Dear Friend,
Last week, to coincide with the National Prayer Breakfast, the U.S. Department of Education (ED) released new guidance on prayer and religious expression in public schools. My legal take? It’s an egregious misread of Supreme Court precedent that attempts to expand religious privilege in public schools beyond what’s legally permissible.
Here’s just some of what the Trump Administration’s guidance gets wrong about major rulings on religion in schools:
>> Mahmoud v. Taylor was bad, but ED’s interpretation of it is worse.
A quick refresher: In Mahmoud, a group of parents claimed their children must be allowed to opt out of public school lessons involving LGBTQ-inclusive books they find objectionable due to their religious beliefs.
Last April, we submitted an amicus brief in the case, which was joined by the Secular Student Alliance and the Secular Coalition for America. Our argument, basically, was that it would be logistically impossible for teachers to pre-clear every lesson with every parent for every possible objection. When the Court handed down its ruling in June and granted opt-out authority to religious parents, Justice Sonia Sotomayor’s dissent sounded familiar: “The result will be chaos for this Nation’s public schools…”
At that time, we warned again that the majority’s decision in Mahmoud twisted the principle of religious freedom and would have major implications on free speech and the ability of schools to serve all students. The outcome certainly wasn’t our preferred one, but it was, at least, narrow. ED’s reinterpretation of it is not.
Their new guidance presents — without citation — supposedly longstanding “principles,” like “a public school may never force or pressure a child to declare or affirm something contrary to his or his family’s religious beliefs.” Wrong.
And in trying to stretch the ruling so far beyond its actual scope, ED ends up contradicting another case, Wisconsin v. Yoder, in which the Court explicitly rejected the idea that parents may override state educational requirements “with their own idiosyncratic views.”
ED’s prayer guidance basically hands students an unlimited hall pass to exempt themselves from all kinds of lessons — math, science, history, English, you name it — courtesy of Mahmoud, they say. Wrong again.
The ruling allows opt-outs only under certain circumstances. It does not create a sweeping right for families to opt out of any curricular content or override any school policies they dislike. Federal appellate courts have already (rightfully) declined to expand the “narrow decision” any further.
American Atheists is teaming up with the National Women’s Law Center and dozens of other civil rights organizations to remind Congress that, despite the Religious Right’s efforts, most parents trust public school teachers to provide their kids an inclusive education. And our State Policy Team is working to advance model legislation — developed in collaboration with our partners at the American Humanist Association and the Freedom From Religion Foundation — that will safeguard students’ rights.
>> They can’t have it both ways in Kennedy v. Bremerton.
As you may recall, Kennedy v. Bremerton was the 2022 case brought by the former football coach who insisted on pressuring his public school players to pray at the 50-yard line during games.
Lower courts repeatedly found that Coach Joseph Kennedy’s actions violated the religious freedom rights of students, several of whom reported feeling coerced into participating. In the amicus brief American Atheists filed, we warned Kennedy was requesting a brand-new right — one that would upend decades of legal precedent by forcing government agencies to privilege religious speech over nonreligious speech.
Sure enough, that’s just what the majority on the Supreme Court decided to do. At the time, I called it a recipe for disaster, warning: “School staff, including teachers, will now feel they can force their personal religious beliefs — no matter how extreme — on students.”
ED certainly seems to have taken the Kennedy decision as an implicit green light for teachers to flaunt their religious views in class. Well, maybe? The new guidance manages not only to misrepresent the Kennedy decision but also to contradict itself. At one point, it says teachers may pray with students “during the conduct of their work.” In the very next paragraph, it states educators may not pray with students “while acting within the scope” of their duties.
Which is it really? The latter. Even according to the Court’s disastrous Kennedy ruling: Teachers, while performing their work duties, are not free to pray with their students. ED’s guidance dangerously (and probably deliberately) muddles this critical distinction.
>> Tinker v. Des Moines does not say what they say it says.
ED’s new prayer-in-schools guidance also grossly misstates the standard for when schools can regulate student speech. They suggest a teacher can only stop a student from praying in class if the prayer is so disruptive that other students can’t hear the lesson.
That’s absurd, and it’s also not at all what the Supreme Court said back in 1969 in the landmark Tinker v. Des Moines case. In fact, ED’s new guidance doesn’t even mention Tinker, which famously upheld that students do not “shed their constitutional rights… at the schoolhouse gate.”
I can’t believe I went to law school for this, but yes: Educators can and do tell students not to talk in class, regardless of what they’re saying or how loud they’re saying it. In fact, ED ought to be reminding schools that allowing one student to pray aloud in class while telling others they may not talk in class is textbook viewpoint discrimination prohibited by the First Amendment.
The Trump Administration’s guidance is legally unsound, internally inconsistent, and dangerous. It misrepresents Supreme Court cases to justify broad religious exemptions and promote religious activity in public schools that the Court has never authorized and that our Constitution specifically prohibits.
By issuing this guidance, ED seems intent on providing cover for teachers and school administrators to abuse their positions of authority and impose their religious beliefs on students. All around the country, atheist students are harassed and bullied. As an openly atheist student in middle and high school, I faced that treatment regularly. Students should not have to deal with that — not from their peers and certainly not from teachers.
If you’re a student or parent being subjected to this treatment, American Atheists is here for you. If you’re a teacher and are witnessing this in your school, I want to know about it. We have to stand together if we want to defend our rights.
Sincerely,
Geoffrey T. Blackwell
Legal Director
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