Frank S. Ravitch (L'94) is professor of law and Walter H. Stowers Chair of Law and Religion at the Michigan State University College of Law. He is author of Freedom’s Edge: Religious Freedom, Sexual Freedom, and the Future of America (Cambridge, 2016).
On January 16, 2020, with quite a bit of fanfare, the Trump administration issued a supposedly new set of Guidance on Constitutionally Protected Prayer and Religious Expression in Public Elementary and Secondary Schools. As a practical matter, the majority of the guidance says nothing new, and with a few exceptions, it is simply a restatement of earlier guidance. So why the big rollout and the claims that the guidance is a major effort to protect “religious freedom”? Or perhaps more apropos, whose “religious freedom” is being protected?
Religious freedom is exceptionally important, and in my book Freedom’s Edge: Religious Freedom, Sexual Freedom, and the Future of America (Cambridge 2016), I argue strenuously in favor of protecting religious freedom and sexual freedom and against those who think one must be sacrificed for the other. But the Trump administration’s school prayer guidance does nothing new to actually protect religious freedom. Most of what it addresses was already covered by guidance issued by the Bush and Clinton administrations. The right of private religious expression in public schools has been repeatedly upheld by SCOTUS and lower courts. In fact, the court’s famous 1962 and 1963 school prayer decisions simply privatized school prayer. The decisions prohibited government-supported prayer but clearly explained students are free to pray privately. This right has since been more clearly explicated by SCOTUS and lower courts, and it is policed by a veritable army of legal NGOs.
Here I will make a quite different argument about religious freedom in the school prayer context: The Trump administration’s school prayer guidance is not about religious freedom but rather about pandering to social conservatives, and in fact, the guidance does far more to hurt religious freedom than to help it. If the guidance were really about religious freedom, it would at least place some focus on the many religious minorities and dissenters who have been harmed, often violently, by the sort of school prayer the guidance, perhaps begrudgingly, acknowledges is unconstitutional but which still occurs throughout the country.
For every case involving a student who is unfairly told he or she cannot engage in protected religious expression, there are numerous cases of religious minorities and dissenters being discriminated against in school districts that still violate SCOTUS’ 1962 and 1963 school prayer decisions. These cases are well documented. In fact, I wrote an entire book about them in the late 1990s, and if anything, it has only gotten worse since. To get a flavor of the sort of behavior I am referring to, one need only read footnote one of the majority opinion in Santa Fe Independent School District v. Doe, 530 U.S. 290 (2000).
In fact, school prayer as a general matter is not a religious freedom issue in the traditional sense. While there are occasional cases of overzealous or uninformed school officials preventing students from engaging in private prayer or other religious activities, the law on this is clear and these situations are often resolved quickly. On the flipside, school prayer that is endorsed or favored by schools or school officials has led to decades of discrimination against religious minorities and dissenters. In this sense, one might argue that school prayer is a religious freedom issue but not for those who most characterize it that way. Rather it is a religious freedom issue for the victims of organized school prayer that is still ongoing in many places despite being clearly unconstitutional.
Lest we forget, school prayer has long been a tool for the majority in a given area to assert its power over religious minorities. In the 1840s and throughout much of the nineteenth century, school prayer and Bible reading were used in attempt to discriminate against Catholics and other religious minorities in the common schools, the predecessor of modern public schools.
Catholic students were whipped and harassed, and priests were tarred, feathered, and ridden on rails. Much of this violence was about more than just prayer. A lot of it was fostered by resistance to Irish immigration, anti-Catholicism, and perceived job competition. Yet, school prayer and Bible reading issues often served as significant fuel for the fire.
In more recent years, students have been beaten up for not participating in organized prayer. Families that have objected to organized school prayer have been threatened or worse. Where are these violations of religious freedom and freedom of conscience addressed (or even referenced) in the Trump administration’s guidance—nowhere!
So whose religious freedom is being protected by one-sided guidance that protects the rights of students who want to pray privately—an important and clearly protected right which armies of lawyers from a variety of NGOs such as ADF, ACLJ, and the Becket Fund will freely defend—but which does nothing to protect the rights of the many children suffering quietly in school districts that still violate the court’s 1962 and 1963 school prayer decisions, many of whom are afraid to come forward and file suits (even if groups such as the ACLU and American’s United would freely represent them if they came forward)?
For the few brave families that do come forward, the level of harassment, and in some cases violence, they suffer is a significant deterrent to others. Footnote one in Santa Fe v. Doe, referenced above, is just a small taste of this. A number of other examples through the late-1990s are collected in School Prayer and Discrimination: The Civil Rights of Religious Minorities and Dissenters (Northeastern 1998), and some more recent cases can be found in Benjamin P. Edwards, When Fear Rules in Law's Place: Pseudonymous Litigation as a Response to Systematic Intimidation, 20 Va. J. Soc. Pol'y & L. 437 (2013). Of course, these are just the reported cases!
The Trump administration guidance focuses only on protecting those who already clearly have a right to privately pray and express their faith in school. At best, the guidance is a prime example of pandering to an important constituency through government policy. At worst, it is an attempt to define the narrative about school prayer in a way that casts the largest religious group in America as the victim while burying the rights of religious minorities and dissenters under the rug, where sadly many must hide for fear of retaliation.