The Volokh Conspiracy
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Texas Will Test Whether Kennedy v. Bremerton Abrogated Engel v. Vitale, Stone v. Graham, and Wallace v. Jaffree
And good luck challenging the law. The Texas Senate passed an S.B. 8-like bulletproof bill for prayer in school.
Kennedy v. Bremerton overruled the Lemon test. Sort of. Justice Gorsuch's majority opinion did not come out to formally overrule that case. Indeed, the question presented did not even concern the Establishment Clause. That issue only rose indirectly. Rather, the Court deemed Lemon as "abandoned." That much is clear. But the Court did more than inter that Burger-era precedent. The Court also seemed to undermine the coercion test. This plank of Establishment Clause jurisprudence stretches back to Engel v. Vitale (1962). That Warren-era precedent held that the government cannot subject students to indirect coercion with regard to religion. Even exposing students to prayer in the classroom, without requiring them to participate, could be sufficiently coercive to violate the Establishment Clause.
This line of precedent carried for the course of six decades. Lee v. Weisman (1992) held that clergy could not offer prayers at a high school graduation ceremony. In Lee, the Court recognized that "there are heightened concerns with protecting freedom of conscience from subtle coercive pressure in the elementary and secondary public schools." And "prayer exercises in public schools carry a particular risk of indirect coercion." The Court observed that "adolescents are often susceptible to peer pressure, especially in matters of social convention." Therefore, "the State may no more use social pressure to enforce orthodoxy than it may use direct means." Attendance at the graduation ceremony was optional, but "to say a teenage student has a real choice not to attend her high school graduation is formalistic in the extreme." Due to that risk of "indirect coercion," the prayer at graduation violated the Establishment Clause. Eight years later, Santa Fe Independent School District v. Doe (2000) reached a similar result. The Court held that schools could not permit students to select and lead prayers before football games. The "delivery of a pregame prayer ha[d] the improper effect of coercing those present to participate in an act of religious worship."
Kennedy, however took a decidedly different approach to identifying "coercion" in Establishment Clause cases. In Kennedy, a high school football coach would quietly pray after games at the fifty-yard line. Some players from both teams would pray with him. The coach was disciplined, in part, because the school worried that the prayers violated the Establishment Clause. The Court disagreed. It held that the coach's prayers were within the bounds of the Establishment Clause. Here, there was "no evidence that students ha[d] been directly coerced to pray with Kennedy." And students who voluntarily choose to participate in the prayers were not necessarily coerced. It did not matter that some students were bothered or felt excluded by the prayers. The Court stated that "[o]ffense . . . does not equate to coercion." Justice Sotomayor dissented in Kennedy. She wrote that the majority "applie[d] a nearly toothless version of the coercion analysis" from Lee and Santa Fe. Sotomayor added that the Court "fail[ed] to acknowledge the unique pressures faced by students when participating in school-sponsored activities."
After Kennedy was decided, I wrote that Lee and Santa Fe were abrogated. But what about earlier cases, stretching back to Engel? Abington School District v. Schempp (1963) held that teachers cannot recite passages of the Bible or the Lord's Prayer, without comment, at the start of each school day. Stone v. Graham (1980) held that classrooms cannot post the Ten Commandments, which are "plainly religious in nature." Wallace v. Jaffree (1985) held that public schools cannot hold a moment of silence "for meditation or voluntary prayer." Are Engel, Schempp, Stone, and Jaffree abrogated? Or should those cases be overruled because they are "egregiously" wrong? (Thomas Bickel makes the latter case in the Harvard JLPP).
The Texas Senate recently passed two bills that could require the courts to answer those questions. SB 1515 is a frontal challenge to Stone, as well as McCreary County:
A public elementary or secondary school shall display in a conspicuous place in each classroom of the school a durable poster or framed copy of the Ten Commandments that meets the requirements of Subsection.
Indeed, the bill requires a specific version of the Decalogue to be used:
"The Ten Commandments I AM the LORD thy God. Thou shalt have no other gods before me. Thou shalt not make to thyself any graven images. Thou shalt not take the Name of the Lord thy God in vain. Remember the Sabbath day, to keep it holy. Honor thy father and thy mother, that thy days may be long upon the land which the Lord thy God giveth thee. Thou shalt not kill. Thou shalt not commit adultery. Thou shalt not steal. Thou shalt not bear false witness against thy neighbor. Thou shalt not covet thy neighbor's house. Thou shalt not covet thy neighbor's wife, nor his manservant, nor his maidservant, nor his cattle, nor anything that is thy neighbor's."
And schools can accept privately-donated framed copies of the Tenth Amendment. This bill would have been dead on arrival during the Warren Court. But that was a different era. Someone should go check Arlington Cemetery. There is probably some stirring in the grave of Hugo Black.
The second bill, SB 1396, is a frontal challenge to Engel, Schempp, and Jaffree. The bill allows school districts to adopt a policy that would "provide students and employees with an opportunity to participate in a period of prayer and reading of the Bible or other religious text on each school day." I am doubtful that large school districts in Austin or Dallas would adopt such a policy. But smaller districts will likely consider such a policy. Indeed, there are guardrails in the bill that make it very difficult to challenge.
The only students who will even exposed to the bill are students whose parents want them to be exposed to the prayer. Parents or guardians would be required to sign a consent form for their child to be exposed to the prayer. And that consent form is an express waiver of the right to bring a lawsuit!
A policy adopted under Subsection (a) must prohibit . . . a student or employee of the school district or open-enrollment charter school from being permitted to participate in the period of prayer and reading of the Bible or other religious text unless the employee or parent or guardian of the student submits to the district a signed consent form that includes . . . signed consent form that includes…. an express waiver of the person's right to bring a claim under state or federal law arising out of the adoption of a policy under this section, including a claim under the Establishment Clause of the First Amendment to the United States Constitution or a related state or federal law, releasing the district or school and district or school employees from liability for those claims brought in state or federal court;
What about students whose parents do not sign the form? The bill ensures these students will not be able to even hear the prayer. The policy must ensure the prayer is not read "in the physical presence of, within the hearing of, or in another manner which would constitute an injury in fact within the meaning of the United States or Texas Constitution on a person for whom a signed consent form has not been submitted." Indeed, the prayer cannot be read "over a public address system." To put it bluntly, this bill makes it impossible for children of objecting parents to even hear the prayer!
But wait a minute? Didn't Lee and other cases hold that it is unfair to exclude students from activities like graduation? How can it be constitutional that objecting-students can simply be excluded from classroom activities? The bill provides a few responses. The prayer "may not be a substitute for instructional time." Moreover, the prayer may be read "before normal school hours." And the prayer may be read "only in classrooms or other areas in which a consent form under Subsection (b)(1) has been submitted for every
employee and student." In other words, objecting students can still complete 100% of their usual classroom activities. Plus, the Attorney General will defend any school district sued under this bill, and the state will cover any expenses. Thus school boards can adopt a policy without fear of liability.
This bulletproof bill is like S.B. 8 for prayer in school. Good luck finding any plaintiffs who actually suffers an Article III injury. The bill makes it virtually impossible for objecting students to challenge the policy in court. And even if someone suffers an injury, under Kennedy, indirect coercion, such as the risk of exclusion, is not sufficient to state an Establishment Clause claim.
If these bills are enacted, federal judges in Texas will have a choice. They cannot overrule Engel and its progeny. But could federal judges deem Engel and its progeny abrogated by Kennedy? Recall that the Fifth Circuit Dobbs panel declared unconstitutional the Mississippi abortion ban, as it was bound to do so under Roe and Casey. But Kennedy alters the constitutional calculus. Texas, once again, will push the vanguard of constitutional law and standing law.
