Uncovering the law (Gettysburg Times op-ed)

“Jordan, please put on your religious head covering or you cannot have recess.”

If the idea of the above statement coming from a public school teacher in the United States sounds absurd to you, it is because it certainly would be. As most Americans understand, public school officials, including teachers, are government employees, subject to the separation of church and state and therefore prohibited from either mandating religious practices — under the First Amendment’s Establishment Clause — or denying the free exercise thereof — under the Free Exercise Clause.

In the decision of Kennedy v. Bremerton School District (2022), the Supreme Court clarified that while a coach could engage in private prayer when he was not performing his job duties, he still could not use prayer to “convey a government-created message,” instruct players, discuss strategy, encourage “better on-field performance,” or engage “in any other speech the District paid him to produce as a coach.” In other words, public school officials may not coerce, compel, encourage, promote, or enforce religious practices among public school students, but public school officials and students are allowed to engage in private religious practices on school grounds except, as in Tinker v. Des Moines Independent Community School District (1969), when it “materially disrupts classwork or involves substantial disorder or invasion of the rights of others.”

And yet…when asked about bathroom usage or books in the library, many religious extremists who sit on school boards or are candidates for them still fail to grasp this very fundamental separation. It’s as if they acknowledge only the Free Exercise Clause and not the Establishment Clause. This, however, can be more easily understood through the concrete example of a religious head covering.

Often gender-specific, religious head coverings are either mandated, practiced, or both by many sects of faiths such as Anabaptism, Islam, Catholicism, Judaism, and Sikhism. As a measure of spiritual devotion, modesty, or both, religious head coverings are an outward manifestation of faith. Of course, the faithful and the faithless alike have the First Amendment right not to wear them. Following the Bremerton decision, a devout teacher in the course of her public school lunch duties, therefore, cannot compel any student to wear a religious head covering, i.e. a religious practice, under any circumstance. If any public school student chooses, however, to wear the religious head covering, (unprompted by any school official on duty) they are free to do so because they have that right and it does not “materially disrupt classwork” or invade the rights of others.

But the Bremerton decision does more than address a student-teacher interaction because it addresses the actions of other school officials, including school board members. While the Supreme Court did find for the plaintiff, Mr. Kennedy, it noted in its decision, “The contested exercise before us does not involve leading prayers with the team or before any other captive audience.” Strictly speaking, school officials cannot lead others in prayer while conducting school business, such as at a graduation ceremony (Lee v. Weisman, 1992), or, I would venture, during a school board meeting.

Therefore, in the course of conducting a public school board meeting, it is imperative that school board members, i.e. school officials, don’t quote scripture, pray aloud, or dictate what religious practices to uphold. Until the meeting officially adjourns, a quote like, “And He made them male and female…” (Genesis 5:2) countered by a command like, “Oh, go pray in a closet like our Lord and Savior told us to!” (Matthew 6:6) violate the Establishment Clause, for both school officials are guilty of proselytizing to school officials and student representatives in attendance, whose presence may be as mandatory at those meetings as at a graduation ceremony.

If one can understand how unacceptable it is for a public school to compel a student to wear a religious head covering, it then becomes obvious that public school officials not only should not, but cannot, create any policy, i.e. “government-created messages,” citing religious dicta. In fact, public school board policy must comply with state law and the United States Constitution. While public school officials and students are entitled to their private practices regarding library books like All Boys Aren’t Blue by George M. Johnson and the Bible, or bathroom usage for themselves, no public school official, in light of the Bremerton decision, can ban students from borrowing certain books or from using certain bathrooms by citing religious mandates.

The books, chosen by school district professionals for any number of valid reasons, cannot be prohibited and the bathrooms of the gender that students identify with to the school district cannot be segregated on the basis of sex (Bostock v. Clayton County, 2020) no matter what scripture the school board member wants to cite as their rationale.

Amen.

Beth Farnham is a guest writer for the DFA Education Task Force.