Vicky Arias, FISM News
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The Department of Education (DOE) on Monday released new guidelines on religious expression in public schools, causing concern among conservatives.
While much of the guidance remains the same as it did during the Trump administration, two key sections have been removed.
A Christian Post report stated that the changes may lead to religious infringement for students and teachers and ultimately lead to “litigation.”
The report cited Greg Chaufen, Alliance Defending Freedom (ADF) legal counsel, who stated that the guidance “removes two sections that protected the rights of students and teachers,” which “ensured that students could pray during the lunch hour,” and “that student groups could choose group leaders that agree with the groups’ mission.”
The new guidance’s omissions may violate certain religious freedoms laid out in the Constitution and, according to Chaufen, he predicts “more litigation surrounding the aforementioned issues of lunchtime prayer and religious group membership issues because of the guidance.”
Additionally, there is worry that the DOE is adhering to the abandoned Supreme Court decision, known as the Lemon ruling, to formulate its guidance. The Lemon ruling placed stringent guidelines on religious freedom and has largely been reversed.
Keisha Russell, counsel to First Liberty Institute, said in a statement that “the administration’s new guidance relies on old propositions derived from the overturned [Supreme Court] Lemon decision.”
The decision to which Russell is referring stems from Lemon v. Kurtzman, a Supreme Court case from 1971 regarding the Establishment Clause in the First Amendment. The First Amendment’s Establishment Clause states that the government may not “establish” a religion, as was the case in the Church of England.
In the Lemon case, the court decided that there should be a test for determining whether or not the Establishment Clause had been violated. In what became known as the ‘Lemon test,’ the court ruled that the government may only involve itself in religion if its involvement is secular in nature, doesn’t promote or discourage religion, and doesn’t produce an “excessive entanglement” between the church and state.
The Supreme Court has since viewed the Lemon test as flawed.
As a result, in recent years, the high court has taken on the position that the test shouldn’t be a catch-all in every case they hear, but rather the court should adhere more closely to the historical intentions of the Founding Fathers.
KENNEDY V. BREMENTON SCHOOL DISTRICT
In a recent 2022 Supreme Court decision, known as Kennedy v. Bremerton School District, the high court abandoned the Lemon test and ruled in favor of a high school football coach who had lost his job for praying on the field after games.
In its decision, the Supreme Court stated that “given the apparent ‘shortcomings’ associated with Lemon’s … abstract, and ahistorical approach to the Establishment Clause, this court long ago abandoned Lemon and its endorsement test offshoot.”
Although the Supreme Court has largely abandoned the Lemon test, conservatives say that the new Education Department prayer guidance continues to cling to the outdated model.
In the updated guidance, the Biden Department of Education (DOE) states that “teachers, coaches, and other public school officials acting in their official capacities may not lead students in prayer, devotional readings, or other religious activities, nor may they attempt to persuade or compel students to participate in prayer or other religious activities or to refrain from doing so.”
The DOE’s new guidelines come on the heels of the 2022 Kennedy decision. In that case, high school coach Joseph Kennedy prayed on the field for seven years after each game. In the beginning, he prayed alone but, eventually, with other players after they asked if they could join him.
Upon discovering Kennedy’s prayer activity, the district expressed its disapproval and asked him to stop. The coach complied and stopped praying with other players, however, he continued to openly pray alone after games.
As a result, Kennedy was placed on administrative leave, and the district ultimately decided not to renew his contract. The coach sued the district for violating his First Amendment rights, and the Supreme Court sided with him, ruling that Kennedy had a constitutional right to express his faith.
The ADF’s Chaufen asserted that the new Biden administration DOE prayer guidance may violate “student and teacher rights.”
“This guidance may lead to more violations of student and teacher rights sooner rather than later and we stand ready to support students and teachers in protecting their rights,” Chaufen stated.