A nonprofit legal organization specializing in religious freedom has raised concerns about elements of the latest guidance from the Department of Education (DOE) regarding religious expression in public schools.
The DOE released the guidance titled “Guidance on Constitutionally Protected Prayer and Religious Expression in Public Elementary and Secondary Schools” on Monday.
“The purpose of this updated guidance is to provide information on the current state of the law regarding constitutionally protected prayer and religious expression in public schools,” the DOE said. The guidance states that school employees may not encourage or discourage private prayer or other religious activity, even if they are permitted to engage in private prayer themselves.
Keisha Russell, counsel for the Plano-based First Liberty Institute, praised the guidance for reflecting the Supreme Court precedent established in Kennedy v. Bremerton School District, a landmark case involving their client Joe Kennedy, a high school football coach in Washington.
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Kennedy sued the Bremerton School District in 2016 after he was suspended for praying on the field before games. The court ruled 6-3 in favor of Kennedy last year, upholding the constitutional right of public school employees to hold brief, personal private prayers.
The court’s decision effectively overturned Lemon v. Kurtzman, a 1971 Supreme Court decision that established the three-pronged “Lemon test,” which allows the government to be involved in religion only if it has a secular purpose, does not suppress or promote religion and does not result in excessive “dressing” of church and state.
Russell raised concerns with Fox News Digital about some aspects of the new guidance, however, saying his organization’s biggest concern is that some of it still relies on some cases being decided under trial. in Lemon.
“To be fair, the specific cases have not been resolved,” Russell said. “But they’re relying on propositions from a case that was overturned. So, I think it’s fair to say that some of the legal precedents are probably no longer valid.”
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Russell said his second concern is a passage in the guidance that says “schools may excuse students from class to remove a burden on their religious exercise, including prayer or fasting, even if doing so does not impose material burdens on other students.”
“They don’t have any case law to substantiate why they’re saying that, and I think in the current climate that we’re in, there’s no telling how a school district can use that language to try to disprove . A student has the right to leave classes if the material or activity is a violation of their religious exercise,” he said.
“But overall we are pleased to see that Kennedy is on board and that the DOE recognizes the importance of that case, making it clear that public school employees have the right to engage in private expression of religion, even when they are on campus and even when students see them,” Russell added.
Americans United for Separation of Church and State, a progressive nonprofit that promotes the dissociation of government and religion, praised the new guidance in a statement.
“As the administration has reaffirmed, public schools must be open and inclusive for students of every religion and none,” the organization’s president and CEO Rachel Laser.
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“Perhaps most importantly, the guidance emphasizes that public school employees, including teachers and coaches, may not force students to pray. pray.”