Steven K. Green is the Fred H. Paulus Professor of Law and affiliated professor of history and religious studies at Willamette University in Salem, Oregon. Green has participated in numerous church-state cases before the U.S. Supreme Court, including serving as co-counsel in Zelman v. Simmons-Harris, the Cleveland voucher case.
Conventional wisdom suggests that the allegations surrounding President Donald Trump’s impeachment have not shaken his support among evangelical Christians (Berkley Forum, January 23, 2020). The 2020 presidential election promises to be close, however, so Trump is leaving little to chance in maintaining support from this core constituency.
On January 16, 2020, Trump hosted an Oval Office gathering to observe Religious Freedom Day, which marks the passage of Virginia’s 1786 Act for Establishing Religious Freedom, written by Thomas Jefferson. Trump took the opportunity to announce that the Department of Education (DOE) was issuing a revised set of guidelines on “Constitutionally Protected Prayer and Religious Expression in Public Elementary and Secondary Schools.” Some of the guests at the Oval Office related how public-school officials had curtailed their ability to engage in religious expression. In turn, Trump exclaimed that “there is a growing totalitarian impulse on the far left that seeks to punish, restrict, and even prohibit religious expression.” With these renewed guidelines in place, we “will not let anyone push God from the public square.”
Despite this roll-out, the DOE guidelines present little in the way of new guidance. They are essentially a cut-and-paste of prior DOE guidelines on religious expression prepared by the Clinton and Bush II administrations in 1998 and 2003, respectively. Not that the two earlier guidelines were identical. The 1998 guidelines, prepared under the leadership of Secretary Richard Riley (on which I advised), sought to strike a balance between students’ ability to engage in private religious expression and Establishment Clause concerns about school endorsement of religion. The Riley guidelines also instructed that student religious expressive rights do not extend to captive audience situations, to harassing fellow students, or necessarily to being excused from lessons that might offend one’s religious beliefs or practices.
In 2003, the Bush administration, through Secretary Ron Paige, significantly revised the Riley guidelines. Aside from being less comprehensive—omitting several categories—the Paige guidelines were more permissive about religious expression. “[P]rivate religious speech,” it declared, was “far from being a First Amendment orphan” but was “as fully protected under the Free Speech Clause as secular private expression.” Gone was any concern about student harassment, and the guidelines broadly asserted that when students speak at school events and retain control over the content of their expression, their religious statements cannot be attributed to the school or otherwise be restricted by authorities. Finally, the Paige guidelines, like the revised Trump guidelines, were no longer advisory but tied compliance to the receipt of federal funding under the No Child Left Behind Act (now, Every Student Succeeds Act).
Not surprisingly, the Trump guidelines are chiefly a restatement of the Page guidelines, both in content and tone (including the “First Amendment orphan” quote). Except when involved in school activities or instruction, students may pray, read scripture, and partake in other religious activity at will. Even within classwork, students can incorporate religious views in their assignments, and as before, if a student retains control over the content of her expression in a school activity, she can incorporate prayer or other religious expression, even apparently when the school-sponsored event has a captive audience of fellow students. (The Trump guidelines add additional categories derived from the Riley guidelines concerning the distribution of religious literature, teaching “about” religion, and dress codes—items omitted from the Paige guidelines.) Finally, like the Paige guidelines, the Trump guidelines are permissive about teacher religious expression, allowing them to participate passively with students engaged in religious activity or in other situations where the “overall context” demonstrates they are not acting in their official capacities. This last issue was recently in the news when a Washington public high school dismissed a football coach for regularly kneeling and praying on the field during football games. Last year the Supreme Court denied review in the case, over the heated objections of Justices Alito, Thomas, Gorsuch, and Kavanaugh.
As stated, the Trump guidelines offer little if anything new over the previous guidelines which were still in effect with their requirements that school districts certify their compliance with the standards. There is also little evidence, aside from antidotal accounts, that there has been an upswing in schools inhibiting students’ religious expression. Such claims, however, are fodder for religious conservatives who feel they are under attack by societal trends and demographic shifts, a fact that President Trump regularly reminds his audiences at rallies. The allegation that public school officials are hostile to religious expression is, in essence, low hanging fruit, and the “new” guidelines demonstrate that the president is actively addressing the “problem.”
The same can be said for the other announcement concerning religion issued by the Trump administration on January 16. The Department of Health and Human Services (HHS) announced that it was removing “regulatory burdens” previously imposed on religiously based social service providers. Under an Obama-era executive order, faith-based social service agencies are eligible to receive federal funding to provide secular services to eligible communities. The Obama directives required faith-based agencies to keep their religious and secular functions separate and not to discriminate among those they served, but the directives exempted the same agencies from providing any particular service (abortion counseling, for instance) to which they had a religious objection. As the price of that accommodation, however, the funded faith-based agency was required to notify clients about the availability of those services and provide a referral to another agency. Some faith-based agencies have objected to this requirement on grounds it makes them complicit in conduct they find religiously objectionable. Trump’s HHS has sided with these objectors, calling the notification and referral requirements “unfair” and as infringing on the organizations’ religious liberty rights.
These two recent announcements, along with the Justice Department’s 2017 directive to federal agencies to exempt religious objections from neutral regulations, have placed religious freedom as a leading issue in the upcoming elections. Trump has signaled to religious conservatives that he shares their concerns and is coming to their defense. With this core constituency being central for his re-election prospects, Trump is leaving little to chance.