By law, the US Department of Education must issue periodic guidance to state and local authorities on the constitutionality of prayer in public elementary and secondary schools. Earlier this month, the Biden administration issued updated guidelines "in order to provide information on the current state of the law." It's a good bet that the new guidelines are meant to respond to the Supreme Court's decision last term in Kennedy v. Bremerton School District, the high school football coach case, which held that a school district violated the Free Exercise Clause when it disciplined the coach for praying midfield after games.
The school district argued in Kennedy that it had to discipline the coach in order to avoid violating the Establishment Clause—more specifically, to avoid violating the endorsement test under the Lemon line of cases—and also because the coach's practice of praying midfield could coerce students in violation of a different line of cases, including Lee v. Weisman, the graduation prayer case. The Supreme Court disagreed. "Endorsement" is not the appropriate test under the Establishment Clause; rather, the test is whether a practice is consistent with American history and tradition. (Apparently the Court had overruled Lemon and the endorsement test on a prior, unspecified occasion). In addition, the Court ruled, the coach's private prayer, which he didn't offer in his official capacity and in which he didn't encourage students to participate, was not coercive for purposes of the Court's caselaw.
The new guidelines correctly indicate that school officials can't pressure students to join in private prayer. But, puzzlingly, they make only glancing reference to the Kennedy decision itself, which has a lot to say about what does and doesn't constitute pressure. As the dissenters in Kennedy pointed out, there's a pretty good argument that the coach's practice of praying midfield after games could exert a subtle pressure on students to join in. The Court nonetheless believed the practice was constitutional. Kennedy thus suggests that the Court's view of coercion has become more lenient since Lee. Also puzzlingly, the guidelines say nothing at all about the Court's new "history and tradition" test. That seems a pretty big omission.
What explains this reticence, particularly about the new test? In a recent Legal Spirits podcast, my colleague, Marc DeGirolami, and I discuss different possibilities. One possibility, of course, is that the Biden Administration doesn't approve of the new test and so has submerged it. Another, which I prefer, is that the Administration, like the rest of us, doesn't quite know what to make of the new test. Kennedy stands for the proposition that that non-coercive prayers by school officials in their private capacity are consistent with America's traditional understanding of free exercise and don't violate the Establishment Clause. But that still leaves a lot for future development. The new guidelines should have done more to alert schools to the new test. Until the Court clarifies things, though, all of us—scholars, federal bureaucrats, and school officials—are still a bit in the dark.
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