S4, Ep. 25: Religion in public schools: New federal guidance and the reality on the ground

Holly and Amanda look at new federal guidelines, the fate of some bills proposed in Texas, and alarming news that an Oklahoma board voted to fund a religious public charter school. 

Jun 8, 2023

It happens in pretty much every administration, but what do you know about federal guidelines on religion in public schools? Holly and Amanda discuss the new release from the Biden administration outlining the different rights of students and teachers, and they share how some are misinterpreting the Kennedy v. Bremerton decision to open the door to more government-sponsored religious exercises. They also look at what we saw happen at the end of the Texas Legislature’s session in relation to bills that would impact religious freedom, and they review this week’s alarming news that an Oklahoma board voted to fund a religious public charter school. 

Segment 1 (starting at 00:47): What should we pay attention to in the new guidance on religion in public schools?

Amanda and Holly discussed the Kennedy v. Bremerton decision in our season finale last year (season 3, ep. 21). You can read BJC’s brief and see additional resources at BJConline.org/Bremerton.

You can read Holly’s column on the new federal guidelines in our summer magazine: Good news on the religious freedom frontlines

Read the new guidelines on prayer and religious expression in public schools on the Department of Education’s website. You can watch remarks from Secretary of Education Miguel Cardona on YouTube.

Amanda and Holly discussed this piece by Linda Wertheimer published by The New Republic: Inside the Christian legal campaign to return prayer to public schools. You can also read it online via The Hechinger Report.

Segment 2 (starting at 20:43): Texas update

Amanda and Holly discussed the proposed Ten Commandments legislation in Texas on episode 20 and episode 21 of this season.

Holly and Amanda mentioned this piece by Robert Downen for TheTexas Tribune: Unlicensed religious chaplains may counsel students in Texas’ public schools after lawmakers OK proposal

They also mentioned this piece by Jack Jenkins for Religion News Service: Meet the activists who spearheaded the Texas chaplains bill

Segment 3 (starting at 26:53): New news out of Oklahoma

Amanda Tweeted her response – and the response of Oklahoma’s attorney general – after the approval of the first-ever religious charter school.

Holly mentioned this piece by Sarah Mervosh for The New York Times: Oklahoma Approves First Religious Charter School in the U.S.

Respecting Religion is made possible by BJC’s generous donors. You can support these conversations with a gift to BJC

Transcript: Season 4, Episode 25:  Religion in public schools: New federal guidance and the reality on the ground (some parts of this transcript have been edited for clarity)


Segment 1: What should we pay attention to in the new guidance on religion in public schools? (starting at 00:47)

AMANDA: Welcome to Respecting Religion, a BJC podcast series where we look at religion, the law, and what’s at stake for faith freedom today. I’m Amanda Tyler, executive director of BJC.

HOLLY: And I’m general counsel Holly Hollman. We’re back together after our two special episodes bringing you the presentation and panel on the myth of American “chosenness” from an event we hosted in Boston last week. And today we’re going to review a few developments relating to the law of religion as it applies in the public schools. Before we take a summer break, we have a few more religion law lessons we want to make sure that we cover.

AMANDA: That’s right. Well, people have started to hit the beach, and some families are out of school. My family still has a couple of weeks left of second grade. But we are waiting for Supreme Court opinions, which we will discuss in future episodes before our summer Respecting Religion break begins. In the meantime, we have a positive development related to religious liberty and public schools that we want to talk about more in depth today.

HOLLY: Yes. We often talk about the Supreme Court shift on religious liberty law and interpreting the religion clauses of the First Amendment that’s taken place really over the last couple of decades, and particularly we talk about how it has accelerated in recent years, and we’ve talked about the Kennedy v. Bremerton decision from last term. That was that decision that involved a football coach’s ‑‑ what was called a, quote, “personal,” close quote, prayer on the 50-yard line.

AMANDA: Right. We have photos where it shows that how personal that really was is ‑‑

HOLLY: It’s questionable.

AMANDA: — a little questionable.

HOLLY: Exactly, exactly. But it was that case in which the Court officially abandoned some of its Establishment Clause tests and really kind of threw into some disarray the law of the Establishment Clause. And it was that decision that inspired the Texas Legislature to pursue a bunch of terrible ideas that we’ve talked about recently and as you put it, Amanda, to go “full cowboy.” We’re going to talk a little bit more about that case today.

AMANDA: Yeah. And later in the episode, Holly, we are going to go back to Texas and see how that legislative session ended. But first, please, let’s talk about the good news that you wrote about for our magazine, Report from the Capital.

HOLLY: Yes. I wrote about recent Department of Education guidelines explaining the constitutional standards for religion in the public schools. So this is related to the Coach Kennedy case we were just talking about, because that decision was a school prayer decision, broadly envisioned.

It’s a case about a public school football coach with a practice of praying on the field after games, and we’ve written a lot about that decision and how it continues to be misinterpreted, misunderstood, and it’s really important that we get it right. There are some changes going on in the law, but there are some other things that we should really remind ourselves.

And that’s the basic idea that teachers are not allowed to lead students in prayer. The Court made clear, I believe, that any kind of coercive practice, like maybe Coach Kennedy had in the past, is not allowed. The Court did not approve of teachers leading or otherwise coercing students in religious exercises.

So in my recent column, I wrote about this again and this time could really hold up some very helpful legal guidance that comes from the Department of Education. On May 12, the Department of Education released Guidance on Constitutionally Protected Prayer and Religious Expression in Public Elementary and Secondary Schools. And I bet a lot of people don’t even know that that is a practice that exists and a resource that schools can rely on in managing these kinds of issues that sometimes arise.

AMANDA: I think that’s right, and, you know, the title says it all, that there is constitutionally protected prayer and religious expression in public schools, and that’s not new. It’s not like this was an innovation of the Biden administration. This was not an innovation of the Court that wrote the Kennedy v. Bremerton opinion.

This has been long-standing law, and I think the reissuance of this guidance and some of the new language in the guidance provides some much needed clarity to this area of the law where we’ve had, as you say, a lot of misinformation and reading into the Kennedy decision a lot of what is not there, what the Court did not say.

HOLLY: Well, I pointed out in the column ‑‑ and it’s consistent with other lawyers who are looking very closely at what the case said and what the guidelines show ‑‑ and that is that even though we had a lot of complaints about the decision, the good news was that the Court’s ruling in favor of the coach was based on these selective facts that do not change expectations that teachers cannot coerce students into religious activities or practices.

So, Amanda, as you were noting, it is a practice of the federal government to issue guidelines, and in fact, federal law requires the Secretary of Education to issue guidance on the current state of the law concerning constitutionally protected prayer and religious expressions, and it makes sense that they would update it from time to time and particularly perhaps when there is a new high-profile decision that people are trying to understand and interpret on the ground.

AMANDA: So, Holly, I know that you took a close look at this guidance from the Biden administration. So can you quickly give our listeners some highlights. What should we pay attention to? What’s new or perhaps has new clarity about the guidance here that would be helpful in the wake of the Kennedy v. Bremerton decision?

HOLLY: I think it’s actually very helpful that the guidance begins with an overview of governing principles about the First Amendment. Something that we often talk about, Amanda, is you need to understand the big picture of how the First Amendment protects religious freedom for all.

The guidance begins with a quote about the First Amendment that says it “prevents government from establishing religion and protects religious exercise and religious expression from unwarranted government interference and discrimination.” That’s fair. We don’t want the government to be interfering in religious practice. So I think that’s helpful, just as a framing device.

And then just at its core, to remember that public schools and their officials may not prescribe prayers to be recited by students or by school authorities. And this guidance says that, citing Supreme Court precedents, long-standing precedence that has that famous quote that has been repeated in Supreme Court cases that says, “It is no part of the business of government to compose official prayers for any group of the American people to recite as a part of a religious program carried on by government.”

And I think most people would agree with that. I think they just don’t often stop and think about the role of public schools and recognizing that that is the government and that we all ­­come to public schools from different religious perspectives as equal citizens.

But when we send our kids to public schools, we’re not turning our kids over to the government to lead them in religious expression. So I think some of the general principles are very helpful, and, you know, as Christians, Amanda, who’ve been involved in this work for a long time, we also know that while there is this limit on what the government can do — and the guidelines note — there is nothing in the First Amendment that converts public schools into religion-free zones. And so everybody can chill out. There is room for individual religious expression, and then the guidelines get into some particular ways that religious right is protected.

AMANDA: I totally agree with you, Holly, that the framing is so helpful here, because it does bring in the No Establishment principles, which are still very much alive and still very much needed to protect everyone’s religious freedom in public schools.

The Kennedy v. Bremerton case, one of the problems with that case, I believe, is in addition to abandoning a test for the Establishment Clause, it really gave almost no credence to those Establishment Clause principles. It was solely exercised on the Free Exercise rights of this coach that was there, without really explaining why we don’t want government pushing religion of any kind on our citizenry, including our youngest citizens who are right there in the public schools.

HOLLY: Yeah. There’s this fundamental difference, this distinction that we really emphasized in the amicus brief that BJC filed in that case. That is that it is really vital to understand what is prohibited and what is protected ‑‑ right? ‑‑ that there is an important line between government-sponsored and privately initiated religious expression. And this case just was unhelpful because of the particular facts and Coach Kennedy himself in people seeing that and understanding it. But the guidelines make that clear.

So let’s talk about some of the specific parts of the guidelines. There’s this overview of guidance that’s really helpful for understanding things, and then there’s a particular section, Section II, that clarifies the extent to which prayer is protected, and this is the part that agencies are certifying their compliance with.

And federal law makes the secretary issue the guidance, and then the secretary is authorized to take actions against local agencies if they’re not in compliance. And they can order them to cease their practices or they can withhold funds until compliance.

So these are real protections for religious liberty and religious expression in schools that have always been there. And so that’s one thing that’s frustrating about this is that we’re talking about needing to protect something that’s already been protected, so I want to start with that frame. Okay.

AMANDA: Well, but we always have new personnel coming into the schools. Right?

HOLLY: That’s right.

AMANDA: And so I think that having new guidance and then having some teeth for compliance, just to make sure that there’s actually training and education that’s going along with the guidance and on to the ground level, I think, is a good thing. Right?

HOLLY: That’s right; that’s right. And that guidance protects students in their religious expression and exercise in a specific way, starting with prayer during noninstructional time. You know, that’s what they’re thinking about. We’re not talking about disrupting the educational process.

But students, of course, can pray or read the Bible in their noninstructional time. Religious organizations can come together, like other noncurricular student activity groups. But school officials ‑‑ this is quoting now — “School officials should neither encourage nor discourage participation in student-run activities based on the activities’ religious character or perspective.”

AMANDA: Right. So you can’t get extra credit for going to the prayer time before or after school, for instance.

HOLLY: That’s right. We really don’t want the teachers intervening and interfering in what is truly student-initiated activity, particularly, I think, in the realm of religious clubs. “Teachers, administrators and other school employees may not encourage or discourage private prayer or other religious activity.”

So just as Coach Kennedy can pray by himself sometime during the day when it doesn’t interfere with his work and when he can do other private activity, students have that right — and this part of the guidelines makes sure that students have that. And part of how they do that is making this distinction between students and the teachers, administrators and other school employees.

The guidance goes on to say that such religious activity, the kind of private religious activity that a teacher might have during a break time, may not “compel, coerce, persuade or encourage students to join in the employee’s prayer or other religious activity.” Okay. So that’s really the crux, and we can talk. We could have lots of episodes and we have had some to talk about what Coach Kennedy was doing and how that could be interpreted.

But this is the bottom line, and I think it’s really fair and really good for religious freedom for all for schools to think about that and to emphasize and really understand that, that teachers and students have rights, but teachers are different. And as they exercise whatever personal rights they have to religious expression or exercise, they do so in a way that does not cross this line.

Another thing that I noticed was a change in the law, it says that students may bow their heads and pray to themselves before taking a test. (Laughing.)

AMANDA: Okay. I think a lot of students have already been doing that. (Laughing.)

HOLLY: I do, too.

AMANDA: I don’t think they need the Department of Education to give them permission for that.

HOLLY: I know. But, I guess, you know, Amanda, those myths are still out there. And we always laugh, and we have the old line: As long as there are tests, there’ll be prayer in schools. And we understand that this was not a problem that had to be fixed.

But I appreciate the administration just saying, let’s just say it real clearly, so that whenever they have someone who’s pushing the line, say, a teacher, administrator or other school employee that is a little less compliant or a little less understanding here, that they are not able to get away with saying that is needed because the school is somehow hostile to religion.

AMANDA: Right. That is a helpful clarification perhaps for some.

HOLLY: There’s at least one other point that I think may be important for where we are right now in the law, and that is that these guidelines make very clear that neutral disclaimers to clarify that speeches are not the school’s ‑‑ and that can be in student assemblies or noncurricular activities ‑‑ are approved. And that’s just helpful again in drawing this line between what is individual expression and what is school-sponsored.

And that can be controversial. You know, people sometimes will interpret a neutral disclaimer as saying, oh, the school doesn’t approve of this or that. But I think it’s really helpful, because it is a way of telling schools to make clear that certain things are individual expressions, as opposed to being government-sponsored.

AMANDA: I think one encouraging sign of the broad appeal and commonsense nature of these guidelines was the fact that even from news outlets that we would expect to be critical of things coming from the Biden administration — like Fox News — had very little to criticize in these guidelines. But we do want to watch out for and be aware of any criticism of these guidelines that suggests that we would want the government to play a role in promoting religion in the public schools.

HOLLY: I was happy about that, happy that there wasn’t a lot of criticism. I think the guidelines are hard to criticize. When you see the picture as a whole, they really reflect the best way to protect religious liberty for all students. So I think it’s only those who really are wanting to turn over religious expression and exercise to the government ‑‑ it’s really only those who could really take issue with these guidelines.

AMANDA: I think that’s right, and I think the unfortunate reality is that there are some groups and individuals who would want to turn that over to the government, and some of them are using some ambiguity in the Kennedy v. Bremerton case and will probably ignore the clarity that’s coming from these guidelines to pursue those ends in state legislatures and on the local level.

HOLLY: We will not be part of that, Amanda. We will not be part of that.

AMANDA: Absolutely not.

HOLLY: And so everyone, hear us: Another way of reading the Kennedy case that we described as being very problematic because of the way the Court did not pay attention to long-standing principles and abandoned longstanding tests that we believe protect religious liberty, another way of reading it or another way of emphasizing something about it is to understand that it is a decision for Coach Kennedy, assuming only the facts as the majority found them. And that was Coach Kennedy praying by himself while the students, the players, were otherwise engaged.

Those are the facts that Justice Gorsuch accepted and wrote about in his majority opinion, and therefore, the decision to protect Coach Kennedy’s private, personal prayers — if that’s what you want to call it because those are the facts that the Court emphasized — is in line with the long-standing guidelines and the argument BJC pursued in our amicus brief and will continue to pursue.

And we will continue to emphasize, as the Department of Education does here, the different roles of teachers and students. And if we do that, we will have protection for religious liberty for all.

AMANDA: And I think, so that we are clear-eyed about what the threat is, I want to put in show notes a piece from Linda Wertheimer. It’s titled “Inside the Christian legal crusade to revive school prayer.” We’re going to link it in show notes, and it was published by The New Republic.

And in the piece she writes, “Attorneys from First Liberty and Liberty Counsel told me the door has opened to bring prayer back to schools across the nation at least when it comes to school-sponsored events.” So suffice it to say that these attorneys are not reading the case like we are reading the case, and they are really pushing the envelope. And I know, Holly, that you talked with Linda for her piece, and she did a great job of interviewing people on all sides of these legal fights.

Her piece, which is a long-form piece of investigative journalism, is focused on Bossier City, Louisiana, and a pervasive practice in public schools there of school-sponsored prayer. The plaintiffs there won a legal victory, and the school district has had to comply with court orders to stop this practice of government-sponsored prayer, but her article points out how there’s often a disconnect between official policy, whether it be Department of Education guidelines as we discussed today or court orders, and what is actually happening on the ground.

HOLLY: I think that story does paint a very vivid picture of one place and how things work on the ground, and it just reminds us, too, what we already know, Amanda, which is that communities across this country are very different, and the challenges are different. But they require people to be active and work together on the ground in their community. It really points out the importance of people in the schools to stand up for everyone’s religious freedom and to push back against any kind of government-sponsored prayer that could in any way coerce and pressure students to participate.

That’s not always the first reaction in communities. It takes some understanding. It takes some work. We certainly are aware of that in the efforts here at BJC and across the country, that people have to be involved in their communities and think about what kind of country we want to be and to stand up for their neighbors.

AMANDA: Yeah. It takes work, and I think it takes courage. It takes courage to go against what some in the community might view as being anti-religion to say, Look, the government has no role in promoting religion, and to bring some education to communities and some understanding about how we really can protect our religiously pluralistic society and all of our families.


Segment 2: Texas update (starting at 20:43)

AMANDA: Well, speaking of religion in public schools, we wanted to follow up on some of our recent conversations on this podcast covering a legislative attempt to mandate the posting of the Ten Commandments in public school classrooms in Texas. And so we are back to talk about the latest coming out of Texas, my home state.

It’s still a little early to give a full summary and wrap-up on how religious freedom fared at the Texas legislature this session, and that’s because the governor is calling special sessions in Texas, so there still might be some updates coming from there. But thankfully, most of the bills that were presented during the session that we were concerned about failed to pass, but we have to be alert to bills like this Ten Commandments bill, because other states are looking to introduce them in their legislative sessions.

HOLLY: They failed a rather natural death of neglect ‑‑ isn’t that right, Amanda? ‑‑ as opposed to saying that they were failed, meaning decisively defeated.

AMANDA: That’s right. They failed to pass because they were not brought up for a vote by the House. I would like to think that some of the arguments that were made by advocates on the ground were persuading their members, and maybe that’s why they didn’t want to have an embarrassing loss for them on one of these bills. But any way that they didn’t become law is a victory in my mind. The most prominent of these bills was SB 1515 that would have required the posting of the Ten Commandments in every public school classroom. We talked about that legislative effort and the pushback against it in episodes 20 and 21 of this season.

HOLLY: Other bills that we were watching that did not pass included SB 1396. That would have required a period of prayer and Bible readings in public schools that would have codified the right of public school employees to engage in prayer and religious speech, totally duplicative and unnecessary, as our earlier conversation demonstrates.

Instead, I would say, some of these efforts really just serve to sort of confuse or scare parents into thinking that public school employees are suffering out there in some godless tyranny of Texas. So it’s really good to see that that effort did not succeed, as well as some other religion-related efforts.

AMANDA: And that is all good news. But there was one bill that was enacted during the regular session that did pass, though we opposed it. That was bill SB 763, and it permits school districts to hire chaplains without any baseline qualifications to perform the work of licensed school counselors.

Now, don’t let the word “chaplain” fool you. These are not programs like legislative chaplains or hospital chaplains or even military chaplains. Rather, these chaplains don’t have to have any kind of set qualifications, and their role is not clearly defined or even understood to what they would be adding to the public school environment. For full reporting on the passage of this bill, I would recommend a piece by Robert Downen for The Texas Tribune, and we will link to that in show notes.

Now, the bill does require ‑‑ it doesn’t require chaplains, but it does require school districts to vote within six months on whether or not to have chaplains. So if you live in Texas, this issue is going to be coming to a school board near you very soon, and as we, Holly, get more information on what’s happening, we’ll share that with our listeners and advocates.

I think when we’re thinking about these bills, it is important to not only think about the substance of the bills but also to understand who is behind this legislative effort, and there’s great reporting from Jack Jenkins for Religion News Service, explaining the groups and individuals pushing not only for this particular bill in Texas but others like it around the country.

He reports that the National School Chaplain Association and “an alliance of right-wing activists, Christian groups, and conservative lawmakers who have aided each other’s rise while championing forms of Christian nationalism are behind these bills.” So we will link to the Jenkins article in show notes.

HOLLY: Yes. We can only get started on this topic, Amanda. As you noted, this is not like chaplains that we think about in very prominent settings, settings that require 24-hour care for people who don’t have access to spiritual guidance. That’s one way that this is different. The setting is different. The qualifications are different. It’s just ‑‑ there are a lot of ways that this brand new legislation is very misguided.

I feel like it takes advantage of the serious needs that students have — mental health needs, et cetera, you know, other needs in the schools — but it’s insulting to all the school professionals, whether they’re social workers or counselors, to think that you’re going to bring in people who have ‑‑ don’t have qualifications or at least are not required to have qualifications. So, you’re at least going to have some schools that could bring people in that are really unqualified and could do much more harm than good.

So, anyway, I feel like we’re just getting started on seeing this effort and how it is problematic, how it’s harmful to religion, how it’s not helpful for the schools, and I think that we should spend more time talking about this and looking, as you said, as school boards have to look and say, Are we going to do this, just because the State of Texas says we can, we may, or are we going to take care of our needs in way that are responsible and that really take into account both the needs of our students and the importance of protecting religious freedom and not having coercive religious practices or proselytizing in our public schools?


Segment 3: New news out of Oklahoma (starting at 26:53)

HOLLY: Well, there was one other piece of news, late-breaking news, at the time of this recording that we learned, and that was that Oklahoma, not to be outdone by Texas, approved the first ever religious charter school in the country.

Amanda, you noted that disappointing news on your Twitter feed. You retweeted the attorney general of Oklahoma’s comments. He said, “It’s extremely disappointing that board members violated their oath in order to fund religious schools with our tax dollars. In doing so, these members have exposed themselves and the State to potential legal action that could be costly.” And you noted that, Amanda, saying he’s speaking that truth that “funding private religious schools with public dollars violates core legal principles protecting religious freedom for all.”

So we’ve been following this issue, knowing that Oklahoma was considering this experiment, this bold new experiment of funding a public school with a particular and specific religious mission and religious education. We were happy that after the first hearing, they kind of went back to the table, kind of postponed it. But then unfortunately, there was this 3-2 vote of the charter school authorizing board to go forward. And we will be following this closely and talking about this more in future episodes.

AMANDA: This was definitely disappointing news and news that’s going to turn into a legal fight. Our friends at Americans United for Separation of Church and State announced that they are preparing legal action, and those pushing for the approval for this religious charter school, including the Catholic Conference of Oklahoma, have said they’re pushing the limits of recent Supreme Court rulings when it comes to public funding of private religious education.

So this is a new version of the Red River rivalry, this long-standing rivalry between Texas and Oklahoma, not just fought on the football field, but here in legal action and state action, to really push these longstanding principles that protect everyone’s religious freedom. This is a very bad development for the people of Oklahoma, and we will be watching it closely.

HOLLY: This just happened, but it is really important to know, Amanda. Yes, I agree with you. It’s bad for the people of Oklahoma. In fact, it was opposed by a wide range of groups, including pastors and religious leaders in Oklahoma, advocates for public schools and members of the charter school movement.

As the early reporting on this development noted, the chief executive of the National Alliance for Public Charter Schools said that the Archdiocese of Oklahoma City is trying to make charter schools into something they are not. So we can link to that story in our show notes and look forward to additional conversations about this and how we can make sure that this is not an idea that will be replicated across the country.

That brings us to the close of this episode of Respecting Religion. Thanks for joining us for today’s conversation. For more details on what we discussed, including links to the articles and resources we’ve mentioned, check out our show notes.

AMANDA: If you enjoyed today’s show, share this program with others on social media and tag us. We’re on Twitter Instagram and YouTube @BJContheHill, and you can follow me on Twitter @AmandaTylerBJC.

HOLLY: As always, you can email both of us by writing to [email protected]. We love hearing from you.

AMANDA: Thank you for supporting this program. You can view our show notes for a link to donate to support this podcast, and for more episodes, you can see a full list of shows, including transcripts, by visiting RespectingReligion.org.

HOLLY: We encourage you to take a moment to find out more about BJC and how we’ve been working for faith freedom for all since 1936. Visit our website at BJConline.org for a look at what we do and some of our latest projects.

AMANDA: Join us on Thursdays for new conversations Respecting Religion.