Parsing Religion in Public Schools

by Catherine E. Ferri, Guest Blogger*

When the Framers penned the First Amendment, they were deeply concerned with the idea that the government and religion do not and should not mix. So concerned, in fact, that the First Amendment contains two clauses addressing the practice of religion in the United States, collectively known as the Religion Clauses. The Establishment Clause prevents the government from establishing a state religion.[i] The Free Exercise Clause protects religious exercise and religious expression from unwarranted governmental interference or discrimination .[ii] The Free Speech Clause, which protects our right to speech, further protects the right to prayer and religious expression.[iii]

These three clauses exist in tension with each other, and the Supreme Court has grappled with how to both protect the freedom of religion and prevent governments from prescribing a state religion in the public school context. In essence, though the government cannot promote religion or mandate its students participate in religion, public schools cannot discriminate against private religious expression by students, faculty, or employees. At bottom, public schools need to remain neutral as to the practice of religion, and not impinge upon the students’ right to religious practice or expression. [iv]

In 1963, the Supreme Court ruled that public-school sponsorship of religious exercises violates the Constitution, insisting that religious expression be excluded from the formal curriculum.[v] The Court additionally went on to forbid public schools from posting copies of the Ten Commandments,[vi] requiring silent prayer each day,[vii] or sponsoring prayer at a graduation event, which the Court reasoned was the equivalent of requiring students to participate in a religious ceremony.[viii] There once was a long-standing doctrine preventing state-operated schools from coercing students to participate in religious activities.

But what is coercive? The Supreme Court has recently muddied the waters on what public school conduct is and is not private and therefore what is and is not potentially coercing students in violation of their First Amendment rights. After all, nothing in the Constitution converts public schools into religion-free zones. Both students and school officials retain the right to the free exercise of religion, and they do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”[ix] They have the right to engage in private religious practice or expression, and students retain the right to debate religion in the same way they do politics.[x] But the question of when the public school steps over the line and foists a religious practice onto its students is less clear with each passing Supreme Court term.

In its 2022 landmark decision in Kennedy v. Bremerton School District, the Supreme Court found that public schools cannot prevent individuals from engaging in personal religious observations, even if they are attempting to comply with the Establishment Clause.[xi] A school district disciplined an assistant football coach for publicly praying, frequently with his players and players from the opposing team, at the fifty-yard-line after games.

The Supreme Court held that this was private religious expression not within the scope of his duties as coach and not attributable to the school and therefore not establishing a state religion. It further held that the school district’s decision to fire the coach burdened his free exercise of religion. In essence, the public display of religion with his players was not a violation of the Establishment Clause, while the school’s attempts to comply with the Establishment Clause was a violation of the Free Exercise Clause.

Notably, the majority ignored something the dissent discusses in depth– the implicitly coercive effects of peer pressure or the fear that the coach could reduce playing opportunities if they did not participate in the prayers. Whereas the Supreme Court was historically concerned with the fact that students are particularly easy to coerce, and therefore approached public officials’ display of religion with suspicion,[xii] the Bremerton majority was concerned with the “historical practices and understandings” of the First Amendment, an approach increasingly popular in this increasingly conservative Court.[xiii] In doing so, the majority “charts a different path, yet again paying almost exclusive attention to the Free Exercise Clause’s protection for individual religious exercise while giving short shrift to the Establishment Clause’s prohibition on state establishment of religion.”[xiv] Basically, the Supreme Court has drastically constricted the reach of the Establishment Clause. To legal analysts, it is not clear anymore what is or is not coercing public-school students or establishing religion via a public display of prayer by a public official if the prayers at the 50-yard-line were not.

Furthermore, what constitutes restricting the right to religion? In essence, the public school must approach religion and religious expression with a neutral and even-handed approach. The Supreme Court has held that schools retain a special interest in regulating speech, a concept known as ‘educational discretion,’[xv] and may regulate speech that “materially disrupts classwork or involves substantial disorder or invasion of the rights of others.”[xvi]

Additionally, “although school officials may not promote or favor religion or coerce students to pray, they also may not structure or administer the school’s rules so as to discriminate against private student speech or activities that are religiously motivated or that reflect a religious perspective.”[xvii] For example, students can pray or read religious materials during non-instructional time, but the public school is within its rights to impose certain rules or pedagogical restrictions on student activities, provided the school is not discriminating against student prayer or certain religions.[xviii] They can pray silently to themselves before tests, for example, or pray (or elect not to pray) during a ‘moment of silence.”[xix] Similarly, students can organize prayer groups or religious organizations that comply with rules prescribed to non-religious extracurricular groups, and the public school retains the right to restrict advertising or announcements for those groups or provide neutral disclaimers of the school’s approval or sponsorship of the religious organization as long as the school does the same for other extracurricular groups.[xx]

Thus, understanding the student’s competing rights to practice their religion and to be free from a public-school-prescribed religious orthodoxy is complicated because the Religion Clauses exist in tension. Public schools cannot endorse religion, they cannot coerce their students, but they also cannot burden their students’ right to private expression or their employees’ right to private expression. As the Supreme Court becomes more hostile to the Establishment Clause in its quest to protect the Free Exercise Clause, it makes it much harder for public schools to comply with all the clauses of the First Amendment.

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*Catherine Ferri is a third-year law student at the University of Colorado Law School and a 2020 graduate of Colgate University, where she studied English and Spanish literature. Her work on combating e-book bans has been published by the Stanford Technology Law Review.

The information provided in this post does not, and is not intended to, constitute legal advice; instead, all information, content, and materials available here are for general informational purposes only. Information on this post may not constitute the most up-to-date legal or other information. Readers of this post should contact an attorney to obtain advice with respect to any particular legal matter.

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[i] U.S. Const. amend. I.

[ii] Id.

[iii] Id.

[iv] Larson v. Valente, 456 U.S. 228 (1982); Epperson v. Arkansas, 393 U.S. 97 (1968).

[v] Sch. Dist. of Abington Twp., Pa. v. Schempp, 374 U.S. 203, 226 (1963)(“In the relationship between man and religion, the State is firmly committed to a position of neutrality.”).

[vi] Stone v. Graham, 449 U.S. 39, 42–43 (1980).

[vii] Wallace v. Jaffree, 472 U.S. 38, 61 (1985).

[viii] Lee v. Weisman, 505 U.S. 577, 599(1992)(“ No holding by this Court suggests that a school can persuade or compel a student to participate in a religious exercise. That is being done here, and it is forbidden by the Establishment Clause of the First Amendment.”).

[ix] Tinker v. Des Moines Independent Community School Dist., 393 U.S. 503, 506 (1969).

[x] Guidance on Constitutionally Protected Prayer and Religious Expression in Public Elementary and Secondary Schools, U.S. Dept of Educ. (May 15, 2023), https://www2.ed.gov/policy/gen/guid/religionandschools/prayer_guidance.html

[xi]Kennedy v. Bremerton Sch. Dist., 597 U.S. 507, 514 (2022).

[xii] Larson v. Valente, 456 U.S. 228 (1982); Epperson v. Arkansas, 393 U.S. 97 (1968); Schempp, 374 U.S. at 226; Stone, 449 U.S. at 42–43; Wallace, 472 U.S. at 61;  Weisman, 505 U.S. at 599.

[xiii] Bremerton Sch. Dist., 597 U.S. at 535.

[xiv] Id. at 546 (Sotomayor, J. dissenting).

[xv] For further discussion on educational discretion in schools and schools’ ability to restrict student speech, see Catherine Ferri, “So What Rights Does A Student Shed at the Schoolhouse Gate?,” Politics In Practice (Feb. 2, 2024) https://politicsinpractice.slj.com/2024/02/22/so-what-rights-does-a-student-shed-at-the-schoolhouse-gate. 

[xvi] Tinker

[xvii] Guidance on Constitutionally Protected Prayer and Religious Expression in Public Elementary and Secondary Schools, U.S. Dept of Educ. (May 15, 2023), https://www2.ed.gov/policy/gen/guid/religionandschools/prayer_guidance.html

[xviii] Id.

[xix] Id.

[xx] Id.

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