The U.S. Department of Education issued new guidance recently, titled “Guidance on Constitutionally Protected Prayer and Religious Expression in Public Elementary and Secondary Schools.”
But as it did with the Supreme Court’s decision in Bostock v. Clayton County in 2020, the Biden administration based its guidance on a reading of Supreme Court precedent that misinterprets what the court actually held.
According to the Biden administration, the updated guidance is designed to “provide information on the current state of the law concerning constitutionally protected prayer and religious expression in public schools.” Simple enough.
Yet the guidance is part of a pernicious trend by the Biden administration, in which it manipulates the court’s jurisprudence to meet its desired policy ends.
By issuing informal guidance, and not proceeding with the formal rulemaking process that would give the public a chance to weigh in, the president is seeking to change the behavior of all federally funded schools with nothing more than the stroke of a pen—and without public accountability.
Guidance documents express an agency’s view of what the law is—and under the current president, those views are often wrong.
And while they aren’t formal rules that have the force of law, any regulated entity would be foolish to ignore an agency guidance document, because it knows the agency will enforce its new understanding of the law.
The agency’s bureaucrats in charge of dishing out fines and other administrative penalties will treat the guidance as though it’s binding.
This manipulation of Supreme Court precedent seems to be par for the course for this administration. For example, in 2020, the high court ruled in Bostock v. Clayton County that discrimination “on the basis of sex” for the purposes of Title VII (which outlaws employment discrimination) also includes discrimination based on sexual orientation and transgender status.
As one of us (Sarah Perry) has written, the ruling was carefully limited only to Title VII, and relied on the interconnectedness between “sex” and “transgender status” when determining whether an employer has fired an employee “because of” his or her sex.
Following that decision, in 2021, the U.S. Equal Employment Opportunity Commission and the Department of Education issued guidance that far exceeded the court’s ruling.
That guidance comprised several documents expressing the belief of the Department of Education and the EEOC that various laws prohibiting sex discrimination in schools and workplaces now guaranteed that individuals who say they are transgender may use the restrooms, showers, and dress codes of their choice.
In addition, they claimed that those laws could also force others to refer to these individuals using their “preferred” personal pronouns. But a reading of the relevant anti-discrimination laws doesn’t support that view, and the guidance was eventually struck down by a federal judge in Texas.
In its most recent guidance, the Department of Education acknowledges that the Supreme Court recently ruled on constitutionally protected prayer and religious expression in public schools. But it applies language from an opinion that the Supreme Court abandoned in that case itself.
The new religious expression guidance follows the Supreme Court’s decision in Kennedy v. Bremerton School District last term. That case involved a high school football coach who knelt in brief, private prayer at the 50-yard-line after games. Of their own free will, players began to join him in this private expression of his faith.
Writing for the majority, Justice Neil Gorsuch explained that a brief silent prayer, regardless of who observes it or agrees with it, does not amount to the government’s endorsement of his religion. While kneeling at the 50-yard line, coach Joe Kennedy was acting in the capacity of a private citizen freely speaking and exercising his religion.
Gorsuch explained that there is no tension between the First Amendment’s free exercise and establishment clauses, and that any tension between them had only arisen from the court’s outdated establishment clause precedent, Lemon v. Kurtzman, which the court decided in 1971.
In Lemon, the Supreme Court held that government action must pass a three-pronged test in order to avoid violating the establishment clause: The statute must have a secular purpose; the primary effect of the statute must not promote or inhibit religion; and the statute must not foster “excessive government entanglement with religion.”
The “Lemon test,” as it came to be known, invited judges to make subjective and dangerous judgments about government commingling with religion and proved difficult to apply consistently.
For decades, the Lemon test was so hard to understand and apply that many courts opted to “purge from the public sphere” anything that might be the slightest bit religious.
In fact, in his concurrence in 1993’s Lamb’s Chapel v. Center Moriches Union Free School District, the since-deceased Justice Antonin Scalia famously described Lemon as “some ghoul in a late-night horror movie that … stalks our Establishment Clause jurisprudence.”
In the Kennedy v. Bremerton majority opinion, Gorsuch wrote:
[The lower courts overlooked] that the ‘shortcomings’ associated with this ‘ambitiou[s],’ abstract, and ahistorical approach to the Establishment Clause became so ‘apparent’ that this Court long ago abandoned Lemon and its endorsement test offshoot … . The Court has explained that these tests ‘invited chaos’ in lower courts, led to ‘differing results’ in materially identical cases, and created a ‘minefield’ for legislators … . This Court has since made plain, too, that the Establishment Clause does not include anything like a ‘modified heckler’s veto, in which … religious activity can be proscribed’ based on ‘perceptions’ or ‘discomfort.’
Rather than applying the now-discredited Lemon test, the court turned instead to “historical practices and understandings” to reconcile the First Amendment’s religion clauses. By looking at the original meaning of the First Amendment and identifying the historical importance of the free exercise of religion, the court determined that a brief silent prayer—even if visible to the public—did not amount to the government’s endorsement or establishment of religion.
Unsurprisingly, given its past practice, the new guidance from the Department of Education fails to take the abandonment of Lemon’s sour precedent into account. While giving lip service to the importance of religious liberty rights of public school employees upheld in Kennedy, it clings to Lemon’s abandoned language—without even citing the case.
The Department of Education warns in the guidance that school employees cannot “compel, coerce, persuade, or encourage students to join in the employee’s prayer or other religious activity.” But it permits schools to take “reasonable measures to ensure that students aren’t pressured or encouraged to join in the private prayers of their teachers or coaches,” and adds that schools can impose restrictions on students’ distribution of religious literature.
In addition, while portions of the new guidance mirror guidance that was issued by the Department of Education in the final weeks of the Trump administration, the new guidance removes two critical sections: a section protecting the rights of students and teachers that ensured students could pray during lunchtime, and one permitting student groups to choose group leaders that agree with the groups’ mission.
In its guidance, the administration appears to be suggesting that schools must rid religious messages from any student speech if the public school deems it to be coercive towards other students. However, the majority’s decision in Kennedy said no such thing, and these kinds of subjective judgment calls are precisely the kinds of arbitrary decisions that arose from application of the Lemon test in the first place.
What seems certain is that the new Department of Education guidance will result in future litigation. And despite President Joe Biden’s amateurish attempts at necromancy, the ghoul of Lemon has finally been put to rest.
This piece originally appeared in The Daily Signal