President Donald Trump could be preparing to put the final nail in the coffin of court precedent on the right to pray in public schools, legal experts say.
Trump announced Monday that the Department of Education will issue new guidance on school prayer in line with his 2024 campaign promise to “bring back prayer” to public schools.
“The president spoke about that yesterday, and some of the changes we are making to ensure that the religious liberties of America’s students in our youth are respected in public schools,” press secretary Karoline Leavitt told The Daily Signal on Tuesday. “In fact, he had a young student, invited him on stage to share his story about how when this young boy spoke about biological and biblical truth in his classroom, he faced consequences for that, and how Americans of faith should not be facing consequences for expressing their religious freedom and their religious views.”
“Not in any public school in America should that be happening,” Leavitt added.
The details of the directive have not been released. But if the guidance says it’s legal to pray in schools, leftists are likely to sue, which could set the Supreme Court up to undo existing cases prohibiting students from praying, leading prayer, and being led in prayer, according to Rover Severino, director of the Health and Human Service’s Office for Civil Rights under first Trump administration.
“I expect the guidance will say administrators can no longer force kids to shed their faith at the schoolhouse door,” Severino told The Daily Signal. “President Trump has promised to end DEI and LGBT ideology being imposed on students nationwide, especially students of faith, but I also believe he will protect the rights of students to pray because schools are not state mandated God-free zones.”
Based on past actions, an executive order encouraging religious activity in public schools would likely be challenged by those who want to remove religion from the public square, said Tyson Langhofer, director of the Center for Academic Freedom at the conservative nonprofit law firm Alliance Defending Freedom.
“But it’s very clear that the Constitution protects private religious expression in the public square,” he told The Daily Signal. “Not only does it protect it, but it prohibits the government from discriminating against religious individuals who want to engage in religious activity.”
In Lemon v. Kurtzman, the Supreme Court in 1971 established a three-pronged test a statute must pass to avoid violating the Establishment Clause of the Constitution.
The statute must have a secular legislative purpose; its principal or primary effect must be one that neither promotes nor inhibits religion; and it must not foster “excessive government entanglement with religion.”
This test dominated public school prayer jurisprudence until 2022, when the court largely discarded the test.
In 1992, the court held that the Establishment Clause prohibits public schools from composing official prayers to recite as part of a religious program carried on by the government.
The court held that a rabbi speaking at a public high school graduation created “a state-sponsored and state-directed religious exercise in a public school,” violating the Establishment Clause.
Since-retired Justice Anthony M. Kennedy, who wrote the opinion, used the Lemon Test to justify the ruling.
Eight years later, in 2000, the court held in Santa Fe v. Doe that a Santa Fe High School’s policy allowing student-led, student-initiated prayer at football games violated the Establishment Clause.
The court decided that football game prayers were public speech authorized by a government policy and taking place on government property at government-sponsored school-related events, and that the high school’s policy involved government endorsement of prayer at important school events.
But in Kennedy v. Bremerton School District in 2022, the court pared back the application of the Establishment Clause. The court largely abandoned the Lemon Test, ruling instead that the Establishment Clause “must be interpreted by ‘reference to historical practices and understandings.’”
High school football coach Joe Kennedy led students in prayer during and after school games. Kennedy refused to stop after Washington state’s Bremerton School District asked him to, in order to prevent the school from being sued for violating the Establishment Clause.
Represented by Alliance Defending Freedom, Kennedy won the case. The Supreme Court ruled that the Constitution neither mandates nor permits the government to suppress such religious expression, saying that the First Amendment protects an individual engaging in a personal religious observance.
Langhofer said an executive order from Trump setting out what types of religious activity are allowed in school under the Establishment Clause could help public schoolteachers and administrators understand the extent of the current law.
The Supreme Court’s Establishment Clause jurisprudence has evolved a lot over the past 20 years, Langhofer said. Many of the prior decisions on prayer were based on the Lemon Test, but now that it has been overruled, many policies previously held as unconstitutional in cases like Lee and Santa Fe could be looked at again.
The Kennedy v. Bremerton ruling hints that the conservative Supreme Court would view the Establishment Clause differently than how it was interpreted in the past, Langhofer said.
“There is a misunderstanding broadly in the public and in public school administration of what the Establishment Clause means,” he said. “The Establishment Clause prohibits the government from establishing a particular religion, which would include forcing individuals to participate in religious activities that they don’t want to participate in.”
“But it absolutely does not prohibit individuals from engaging in religious activity, including prayers, even during, you know, kind of school hours,” he continued.
Rep. Mary Miller, R-Ill., praised Trump for “understand[ing] that prayer is the cornerstone of strong families, strong communities, and a strong nation.”
“By protecting our children’s right to pray in school, he is restoring faith to its rightful place in American life,” she told The Daily Signal. “I’m thankful our nation has a leader who boldly defends religious liberty.”