Religion, Schools, and the Supreme Court

Two recent decisions grant greater leeway to the public funding of religious expression.

If you’ve read this column in the past, you know that I approach it with several goals. One is to take various cases, statutes, or regulations affecting education law and highlight how they might impact your daily work as an educational leader.

In essence, I try to answer the following questions: What does this law mean for you as a building leader and your everyday practice? And how can this law assist you in reaching the vision you have for your school, faculty, and students?

But another goal is to empower you as education advocates and enhance your knowledge about institutions such as courts and legislatures, which make many of the rules you enforce or by which you are bound.

In this issue, let’s look at recent Supreme Court cases. In doing so, you can see the process a court uses to reason toward a result, then conclude for yourself whether its decision makes sense to you as a school leader. With that knowledge, you can advocate for a change in the law (if the court was wrong in your view) or that it remain (if you think the court was correct).

Two cases that the Supreme Court decided in the recent term involve religion—and the court’s attempt to resolve the tension created by the First Amendment, which prohibits the government from supporting the establishment of a religion yet guarantees an individual’s right to express their religious beliefs.

I won’t pass judgment on either of them, but I’ll present them here for consideration from your perspective as a school leader.

Carson v. Makin

Maine is largely rural and dotted with small towns. Many don’t have their own high school. Because of this, the Maine legislature created a tuition assistance program under which parents can designate an out-of-district secondary school for their child to attend, and the home school district sends the tuition money earmarked for that student to the other school.

The state put conditions on which private schools were eligible to receive the funds. One was that the program could be used only for “nonsectarian” schools.

A group of parents sued the state of Maine, arguing that they should be able to use the state program to send their children to schools that did not qualify as nonsectarian. The schools the plaintiffs intended to use were private and met all other requirements for the program, but they were sectarian and therefore ineligible to receive state tuition assistance under the state law.

The state of Maine justified the exclusion of these schools as follows: Sending public tax dollars to sectarian schools would represent state support of the establishment of a particular religion, something prohibited under the U.S. Constitution’s Establishment Clause.

A divided Supreme Court sided with the parents and held Maine’s statute as unconstitutional. The court said that once a state opts to provide tuition assistance to parents to choose a school, if they—not the state—choose to send their child to a sectarian school, there is no violation of the Establishment Clause.

As you can imagine, the decision raised concerns from certain factions and prompted celebration from others. Some suggest that this ruling is the start of a slippery slope that will ultimately lead to state aid for religious-based charter schools.

Others celebrated the court’s decision as a victory for school choice, allowing parents to pick schools that they believe align with their needs and beliefs. What do you think?

Kennedy v. Bremerton

This case involved a public school football coach, Joseph Kennedy, who would pray midfield following games. Kennedy invited others to join him, and some student athletes did so.

The school district fired Kennedy on the grounds that his behavior likely violated the Establishment Clause, because he was engaging in religious conduct while acting as a government employee.

On the other hand, Kennedy took the position that the district’s actions violated his individual rights under the First Amendment to free speech and free exercise of religion. The Supreme Court found Kennedy’s argument persuasive, holding that the Constitution does not require or tolerate schools’ prohibition of religious expression by an employee.

Those celebrating Kennedy’s victory saw the case as securing and protecting an individual’s religious freedom. Justice Neil Gorsuch wrote in the opinion that respect for religious expression was essential to the republic and suggested that the school’s action undermined that respect.

Others expressed concern about what this case could mean as a practical matter. If teachers or school employees started encouraging prayer at similar school-related events, what impact would that have on students who feel uncomfortable or disagree with the association of a prayer with the event?

What if a student group organizes a prayer exercise associated with their religious beliefs after a school event or in school during the school day? What impact would that have on students who might not be members of that faith, or any faith at all?

Does the Kennedy case concern or comfort you as a school leader, when you think about your role and goals as an educational leader?

When I taught fifth grade many years ago, I sometimes felt powerless—and completely lacking in knowledge—about the laws that impacted so much of my day-to-day work. I wanted to know the reasons a court decided a case the way it did, and why Congress took a particular course of action.

Some laws and policies made me scratch my head in disbelief. Some court decisions make sense in the abstract and are legally sound, but their application might lead to a host of unintended consequences.

Unfortunately, that can happen too often. It is up to you, as educational leaders, to be empowered to inform legislators—and sometimes courts, too—about their decisions as they relate to your work. Being aware of their decisions is an important first step in this effort.

Mark Paige is associate professor of public policy at the University of Massachusetts Dartmouth, a former school law attorney, and a board member of the Education Law Association.