As public schools go back into session this fall, school administrators, teachers, parents, and students are forced to grapple anew with an issue that should have been settled decades ago: coercive prayer.
Thanks to the Supreme Court’s June ruling in Kennedy v. Bremerton School District, confusion could reign in many schools.
Some background: The case was brought by Joe Kennedy, a high school football coach in Bremerton, Wash., who insisted that he had the right to engage in a “private” prayer after games. (His case was bankrolled by First Liberty Institute, a Christian Nationalist legal group.) Had his prayers been truly private, there wouldn’t have been a problem. But Kennedy’s “private” prayers took place on the fifty-yard-line immediately after the games. He was often surrounded by players and students.
The Supreme Court, now stacked with far-right zealots thanks to former President Donald Trump, ignored the plain facts of the case, embraced what a lower court called a “deceitful narrative” and held that Kennedy’s prayers must be allowed because they were private.
What does this mean for public schools going forward? Well, that’s the problem. No one is quite sure. Can a classroom teacher begin the day with a “private” prayer that just happens to take place in front of the students and tell them they’re welcome to join in? Can administrators begin school assemblies with a “private” prayer as every student, who is required to be there, looks on? Can a coach announce, “I’m going to have a private prayer now, and you don’t have to join in–but feel free if you’d like to”?
Two other factors are bound to add to the confusion. One, in many parts of the country, teachers and school officials have been pushing the envelope on religion for years and will be more than happy to see that old-time religion get back into the classroom; and two, aggressive Christian Nationalist legal groups, aware that they have a friendly court, will keep bringing cases.
In 1992, the Supreme Court ruled that public schools could not sponsor official prayer as part of their graduation ceremonies. That ruling still stands–for now. But given this court’s proclivity to blithely toss precedent aside, as the majority did to Roe v. Wade in Dobbs v. Jackson Women’s Health Organization, it’s only a matter of time before these old cases start to wobble.
As dangerously misguided as this court is, a return to the 1950s when public schools in some parts of the country sponsored daily prayer and Bible reading and forced students to take part, seems unlikely. At least for now, the court is giving lip service to the idea that coercion still matters. But what we could end up with isn’t much better: “Private” prayers every day that, in theory, young people have the right to opt out of.
I say “in theory” because we know that, in practice, it can be hard for students to choose not to participate. Consider the Pledge of Allegiance. Prior to 1943, public schools had the right to force students to say it, and many did. At the time, it was mainly Jehovah’s Witnesses who protested. Although the Pledge back then didn’t contain the words “under God,” the Witnesses still declined to recite it. The ritual, they argued, put the state above God.
After “under God” was added to the Pledge in 1954, atheists, agnostics, humanists, and others began seeking opt-outs to reciting it in public schools. A 1943 high court ruling, West Virginia v. Barnette, gave them that right, which still exists today. But students who demand their right to opt out are often singled out for abuse or retaliation by fellow students, teachers, or administrators. It takes courage to sit out the Pledge. (And does anyone think first graders are going to understand that they even have the right not to participate?)
Thanks to the ruling in Kennedy v. Bremerton, we may be headed down the same path with school prayer, where the best a dissenter can hope for is a right to opt out that, while it technically exists, can be difficult or impossible to put into practice.
The infuriating thing is, none of this was necessary. The ruling in the Kennedy case is yet another example of a partisan court running amok. For sixty years, the law governing religion in public schools has been guided by a simple maxim: no coercion. If an activity pressures students to take part in prayer or worship against their will, it can’t stand.
At the same time, truly private religious expression has always been permitted in public schools. A student could pray before taking a test, over lunch, or any other time, if the prayer was private and non-disruptive. Teachers and staff had the same right as long as their actions didn’t have the effect of pressuring young people to engage in religious activity. Public schools also had the right to offer objective instruction about religion as they would any other academic subject.
That system protected everyone’s rights and worked well. The Supreme Court trashed it. The result will be mass confusion. It may take years–and a host of new cases–to figure out the new parameters.
One final thought on this: In light of the Kennedy ruling, some folks are, sensibly, calling on church-state and humanist groups to dial back their litigation in this area. We will, but that doesn’t mean we won’t be in court. Remember, Coach Kennedy sued the Bremerton district. He was aided and abetted by an aggressive Christian Nationalist legal group that for years has sought to undermine church-state separation. They were spoiling for a fight.
The Religious Right’s legal forces won’t stop here. They will threaten public educators. They will sue other schools. Those schools will likely ask us for help, and we’re morally obligated to provide it. Whether we want to or not, we’re going to find ourselves in court from time to time. And there we’ll have to make the best arguments we can and seek to mitigate the damage as much as possible.
At the same time, we need to give as much support and comfort as possible to all those public school students out there who are willing to resist having prayer foisted on them by teachers, coaches, and administrators. And we have to offer the same level of support to the many great men and women working in public education who are appalled by the Kennedy decision and who value inclusive education.
Our dedication to church-state separation and a public school system that welcomes all young people demands no less.