Legally speaking, are things actually getting better for Christians in public schools? Is the recognition of the religious rights of educators and students being expanded by the federal courts? Although in many areas of the country we face heightened cultural opposition, legally speaking, the answer is a resounding “yes” for both educators and students.
To answer the question for educators, let’s examine the now-famous 2022 Supreme Court ruling in the case of Kennedy v. Bremerton School District. The implications of this case are a bit confusing. You may have seen pictures in the media of football coach Joe Kennedy praying with students and other coaches on the 50-yard line, and then having heard he won his case, assume that this practice is now legal as long as participation is voluntary. But that’s not what the court ruled.
Rather, the ruling only focuses on Coach Kennedy’s desire to pray by himself, yet within public view. Justice Gorsuch writes for the majority: “The contested exercise before us does not involve leading prayers with the team or before any other captive audience.” Gorsuch continues, “To the contrary, and as we have seen, not a single Bremerton student joined Mr. Kennedy’s quiet prayers following the three October 2015 games for which he was disciplined.”
As we know from the famous pictures, while Kennedy had led prayer with Bremerton students on the field after games, once he was ordered to stop, he agreed to do so. Furthermore, he asserted that his right to pray did not require his students to be present. He subsequently timed his prayers for when his students were otherwise occupied. However, Kennedy’s accommodation did not go far enough for the school district. They responded that he could not pray publicly at all, even by himself. He must be closeted behind closed doors. This response went too far for the Supreme Court.
Consequently, the court held that school officials are free to individually express their faith, even while on duty, even when others may see or hear them if that expression comes at a time and setting when they are also free to attend to other personal matters.
The ruling states:
Mr. Kennedy prayed during a period when school employees were free to speak with a friend, call for a reservation at a restaurant, check email, or attend to other personal matters. He offered his prayers quietly while his students were otherwise occupied.
As you can see, this ruling does not open the floodgates for Christian educators to lead their students in prayer, but rather simply says that individual and personal expressions of faith by public school officials should be treated the same as other individual and personal expressions.
So why do I still categorize this case as a clear expansion of the recognition of our rights?
In the ruling, the court changed the way cases like this will be decided in the future. They dismissed the former method (the “Lemon test”) of deciding cases involving government and religion, and ruled that future cases would be decided by “reference to historical practices and understandings,” using an “analysis focused on original meaning and history.”
This switch in precedent means that school districts can no longer rely on a modified “heckler’s veto” based on the perception or discomfort of others to silence constitutionally protected religious expression. In Kennedy, the district had argued that they had to suppress Coach Kennedy’s prayers because if they didn’t, observers may interpret his religious expression as being endorsed by the school. But the court rejected this reasoning, restoring a freedom of religion, not a freedom from religion.
The court is returning us to an understanding of the Constitution grounded in the original intent of the Founders and historical practice since. As further cases work through the courts, this foundational shift will likely have significant effects on our rights in public schools. For example, the Kennedy ruling has already been applied by lower courts to defend the rights of a justice of the peace to open court sessions with prayer.
So while I don’t recommend that you start praying with your students at school, clearly we will now face fewer limits on personal religious expression.
For students, the situation is even better. I am more excited about a case out of California than I have been for any case in a long while—in fact, I’ve done two radio interviews about it, here and here.
The story starts in 2019 when the sexual purity statement and statement of faith of the FCA (Fellowship of Christian Athletes) club at Pioneer High School in San Jose, California came under scrutiny by social studies teacher Peter Glasser.
Glasser, the founding adviser of Pioneer’s GSA (Gay-Straight Alliance) club, held up the FCA statements for criticism in front of his students and then led the principal and other school leaders in a successful effort to ultimately derecognize FCA as a school club. Glasser pressed further for a complete ban from the campus, arguing that the presence of a student club created a hostile work environment…for the adults!
Other “adults” on campus rallied students against FCA, which led to protests outside their meetings, while some students “even entered meetings, taking photographs and heckling members.”
In response, FCA filed suit in federal court, and initially lost, but thankfully appealed. Then last month, the 9th Circuit Court of Appeals issued a ruling that I believe will reverberate around the nation. An overwhelming 9-2 majority sided with FCA, ruling that the actions of Glasser and the administration of Pioneer High School had created a hostile environment for religious students.
The court ruling chided the “adults” in the case, explaining that their actions “arguably demonstrate animus…this holds particularly true when bearing in mind the hostility here is directed not at adult professionals, but at teenage students.”
That’s exactly right. Glasser and his colleagues forgot that they were supposed to be the adults on campus, extending love and protection to even those who disagree with them. Rather, they weaponized students they favored against students they disfavored and received an appropriate reprimand from the court.
But here is where things get even better. The ruling held that FCA’s views on marriage were an expression of their religious views and that anti-discrimination policies do not trump their obligation to be neutral on religion.
Do you see the implication? When a Christian student expresses religiously informed views on issues like gender, sexuality, or marriage, one of the largest circuit courts in the nation has ruled that a school must be neutral in response. Any attempt to shame, belittle, or in other ways create a hostile environment in response is a violation of the student’s First Amendment rights.
While the case could still be appealed to the Supreme Court, I don’t expect the outcome to change.
So how should we respond to these court victories?
2. Encourage your students to express their religious beliefs. Our friends at Gateways to Better Education have a great resource to help you do this: Free to Speak.
3. When appropriate, help your school leadership understand their legal responsibility to be neutral in response to the religiously informed views of students, even if they disagree with those views. Your godly wisdom may help them avoid a lawsuit.
For many in our public schools, I know it feels like things are getting darker. We still have much work to do, including protecting Christian educators from being compelled to cooperate with LGBTQ policies and practices (as I wrote last month, the tide is turning on this issue as well).
However, at the same time, our students and colleagues are getting more desperate for the light of Christ, and we have never enjoyed greater protections for our religious freedoms than we do now. Let’s remain faithful and trust Him for the results.
Free to Teach is written to inform, encourage, and inspire Christian educators serving in our public schools. It should not be construed as legal advice provided by an attorney.
David Schmus is the Executive Director of Christian Educators.
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