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On October 4, 2021, the U.S. Supreme Court opened its term as it has on the first Monday of October since 1917. Chief Justice John Roberts had by then presided over the High Court for 20 years. However, that tenure could not be described entirely as the “Roberts’ Court,” the historical moniker used to identify the impact of the body of law created by rulings under a given chief justice. Until the departure of Justice Anthony Kennedy in 2018, many referred to the Court as the “Kennedy Court,” in recognition of the influence he wielded as a swing voter in a Court often split 4-4 along liberal and conservative jurisprudential lines. With the Court now firmly seated with justices espousing a conservative judicial philosophy, the Roberts’ Court had finally come into its own. Roberts had seen three new justices appointed, each more conservative in judicial philosophy than himself.

As these justices—Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett—made their voices heard, Roberts had found himself less able to corral a majority that would rule narrowly, effecting more gradual legal change. It had become clear that a strong majority of the justices were likely to take a text-based, originalist approach as they analyzed federal rights, which could mean overruling decades-old precedent. But in one area, the figurative “wall” between church and state, the Court had begun to reshape the law affecting schools, building on very recent precedent, with Roberts as an active participant. As the 2021 term began, it was clear that two cases would have long-standing effects on public schools.

The ‘wall of separation’ between church and state

The Supreme Court would decide two key cases in its 2021 term addressing the proverbial “wall” of separation between church and state, a wall created by the religion clauses of the First Amendment. Both cases arose in the public school context, and both provided the Court an opportunity to adjust the scales balancing free exercise of religion and freedom from state-imposed religion. To understand that adjustment, we must start with the text of the First Amendment itself and review the Supreme Court’s previous approach to this balancing, or “wall” of separation.

In the First Amendment, the founders set out the foundational principles of a participatory democracy. The government may not tell the people what to believe, how or when to worship, what to say, how to be informed, or how to advocate for their beliefs. The “religion clauses” seem evenly and understandably supportive of one another. The establishment clause prohibits government from establishing or promoting religion. The free exercise clause prohibits government from interfering with an individual’s religious observance. Thomas Jefferson, in a letter to a religious group, pointed to the religion clauses as “building a wall of separation between Church & State,” coining the phrase we use today.

But the “wall” of separation between religion and government is less rigid than brick and mortar. As the Supreme Court considered the relationship between the clauses in the 20th century, particularly in cases involving public schools, it developed separate standards to determine whether a government had violated either the establishment or free exercise clause. For the most part, establishment clause challenges predominated the courts. In 1971, the Court decided the now infamous (and no longer valid) Lemon v. Kurtzman decision, establishing a test for establishment clause violations that examined whether the government action had the purpose or effect of advancing religion or fostered excessive entanglement with it.

Establishment clause cases

In 1947, the Court proclaimed in Everson v. Bd. of Education, “The First Amendment has erected a wall between church and state. That wall must be kept high and impregnable.” But in that case, the Court said school boards could reimburse parents for education transportation costs to school (even religious schools) without violating the establishment clause. Similarly, in 1983, in Mueller v. Allen, the Court approved a state program that allowed families to take tax deductions for educational expenses, explaining, “The historic purposes of the [Establishment] Clause simply do not encompass the sort of attenuated financial benefit, ultimately controlled by the private choices of individual parents, that eventually flows to schools from the neutrally available tax benefit at issue in this case.”

In 1993, the Court decided a federal program providing a sign language interpreter to a student in a private religious school did not violate the clause in Zobrest v. Catalina Foothills School Dist. And in Zelman v. Simmons-Harris (2002), the Court said a city voucher program that allowed private religious schools to participate did not violate the clause because the public money went to the family, which then made the choice of school. The government remained neutral with respect to religion.

In cases involving prayers at public schools, the Court was concerned with coercion. In 1992, the Court invalidated a school’s practice of having a clergy-led prayer at a middle school graduation. Although government may aid religion, the Court said in Lee v Weisman, “Government may not coerce anyone to support or participate in religion or its exercise, or otherwise act in a way which establishes a [state] religion…”, 505 U.S 577 (1992). In 2020, the Court decided in Santa Fe Independent School District v. Doe that a practice of student-led prayer over the loudspeaker at a high school football game had the clear effect of coercing participation in an act of religious worship. Applying these principles, before 2022, courts had held that school officials had the authority—and sometimes the duty—to direct faculty and other employees to refrain from speaking about their personal religious beliefs during instructional time, in official communications, or during official functions.

Free exercise cases

The Supreme Court issued fewer, but significant, free exercise rulings relevant to schools in the late 20th century. In 1972, the Court decided in Wisconsin v. Yoder that a state could not impose a generally applicable school attendance requirement upon the Amish. That constituted an undue burden on free exercise because it would substantially interfere with the integration of Amish children into their faith community. The Court said in 1990 that a government rule or regulation that is neutral and of general applicability need not be justified by a “compelling” interest even if it has the incidental effect of burdening a particular religious practice in Department of Human Resources of Oregon v. Smith. In 2004, the Court held that the free exercise clause does not require the state to fund instruction for training the clergy through its scholarship program in Locke v. Davey. Though it may fund such a scholarship without violating the establishment clause, it was not required to under the free exercise clause.

Then, in 2017, with a majority that included Roberts, the Court pivoted. Rather than focusing on whether a practice “aided” religion permissibly, or “coerced” participation in religion, the Court’s majority began to frame free exercise challenges involving state aid programs differently. The justices asked whether religious institutions, families, or individuals were being denied a public benefit based on their religious status. Although the Court had suggested in Locke that a state could restrict religious use of public money, the Court’s majority found the status-versus-use distinction less important than whether religious people or organizations were being discriminated against on that basis.

When Missouri denied a church preschool a grant for playground resurfacing, the church sued, claiming its exclusion from the grant program violated the free exercise clause. The Supreme Court agreed in Trinity Lutheran Church of Columbia, Inc. v. Comer (2017). The Court decided that under the free exercise clause, Missouri could not exclude religious institutions from a public safety benefit solely based on their religious character, even if aid to the religious institution was prohibited by its state constitution. Fear of an establishment clause violation was not enough to justify the restriction on religious freedom.

In 2020, the Supreme Court built on its Trinity Lutheran ruling in a case involving a state tax credit scholarship program benefiting private schools. In Espinoza v. Montana Dept. of Revenue, the Court held that Montana could not exclude religious schools from its tax credit scholarship program based on their religious status. By disqualifying “otherwise eligible” recipients from a public benefit “solely because of their religious character,” the program imposes “a penalty on the free exercise of religion.” Writing for the majority as he had in Trinity Lutheran, Roberts said, “A State need not subsidize private education. But once a State decides to do so, it cannot disqualify some private schools solely because they are religious.”

With these decisions as precedent, the Supreme Court opened its October 2021 term with a newly paved road toward more protection for Free Exercise and less deference to local government decisions based on establishment clause concerns. The majority of justices analyzing the First Amendment’s religion clauses were asking whether the state action in the case discriminated against a person or entity because of religious status, or because of the presumed religious use of a government benefit.

Maine’s secondary school tuition program

For decades, Maine has provided education for students in its rural areas by requiring school administrative units (SAU) that do not operate a secondary school to pay a student’s tuition to another public school, or a private nonsectarian school. Parents whose children were entitled to such tuition payments but preferred to send their children to sectarian (religious) schools challenged the program. They argued that it violates the free exercise clause to prevent them from choosing a religious school, under Trinity Lutheran and Espinoza. The Supreme Court agreed, in a 6-3 majority opinion written by Roberts. “Maine’s ‘nonsectarian’ requirement for its otherwise generally available tuition assistance payments violates the Free Exercise Clause of the First Amendment,” Roberts wrote. “Regardless of how the benefit and restriction are described, the program operates to identify and exclude otherwise eligible schools on the basis of their religious exercise.” This program, too, fails the “strict scrutiny” test, Roberts said, which requires that the state show its action advances “interests of the highest order” and is “narrowly tailored” to pursue those interests.

A state’s interest in separating church and state “more fiercely” than the federal constitution requires cannot be “compelling.” While the majority stopped short of saying use-based restrictions must be subject to strict scrutiny, it made clear that a status-use distinction did not save Maine’s program. According to the majority, the Locke decision only applies to public scholarships and vocational religious degrees; it cannot be used more generally “to exclude religious persons from the enjoyment of public benefits on the basis of their anticipated religious use of the benefits.”

Justices Stephen Breyer (joined by Justices Elana Kagan and Sonia Sotomayor) said in dissent to Carson v. Makin that Maine’s program “allows a State to further antiestablishment interests by withholding aid from religious institutions without violating the Constitution’s protections for the free exercise of religion.” But now, the dissenters noted, the Court holds for the first time that a state must, not may, use public funds to pay for religious education as part of the state’s public education program. Writing separately in her own dissent, Sotomayor noted “This Court continues to dismantle the wall of separation between church and state that the Framers fought to build.”

A football coach’s prayers

Although there is much dispute about which facts the High Court should have considered in Kennedy v. Bremerton School District, the key facts the Court did consider were summarized by Gorsuch in the majority opinion. “Joseph Kennedy lost his job as a high school football coach because he knelt at midfield after games to offer a quiet prayer of thanks. 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.” Over a dissent by Sotomayor, joined by Breyer and Kagan, the majority said, “Here, a government entity sought to punish an individual for engaging in a brief, quiet, personal religious observance doubly protected by the Free Exercise and Free Speech Clauses of the First Amendment. …And the only meaningful justification the government offered for its reprisal rested on a mistaken view that it had a duty to ferret out and suppress religious observances even as it allows comparable secular speech. The Constitution neither mandates nor tolerates that kind of discrimination.”

A majority of the Supreme Court once again described action taken by a public entity to distance itself from endorsing religion as “discrimination” against religious people or practice. And in Kennedy, the majority clearly stated that its precedent relying on an “endorsement” test (derived from Lemon v. Kurtzman) was flawed and had been abandoned “long ago.”

The decision says that public schools may not limit the private religious expression of employees on the job, especially during time when other private expression is permitted, and students are not present or not pressured to be involved. The school’s fear of appearing to endorse religion will not suffice to restrict such expression.

The opinion reaffirms that private prayer or observances, even if visible, like a religious head scarf or a silent prayer before a meal, are protected, as are private prayers outside the scope of an employee’s duties. But the opinion also acknowledges that student coercion violates the establishment clause, though the majority found no proof of that in this case. A school district may still direct staff not to ask or require students to participate in prayers or to deliver religious pep talks or locker room prayers.

Where do we go from here?

Although it is clear that a majority of the Supreme Court believes that public schools must be more accommodating to religious speech, expression, and observance, federal courts will have to address an array of factual scenarios to draw the lines the Court did not, such as: When is employee speech “private?” When is an employee “off-duty?” When is the speech “coercive?”

With the Supreme Court interested in the preservation of individual religious liberty vis-à-vis the state, schools are likely to see a range of new lawsuits on issues challenging long-standing restrictions based on establishment clause concerns, including religious charter schools, strings attached to public money for private institutions, employment directives on using students’ preferred pronouns, prayers during the school day, and more. Practical operational questions abound. For instance, in states with collective bargaining, must the parties now specifically define in an agreement when moments of private religious speech may occur? Would the Court view this as limiting a constitutional right or expanding its reach? Is there a limit to how many personal moments of private speech an employee can engage in a given day?

But, while the legal landscape is shifting, schools can take steps to both comply with the law and minimize legal risk when it comes to claims of religious and political speech. Now is a good time for school boards and other school leaders to revisit their policies and practices on religious accommodations, speech, building use, and the like, with trusted legal counsel from the Council of School Attorneys.