Parental rights ignored in prayer coach’s decision

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It wasn’t hard to predict that the praying football coach would win his case in the United States Supreme Court. From the closing argument, one could sense the judges’ skepticism about the proposition that a school can fire an employee for (in effect) disclosing to students their own personal religious beliefs and practices. What the judges decided in Kennedy v. Bremmerton School District is that, unless students are forced to participate, the football coach who knelt in midfield after games was merely exercising his rights under the release clause. free exercise of the First Amendment.

As someone who has written about the religious clauses of the Constitution for over three decades, I am confident that the result is correct, assuming we can trust the majority summary of facts. (The dissent strongly disputes the presentation of the case by the majority.) But even if the First Amendment issue at issue is not trivial, Bremmerton is potentially more important for the light it sheds on the broader contemporary debate and controversial over who decides which children are exposed. at school.

The majority opinion barely touches on this point, but the question is at the heart of the dissent, expertly crafted for three justices by my law school classmate Sonia Sotomayor, who accurately defines the central question of whether prayer of the coach after the games “strikes at the heart of our constitutional protections for the religious liberty of students and their parents.

Notice the parents in there: exactly the proper framing.

As I have long argued, most of the “big” cases involving religion and schools – classroom prayer, flag saluting, scientific creationism, etc. – must be correctly understood as implying not the establishment clause but the right of parents to make decisions concerning the education of their children.

I suspect most families take this right for granted, and one that the Supreme Court itself endorsed nearly a century ago in Pierce v. Society of Sisters. In 1925, judges unanimously struck down an Oregon law that would have banned most private elementary schools and thus forced families to send their children to public schools. The rule, the court wrote, “unreasonably interferes with the freedom of parents and guardians to direct the upbringing and education of children under their control.”

This freedom was in turn based on an important principle:

The child is not the mere creature of the state; those who nourish it and direct its destiny have the right, joined to the high duty, to recognize it and to prepare it for additional obligations.

Modern scholars tend to ignore or even insult Pierce, but in a nation struggling to be properly pluralistic, court logic should have some appeal. Although court-established parental rights can explain many cases of religion and freedom of expression — “I don’t want my child to be forced to pray”; “I don’t want my child to salute the flag”—that would hardly be limited to these circumstances.

These days, our debates on education tend towards Manichaeism: right-wing Christians come for our children! Left-wing critical race theorists come for our children! This kind of stupidity. But we could have fewer guardrails and more conversations if families had more information up front about what’s being taught in the classroom, and if their input was openly and sincerely solicited about how best to do it.

My opinions are perhaps colored by events in my own life: when I was in what was then called college, my history teacher told us that most of those who owned slaves traded kindly to their captive workers, that most of the slaves were happy, and that only a few hotheads wanted to run away. I returned home and shared this news with my parents, who otherwise would not have known what I was being taught. One of them visited the teacher, who a few days later reconsidered what she had told us.

If families are successful in “directing the upbringing and upbringing” of their children, at a minimum they should always be informed of exactly what is being taught.

Do not mistake yourself. I am not proposing a parental veto over what other people’s children learn. An appreciation of the parental rights set out in Pierce would at least provide some context for public debate. I believe (no doubt in part because of my own experience) that parents should have a limited right to remove their children from objectionable classroom teaching. This right is not absolute. I agree with political scientist Amy Gutmann (currently Ambassador to Germany) that parental rights can in many cases be overridden by fair and open democratic processes that are themselves informed by fair and open debate.

On the other hand, courts should not allow even majorities to force children into situations that interfere with parents’ efforts to shape their children’s religious (or non-religious) worldviews. And that would of course include situations, such as organized prayer in class, where students, as a formal matter, may withdraw but, in practice, often feel peer pressure to join.

This all brings us back to the football coach kneeling in prayer after games. If the majority is correct that no coercion was involved, that’s the end of the matter. But while Judge Sotomayor is correct that at least some students felt compelled to participate, there is indeed a problem. The concern, however, is not the establishment clause. It is that coercion in matters of religion violates the right of parents to direct the education of their children. Next time, that’s where the court’s analysis should begin.

This column does not necessarily reflect the opinion of the Editorial Board or of Bloomberg LP and its owners.

Stephen L. Carter is a Bloomberg Opinion columnist. A law professor at Yale University, he is the author, most recently, of “Invisible: the story of the black lawyer who shot down America’s most powerful gangster”.

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