This joint letter is being submitted in response to questions that have been raised by members of the Louisiana Legislature concerning the legality and feasibility of (Senate Bill 512 of the 2018 Regular Session of the Louisiana Legislature). We write today to briefly explain why we believe Senate Bill 512 would not pass court muster and could actually be counterproductive to the cause of religious liberty.
By way of introduction, the undersigned individuals and legal organizations are widely recognized as leading defenders of religious freedom in American and beyond, in the courts and in the court of public opinion. For many years, we have been directly involved in the landmark religious liberty cases decided by the U.S. Supreme court and lower courts, and we are regularly called upon to assist in drafting, advising and defending religious legislation advanced by the U.S. Congress, state legislatures, and international human rights organizations.
In the complex and widely misunderstood area of the law pertaining to religious expression in public schools, legislation is sometimes proposed on a state and local level that might seem helpful at first glance, but in actuality could be quite harmful to the cause if passed. In our view, SB512 is one of those measures.
This bill proposes an amendment to Louisiana’s existing statute pertaining to student-initiated prayer to hereafter allowed school employees to participate in student prayers during the school day, so long as the parents or guardians of each student have provided a written consent. Because this proposal directly contradicts U.S. Supreme Court and lower court precedent on the issue, we submit there is zero chance SB512 would survive an inevitable court challenge.
While many Americans disagree with the courts’ conclusion, the question of whether school officials may lead or participate with students in prayer has been concretely settled for decades. In fact, both the Supreme Court and the U.S. Court of Appeals for the Fifth Circuit (covering Texas, Louisiana, and Mississippi) have ruled repeatedly and decisively that while truly student-led, student-initiated prayer is fully protected by the First Amendment, no public school, or school official while on duty, is allowed even “to encourage prayer,” as such is viewed as a violation of the Establishment Clause. Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290. 316 (2000).
Many cases have specifically prohibited the involvement of teachers, coaches and administrators in student prayer. To cite just a few examples, see, e.g. Lee v. Weisman, 505 U.S. 577, 587, 592, (1992) (school officials prohibited from allowing clergy to lead graduation prayer); Abington v. Schempp, 374 U.S. 203 222-26 (1963) (school officials prohibited from leading students in recitation of Bible verses and the Lord’s Prayer after the morning bell); Engel v. Vitale, 370 U.S. 421, 430-33 (1962) (school officials prohibited from leading classroom prayer); Doe v. Duncanville Indep. Sch. Dist., 70 F.3d 402, 406 (5th Cir. 1996) (coaches prohibited from praying with student athletes); Karen B v. Treen, 653 F.2d 897, 901-02 (5th Cir. 1981) (teachers prohibited from participating in voluntary classroom prayers) aff’d mem., 455 U.S. 913 (1982).
It makes no legal difference, under current Supreme Court precedent, if parents consent to their students praying with school employees in their official capacities while they are on the job. Teachers and faculty members serving in their official capacities during contract time are state officials, and the Supreme Court currently does not allow government officials in public schools to “endorse religion” See e.g., Santa Fe, 530 U.S. at 316 (“Government efforts to endorse religion cannot evade constitutional reproach…”); Abington, 374 U.S. at 226 (explaining the First Amendment “has never meant that a majority could use the machinery of the State to practice its beliefs”).
As U.S. Department of Education guidelines have long explained, current Establishment Clause doctrine allows teachers and other school employees to “take part in religious activities” only “where the overall context makes clear that they are not participating in their official capacities.” U.S. Dep’t of Educ., Guidance on Constitutionally Protected Prayer in Public Elementary and Secondary Schools, 68 Fed. Reg. 9645, 9647 (Feb. 28, 2003).
Accordingly, if SB 512 were enacted, we expect it would be immediately challenged and struck down, and would thus accomplish nothing for the cause of religious freedom or the rights of student and teachers. To the contrary, it could actually make matters worse in a number of ways. First, it would risk creating a harmful court preceded that could be used by activists and atheist litigation groups to further attack and erode student rights to religious expression. Second, it would risk an enormous attorney fee award (of scarce Louisiana taxpayer dollars) being awarded to the groups who challenge the law, which would then be used by those groups to fund and further advance their secularist agenda nationwide. And third, it would create additional confusion among the many well-intended students, parents, teachers, coaches, and school officials of Louisiana, who genuinely want to understand and support student rights and our cherished traditions in every way legally possible.
It is our belief that most members of the Louisiana Legislature share our resolve to vigorously support and defend the right of religious expression in schools, the broad array of free exercise right that are still enjoyed by students, and the presence and influence of moral and religious values on school campuses. To help explain these rights and empower students, we have published and recommend a number of helpful resources that are available free of charge and online at the links provided (Louisiana Student Rights Review https://ag.state.la.us; Guidance on Constitutionally Protected Prayer in Public Elementary and Secondary Schools http://www2.ed.gove/policy/gen/guid/religionandschools/prayer_guideance.html; Student Rights Handbook https://adflegal.org/issues/religious-freedom/k-12/resources; Religious Liberty Protection Kit for Students and Teachers https://firstliberty.org/rights/religious-liberty-protection-kit-for-students-and-teachers/).
We hope this insight will be helpful in your thoughtful analysis on this issue. If we can answer any questions or provide additional information, please do not hesitate to contact us.
Very sincerely yours,
Kim Colby, esq.
Director, Center for Law and Religious Freedom
Congressman Mike Johnson
Former Senior Legal Counsel, Alliance Defending Freedom
Nate Kellum, Esq.
Chief Counsel, Center for Religious Expression
Mather D. Staver, Esq., B.C.S.
Founder and Chairman, Liberty Counsel