentieth century.[30]
In light of the nation’s history of maintaining secular public schools, the Frankfurter opinion concluded that the released time program in question violates the Establishment Clause by using the “inherent pressure” of the public school system to benefit religious sects.[31] Further, the opinion expresses the particular importance of maintaining separation of church and state in public schools, stating that public schools represent both “the symbol of our democracy and the most pervasive means for promoting our common destiny.”[32]
In his lone dissent, Justice Reed follows his own historical analysis to a strikingly different conclusion.[33] Justice Reed’s conclusions about the meaning of the Establishment Clause are worth exploring, as they are nearly identical to the Court’s most recent jurisprudence. For one part, the dissent argues that the “close association of church and state in American society,” deems certain “[w]ell-recognized and long-established” practices acceptable due to their place in our “tradition and culture.”[34] Further, the dissent narrowly defines unconstitutional aid to religious institutions as “purposeful assistance directly to the church itself” or to a religious group serving an ecclesiastical function, thus rejecting the contention that the Establishment Clause prohibits “incidental advantages that religious bodies, with other groups similarly situated, obtain as a by-product of organized society.”[35] Finally, Justice Reed argues that “the history of past practices” is determinative in applying the Establishment Clause rather than being one portion of a broader analysis.[36]
Four years after McCollum, the Court upheld New York’s released time program in Zorach.[37] The facts of Zorach are nearly identical to those in McCollum: participation in the program required a written request from a parent, schools enforced attendance of the religious classes with the help of reports by religious instructors, and students who did not participate received secular instruction.[38] However, whereas the released time program in McCollum allowed students to receive religious instruction in the classroom, the program in Zorach allowed students to leave during the regular school day to attend religious instruction offsite.[39] As a result, the six justice majority upheld the program, noting that “[n]o one is forced to go to the religious classroom and no religious exercise or instruction is brought to the classrooms of the public schools.”[40]
The three dissenting justices each emphasized the coercive effect of the released time program. First, Justice Black argued that the Establishment Clause was intended to prohibit any religious sect from utilizing the coercive power of the state, reasoning that the Framers understood the need for religious people to avoid the oppressive results of religious conflict.[41] Second, Justice Frankfurter described the coercive effects of the program on parents and children alike, arguing that parents will likely feel pressure to enroll their children for fear of social judgement.[42] Lastly, Justice Jackson reasoned that the indirect coercion of the released time program was only one step removed from mandatory church attendance, arguing that the released time program in question utilizes coercive elements nearly identical to those in McCollum.[43]
Debates about the proper role and constitutional limits of religious exercise in public schools have not ceased since Everson, although public fervor has waxed and waned.[44] In 1962, the Court captured the public’s attention in its seminal ruling against school prayer.[45] In Engel v. Vitale, the Court held that daily recitation of a non-sectarian, state-written prayer by New York public school students violated the Establishment Clause.[46] The majority opinion offered two primary justifications for holding school prayer unconstitutional: the Establishment Clause was intended to restrain historically pervasive religious conflict, and “a union of government and religion tends to destroy government and to degrade religion.”[47]
Engel inspired considerable public outrage as “an affront to God, civic virtue, and the American way,” with more than 75% of Americans as well as numerous governors and state legislatures condemning the Court’s decision.”[48] The Court was accused of secularizing public life, demonstrating an undemocratic display of judicial overreach, and condemning an innocuous prayer.[49] However, the majority opinion distinguished the state-written prayer in Engel from historical documents or anthems that refer to God, stating that “[s]uch patriotic or ceremonial occasions bear no true resemblance to the unquestioned religious exercise” of school prayer.[50]
Despite fervent condemnation of the Supreme Court, Engel added little to Establishment Clause jurisprudence.[51] Engel, consistent with prior First Amendment questions, was decided based on an analysis of our nation’s history and traditions.[52] Over the next several decades, the Court would articulate several additional standards for evaluating alleged Establishment Clause violations, including (1) the “secular purpose” requirement, (2) the three-pronged Lemon test, (3) the endorsement test, and (4) an analysis of coercive effects.[53]
The Court reaffirmed Engel in School District of Abington Township v. Schempp.[54] In Schempp, the Court addressed the constitutionality of a Pennsylvania law requiring public schools to begin each day by reading “ten verses from the Holy Bible,” followed by a recitation of the Lord’s Prayer and the Pledge of Allegiance.[55] Although the law permitted students to opt-out of the daily Bible reading and recitation, Edward Schempp, the father of two children in the Pennsylvania public school system and a member of the Unitarian faith, expressed concern that doing so could cause his children to be perceived as un-American or even immoral, and further, that his children would miss important school-related announcements that followed the daily recitations.[56]
Justice Clark, writing for the majority, emphasized the “exalted” place of religion in American society,[57] citing prior decisions in which the Court recognized that “[t]he history of man is inseparable from the history of religion”[58] and that Americans “are a religious people whose institutions presuppose a Supreme Being.”[59] Conversely, the Court highlighted the role of the Establishment Clause in preserving religious freedom, a principle that is also “strongly imbedded [sic] in our public and private life” as a direct result of our national heritage.[60] As such, the Court articulated a new standard for analyzing whether a state action violates the Establishment Clause: the state must demonstrate “a secular legislative purpose and a primary effect that neither advances nor inhibits religion.”[61] Accordingly, the Court held that the decidedly “religious character” of Pennsylvania’s law violated the Establishment Clause.[62]
Moreover, the Court rejected the assertion that prohibiting religious exercises established a “religion of secularism” in schools which communicated hostility to religion and preference for non-believers.[63] Rather, the Court explained that the First Amendment requires neutrality towards religion, re-iterating the distinction that occupied one footnote in Engel: “Nothing we have said here indicates that . . . such study of the Bible or of religion, when presented objectively as part of a secular program of education, may not be effected consistently with the First Amendment.”[64]
The Court expanded upon its “secular purpose” test in Lemon v. Kurtzman, incorporating the requirement into a three-pronged test for analyzing whether a state action violates the Establishment Clause.[65] In Lemon, the Court held that a state law reimbursing private, parochial schools for costs related to secular educational services, including “teachers’ salaries, textbooks, and instructional materials,” violated the Establishment Clause.[66] The Court reasoned that it is impractical to expect that public funds will be used solely for secular purposes, and further, that any attempt by the state to oversee the use of public funds by parochial schools will necessarily require “excessive and enduring entanglement between state and church.”[67] The Court went one step further, articulating a test intended to prohibit “sponsorship, financial support, and active involvement of the sovereign in religious activity.”[68] According to the Lemon test, a state action must have “a secular legislative purpose,” a “primary effect” that “neither advances nor inhibits religion,” and must not result in “an excessive government entanglement with religion.”[69]
The endorsement test was first applied in County of Allegheny v. ACLU.[70] In Allegheny, the Court adopted the endorsement test as a “sound analytical framework for evaluating government use of religious symbols,” stating that “[e]very government practice must be judged in its unique circumstances to determine whether it [endorses] religion.”[71] The endorsement test asks whether a reasonable person would fairly understand a government display of religious symbols to be an endorsement of religion.[72] Applying the test, the Court held that a creche displayed in a county courthouse violated the Establishment Clause,[73] while a Chanukah menorah displayed at the entrance of a city building alongside a Christmas tree and a sign commemorating freedom and liberty did not.[74] The Court reasoned that the former endorses a “patently Christian message,” whereas the Menorah, Christmas tree, and sign “must be understood as conveying the city’s secular recognition of different traditions for celebrating the winter-holiday season.”[75]
Lastly, the Court held that the coercive effects of public school policies were determinative of an Establishment Clause violation in both Lee v. Weisman and Sante Fe Independent School District v. Doe.[76] In Lee, the Court held that a public school violated the Establishment Clause by inviting a rabbi to say a nonsectarian invocation and benediction to commemorate a middle school graduation ceremony.[77] The Court reasoned that students are especially vulnerable to “subtle coercive pressures” and had “no real alternative” by which to “avoid the fact or appearance of participation” in the invocation.[78] Critically, while the majority held that “the government may no more use social pressure to enforce orthodoxy than it may use more direct means,”[79] the dissent argued that constitutionally significant coercion requires the “force of law and threat of penalty.”[80]
Similarly, in Santa Fe, the Court struck down a policy permitting high school students to elect a student council chaplain to say a prayer over the school’s public address system before each varsity football game.[81] Again, the Court reasoned that the “pregame prayers bear ‘the imprint of the State and thus put school-age children who objected in an untenable position,’”[82] noting that football players, cheerleaders and band members have an obligation to attend such after school events.[83] Further, the Court rejected the state’s argument that the policy did not amount to a perceived or actual endorsement of religion, stating that policy requires the principal to provide “advice and direction” in conducting student chaplain elections, is understood by students to encourage religious messages, and permits such messages to be delivered at “school sponsored function[s]” using “the school’s public address system[.]”[84]
Although the Supreme Court did not return to the question of school prayer for more than two decades following Santa Fe, it built upon its Establishment Clause jurisprudence in cases regarding government displays of religious symbols and legislative prayer.[85]
The Court has heard three cases regarding whether a public display of the Ten Commandments violates the Establishment Clause, each of which resulted in a 5-to-4 split.[86] First, in Stone v. Graham, the Court issued a per curiam decision concluding that a state law requiring a copy of the Ten Commandments to be posted in each public school classroom failed under Lemon.[87] Later, the Supreme Court heard companion cases regarding public displays of the Ten Commandments outside of the public school context.[88]
In Stone, the five justice majority held that the statute had “no secular legislative purpose[]” and therefore failed under the first prong of Lemon.[89] Unlike the lower courts, the majority refused to accept the “avowed” secular purposes offered by the state, stating that although religious texts such as the Bible may be used “in an appropriate study of history, civilization, ethics, [or] comparative religion,” display of the Ten Commandments serves “no such educational function.”[90] Four justices dissented: Justice Stewart would affirm the state Supreme Court’s holding, Chief Justice Burger and Justice Blackmun would grant certiorari and decide the case on the merits, and Justice Rehnquist, the only justice to issue a dissenting opinion, gave credence to the statute’s purported secular purpose and criticized the majority’s “cavalier summary reversal[.]”[91]
More than two decades after Stone, the Court took up two Establishment Clause challenges to government displays of the Ten Commandments in companion cases McCreary County v. ACLU of Kentucky and Van Orden v. Perry.[92] In McCreary, the five justice majority held that two counties in Kentucky (“the counties”) violated the Establishment Clause by issuing mandates requiring “large, gold-framed copies” of the Ten Commandments to be displayed in each respective county courthouse.[93] After the ACLU filed suit to challenge the legislative action, the counties expanded the mandate by requiring a number of historical documents to be posted alongside the Ten Commandments for the stated purpose of educating the public on America’s founding principles.[94] However, applying Lemon, the majority reasoned that the counties’ “manifest objective” was religious rather than secular.[95] Thus, the majority concluded that the mandate failed to pass to first prong of Lemon and violated the First Amendment’s demand for “governmental neutrality between religion and religion, and between religion and nonreligion.”[96]
The four justice dissent denounced Lemon and refuted that the First Amendment demands neutrality.[97] Following a historical analysis, the dissent concluded that the Establishment Clause permits government endorsement of religion.[98] Alternatively, the dissent asserted that the display manifests a secular purpose to objective observers, reasoning that Americans are well accustomed to public displays acknowledging the role of religion in the nation’s “legal and governmental heritage[.]”[99]
In Van Orden v. Perry, the majority held that a six-foot monument portraying the Ten Commandments did not violate the Establishment Clause.[100] The monument was first erected in 1961 and represents one of “17 monuments and 21 historical markers” surrounding the Texas State Capitol.[101] Mirroring the dissent’s reasoning in McCreary, the majority begins with an analysis of how the government has historically acknowledged the role of religion in American life.[102] After conceding that the Ten Commandments represent an inherently religious doctrine, the majority insists that “[s]imply having religious content or promoting a message consistent with a religious doctrine” does not offend the Establishment Clause.[103] Then, the majority refers to Stone as an example of the appropriate limits imposed by the Establishment Clause, stating that the Court “found that the Kentucky statute had an improper and plainly religious purpose,” specifically “[i]n the classroom context.”[104]
In American Legion v. American Humanist Association, the Court clarified the standard for analyzing government displays of religious symbols in a 7-to-2 decision which expounded the shortcomings of Lemon and articulated the Court’s history and tradition analysis.[105] There, the Court held that a thirty-two-foot Roman Cross erected in 1925 to commemorate the sacrifice of World War I soldiers did not violate the Establishment Clause, reasoning that the cross had developed an independent secular significance.[106] The majority discussed the weaknesses of Lemon’s “secular purpose” requirement at length, citing the difficulty of determining the original purpose of a long standing monument or practice, the potential for the practice to take on a new meaning over time, and the likelihood that striking down a long standing practice will be perceived as hostile to religion, whereas the Establishment Clause demands neutrality.[107] Rather than applying Lemon or the endorsement test, the Court reasoned that the Establishment Clause must be interpreted to include long-standing government practices which recognize “the important role that religion plays in the lives of many Americans.”[108] Likewise, the majority concluded that forcibly removing the long-standing monument “would not be neutral and would not further the ideals of respect and tolerance” promoted by the First Amendment.[109]
In Town of Greece, the Court held that the practice of beginning each monthly board meeting with prayer delivered by local clergymen did not violate the Establishment Clause.[110] The prayer was delivered on a volunteer basis by clergymen from local congregations.[111] Although the town maintained that a volunteer of any faith, including an atheist, would be provided an opportunity to say a prayer, nearly every board meeting, including all meetings between 1999 and 2007, opened with prayer delivered by a Christian minister.[112] The town did not review or otherwise control the content of the prayers, which included a range of religious and secular elements.[113] The plaintiffs asserted that the sectarian nature of the prayer and coercive effect of the practice violated the Establishment Clause.[114]
First, the Court rejected the argument that the Establishment Clause permits only nonsectarian prayer, stating instead that any practice “that was accepted by the Framers and has withstood the critical scrutiny of time and political change” cannot be understood to violate the First Amendment.[115] Thus, following a history and tradition analysis, the Court concluded that the town’s policy was consistent with the long standing practice of legislative prayer.[116] The Court dismissed the plaintiff’s assertion that “subtle coercive pressures” rendered the practice unconstitutional, noting that attendees were not dissuaded from leaving the room or arriving after the prayer was delivered.[117] Further, the Court held that unlike in Lee, where attendees were impressionable students with no real choice but to attend their middle school graduation ceremony, attendees in Town of Greece were adults with a desire to weigh in on local issues.[118]
In Kennedy, the Court held that Bremerton School District (“District”) unconstitutionally infringed on a high school football coach’s (“Kennedy”) Free Exercise rights by recommending that he not be rehired after Kennedy refused to stop his practice of demonstrative prayer at the fifty-yard line, engaged with media to publicize the conflict, declined to participate in the interactive process of determining appropriate accommodations for his desired religious exercise, yet refrained from directly coercing students to join in prayer.[119]
As an assistant coach, Kennedy’s job duties included supervising students during school-sponsored activities and serving as a “mentor and role model” for student-athletes.[120] In addition, Kennedy was required to demonstrate “sportsmanlike conduct” and “maintain positive media relations” in accordance with the presumption that school officials were “constantly being observed by others[.]”[121] The District was made aware of Kennedy’s mid-field prayer through a positive comment by the coach of an opposing team.[122] Shortly after the District initiated an inquiry into the practice, Kennedy engaged in mid-field prayer at the conclusion of a game while his team kneeled around him, despite being told that he “should not be conducting prayer with players” by the District’s athletic director that same evening.[123]
In addition to leading students in prayer at the fifty-yard line following football games, Kennedy routinely prayed with students in the locker room prior to games, carrying out a tradition of locker room prayer that preceded him.[124] Although Kennedy never directly asked students to join him in mid-field prayer, a majority of the team would ultimately join him after customarily reporting to the fifty-yard line to shake hands with the opposing team.[125]
Shortly after the athletic director observed Kennedy leading students in prayer, the superintendent instructed Kennedy not to engage in “religious expression, including prayer” with students.[126] The superintendent affirmed the students’ right to engage in prayer, but made clear the Kennedy was prohibited from “suggest[ing], encourage[ing] (or discourag[ing]), or supervis[ing]” prayer.[127] Finally, the school stated that Kennedy’s religious exercise must remain “nondemonstrative (i.e., not outwardly discernible as religious activity)” to avoid the appearance of endorsement that could conflict with the religious neutrality demanded by the Establishment Clause.[128]
As a result, Kennedy “felt pressured to abandon his practice of saying his own quiet, on-field postgame prayer,” and, through counsel, informed the District that he would continue to engage in the mid-field prayer to conform with his “sincerely-held religious beliefs[.]”[129] While the District maintained that Kennedy was forbidden from overtly acting in a manner that a reasonable observer would understand as endorsing prayer while acting in his capacity as coach,[130] it invited him to engage in an interactive process to identify appropriate accommodations in light of his sincerely held religious beliefs.[131]
Instead, Kennedy engaged in mid-field prayer during three subsequent games.[132] At the first game, reporters and attendees jumped fences to join or record Kennedy’s mid-field prayer, thus requiring the District “[t]o secure the field” by alerting parents and the public that access to the field was restricted to student-athletes and District employees.[133] Accordingly, the District notified Kennedy that “further violations . . . would be grounds for discipline or termination.”[134] Kennedy engaged in mid-field prayer at two subsequent games and was consequently placed on administrative leave.[135] The head coach of the team “recommended Kennedy not be rehired” due to repeated violations of district policy, failure to cooperate with administration, “fail[ure] to supervise student athletes after games” and actions that resulted in “negative relations between parents, students, community members, coaches, and the school district[.]”[136]
Kennedy ultimately took legal action against the District, asserting that the disciplinary action violated his First Amendment rights of Free Speech and Free Exercise.[137] The district court concluded the District’s actions were “narrowly tailored to its Establishment Clause concerns” and granted the District’s motion for summary judgment.[138] The circuit court, which agreed that the appearance of endorsement and potential for coercion justified the District’s response, affirmed.[139]
The Court begins by discussing Kennedy’s Free Speech and Free Exercise claims, stating that the clauses “provide[] overlapping protection for expressive religious activities[]” consistent with “the Framers’ distrust of government attempts to regulate religion and suppress dissent.”[140] After concluding that the burden shifted to the District in regard to both claims,[141] the Court asked whether the District’s actions were “narrowly tailored” to a “compelling [government] interest.”[142] It is at this point that the Court’s analysis substantially diverged from that of the lower courts as well as the dissent.
The Court rejected the contention that the District’s Establishment Clause concerns justified disciplinary action.[143] First, it rejected the notion that Kennedy’s Free Exercise rights conflicted with the District’s obligations under the Establishment Clause, instead asserting that the clauses serve “complementary” rather than “warring” purposes.[144] Second, the Court criticized the lower court’s application of Lemon and the endorsement test, stating that “this Court long ago abandoned Lemon and its endorsement test offshoot” because the “abstract, and ahistorical approach” of both tests fail to produce reliable results.[145] Relatedly, the Court clarified the limits of the Establishment Clause: the clause cannot be employed as a “modified heckler’s veto” to suppress religious exercise due to “perceptions” or “discomfort,” does not universally require government entities to censor private religious speech, and does not require the government to “purge from the public sphere” anything that an objective observer could reasonably understand to be an endorsement of religion.[146]
After abandoning Lemon and the endorsement test, the Court briefly explains that Establishment Clause challenges must be interpreted “by reference to historical practices and understandings.”[147] Thus, any application of the Establishment Clause must “accor[d] with history and faithfully reflec[t] the understanding of the Founding Fathers.”[148] Citing both Town of Greece and American Legion, the Court assured that this “focu[s] on original meaning and history” is consistent with the Court’s Establishment Clause jurisprudence.[149]
The Court recognized that the government may not compel citizens to engage in religious observance, participate in a religious exercise, or attend church, but concludes that the District, having found no evidence of direct coercion, did not raise a judicially cognizable concern.[150] Although the Court spends one short paragraph addressing coercion, a footnote expanding upon the particular “religious establishments the Framers sought to prohibit” suggests that the majority would require coercion to carry the “force of law or threat of penalty.”[151]
The dissent, delivered by Justice Sotomayor and joined by Justices Breyer and Kagan, characterizes both the facts of the case and the Court’s Establishment Clause precedent quite differently.[152] First, the dissent criticizes the majority’s approach of extensively addressing Kennedy’s Free Exercise and Free Speech claims while dismissing the District’s establishment concerns as baseless.[153] In minimizing the District’s concerns, the Court “reject[ed] longstanding concerns surrounding government endorsement of religion” and applied a “toothless version of the coercion analysis, [which] faile[d] to acknowledge the unique pressures faced by students when participating in school-sponsored activities.”[154] Further, the dissent reiterated observations made by the District Court: the “slow accumulation of players joining Kennedy suggests exactly the type of vulnerability to social pressure that makes the Establishment Clause vital in the high school context.”[155]
Moreover, the dissent contests that Lemon and its endorsement offshoot were long ago abandoned, noting that the Court’s criticism of Lemon in American Legion, which the majority cites as evidence of Lemon’s abandonment, discusses the shortcomings of Lemon specifically as applied to “longstanding monuments, symbols, and practices.”[156] Likewise, the dissent calls attention to the Court’s reasoning in Town of Greece, which dismissed concerns regarding coercion in part by distinguishing Lee, which involved children at a middle school graduation ceremony rather than adults attending their town’s monthly board meetings.[157] Ultimately, the dissent insists that the religion clauses “often exert conflicting pressures” while nonetheless “express[ing] complementary values,”[158] and that the majority’s decision, made possible only by upholding Free Exercise rights without sufficiently considering Establishment Clause concerns, represents “no victory for religious liberty.”[159]
The Court expressly abandoned Lemon and the endorsement test,[160] but the extent to which abandoning Lemon strayed from existing Establishment Clause jurisprudence is contested. The majority asserts that the Court has “often criticized or ignored Lemon” in the past two decades.[161] Indeed, in light of Lemon’s weaknesses as a blanket rule for Establishment Clause cases, the Court has developed several tests targeted towards specific areas of controversy.[162] Further, the Court’s history and tradition test is not entirely new, but rather was commonly used to analyze establishment challenges from 1947, when the Establishment Clause was first incorporated against the states, until 1971, when Lemon was first articulated.[163]
Although Lemon failed in many respects, the test served an important purpose. Specifically, Lemon is a product of Justice Warren Burger’s efforts to identify judicially cognizable steps towards religious establishments.[164] Thus, in Kennedy, the Court rolled back protections previously attributed to the Establishment Clause, recognizing only the lowest common denominator of state actions that scholars have identified as religious establishments.[165] Additionally, the Court declined to consider individual harms such as psychological coercion and alienation which have consistently been cited in school prayer cases as justifications for finding an Establishment Clause violation beyond the application of Lemon.[166]
Following Kennedy, federal district courts have looked to cases such as Town of Greece and American Legion in constructing an appropriate framework for determining whether a challenged practice violates the Establishment Clause.[167] Most importantly, a challenged practice is likely constitutional within the original meaning of the Establishment Clause if the practice is “consistent with” and “fits within” traditions that existed when America was founded or when the First Amendment was incorporated against the states.[168] Thus, a court must determine (1) the nature and scope of the purported tradition, and (2) whether the challenged practice is consistent with that tradition. Additionally, evidence of coercion or endorsement may be considered “for the limited purpose of deciding whether historical evidence is similar enough to the challenged practice to establish consistency.”[169] While these familiar tools may highlight useful distinctions, determining the outcome of an Establishment Clause claim ultimately requires a case-by-case, fact-intensive analysis rather than application of a rigid standard or test.[170]
A historical practice may nonetheless offend the Establishment Clause if the practice is “sectarian, discriminatory or coercive.”[171] The Court has not clarified what state actions are sufficiently coercive to present a constitutional issue, but it has certifiably lowered the threshold the Court maintained for half a century.[172] Moreover, it replaced Lemon with the amorphous and manipulable history and tradition test, which, despite the majority’s insistence, is certain to present challenges for any government body attempting to predict whether an action offends the Establishment Clause.[173]
Although the majority opinion briefly discusses Establishment Clause concerns, it conspicuously lacks any reference to the substantial precedent recognizing the particular importance of maintaining a separation of church and state within American public schools.[174] Meanwhile, several states have passed legislation authorizing or requiring public schools to incorporate religious texts into the curriculum for educational purposes.[175] The following Section explores how the Court’s Establishment Clause jurisprudence may be applied to such policies.
Unraveling the historical relationship between religion and public schools is an immense challenge. In the colonial area, most of the schools established to serve elite children were controlled by state-supported churches and provided a primarily religious education.[176] Despite the disestablishment of churches and the growth of a prototypical public education system following the American Revolution, secular education included “broad acceptance of the suitability of religious materials in the classroom.”[177] When the Supreme Court decided Schempp in 1963, Bible reading in public schools was part of life in at least thirty-seven states, including twelve which mandated the activity.[178] However, the cultural dominance of Judeo-Christian principles obscures a more fundamental philosophy guiding the development of public schools: anti-divisiveness.[179]
Reformers of the common school movement, the architects of systems that resemble our modern institutions, insisted upon nonsectarianism as a method by which public schools could effectively provide civic education to a religiously diverse nation.[180] Although nonsectarianism represented the lowest common denominator of religious beliefs for the overwhelming majority of students throughout the nineteenth century, substantial migration at the turn of the century resulted in religious pluralism trending ever upward.[181] The Frankfurter opinion in McCollum, undertaking a historical analysis, describes how public education initially incorporated religious principles and doctrines common to the citizens it served, while at the same time prioritizing policies permitting the most effective diffusion of secular education.[182] Similarly, in Engel, the majority drew a parallel between the Framers’ fear of political conflict arising from religious establishments and the anti-divisiveness principle central to the development of public education.[183] In both McCollum and Engel, the majority recognized that despite the ubiquitous presence of religion in public schools, a historical analysis demonstrates that policies allowing or endorsing religion have been consistently reshaped to serve the goal of effective civic education.[184]
Thus, while religious education has had a strong and persistent influence in our nation’s history, the “story of religion in American public schools . . . [reflects] a complex, ongoing negotiation over how to provide public education that balances competing values and interests in a manner acceptable to all citizens.”[185] Moreover, balancing the accommodation of religious beliefs with the need to establish a system of public education that can effectively prepare citizens is not just a policy choice. Rather, these closely held interests reflect the bounds of the First Amendment’s protection of religious expression on one hand, and prohibition on state-imposed religious orthodoxy on the other. The following sections will analyze various public school policies with respect to the Court’s precedent, coercive effects, and the guiding principle of anti-divisiveness.[186]
Between 2023 and 2024, three states passed legislation authorizing schools to establish a policy that would allow chaplains to “provide support[], services, and programs” to public school students.[187] No matter which standard is applied, these policies unequivocally violate the Establishment Clause.
First, the policies fail according to McCollum and Zorach. In both cases, the Court’s holding follows from a historical analysis consistent with the standard articulated in Kennedy and untouched by Lemon.[188] In McCollum, the fact that optional religious instruction was offered to students in regular public school classrooms was determinative of an Establishment Clause violation even though the classes were provided at no cost to the schools.[189] Here, two states authorize schools to employ certified chaplains, and all three states allow school chaplains to provide services to students through the “tax-established and tax-supported public school[s] system.”[190] Further, none of the statutes specify that the “support, services or programs” provided by school chaplains must be secular, thereby allowing local authorities to provide for optional religious instruction indistinguishable from the released time program struck down by eight justices in McCollum.[191] Moreover, even if states prohibited school chaplains from espousing religious principles, the law unconstitutionally favors religion over irreligion by inviting certified chaplains, solely on account of their status as clergymen, to provide certain services to public school students while denying the same opportunity to members of the public who have not been ordained for religious duties.
Second, looking no further than the lowest common denominator of what may be considered an “establishment” of religion, these statutes employ the coercive machinery of the state to advance religion in precisely the manner that the First Amendment was designed to prohibit. For one part, the statutes allow religious officers to carry out civil functions historically fulfilled by qualified school counselors, a characteristic of religious establishments that was identified by Justice Gorsuch in his Shurtleff concurrence and cited by the court in Kennedy.[192] Additionally, the coercion is no further removed from mandatory church attendance than the “released time” instruction in McCollum.[193] Critically, the state mandates and enforces school attendance, and Americans no doubt expect—consistent with the promises of the First Amendment—that compulsory education “will not purposely be used to advance religious views that may conflict with the private beliefs of the student and his or her family.”[194]
Accordingly, state laws authorizing schools to employ or accept volunteer school chaplains are prohibited by the Establishment Clause.
In June of 2024, Louisiana passed a law requiring public schools to display the text of the Ten Commandments in all public school classrooms.[195] Similar bills, including three that would require the Ten Commandments to be displayed in every classroom, have had varying degrees of success in Utah, Arizona, Texas, South Carolina, Georgia, and West Virginia.[196]
Louisiana’s statute (H.B. 71) includes a statement of legislative intent which—apparently anticipating constitutional challenges—makes a case as to why the law should be upheld.[197] The statement, which cites both Van Orden and American Legion, asserts that the “historical role of the Ten Commandments” reflects the Framer’s view that civic morality is a necessary part of a functional self-government, and explains that the Ten Commandments serve an important educational function as “part of our state and national history, culture, and tradition.”[198] The text of H.B. 71 requires the Ten Commandments to be accompanied by a “context statement” which includes three paragraphs describing how the “Ten Commandments were a prominent part of American public education for almost three centuries.”[199] Finally, the bill directs public schools to comply with the bill’s requirements by soliciting private donations rather than using public funds.[200]
Requiring public schools to display the Ten Commandments fails with respect to the Court’s precedent, the nation’s history and tradition, and the coercive effects of the mandate. First, H.B. 71 fails according to Stone v. Graham.[201] In Stone, the Court issued a 5-to-4 per curiam decision holding that a state law requiring the Ten Commandments to be displayed in every public school classroom violates the Establishment Clause because the law had a primarily religious rather than secular purpose.[202] Although the Court applied the first prong of Lemon in writing the per curiam decision, Stone is on point regarding the potential Establishment Clause violation presented by H.B. 71 and remains binding until it is overturned by the Supreme Court.[203]
Second, even if Stone did not control this controversy, H.B. 71 does not pass the history and tradition analysis because the mandate is not consistent with any broader national tradition. Rather, “there is no evidence of a longstanding, let alone unbroken, historical acceptance and practice of widespread, permanent displays of the Ten Commandments in public schools.”[204] Although the state has argued that H.B. 71 is consistent with the nation’s history and traditions due to the influence of the Ten Commandments on America’s founding, development, and culture, this broad and abstract influence does not support the conclusion that a state mandate requiring public schools to post a copy of the Ten Commandments in every public elementary and secondary school classroom can “coexis[t] with the principles of disestablishment and religious freedom.”[205]
Lastly, the presence of coercion distinguishes H.B. 71 from Van Orden and American Legion. The Court has consistently demonstrated a particular respect for the separation of church and state in American public schools due to the coercive effects of compulsory attendance laws and the inherent susceptibility of school-age children.[206] While Louisiana’s legislature cited Van Orden to support the bill, that same case suggested that the historical significance of the Ten Commandments was not sufficient to protect such a display from an Establishment Clause challenge within the context of public schools.[207] Similarly, the Court distinguished the legislative prayer in Town of Greece from the invocation and benediction in Lee precisely due to the well-recognized coercive elements of public schools.[208] And although the Court’s focus on the Free Exercise claim in Kennedy effectively subjugated the school district’s Establishment Clause concerns, Kennedy does not indicate that the Court has abandoned its long-standing concern for Establishment Clause transgressions “in the classroom context[.]”[209] The Court described this coercive effect in addition to the impermissible state purpose in Stone: “[i]f the posted copies of the Ten Commandments are to have any effect at all, it will be to induce the schoolchildren to read, meditate upon, perhaps to venerate and obey, the Commandments[,]” and that “is not a permissible state objective under the Establishment Clause.”[210]
Although H.B. 71’s statement of legislative intent refers to Van Orden and American Legion to justify its mandate based on the religious doctrine’s place in the nation’s history and tradition, H.B. 71 more clearly reflects the facts of McCreary. The history and tradition test has been invoked in two distinct ways: construed narrowly, the test gives weight to the long-standing existence of a particular monument or practice, and construed broadly, the test uses a historical analysis to determine (or perhaps more accurately, to relitigate) the fundamental meaning and purpose of the Establishment Clause.[211] In Van Orden and American Legion, the Court upheld long-standing monuments featuring the Ten Commandments and a Roman Cross, whereas in McCreary, the Court held that a county’s recent decision to post a copy of the Ten Commandments in the county courthouse violated the Establishment Clause.[212]
Thus, the Court’s precedent suggests that H.B. 71 has an unconstitutionally coercive effect on students, and the role of the Ten Commandments in our nation’s history and traditions does not shield H.B. 71 from being held unconstitutional under the Establishment Clause.
In June of 2024, Oklahoma’s State Superintendent of Public Instruction (“OSPI”) issued a directive to local superintendents requiring “all Oklahoma schools” to “incorporate the Bible, which includes the Ten Commandments” into the curriculum.[213] The brief memorandum states that “[t]he Bible is one of the most historically significant books and a cornerstone of Western Civilization” that should be included in the “study of history, civilization, ethics, comparative religion, or the like[.]”[214]
Shortly after issuing the directive, the OSPI published “Instructional Support Guidelines for Teachers,” a five page document describing the ways in which teachers must incorporate the Bible into the curriculum.[215] The guidelines specify a number of existing social studies standards which must include a study of the Bible, requiring teachers to highlight the Bible’s influence on Western Civilization, American history, literature, art, and music.[216] Further, the guidelines describe four strategies for implementing the instruction: textual analysis of the Bible, comparative studies, reference to “historical documents and speeches” that reference the Bible, and classroom discussions about the “historical and literary” aspects of the Bible.[217] Finally, the guidelines require teachers to remain neutral, respect diverse religious beliefs, communicate with parents, and emphasize the “historical, literary and secular value” of the Bible rather than “preaching, proselytizing or indoctrination.”[218]
The OSPI’s directive has been controversial, and two lawsuits have been filed challenging the constitutionality of the directive.[219] A well-constructed argument on historical grounds could be tailored to either conclusion, but a fact-intensive analysis ultimately demonstrates that the directive resembles a top-down effort to impose the state’s preferred religious values onto citizens rather than a reasonable accommodation of diverse religious beliefs.
While the mandate purports to require teachers to incorporate a secular study of the Bible into the public school curricula where appropriate, both the memorandum and subsequent guidelines for implementation reveal underlying assumptions that are more consistent with instilling a fundamentally Christian worldview than with facilitating critical assessments of how the Bible relates to history, literature, culture, or other major world religions.[220] The brief memo states that the directive “is not merely an educational directive but a crucial step in ensuring our students grasp the core values and historical context of our country.”[221] This statement conveys that incorporating the Bible into the curriculum is not merely (or even primarily) intended to provide students with a more well-rounded education, but rather seeks to ensure that students understand Christianity and Christian values to be the core of our national identity and culture. Additionally, the guidelines instruct teachers to discuss how “biblical principles have shaped the foundational aspects of Western societies, such as the concepts of justice, human rights, and the rule of law[.]”[222] Notably, the guidelines do not require or recommend that teachers discuss certain negative influences that the Bible has had on Western Civilization, such as use of the Bible to justify slavery or maintain oppressive patriarchal structures.[223]
In addition to this unbalanced, particularly favorable teaching of the Bible’s influence on Western Civilization, the directive promotes a Christian worldview rather than a genuine understanding of the Bible’s influence on history and literature by requiring the curricula to include the Bible as the foundation and touchstone of numerous academic disciplines. Specifically, the guidelines require the Bible to be incorporated into lessons about Western Civilization, American history, canonical literature, literary techniques, art history, and music.[224] By highlighting the role of the Bible in each of these disciplines, the directive improperly favors and advances Christianity. Thus, while the guidelines instruct teachers not to promote or favor any particular religious beliefs, the directive and guidelines do just that.[225]
Ultimately, the uncritical and far-reaching study of the Bible described by the OSPI’s memorandum and guidelines is better suited to advance religion than to bolster secular education. The OSPI has indicated that advancing Judeo-Christian values is, in fact, the purpose of the directive. For example, in September of 2023, the OSPI stated that he “will bring God back to schools and prayer back in schools in Oklahoma” at a Family Research Council meeting.[226]
Despite the fact that the mandate calls for a secular study of the Bible in relation to existing standards, the OSPI’s actions are in truth more coercive than the daily Bible reading shot down in Schempp as well as the invocation shot down in Lee, even though these earlier cases both involved a religious exercise.[227] By purporting to be an academic and secular addition to the curriculum while ultimately advancing Christianity by providing an unbalanced, uncritical understanding of the Bible’s influence to impressionable students, the OSPI has effectively removed any option for parents or students to opt-out—an option that was available to the plaintiffs in Schempp and Lee.
In sum, by presenting a distinctly Christian worldview to students who are in the process of constructing a basic framework for understanding the world around them, the directive has a coercive effect that is prohibited by the Establishment Clause.
In the last twenty years, at least twelve states have passed legislation authorizing public schools to teach elective courses on the Bible.[228] Many states require the state board of education to promulgate standards for schools that choose to offer such courses, and about half specify that schools may offer courses on the history and text of the Old Testament, the New Testament, or both.[229] Such laws often specify that religion courses must be taught in an objective or neutral manner, that teachers may not require students to study a specific version of the Bible, and that the purpose of the courses is to highlight the historic and literary value of the religious texts as well as their influence on Western Civilizations.[230]
Despite recent legislation authorizing public schools to teach elective Bible courses, Bible courses in public schools are not new.[231] Like released time programs, elective Bible courses vary with respect to curriculum, course length, and administration.[232] District courts have historically applied Lemon to the facts of challenged Bible courses, often finding that the course content, curriculum, or instructional materials fail to demonstrate a secular purpose or unconstitutionally advance religion.[233]
As long as elective Bible courses can fairly be defined as academic instruction rather than religious exercises, Bible course offerings will not implicate, must less offend, the Establishment Clause. Additionally, elective courses are far removed from the Court’s conception of coercion by force or funds. Rather, any argument that elective Bible courses are coercive must rest on the sort of state-induced “psychological” coercions or “peer-pressure” that several Supreme Court justices have suggested does not constitute a judicially cognizable Establishment Clause concern.[234]
Indeed, elective courses on the Bible are a reasonable reflection of the Bible’s influence on United States history, government, and culture, as well as the broader history of the Western world. Although state-level legislation authorizes schools to offer such courses, curriculum decisions are ultimately left to school districts, thus empowering school boards to tailor the curriculum to the local community.[235] Such a system of local control which responds to the widespread beliefs of community members is entirely in accord with the history of religion in public schools.[236]
In 2022, South Carolina became one of seven states to pass legislation requiring public schools to display the national motto, “In God We Trust,” in a prominent place.[237] Even absent the Court’s recent trend of emphasizing Free Exercise claims while dismissing Establishment Clause concerns, these laws are likely to be upheld. In Engel, the Court specifically distinguished historical documents or national anthems that contain references to a Supreme Being, stating that “[s]uch patriotic or ceremonial occasions bear no true resemblance to the unquestioned religious exercise” displayed through recitation of the state-written Regent’s prayer.[238]
Indeed, the Court reaffirmed this holding in a series of concurring opinions in Elk Grove Unified School District v. Newdow.[239] In Elk Grove, the Court indicated that a state’s practice of leading students in the pledge of allegiance—including the verse “one nation, under God”—does not violate the Establishment Clause.[240] In both Elk Grove and American Legion, the Court emphasized that long-standing monuments and practices can take on meaning beyond their religious significance.[241] Moreover, the Court rejected the notion that religious significance is determinative of an Establishment Clause violation, stating that “our national culture allows public recognition of our Nation’s religious history and character.”[242]
Thus, policies requiring schools to display the national motto are likely to be upheld under the Establishment Clause.
While the Court’s recent Establishment Clause jurisprudence does not allow for policies authorizing the use of school chaplains, requiring display of the Ten Commandments, or saturating the public school curriculum with references to the history and influence of the Bible, states may succeed in more moderate efforts to bring God back into public schools.[243] In truth, whether the Court’s most recent jurisprudence represents a “victory for religious liberty”[244] can only be informed by our own prepossessions regarding whether the presentation of Judeo-Christian principles in public schools is consistent with the freedom of conscience protected by the First Amendment. More pertinently, with the renewed focus on history and tradition, the Supreme Court will continue to relitigate the purpose and meaning of the Establishment Clause with respect to public schools. By carefully weighing the conflicting interests that underpinned the development of public education,[245] the Court can distinguish between reasonable accommodation of religious beliefs and legitimate attempts to Christianize the state.