Public schools are educational institutions, not temples of religious indoctrination. For over half a century, the Supreme Court has thus recognized that the Constitution prohibits public schools from imposing prayer on children and that religious education is the province of parents and religious communities, not government bureaucrats.
On Wednesday, Supreme Court nominee Brett Kavanaugh, however, strongly suggested that he disagrees and that, if confirmed, he will vote to weaken the separation of church and state in public schools. Although the ACLU neither endorses nor opposes Supreme Court nominees, we do have an obligation to analyze Kavanaugh's judicial record on areas that impact core civil liberties and civil rights.
During the second day of Kavanaugh’s confirmation hearings, Sen. John Cornyn (R-Texas) Kavanaugh about the Supreme Court’s 2000 decision in Santa Fe Independent School District v. Doe, a case brought by the ACLU on behalf of Texas public-school students. In a 6-3 ruling, the court held in Santa Fe that the school could not cede its loudspeaker system to students, who would then deliver prayers at the start of football games.
Cornyn and Kavanaugh have a special interest in the case. Then the attorney general of Texas, Cornyn argued the case before the Supreme Court. Kavanaugh helped him prepare for the oral argument and separately wrote a on behalf of two congressmen, supporting the school district.
In the brief, Kavanaugh argued that the school district had created a platform for student speech before football games and was thus constitutionally required to allow students to impose prayer on their classmates. The Supreme Court rejected this reasoning, ruling that the school had not created a neutral forum open to myriad student speakers but, instead, had effectively manipulated the situation from the start to ensure that a prayer would be given at each game. Because those prayers took place at a school event, over the public-address system, and with the school’s involvement, the court concluded that students would easily perceive them as being “stamped” with the “school’s seal of approval.”
The court also noted that, even if the school had established a neutral forum for speech, it would not necessarily shield the school from scrutiny under the Establishment Clause principles that govern the separation of church and state. That makes sense with respect to situations like the one in Santa Fe because many students would feel significant peer pressure to participate in such prayers or face ridicule and ostracism. As the court explained, the First Amendment forbids public schools from exacting this type of “religious conformity from a student as the price of joining her classmates at a varsity football game.”
In discussing Santa Fe yesterday, Cornyn read from Justice Rehnquist’s dissent and insisted that the ruling was somehow hostile to religion. Kavanaugh did not disagree, which is not surprising, given his professed admiration for Justice Rehnquist as a “judicial hero.” Indeed, his amicus brief in Santa Fe went even further, proclaiming that a decision in favor of our student clients and their families would pave the path toward a “the full extermination of private religious speech from the public schools” and an “Orwellian world.”
An attorney’s words written on behalf of clients don’t necessarily reflect his or her personal views, but in a confirmation hearing that has been sorely , Kavanaugh made crystal clear that he agrees with what he wrote nearly two decades ago.
Both he and Cornyn announced that the decision still sticks in their craws. And, responding to Cornyn’s claim that Santa Fe was hostile to religion, Kavanaugh pointed to subsequent Supreme Court decisions like Trinity Lutheran Church v. Comer, Town of Greece v. Galloway, and Good News Club v. Milford Central School District, as “developments since [Santa Fe] in terms of religious equality and religious liberty that are important.”
Those three cases have one thing in common: They each watered down protections for the separation of church and state.
Regardless, these cases should have no bearing on Santa Fe’s continuing validity. That Kavanaugh believes otherwise is troubling, to say the least. Nothing in the decisions suggests that the government may use school-attendance laws to corral children into public schools and then forcibly subject them to prayer at any and all school events just because the prayer happens to be delivered by their peers rather than their teachers. That would be Orwellian.
But that is exactly what could — and likely will — happen if Kavanaugh’s view were to prevail. Public-school students could be subjected to prayer during every school event, from school-day assemblies to football games to awards ceremonies and, yes, even in the classroom, so long as the school purports to set up a “forum” for speech.
Make no mistake, contrary to Kavanaugh’s prediction in his amicus brief two decades ago, public-school students have broad religious-expression rights, which we do not hesitate to defend. The right to engage in voluntary prayer and religious expression in public schools, however, does not and should not include the right to create captive student audiences or to compel other students to participate.
We’ve seen what happens when public-school officials allow prayer to be imposed on children like Students who don’t follow the same religious beliefs as many of their peers feel immense pressure to participate, and those who resist that pressure often end up from their . This is at odds with public schools’ mandate to serve all students, including students of every faith and those of none. And it can’t be reconciled with the Supreme Court’s longstanding precedent governing the separation of church and state in our schools.
Based on Kavanaugh’s testimony yesterday, if he’s confirmed, we’ll need a Hail Mary to prevent that precedent from being severely undermined or worse — overturned.
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Press ReleaseDec 2024
National Security
Religious Liberty
ACLU Statement on New White House Strategy to Counter IslamophobiaACLU Statement on New White House Strategy to Counter Islamophobia
WASHINGTON – The Biden administration today released the first-ever national strategy to counter Islamophobia and related forms of bias and discrimination, including hate against Arab, Sikh, and South Asian Americans. In advance of the strategy, American Civil Liberties Union and its partners had urged the administration to overhaul government programs that reflect anti-Muslim discrimination. In particular, we have called for urgent action to constrain governmental agencies from continuing to exercise their authorities and technology to wrongly surveil and investigate, watchlist, and question and detain Muslims at the border, as well as deny immigration benefits to people from Muslim-majority countries. While the White House raised expectations that many of these issues would be addressed, the final strategy ended up falling far short. The following is a statement from Hina Shamsi, director of the ACLU’s National Security Project: “While this strategy acknowledges discrimination and its harms, it does little to end them and is a squandered opportunity. For decades, American officials have invoked national security to pass laws and implement programs that disproportionately harm Muslims and people perceived to be Muslim. A serious anti-discrimination strategy would concretely address multiple bias-infused government practices that deny our communities equal participation in civic life and our democracy, like federal watchlisting, surveillance, and investigation. We’re profoundly frustrated that the administration didn’t take even the basic, overdue step of recognizing that anti-Muslim discrimination is uniquely normalized and embedded in government policies.” -
Press ReleaseNov 2024
Religious Liberty
Civil Liberties Organizations Unite to Oppose Oklahoma Education Superintendent Ryan Walters’ Latest Push for Religion in Public SchoolsCivil Liberties Organizations Unite to Oppose Oklahoma Education Superintendent Ryan Walters’ Latest Push for Religion in Public Schools
The American Civil Liberties Union, ACLU of Oklahoma, Freedom From Religion Foundation, Americans United for Separation of Church and State, and Oklahoma Appleseed Center for Law & Justice are uniting to challenge Oklahoma State Superintendent of Public Instruction Ryan Walters’s latest attempt to impose religion on students in the state’s public school system. On Friday, the coalition sent a letter to every superintendent in Oklahoma urging them not to show or disseminate Walters’ prayer video. The letter emphasizes the constitutional requirement for public schools to remain secular and warns that promoting the video to students and parents would violate both the First Amendment of the U.S. Constitution and Article I, Section 2 of the Oklahoma Constitution. The letter also points out that Superintendent Walters lacks the authority to require local school districts to play the video (or any other video) to their students. On Thursday, to promote his new “Office of Religious Liberty and Patriotism,” Superintendent Walters emailed all superintendents within the state a “Mandatory Announcement” that linked to a video entitled “Prayer for the Nation.” Additionally, the email asserted that all Oklahoma schools must play the video for all their students and send it to their parents. In the video, Walters blames the “radical left” and “woke teachers unions” for “attacking” religious liberty and then delivers a lengthy prayer supporting President-elect Donald Trump. Walters encourages students to join in his prayer. “Requiring students to watch a prayer video violates students’ religious freedom, including their Establishment Clause rights,” the coalition’s letter warns. “It is beyond dispute that, at a minimum, the Constitution guarantees that government may not coerce anyone to support or participate in religion or its exercise[.]” The coalition reminds superintendents of their responsibility to protect all students’ religious freedom, regardless of their personal beliefs. By promoting a specific religious perspective, schools risk alienating students who do not share those beliefs, fostering an environment of exclusion and discrimination. The coalition encourages parents and students to report any incidents where the video has been shown or used in schools. Walters separately announced on Thursday that he purchased more than 500 Bibles for Advanced Placement (AP) Government classrooms. In October, the coalition filed a lawsuit on behalf of 32 Oklahomans urging the Oklahoma Supreme Court to block Walters’ mandate that all public schools incorporate the bible into their curricula. This coalition stands firm in defending the rights of every student to receive a secular education free from religious influence. A copy of the letter can be found here: https://ffrf.org/wp-content/uploads/2024/11/State-Superintendent-Ryan-Walters-OK-Religious-Video-Mandate.pdf -
MaineNov 2024
Religious Liberty
St. Dominic Academy v. MakinSt. Dominic Academy v. Makin
The ACLU, ACLU of Maine, and Americans United for Separation of Church and State filed an amicus brief with the U.S. Court of Appeals for the First Circuit arguing that religious schools in Maine participating in the state’s school tuition program must comply with all eligibility requirements of the program – including a prohibition on discrimination on the basis of religion, sexual orientation, and gender identity, among other protected characteristics. -
Press ReleaseNov 2024
Religious Liberty
Court Blocks Louisiana Law Requiring Public Schools to Display Ten Commandments in Every ClassroomCourt Blocks Louisiana Law Requiring Public Schools to Display Ten Commandments in Every Classroom
BATON ROUGE, LA – In a victory for religious freedom, a federal district court issued a preliminary injunction today in Rev. Roake v. Brumley, prohibiting implementation of a Louisiana law that requires all public schools to permanently display a government-approved, Protestant version of the Ten Commandments in every classroom. In the ruling, Judge John W. DeGravelles determined that Louisiana’s H.B. 71, enacted last June, violates the First Amendment and longstanding Supreme Court precedent. More than 40 years ago, in Stone v. Graham, the Supreme Court overturned a similar state statute, holding that the First Amendment bars public schools from posting such displays. The defendants conceded during oral argument that Stone remains good law and is binding on lower courts. In his 177-page opinion, the judge explained: [T]hese displays must be posted in every “classroom in each school,” all year round, regardless of subject matter, and regardless of the age of the student. Thus, the question is not whether the Biblical laws can ever be put on a poster; the issue is whether, as a matter of law, there is any constitutional way to display the Ten Commandments in accordance with the minimum requirements of the Act. In short, the Court finds that there is not. First, Stone remains good law and is directly on point, and this Court is bound to follow it. Second, even putting Stone aside . . . , Plaintiffs have adequately alleged that H.B. 71 fails to comply with the Establishment Clause analysis laid out in Kennedy and Fifth Circuit precedent. Judge DeGravelles also recognized that H.B. 71 would lead to unconstitutional religious coercion of the children-plaintiffs in the case by imposing religious doctrine on them for nearly every hour of the school day, throughout their entire public-school education. And, pointing to the testimony of plaintiffs’ expert, Dr. Steven K. Green, the court found that there is no historical support for permanently displaying the Ten Commandments in public-school classrooms and that doing so would be at odds with our nation’s Founders’ understanding of the separation of church and state. The court’s opinion concludes: Each of the Plaintiffs’ minor children will be forced “in every practical sense,” through Louisiana’s required attendance policy, to be a “captive audience” and to participate in a religious exercise: reading and considering a specific version of the Ten Commandments, one posted in every single classroom, for the entire school year, regardless of the age of the student or subject matter of the course. And, despite the differences among the Plaintiffs’ religious beliefs (be they Unitarian Universalist, Reform Jewish, Presbyterian, or atheist/agnostic), the common threads are (1) that the required posting of the Decalogue conflicts with specific parts of their faith, and (2) that one of those articles of faith, shared by nearly all Plaintiff parents, is raising their children in accordance with their own beliefs and values. Considering the totality of the circumstances, the Court finds that the Act and its requirements are coercive and inconsistent with the history of First Amendment and public education. The court further ruled that H.B. 71 also violates the plaintiffs’ rights under the Free Exercise Clause. After finding that the law violates the plaintiffs’ constitutional rights, the court prohibited the defendants from “(1) enforcing H.B. 71; (2) adopting rules or regulations for the enforcement of H.B. 71; and (3) requiring that the Ten Commandments be posted in every public-school classroom in Louisiana in accordance with H.B. 71.” The Court additionally directed the state defendants to provide notice of its order and H.B. 71’s unconstitutionality to all Louisiana public elementary, secondary, and charter schools, and all public post-secondary education institutions. Because the court denied the defendants’ request to pause (or “stay”) the preliminary injunction while they seek relief from the U.S. Court of Appeals for the Fifth Circuit, it immediately takes effect. “H.B. 71 is a direct infringement of our religious-freedom rights, and we’re pleased and relieved that the court ruled in our favor,” said Rev. Darcy Roake, who is a plaintiff in the case along with her husband, Adrian Van Young. “As an interfaith family, we expect our children to receive their secular education in public school and their religious education at home and within our faith communities, not from government officials.” “This ruling should serve as a reality check for Louisiana lawmakers who want to use public schools to convert children to their preferred brand of Christianity,” said Heather L. Weaver, Senior Staff Attorney for the ACLU’s Program on Freedom of Religion and Belief. “Public schools are not Sunday schools, and today’s decision ensures that our clients’ classrooms will remain spaces where all students, regardless of their faith, feel welcomed.” “We are pleased that the First Amendment rights of students and families are protected by this vital court decision,” said Patrick Elliott, Legal Director of the Freedom From Religion Foundation. “This ruling will ensure that Louisiana families – not politicians or public school officials – get to decide if, when and how their children engage with religion,” said Rachel Laser, president and CEO of Americans United for Separation of Church and State. “It should send a strong message to Christian Nationalists across the country that they cannot impose their beliefs on our nation’s public school children. Not on our watch.” “Religious freedom—the right to choose one’s faith without pressure—is essential to American democracy,” said Alanah Odoms, Executive Director of the ACLU of Louisiana. “Today’s ruling ensures that the schools our plaintiff’s children attend will stay focused on learning, without promoting a state-preferred version of Christianity.” Jon Youngwood, Co-Chair of Simpson Thacher’s Litigation Department, added, “We are heartened by the District Court’s well-reasoned and detailed opinion, which rests upon the wisdom of the First Amendment to the Constitution and the protections it affords regarding the separation of church and state and the free exercise of religion.” Represented by the ACLU, ACLU of Louisiana, Americans United for Separation of Church and State, and the Freedom From Religion Foundation, with Simpson Thacher & Bartlett LLP serving as pro bono counsel, the plaintiffs in Roake v. Brumley are a multifaith group of nine Louisiana families with children in public schools. Today’s opinion, issued by the U.S. District Court for the Middle District of Louisiana, is available online here: https://assets.aclu.org/live/uploads/2024/11/LA-10c-Opinion.pdf