Two conservative legal groups have expressed concern over the Biden administration’s recently announced guidance on religious expression in public schools.
The United States Department of Education released the details of its new Guidance on Constitutionally Protected Prayer and Religious Expression in Public Elementary and Secondary Schools on Monday. The purpose of the guidance, according to the department, is to “provide information on the current state of the law concerning constitutionally protected prayer and religious expression in public schools.”
“The principles outlined in this updated guidance are similar to the U.S. Department of Education’s … 2003 and 2020 guidance on constitutionally protected prayer in public schools and with guidance that President Clinton issued in 1995,” the Education Department says.
First Liberty Institute and Alliance Defending Freedom fear the guidance could lead to an increase in violations of First Amendment rights for teachers and students.
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“We respect that the Biden administration acknowledges the important religious liberty rights of public school employees as the Supreme Court declared in its Kennedy decision last year,” Keisha Russell, counsel at the First Liberty Institute, said in a press release on Tuesday.
But she warned that “the administration’s new guidance relies on old propositions derived from the overturned Lemon decision,” referring to a 1971 Supreme Court decision. The case allowed for government involvement in religion as long as that involvement served a secular purpose, did not inhibit or advance religion, and did not result in an excessive entanglement of church and state.
More recent Supreme Court decisions have moved away from the so-called “Lemon Test” standard, with the high court deciding that religious expression on government property does not have to fulfill the three-pronged standard.
“We commit to ensuring that any restriction placed on religious freedom by those outdated cases is restored to the fullest extent required by the First Amendment,” Russell added.
Much of the new guidance “reiterates the previous guidance issued in the final days of the Trump administration, with a few stylistic changes,” said Greg Chaufen, legal counsel with Alliance Defending Freedom. But those changes could lead to confusion.
One example, Chaufen says, was that the new guidance appears to be “suggesting that schools have to purge religious messages from any student speech if the school in any way controls the student’s speech.”
Chaufen also noted that the Biden administration’s guidance “removes two sections that protected the rights of students and teachers,” the first being “a section that ensured that students could pray during the lunch hour.”
“This could lead to more violations of students’ rights to pray during free time, just like what happened to ADF client Chase Windebank in Windebank v. Academy School Dist. #20,” he explained.
“The guidance also removes another section that ensured that student groups could choose group leaders that agree with the groups’ mission. This could lead to more violations of students and teachers’ right to association.”
Chaufen told The Christian Post that he could see more litigation surrounding the aforementioned issues of lunchtime prayer and religious group membership because of the guidance.
“This guidance may lead to more violations of student and teacher rights sooner rather than later, and we stand ready to support students and teachers in protecting their rights,” he added.
While conservative groups have taken issue with parts of the new guidance, progressive organizations like the Americans United for Separation of Church and State have hailed the new federal measures.
