Larry Bushart Jr. was just freed from a Tennessee jail cell after spending more than a month behind bars — .

The high-profile arrest of the 61-year-old retiree and former cop — which made waves in free speech circles — has all the hallmarks of  in 2025: 

• A chronically online progressive turns to Facebook to troll his MAGA neighbors about President Donald Trump’s seemingly lopsided response to school shootings compared to the murder of right-wing pundit Charlie Kirk
  
• An elected, overzealous county sheriff intent on shutting him up
  
• A debate over the limits of the First Amendment — and the president’s broader efforts to silence his critics

 also calls attention to a series of recent Tennessee laws that carry harsh punishments for making school shooting threats and place police officers on campus threat assessment teams working to ferret out students with violent plans before anyone gets hurt. 

In Bushart’s case, the sheriff maintained that his post referring to the president’s reaction to a 2024 school shooting in Perry, Iowa, constituted a threat “of mass violence at a school,” apparently the local Perry County High School. The rules that ensnared Bushart have also . His is likely to be next, Bushart’s lawyer told The Washington Post.

In the news

Updates in Trump’s immigration crackdown: Federal immigration officers chased a Chicago teacher into the lobby of a private preschool Wednesday and dragged her out as parents watched her cry “tengo papeles!” or “I have papers.” The incident is perhaps the most significant immigration enforcement act in a school to date. | 

• Proposed federal rules would allow Immigration and Customs Enforcement to collect iris scans, fingerprints and other biometric data on all immigrants — including, for the first time, children under 14 years old — and store it for the duration of each individual person’s “lifecycle.” |  

• On the same day Cornell University notified an international student that his immigration status had been revoked, Google alerted him that federal authorities had subpoenaed his personal emails. Now, the institution won’t say whether federal authorities had tapped into university “emails to track [students] as well.” | 

• In California, federal immigration officers shot a U.S. citizen from behind as he warned the agents that students would soon gather in the area to catch a school bus. The government says the shots were “defensive.” | 

• ‘Deportation isn’t a costume’: A Maine middle school principal is facing pushback for a federal immigration officer Halloween costume, complete with a bulletproof vest that read “ICE.” | 

• In Chicago communities that have seen the most significant increase in immigration enforcement, school enrollment has plunged. |

• Also in Chicago, a federal judge ordered the Trump administration to hand over use-of-force records and body camera footage after trick-or-treaters were “tear-gassed on their way to celebrate Halloween.” |

A bipartisan bill seeks to bar minors from using AI chatbots as petrified parents testified their children used the tools with dire consequences — including suicide. Some warn the change could stifle the potential of chatbots for career or mental health counseling services. | 

• A Kentucky mom filed a federal lawsuit against online gaming communities Discord and Roblox alleging the companies jeopardized children’s safety in the name of profit. After her 13-year-old daughter died by suicide last year, the mom said, she found the girl had a second life online that idolized school shooters. | 
  
•  announced it will bar minors from its chatbots, acknowledging safety concerns about how “teens do, and should, interact with this new technology.” | 

A jury awarded $10 million to former Virginia teacher Abby Zwerner on Thursday, two years after she was shot by her 6-year-old student. Zwerner accused her former assistant principal of ignoring repeated warnings that the first grader had a gun. The  to nearly four years in prison for felony child neglect and federal weapons charges. | 

‘Creepy, unsettling’: This family spent a week with Grem, a stuffed animal with artificial intelligence designed to “learn” children’ s personalities and hold educational conversations. | 

A judge ordered the Trump administration to release federal funds to California school districts after it sought to revoke nearly $165 million in mental health grants as part of a broader crackdown on diversity, equity and inclusion.  The grants funded hundreds of school social workers and counselors. | 

In 95% of schools, active-shooter drills are now a routine part of campus life. Here’s how states are trying to make them less traumatic. | 

A lawsuit against a Pennsylvania school district alleges educators failed to keep students safe after a 12-year-old girl was attacked by a classmate with a metal Stanley drinking cup. | 

‘Inviting government overreach and abuse’: The Education Department was slapped with two lawsuits over new Public Service Loan Forgiveness rules that could bar student borrowers from the program who end up working for the president’s political opponents, including organizations that serve immigrant students and LGBTQ+ youth. | 

ICYMI @The74

Emotional Support

Matilda plots her escape.

“It’s not my kids that I worry about,” she said. “This is their opportunity to be a light. Their mission field is the public school.”

For many other Ohio parents, that’s a problem. 

Since he was 8, Cherie Khumprakob’s son, now 11, has been receiving written invitations from classmates to join them at LifeWise. She found one in his backpack.

“He hates getting these notes from his friends and having to tell them ‘No’ repeatedly,” said Khumprakob, who lives in the Columbus area. “Training kids to pressure their friends into religious activities while at public school, during school hours, crosses a line.”

The opposing views illustrate the tension in Ohio and other states where LifeWise is rapidly expanding. The organization expects to serve close to 100,000 kids in 34 states this school year. It has 1,600 employees and runs its own fleet of eye-catching red buses. 

Founded in 2018, LifeWise is the most visible group behind a movement to spread off-campus religious instruction during the school day. Since 2024, the nonprofit has successfully lobbied for legislation in Indiana, Iowa, Ohio, Oklahoma and Texas mandating that districts allow students to attend LifeWise or similar programs. Some say the requirements violate the separation of church and state. 

“That’s a big shift,” said Mark Chancey, a religious studies professor at Southern Methodist University in Dallas. “This whole mandatory aspect is historically something different.”&�Բ�����;

In a moment when Republicans are fighting to hang the 10 Commandments on classroom walls and squeeze biblical passages into reading lessons, LifeWise has taken these programs in a more evangelical direction. The organization faces pushback from parents and district staff who think Bible study should be relegated to afterschool hours. LifeWise programs that reward students with items like candy and encourage kids to recruit their friends have proven particularly divisive. 

But those are the strategies LifeWise recommends as a way to increase participation. “Send students back to school with ‘Invite a Friend’ flyers,” urges a on “boosting enrollment.” A says treats are “fun incentives” that are meant to foster a “positive and engaging learning environment.”

“Most students who enjoy a sport, activity or program will talk about it with their friends and encourage them to give it a try as well,” said LifeWise spokeswoman Christine Czernejewski. “Lifewise is no different.”

The 74 found examples of financial transactions between districts and LifeWise that could create the appearance of promoting the program. Especially in Ohio, LifeWise often enjoys strong support from school officials; one superintendent warned staff to avoid such activity while the district was “under the radar.”&�Բ�����;

Supporters argue that LifeWise and similar classes respect the First Amendment’s Establishment Clause because they require parent permission, don’t meet on school grounds and aren’t supposed to rely on school resources for support.

Some districts are putting “tacks on the road so the big red bus loses air in the tires” just because the program teaches the Bible, said Jeremy Dys, senior counsel with First Liberty Institute, a law firm specializing in religious freedom cases.

The 46,000-student Columbus, Ohio, district from sending kids back to school with any “materials, snacks, clothing, candies, trinkets or other items.” Then the legislature amended the law to say districts can’t prevent organizations from distributing educational materials, but have some discretion over limiting non-educational items like treats. For now, Dys, who represents LifeWise, is waiting to see whether the new restrictions interfere with the program. 

“There’s just a lot of animosity and hostility towards religion,” he said. But recent Supreme Court decisions, like one siding with a football coach who held mid-field prayers and another allowing parents to opt their children out of hearing LGBTQ-themed story books, have expanded religious influence at school. “The courts … have basically been telling school districts, ‘Cool it.’ ”

In total, 16 states require districts to allow students to participate in religious studies during school hours, but a few, like Pennsylvania and New York, have had such laws on the books for years. Some states aren’t ready to take that leap. Legislation requiring districts to release students stalled this year in , and . 

At an education subcommittee hearing in February, Georgia state Rep. David Clark, a Republican running for lieutenant governor, said the programs could solve one of the most pressing issues facing public schools — enrollment loss.

“We have thousands of students leaving public schools. It could be private school; it could be home school,” he said. “I think this … protects our public schools, because it allows parents, [if] they want the religious studies, they can sign their kid up.”&�Բ�����;

Clark alluded to data suggesting that attendance increases and behavior improves in schools with LifeWise programs. The findings, from a sponsored by , are frequently cited by LifeWise founder Joel Penton and officials who to school boards across the country. 

But some researchers say the report’s conclusions overstate the program’s benefits. Charles Riedesel, a computer scientist at the University of Nebraska-Lincoln, called the work “shoddy.” For one, it included the COVID year, a time when states changed how they tracked attendance because so many students were learning remotely.

‘Blows my mind’

Even though the legislation failed in Georgia, LifeWise still has programs in about six districts statewide, and church leaders are .

On a sunny Friday morning in October roughly an hour outside Atlanta, about 20 Cartersville Elementary fifth graders piled onto a LifeWise bus for a short drive to a local church. Ebby McCoy said she was missing a computer class, but likes how the LifeWise lessons “go a bit deeper” into the Bible than what she learns in church.

Former elementary school teacher Danielle Ruff energetically led the kids through a fast-paced lesson on the 10 plagues that the Bible says God inflicted on Egypt for keeping the Jews enslaved. As she spoke, students connected puzzle pieces linking the disasters in order — water turning to blood, frogs infesting homes and gnats “biting them like crazy,” Ruff said. 

“The next set of plagues only happen to the Egyptians. They don’t happen to the Israelites,” she said. “It blows my mind every time.”

Jason Morrow, a LifeWise board member, was among several volunteers on hand to help kids locate Bible verses. He called the program a “touchpoint during the week” that teaches his daughter, one of the fifth graders, that faith is “not just a Sunday weekend thing.”&�Բ�����;

But Clay Willis, who works at the church hosting the program, said LifeWise leaders try to respect the school’s boundaries. For one, they don’t hand out candy. 

“If we sugar them up, that’s not the best way to serve the teachers,” he said. 

‘It’s insulting’

Supporters of LifeWise and similar programs point to a 1952 Supreme Court decision, , that legalized the practice. But the fact that these programs pull kids out of school during the day offers critics their leading argument. During a meeting last fall, Amber Skinner, a board member in the Worthington, Ohio, district, near Columbus, said checking students in and out of school for their LifeWise session is disruptive and eats up staff time. 

“Teachers who are funded with taxpayer dollars” spend time providing a lot of “hands-on assistance” to elementary students who need help signing themselves out, she said. 

The classes, usually held once or twice a week, often coincide with non-core offerings like art and music. Some educators think students are losing out on important material. 

Alan Limke, a retired STEM teacher from the Milton Union district, outside Dayton, kept a list of the lessons that students missed every Tuesday when they left for LifeWise. They included simple circuits, building and launching foam rockets and 3-D modeling. Leading up to the 2024 solar eclipse, when Milton was in the path of totality, he planned a month of activities, including a visit from a mobile planetarium. 

“It’s insulting,” said Limke, who grew up Catholic, but now considers himself an atheist. “I work very hard to come up with lessons that are rigorous and fun and important.”

While LifeWise requires parent permission, specific procedures vary by district, according to Czernejewski, the organization’s spokeswoman. In Ayersville, Ohio, the district Geren’s children attend, the initial permission form remains in effect year to year unless a parent requests a withdrawal. That seems wrong to Nick Sullivan, whose oldest daughter wanted to stop attending after fifth grade. 

“You’ve got to send in a paper stating that you do not want your kid to attend LifeWise or they’re going to automatically enroll them,” Sullivan said. He thinks schools should require the permission slips annually, just like other paperwork. 

Sullivan withheld his daughter’s name to protect her privacy. Now an eighth grader, she told The 74 she found the LifeWise lessons repetitive and said the instructors “would give us a full bag of candy” for reciting Bible verses. 

“I was supposed to be in study hall and they kept on sending me whether I liked it or not,” she said.

‘Crossing the line’

Experiences like those contribute to the growing opposition to LifeWise. The , formed in 2023, keeps a lookout for incidents where they think school officials inappropriately promote the program or allow LifeWise too much access. They’ve found school officials who tout LifeWise in newsletters or post photos on social media with the group’s leaders. Other examples they’ve gathered since 2023 include:

• Continental Elementary in northwest Ohio shared a video of a LifeWise representative on its Facebook page in 2022. The woman displayed baked goods students could choose from if they attended a LifeWise fundraiser. “We have yummy brownies, cookies with M&M’s,” she said. “It’s just so beautiful.” The district did not respond to questions about the video. 

• The Culver district in Indiana, west of Fort Wayne, held a LifeWise-related assembly during school hours last year that caught the attention of attorneys at the Freedom from Religion Foundation. The organization, which advocates for church-state separation, reminded Superintendent Karen Shuman of the district’s policy stating that “no solicitation for attendance at religious instruction shall be permitted on [district] premises.”
  
  In an email to The 74, Shuman said the district is “not conducting Lifewise programs” and that she had “no idea” what the assembly was about. 

• The Supreme Court said religious instruction during the school day should be held off school grounds. The Elmwood Local Schools, south of Toledo, rents space to LifeWise near a school. Superintendent Tony Borton said the lease “has not been an issue in our community.” But last year, he warned against mentioning LifeWise during high school announcements after someone complained, according to an email the Secular Education Association obtained through a public records request. “We are crossing the line with these type things,” Borton wrote. “I am trying to reign in [sic], with the hope we can do more later when we are not under the radar.”

A 74 analysis of data from GovSpend, a company that tracks government purchases, turned up a few additional examples of expenditures that could raise questions. In 2022, Ohio’s Franklin Monroe school district paid , a basketball spinning performer, $800 for a “LifeWise assembly.” A LifeWise representative, initiated the event, according to district emails. The district did not respond to questions about it. 

Another Ohio district, River View, cut a check for $2,000 to LifeWise earlier this year. The funds came from community members donating to the organization, but were improperly routed through the district, said district Treasurer Kara Kimes.

“I’d like to get these funds cleaned up ASAP as donations that are directly for Lifewise shouldn’t be flowing through the district,” she wrote to another staff member in an email The 74 obtained through a public records request.

Czernejewski, the LifeWise spokeswoman, said the organization does not advise local school districts, but that its “role is to operate in compliance with applicable laws.” She added that she was unaware of school officials promoting the program, noting that LifeWise can submit announcements to district newsletters, just like other community organizations.

‘Develop good relationships’

Off-site religious studies during the school day date back to the early 1900s when the offered “seminary” classes to students in Granite, Utah. 

Around the same time, a Gary, Indiana, an off-site religious studies program, and the concept began to grow across the country.

One of the longest-running examples is , based in South Carolina, the first state to allow districts to award elective credit for such programs. Like the lawmaker in Georgia, Executive Director Ken Breivik said the classes allow parents who can’t afford private school “to get some sort of religious experience.” But he thinks forcing districts to release students can spark a “visceral reaction” from school leaders and prefers not to talk much about LifeWise.

“We are just a different organization. We have never done a school board presentation,” he said. He will ask districts to allow a small pilot program before spreading to multiple schools. “We work really hard to develop good relationships with the schools we serve.”

In January, Penton, LifeWise’s founder, joined a to discuss an unlikely competitor in , outside Columbus: Hellion Academy for Independent Learning, or HAIL. The Satanic Temple sponsors the program as an alternative to Christian groups meeting during the school day. The organizers’ intent, Penton said, is “to rattle people” and get districts to stop releasing students for any religious instruction.

HAIL, which focuses on secular humanism rather than Satan worship, began as parent Susannah Plumb’s response to her kids’ classmates leaving school for , a Pennsylvania program.

“It’s not in-your-face proselytization, but little kids don’t understand. They see Johnny get on the bus once a week … and go on a field trip,” Plumb said. “My kids felt left behind.”

HAIL meets at a nearby library, where the kids conduct science experiments, launch community service projects and paint “kindness stones” to place in a local park at the end of the year. But she said the program wouldn’t exist if Joy El, LifeWise and others didn’t.

“I believe in the separation of church and state, but I also believe in plurality,” she said. “When there’s one, there needs to be another.”

Shortly after starting my career as an assistant professor, my dean received a troublesome email from a former public school superintendent. The influential educational leader was demanding my dismissal. My sin — I advocated for pension reform. Fortunately, I had a dean who understood what academic freedom was, and, though I did not yet have tenure, said I was free to make arguments, conduct research, write and talk about academic issues even when those arguments challenged the dominant paradigm. 

There were no grounds for firing me simply because I believed — and could demonstrate — that the state’s teacher pension system was underfunded and unfair.

Academic freedom is granted to professors by their employers not as a matter of right, but as a good practice for facilitating the advancement of knowledge. It is necessary for the pursuit of truth. And tenure, formalized job protections for academics, can serve a valuable purpose. Yet, too many teachers and professors seem to have lost the plot. They see academic freedom as license to say whatever they like without repercussions. They fail to recognize that rights also confer responsibilities.

First and foremost, as those entrusted with educating the next generation, teachers and professors have an obligation to conduct themselves in a manner worthy of the positions they hold. They must steward the trust of parents and society by honoring the fact that education is not their private playground, but a public responsibility. Academic freedom does not mean K-12 teachers can close the classroom door and teach whatever they like.

Nor does it mean that a college professor can inject ideas into the classrooms that are not called for by the course description or syllabus. Imagine if a physics professor decided to lecture on gender ideology instead of Newton’s laws, or claimed that gravity was merely a social construct. Educators are not entitled to use required courses as platforms for whatever ideas strike their fancy. Their content must align with the approved curriculum and the professional standards of their discipline. To abuse the classroom in such ways is not an exercise of freedom, but a betrayal of a sacred trust.

Second, educators at all levels must be committed to the pursuit of truth and open dialogue. This means that both students and professors must be free to ask difficult, even unsettling, questions. In his book No Adult Left Behind: How Politics Hijacks Education Policy and Hurts Kids, political scientist Vladimir Kogan asked, “Is the loss of democratic control sometimes necessary to do what is right for kids?” In Freakonomics, Steven Levitt and Stephen Dubner famously asked whether legalized abortion contributed to the decline in crime during the 1990s. These are controversial questions — but they are legitimate. They can and should be investigated and debated. Too many educators today, however, are not interested in the pursuit of truth; they are interested in propagating only their truth. When education becomes a vehicle for ideology rather than inquiry, it ceases to be education at all.

Finally, teachers and professors have a responsibility to form the character of their students. This requires cultivating habits of intellectual humility, honesty and respect for human dignity. When educators glorify acts of violence or trivialize evil, particularly while in the classroom, they betray this calling and corrode the moral foundations upon which genuine education rests. Following the assassination of Charlie Kirk, an of and college professors reveled in his murder, making vile comments online. When rightly challenged on these disgusting statements, they used their rights as a shield. They claimed they were protected by academic freedom or the First Amendment’s free speech guarantees. And maybe they are. That may be up to the courts to decide.

Regardless, in posting such comments, they forgot their responsibilities as educators. Teachers and professors, like all citizens, have free speech — they can publish articles, write blogs or stand on a streetcorner and say what they want. But academic freedom does not entitle them to a paycheck, especially from a government institution. Nor does it entitle them to conscript students into hearing their personal views in courses those students are required to take. Educators who celebrate murder have demonstrated they do not have the moral framework for the positions they hold.

Our rights as citizens have corresponding responsibilities. We have the right to vote, so we have the responsibility to educate ourselves on the issues and candidates. We have the right to religious freedom; therefore, we must honor the freedom of others to believe or not believe differently. We have the right to free speech, so we have the responsibility to avoid deliberate falsehoods, slander or reckless speech that undermines civil discourse. This same framework extends to those entrusted with the title of teacher or professor, especially those who serve in public institutions.

Preserving the integrity of schools and universities means recovering a proper understanding of the responsibilities that come with the rights of educators. Academic freedom is indispensable, but it was never meant to be a license for recklessness, indoctrination or moral corruption. 

It is a trust extended to those tasked with forming minds and shaping citizens. When teachers and professors embrace that trust with seriousness — seeking truth, modeling virtue and respecting the boundaries of their calling — education flourishes. When they abandon it, both students and society pay the price.

The 31-year-old activist, who was shot dead last week while debating before an audience of 3,000 at a Utah college campus, had built a reputation as a provocateur. In campus debates and to millions of online followers, Kirk’s populist crusade to on hotbed issues like immigration, transgender rights and gun control made him a brash, pull-no-punches icon for many young conservatives and a villain to who sought to shut him up. 

Kirk’s killing has reignited debates around another divisive issue — one that was central to his political identity — and that experts say could now face major upheaval: campus free speech. 

First Amendment experts told The 74 Kirk being gunned down — a gruesome moment that was videotaped and — was “the ultimate form of cancel culture.” It then resulted in swift, widespread censorship and promised retribution. 

President Donald Trump, who counted Kirk as both a close friend and key political ally, said he intends to go after left-wing groups, labeling them as . Under threat by the Federal Communications Commission, indefinitely after the late night host claimed the Trump administration was “desperately trying” to characterize Kirk’s alleged killer “as anything other than one of them.”&�Բ�����;

It was teachers who were among the first to be singled out for their comments on Kirk’s death. 

In Virginia, an educator was reportedly post that said “I hope he suffered through all of it.” In Texas, for suggesting Kirk’s death was the “consequences of his actions.” In Iowa, a teacher was for posting online “1 Nazi down.” South Carolina GOP Rep. Nancy Mace called on the Education Department from any school district that refuses to fire educators who “glorify or justify political violence.”&�Բ�����;

At the same time, students face a heightened risk of backlash for engaging in fraught, hyperpartisan discourse, including for constitutionally protected free speech, said First Amendment attorney Adam Goldstein. 

“Somebody silenced Charlie Kirk and that person probably wanted less speech,” said Goldstein, the vice president of strategic initiatives at the , a nonprofit that advocates for student speech rights. “So if our reaction to that is to start silencing each other, then we’re doing the work of assassins for them.”&�Բ�����;

Authorities have Kirk for his “political expression.” Prosecutors released a series of text messages Tuesday between Robinson and his roommate and romantic partner in which the suspected killer said he had enough of Kirk’s “hatred,” and that “some hate can’t be negotiated out.”&�Բ�����;

Goldstein said censoring political dialogue — even if it’s lewd or offensive — is the wrong approach to Kirk’s slaying, which is part of a broader rise in political violence in the U.S. Such a climate, roughly two-thirds of Americans , is the result of harsh political rhetoric. In an act of political violence in June, a man impersonating a police officer her husband and their golden retriever Gilbert.

Though a complete picture of the factors that led to Kirk’s killing remains unknown, research by Goldstein’s group, known as FIRE, points to a — and an embrace of violence to cancel those they disagree with. a teenager, who was and held neo-Nazi views, shot two students at a suburban Denver high school before dying of a self-inflicted gunshot wound. 

A third of college students support violence to stop someone from speaking on campus “at least in rare cases,” according to a new FIRE survey released just a day before Kirk’s death. A quarter said they often self-censor around their peers to avoid potential backlash. 

The results showed a growing acceptance among students — including those who identify as Republicans — to shout at speakers in a bid to shut them up, to block their classmates from attending public speeches and to resort to censorship-driven violence. 

But it’s often left-wing activists who have been a key motivator for Kirk, who founded his youth-driven group in 2012. Through countless visits to college campuses, he forcefully made room for opposing viewpoints, many of them considered racist, anti-LGBTQ and misogynist.��

At the high school level, shows overwhelming support among students for free speech rights — but the situation becomes complicated with subjects they deem “offensive” or “threatening.”

While students generally have First Amendment rights at school, those freedoms end when their speech to the educational environment. Educators are held to a similar standard. First Amendment scholar Clay Calvert said endorsements of violence could cross that line. 

“People have a right to criticize his views, but that’s different than celebrating his death,” said Calvert, a senior fellow at the conservative American Enterprise Institute. “If you’re criticizing his views, as a student you’re more likely to be protected because it’s political speech. 

“If you’re celebrating his death,” Calvert said, “that’s less likely to be protected.”&�Բ�����;

Students reject ‘threatening’ speech

Kirk was perhaps best known as an online personality whose hard-right political commentary routinely drew hecklers and calls for colleges to rescind his planned visits. It’s a campus climate  

He questioned the , claimed that “Islam is,” and stated that immigrants crossing into the U.S. from the southern border were part of a to eliminate white rural Americans.

While promoting those views, and married father of two was a staunch supporter of free speech. 

“When people stop talking, that’s when you get violence,” Kirk said in uploaded to social media. “That’s when civil war happens, because you start to think the other side is so evil, and they lose their humanity.”

As Kirk tested the free speech boundaries on campuses, data suggest college students have grown increasingly hostile to their peers with opposing viewpoints, according to that’s gauged students’ support for the First Amendment since 2004. 

In 2024, 27% of survey respondents said their campuses should “protect students by prohibiting speech they may find offensive or biased,” up from 22% in 2021. Three-fifths, or 60%, of students reported a campus culture where people were prevented from sharing their beliefs because others might find their opinions offensive. That’s an increase from 54% in 2016. 

At the high school level, the Knight Foundation survey data show, the campus speech rights of people with unpopular opinions. The data have remained relatively consistent between 2004 and 2022, the most recent year in which the survey was conducted. In 2022, 89% of surveyed high schoolers said people “should be allowed to express unpopular opinions,” up from a low of 76% in 2007.

Support among high school students  fell drastically, however, for speech they deemed “offensive” or “threatening.” Among the high school respondents in 2022, 40% said people should be able to say whatever they want even if it’s offensive and 28% said threatening speech should be allowed.

Another survey of college students, , found an overwhelming majority of young people feel heard on campus. 

About three-quarters of those seeking their bachelor’s degree reported “excellent” or “good” efforts by their institutions to promote free speech, results that held consistent across the political spectrum. Students who identify as Republicans were just 1 percentage point more likely than their Democratic counterparts to report “poor” speech rights on campus. 

‘Witch hunt’

Following Kirk’s death, the Trump administration to search out, identify and harass his social media critics. Attorney General Pam Bondi vowed to “absolutely target” people who engage in “hate speech.” Such expressions are and Bondi walked back her comments after she faced criticism from observers across the political spectrum. 

In Texas, the state education department announced this week it was reviewing at least over online comments about Kirk’s assasination.  The reviews came after Texas Education Commissioner Mike Morath said the agency would and encouraged the public to file complaints. 

“While the exercise of free speech is a fundamental right we are all blessed to share, it does not give carte blanche authority to celebrate or sow violence against those that share differing beliefs and perspectives,” Morath wrote in the letter last week. 

The Texas American Federation of Teachers has condemned the investigations, which the group called a “political witch hunt.” Union President Zeph Capo said the letter amounted to “a statewide directive to hunt down and fire educators for opinions shared on their personal social media accounts.”&�Բ�����;

“It’s no surprise that, here in Texas, the purge of civil servants starts with teachers,” Capo said in a statement. “If you value your freedom, now is the time to speak up and defend the rights of all Texans to exercise their constitutional right to have an opinion on matters of civil discourse.”&�Բ�����;

Colleges have faced similar scrutiny. The American Association of University Professors, a nonprofit trade association for college educators, said it was alarmed by “the rash of recent administrative actions to discipline faculty, staff and student speech.” In Trump’s second term, higher education —  and — has been among the president’s top targets. 

“At a moment when higher education is threatened by forces that seek to destroy it and its role in a democratic society,” the group said in a statement, “the anticipatory obedience shown by this rush to judgment must be avoided.”&�Բ�����;

In , Calvert of the University of Florida notes that the First Amendment protects educators against censorship by their public school employers — “but those rights are not absolute.” At play is an educator’s interest in speaking as a private citizen versus school leaders’ “interest in an efficient, disruption-free workplace.”&�Բ�����;

If a teacher revels in Kirk’s death on social media, he told The 74, “that’s clearly going to disrupt that educational environment and interfere with it.”&�Բ�����;

“In this case, it’s a public school trying to teach students effectively and you can imagine if you were a Kirk supporter, you’d say, ‘I can’t take this class from this professor or this teacher, he or she has posted online celebrating Charlie Kirk’s death,’” Calvert said.  

Goldstein of FIRE challenged Bondi’s early assertions that hate speech was criminal, noting the concept is “something we made up to describe a bunch of words we don’t like,” but lacks a legal definition. While he’s seen gleeful online commentary about Kirk’s killing, he said he hasn’t come across any that breach the free-speech threshold of being or  

“Much of what I’ve seen I would characterize as unkind, mocking, maybe uncharitable in the moment,” he said, but not calls for violence “that are likely to be received by an audience willing to do it.” In fact, he said the First Amendment was specifically designed to protect the rights of citizens to hold unpopular beliefs. 

“As far as I know, no one in history has ever tried to stop you from talking about how much you like puppies because everybody likes puppies and there’s no reason to censor that,” Goldstein said. “Speech that we hate is precisely the kind of thing the First Amendment is concerned with protecting.”&�Բ�����;

Yet, with the government’s endorsement of censorship in the wake of Kirk’s death comes a tinge of irony. Prior to being killed reportedly for his beliefs, Kirk held an absolutist position on the First Amendment. 

“Hate speech does not exist legally in America,” “There’s ugly speech. There’s gross speech. There’s evil speech.

And ALL of it is protected by the First Amendment.

Keep America free.”&�Բ�����;

“This is actually printed by the official printer of Congress,” said Barton, a best-selling author and . Barton has spent the last 40 years arguing that the separation of church and state is a myth — and has built a multimillion-dollar media and lobbying operation to influence public opinion and shape laws around the belief that the United States was founded as .��

At in April, Barton appeared before the Texas House education committee and testified in favor of legislation, since signed into law, requiring that posters of the Ten Commandments be placed inside every classroom in the state’s nearly 9,100 public schools by September. With him, Barton brought a small collection of books he claims were foundational to the country’s public education system until the 20th Century.

Barton isn’t just a primary pitchman for the Ten Commandments law in Texas, his home state, an investigation by The 74 reveals. His fingerprints appear on 28 bills that have cropped up before the legislatures in 18 states this year. A data analysis of the bills exposes how their language, structure and requirements are inherently identical. In dozens of instances, they match model legislation pitched by Barton verbatim. 

At the Texas hearing, Barton’s eyes fixated on the cover of the rare 1782 Aitken Bible. 

“It also says it’s ‘a neat Edition of the Holy Scriptures for the use of schools,’” he continued. “It has the Ten Commandments.” 

In actuality, Barton lifted language calling on Congress to sanction a Bible that could also be for Christian nationalists have for years  the Revolutionary-era printing includes a government promotion of Christianity. Barton has long been accused of , and in 2012, the Christian publisher of his bestselling book on Thomas Jefferson because “basic truths just were not there.”

Texas is one of three states in the last two years to pass a law requiring that the Ten Commandments be posted in public schools. The mandates are part of a coordinated nationwide effort to overturn forbidding Kentucky from requiring Ten Commandments displays in classrooms. 

As the influence of Barton and the burgeoning Christian nationalist movement find favor in state legislatures, and with — who cites Barton as a “profound influence” — the lobbyists and lawmakers behind the state Ten Commandments bills told The 74 they’re confident the current Supreme Court’s conservative super-majority is on their side, too.

The analysis by The 74 reveals how language in virtually every state bill matches model legislation created by Project Blitz, a Barton-steered Christian “bill mill” that’s long  with legislative templates that promote Christianity in public schools, and restrict abortion. 

A dozen bills specify, for example, that the Ten Commandments displays must be hung in a “conspicuous” location. Another 11 specify they should be at least 11-by-14 inches in size. Nearly all of the bills — 25 — mandate a Christian version of the religious and ethical directives be displayed as a “poster or framed.” The 74 tallied 96 instances where bills introduced this year match Project Blitz’s model legislation, including template bills to require the or the phrase in public schools.

Among the architects of Project Blitz is the Barton-founded influence machine, The flurry of state bills were introduced after WallBuilders — the name is an Old Testament reference to —  convened its annual national conference of state legislators in November where the model legislation was promoted.  

After Louisiana passed its first-in-the-nation Ten Commandments law last year, new mandates approved in Arkansas and Texas this year follow the same Project Blitz template.

‘No such thing as separation of God and government’

Texas state Sen. Mayes Middleton is the joint author of  the state’s new Ten Commandments law and the author of another new law permitting a in public schools statewide. Republican Gov. Greg Abbott signed both in June. 

Middleton, whose district southeast of Houston includes his hometown of Galveston, acknowledged Barton’s influence over not just his own legislative agenda, but Texas’ broader conservative movement. Barton previously served as vice chair of the state Republican Party. 

“Of course, WallBuilders is very supportive of the bill,” Middleton told The 74, as were the conservative legal groups and the . “And, of course, all of their missions is to advance religious liberties, especially in the public realm where there is no such thing as separation of God and government.”&�Բ�����;

Founded by Barton in 1988, WallBuilders promotes theories — — about Christianity’s central role in the formation of the United States through its podcasts, books and a museum with “one of the largest private collections of United States historical documents.”&�Բ�����;

Through WallBuilders’ lobbying arm, the Pro-Family Legislative Network, Barton leads and at its annual conferences at a four-star waterfront resort in suburban Dallas. It was at this gathering where Indiana Rep. J.D. Prescott, a Republican, got the idea for Ten Commandments legislation in his state, he told The 74. 

Prescott   requiring a “durable poster or framed picture” of the commandments in each library and classroom at all public schools statewide. The legislation ultimately failed to garner support. Bills in other states also failed to gain traction, including in South Dakota where the bill’s critics — including some Republicans — said a government mandate was the wrong way to spread Christianity and ran afoul of the Constitution. 

“Our early common school system was really designed to teach biblical principles in the Bible, so it’s just getting back to that point,” said Prescott, who described himself as a “student of history.”&�Բ�����; 

The Pro-Family Legislative conference offers lawmakers scholarships and discounted hotel rates to attend the event. In at least one instance,   filed a disclosure form reporting that he had received $859.47 from the Pro-Family Legislative Network, including $500 reimbursing him for air fare, to attend the November 2024 conference. 

Prescott told The 74,  “I learned a lot of it at a WallBuilders conference hosted by David Barton. They’ve got a great conference for legislators down in Texas every November. I did look at the WallBuilders model legislation and it’s a good place to start.”&�Բ�����;

Not everyone’s Ten Commandments

Experts said the bills seek to do more than require “durable” Ten Commandments posters in every public school classroom. The campaign is part of a broader, well-organized and deep-pocketed assault, they argue, on the separation of church and state.

Although WallBuilders isn’t required to disclose its donors, the nonprofit Center for Media and Democracy analyzed federal tax filings with the Internal Revenue Service to . In 2021, WallBuilders reported $5.9 million in revenue and $6.3 million in total assets. 

The group relies heavily on , a tax loophole that allows anonymous supporters to contribute to contentious causes without scrutiny.  For example, donor-advised funds have been exploited by far-right activists to of women and the LGBTQ+ community, according to a 2023 investigation by openDemocracy.

Mercury One, a nonprofit founded by high-profile conservative pundit and media personality Glenn Beck, is both and primary sponsor of Barton’s annual Pro-Family Legislative Conference to brief elected officials “on pressing issues from a constitutional perspective.”&�Բ�����;

Barton, who didn’t respond to multiple requests for comment, describes himself as a self-taught historian and the owner of the largest private collection of historical documents about the Founding Fathers. His critics pan the graduate of the Oral Roberts University as a discredited pseudohistorian and propagandist. 

Barton is “the granddaddy of Christian nationalist disinformation,” constitutional attorney Andrew Seidel, who serves as vice president of strategic communications at Americans United for Separation of Church and State, told The 74.

John Fea, an American history professor and history department chair at Messiah University, a private evangelical Christian institution in Pennsylvania, accused Barton of cherry-picking historical information to present a misleading portrayal of the past, one that bolsters his own present-day political agenda. 

“This is clearly an attempt by Christian nationalists to try to advance their own version of what America should be,” Fea said, noting that even as historians challenge Barton, he’s amassed influence among Republican lawmakers interested in leveraging a distorted accounting of history for political gain. 

“Barton provides that history for these lawmakers. It adds a certain depth, even though it’s hollow.”

Darcy Hirsh, the senior director of government relations and advocacy at the nonprofit National Council for Jewish Women, said the Ten Commandments laws present an attack on “the strict wall of separation” between church and state. 

“Any efforts to perpetuate the falsehood that the United States is a Christian nation is something that we find deeply alarming,” Hirsh said. Requiring a protestant Christian version of the Ten Commandments in schools, she said, is “exclusionary and coercive” to children from diverse backgrounds. 
“A Protestant interpretation of the Ten Commandments is different than the Jewish interpretation of the Ten Commandments, in fact, they are numbered differently,” she said. Constitutional protections separating church and state, she said, are critical to the country’s democratic society.

“It’s that protection that has really allowed the Jewish community and other minority faith communities to flourish in the U.S.”

The laws successfully passed in Louisiana, Arkansas and Texas now face lawsuits from parents alleging they violate the separation of church and state. The issue could soon appear again before the nation’s highest court. In June, the Fifth Circuit Court of Appeals in New Orleans, among the nation’s most conservative, struck down Louisiana’s Ten Commandments display mandate, finding it “plainly unconstitutional.”&�Բ�����;

Parents with diverse religious identities are being backed by the American Civil Liberties Union and Americans United for Separation of Church and State in challenging the laws. In a complaint filed in Arkansas, parents allege students will be “unconstitutionally coerced into religious observance” and “pressured to suppress their personal religious beliefs.”

Fea, the evangelical historian, told The 74 the far-right campaign isn’t about the Ten Commandments’ place in the nation’s founding but about advancing the influence of Christianity in society. 

“They’re using this historical argument to disguise the fact that they believe that somehow — and I don’t know how this happens, by osmosis or whatever — a student sitting in a classroom where the Ten Commandments is displayed will somehow buy into those ideals and values and become more Christian,” he said. 

‘The hostility is gone’

At the Texas House education committee hearing in April, Barton held up a second book. This one was much smaller than the first, but just as old and, Barton testified, just as significant.

Barton lectured the Republican-controlled state legislature on The New England Primer, a widely used . The book, he said, drilled first graders with 43 questions about the Ten Commandments. 

Then he introduced a third book, and a fourth. 

“The courts have pointed to the Ten Commandments as the reason we have all types of laws,” Barton testified. “So there’s a lot of history and tradition for that document that’s not there for other documents.”&�Բ�����;

Barton’s prop-focused presentation isn’t just scripted — it’s well rehearsed. This year, the 71-year-old has traveled across the country with his books and a small team of collaborators to spread the gospel of Christian nationalism. Like the bills before the state legislatures, Barton’s speech was replicated again and again. 

As Barton testified on the Ten Commandment bills nationally, legislative sponsors routinely parroted his talking points, not just about Christianity’s role in the country’s origin, but the Supreme Court’s support for their movement.

During his recent appearances in Nebraska and other states, Barton’s testimonies invoked the court’s 2022 opinion upholding the rights of a Washington state high school football coach to lead prayers with his team on the 50-yard line after games. 

Prescott, the Indiana lawmaker, said he became interested in introducing his bill after learning of the implications of the coach’s Supreme Court victory. 

To Barton and other members of his coalition, the court’s opinion in creates a clear path to require Ten Commandments in schools — and inject Christianity into other facets of public life — by proving they’re part of a longstanding traditional practice. 

In finding for Coach Kennedy, the Supreme Court its 1971 opinion ruling that religious displays don’t violate the Constitution if they have significant secular or nonreligious purposes. The court’s new standard revolves around whether the religious displays are part of historical practices. In other words, the heart of Barton’s pitch. 

“That is the new standard, so the hostility is gone,” he . “Showing that this is something that is longstanding practice, you go back to The New England Primer.”&�Բ�����;

Bought and paid for — according to specs

Even as bill proponents championed states’ rights as one legal justification for their Ten Commandments display mandates, Middleton, the Texas legislative leader,  said there is a key benefit to the near-identical requirements in the bills across the 18 states. 

“We just wanted uniformity in these displays. We thought that was important,” the oil company president and cattle rancher told The 74. “Obviously, these are primarily going to be donated as well, so it’s probably going to be primarily private funds funding these.”

Project Blitz model legislation devises a funding scheme that revolves around donated displays without the reliance on public funds — a provision that appears in 16 states’ bills. Others invoke the model legislation by encouraging donated displays, but broaden the mandate so schools are also free to spend taxpayer dollars to comply.

Mirroring the Project Blitz model legislation, the new Arkansas law requires the Ten Commandments display be composed of a “durable poster or framed copy” of the document and that it be “prominently” positioned in each public classroom and library across the state. The law also stipulates that the posters should be donated by outside groups, meaning the same private entities who had a hand in crafting the specifications, supporting the bills and getting them on legislators’ radars, will also be the ones buying the versions of the Ten Commandments that wind up in schools.

Even as the Louisiana law is caught up in federal court, religious groups who lobbied for the law’s passage and have close ties to the WallBuilders have plans to donate the displays set to appear in classrooms across the state. 

In April, First Liberty Institute and The Louisiana Family Forum announced that Patriot Mobile, which describes itself as “America’s ONLY Christian conservative wireless provider,” had donated 3,000 Ten Commandments displays “as part of a project to provide, at no cost to the Louisiana taxpayer, displays in schools throughout Louisiana.”

The two new Texas laws are part of a broader push this year as Republican lawmakers in pursue bills that bolster the presence of religion in public schools — legislation critics contend violates the Constitution. The Establishment Clause of the First Amendment states “Congress shall make no law respecting an establishment of religion,” or favor one over another. Proponents of the policies in Texas and other conservative states have framed the laws as a matter of religious freedom and believe the Supreme Court is on their side. 

On the same day Abbott took those steps to legislate religion in public schools, a federal appeals court in New Orleans found a similar law requiring Ten Commandments displays in Louisiana classrooms was unconstitutional.

In Texas, and throughout the South in particular, the new laws have garnered overwhelming support from the public, the shows. While 52% of adults nationally said they favor allowing teachers to lead prayers that refer to Jesus, 81% felt that way in Mississippi and 61% did in Texas. In the Lone Star State, 38% of adults opposed having teachers lead Christian prayer. 

The latest results are “a lot higher than what we’re used to seeing” among Americans who “want to see the end of church-state separation or public displays [of the Ten Commandments],” Chip Rotolo, a research associate at Pew focused on religion, told The 74. 

Views on Christian prayers in public school, by state

% who say they oppose/favor allowing public school teachers to lead their classes in prayers that refer to Jesus

Note: The blue and orange bars show the confidence intervals around each estimate at a 95% confidence level. In the 16 states with unbolded names, the shares saying they favor and saying they oppose Christian prayers in public schools are not significantly different.
Source: Religious Landscape Study of U.S. adults conducted July 17, 2023-March 4, 2024

Jonathan Covey, the policy director at the nonprofit lobbying group Texas Values, told The 74 he wasn’t surprised by the survey results as people turn to religion as an “opportunity for moral clarity” and to find “comfort and encouragement in difficult times.”&�Բ�����;

“The country wanting to see the involvement of religion in civic society, that has been a good thing, and we’ve seen that the Supreme Court has said that the Establishment Clause doesn’t demand a strict government neutrality towards religion,” Covey said. “Actually to the contrary, it’s always been understood that religion has a place in American civic society.”

Texas Values lobbied the state legislature to get the new laws across the finish line. One requires a 16-by-20-inch poster of the Ten Commandments be displayed in every public school classroom statewide. The second allows public schools to provide students and educators time during the school day to pray or read the Bible or other religious texts.  

Jonathan Saenz, the group’s president, called the new Ten Commandments requirement “a Texas-sized blessing,” noting in a statement that it “stands shoulder to shoulder with partner organizations” and is prepared to fight “against any court challenges brought against it.”&�Բ�����; 

Americans United for Separation of Church and State, a nonprofit that opposes government policies intertwined with religion, over the Texas law requiring the Ten Commandments be displayed in classrooms. The group has against a similar Arkansas requirement signed into law in April. In that lawsuit, seven Arkansas families with children in public schools — and who identify as Jewish, Unitarian Universalist, Humanist, agnostic, atheist and nonreligious — allege the law imposes one religious perspective on all students. 

Meanwhile, a three-judge panel of the Fifth Circuit Court of Appeals, considered among the nation’s most conservative, issued blocking Louisiana’s Ten Commandments law. The judges found the requirement to install a Protestant version of the commandments violated the Establishment Clause. 

Constitutional attorney Andrew Seidel, who serves as vice president of strategic communications at Americans United for Separation of Church and State, said the Fifth Circuit’s ruling made clear that “the separation of church and state is the best protection for religious freedom that we have.”

“These Ten Commandments displays are meant to tell the viewer — the captive kindergartener or third grader or seventh grader — which God is approved by the government, which God to pray to, which religion is correct,” Seidel told The 74. “That is inappropriate for a public school classroom, as inappropriate as it is clear that that tells the Buddhist students that they’re wrong, the Muslim kid that their religion is false, the Hindu child that their gods are fallacious, and the non-religious and atheist and agnostic kids are told by the state they’re misguided.”&�Բ�����;

Religion is partisan

Results from the Pew study reflect a political split on support for the separation of church and state. Opposition to teacher-led prayer at school was strongest in Democratic strongholds like Massachusetts and California and highest in Washington, D.C., at 69%. Across 22 states, majorities of adults supported school prayers led by teachers. Opponents were in the majority in 12 states and the District of Columbia, and in 16 states, the share of respondents who supported school prayer was not statistically different from those in opposition. The nationally representative survey of nearly 37,000 U.S. adults, taken between July 2023 and March 2024, has a margin of error of plus or minus 0.8 percentage points. 

Rotolo, the Pew research associate, said he found the regional patterns particularly interesting. While support was strongest in the South, “you see right down the whole West Coast, most people oppose seeing Christian prayer in school.”

Pew , when 46% of adults said teachers should not be allowed to lead students in any kinds of prayers, a practice that saw support at the time from just 30% of respondents. However, 23% said they had no opinion on the issue. The latest survey didn’t give respondents an opportunity to choose “neither.”&�Բ�����;

“Just by posing the question differently, we actually see some different results,” Rotolo said, acknowledging that the change could also reflect a shift in public opinion over the last four years. It’s also possible that some respondents who said they support school prayer in the recent survey “may not have particularly strong opinions about this” and may have chosen “neither” if given the option. 

Rotolo said the favorability of teacher-led prayer in public schools was dominant among Republicans, at 70%.  Just 34% of Democrats were in support. Older Americans were also significantly more likely to allow educator-led prayers in schools than recent high school students. 

Support also varied drastically between racial groups. Among Black respondents, 67% supported teacher-led prayer compared to 50% of white adults. Just 36% of Asian Americans were in favor. 

Seidel, of Americans United for Separation of Church and State, said he wasn’t particularly surprised to see the Pew survey results, in part because it reflects a “coordinated assault on the separation of church and state right now” amid attempts by lawmakers across the country “to promote Christian nationalism.”&�Բ�����;

“Those folks in the minority, whether it be religion or nonreligious, are the biggest supporters of separation of church and state because they know what it is to have a government impose their religion on them,” Seidel said.

Meanwhile in 2023, in the nation to allow school districts to hire religiously affiliated chaplains to provide counseling services to students. As of April, has hired a full-time religious chaplain while more than two dozen others have opted out of the measure. In 2021, Texas lawmakers required schools to display any “In God We Trust” signs donated to them by private organizations, and in 2024, the State Board of Education that relies heavily on biblical teachings. 

The efforts to bolster religion in schools, including in Texas and Louisiana, could again appear before the Supreme Court, which has a 6-3 conservative majority. In 1980, the high court be displayed in classrooms, finding the displays served no secular purpose and ran afoul of the First Amendment. 

This time, Republican lawmakers are banking on a more favorable court makeup. In 2022, the Supreme Court found the First Amendment protected a Washington high school football on the field after games. Last month, an evenly divided Supreme Court blocked the opening of a religious charter school in Oklahoma, which would have been the nation’s first. If Justice Amy Coney Barrett had not recused herself in that case, some believe there would have been a majority permitting the school.

Covey, of the nonprofit Texas Values, said recent Supreme Court opinions have begun to abandon the 1980 opinion against the Ten Commandments displays in Kentucky schools. The court’s opinion upholding the Washington football coach’s right to pray on the field, he said, was “the nail in the coffin.”&�Բ�����;

In 2023, Oklahoma’s Statewide Virtual Charter School Board approved St. Isidore of Seville Catholic Virtual School, an action that would make it the nation’s first-ever religious charter school. It would be governed by Catholic religious doctrine in its syllabus, operations and employment practices. It would use taxpayer dollars to pay for religious instruction. And it could turn away students and staff if their faith or identity conflict with Catholic beliefs. 

Here’s the issue: Charter schools were created to be public schools. They are open to all students, from every background, tradition and faith community. They are publicly funded and tuition-free. And they are secular. 

That’s not an arbitrary distinction – it’s a constitutional one, grounded in the law and embedded in charter schools’ very design. The First Amendment’s Establishment Clause bars the government from promoting or endorsing any religion through public spaces or institutions. This foundational rule has ensured that students of all backgrounds can access public schools. It does not stifle religious expression — the Constitution fully protects this freedom, and religious education is available in other venues. Personally, I was, in fact, educated at Jesuit Catholic schools for my entire academic career. 

Parochial education has long been an accepted and important part of the education ecosystem, serving a variety of students and often filling an important need. Religiously affiliated schools have a long history of educating and caring for children who are new to this country and underserved, and supporting families who are overlooked. But promoting the exclusive teachings of a specific religion with public funds in a public school violates a clear constitutional principle. 

The issue isn’t only a legal matter; it’s about the character of public education itself. Muddying the boundary between public and religious institutions would undercut a fundamental commitment made by the nation’s public charter schools: that they are accessible to every student. It would undermine legal protections that keep public services available to the public. 

Rather than creating more opportunities for America’s students, it would constrict opportunities for a high-quality education, especially in states that are hostile toward charters or alternative public school models. Legislative bodies could seek to eliminate funding for all unique school types if the court decision forced them to fund religious schools operating with public dollars. This would curtail or dismantle strong independent schools, 30-year-old public charter schools and schools with unique programs designed for special populations.

As executive director of the DC Charter School Alliance, and a long-time public charter school advocate, I’ve seen the importance of public charter schools firsthand. Here in the District of Columbia, charter schools serve nearly half of the public school students in the city. Outstanding educators from all walks of life teach a wide range of subjects with enthusiasm and expertise to prepare young people for success. Our students bring to the classroom an incredible range of experiences, including faith traditions. And every student, family and faculty member is welcome. D.C.’s charter schools reflect a core American value: the promise of a high-quality public education for all. 

The justices of the Supreme Court face a clear and critical choice: They can bolster that promise, or they can tear it down. If the court allows a religious school to operate with public funds, there is no doubt that it will open the floodgates to other proposals across the country. Taxpayers could be forced to foot the bill for countless new and converted schools, draining resources from an already financially strapped education system. True public charter schools — the ones committed to high standards, positive results and opportunity for all — could bear the cost. And the students who rely on them could suffer. 

Public education is one of America’s most vital institutions. It offers all children, no matter their background or beliefs, access to free, high-quality learning. Charter schools play an essential role in making that promise real. But allowing a religious school to operate with public funds turns public education into something much more restrictive, dismantling its very foundation.

The court must reaffirm this indisputable truth: Public schools should remain public — and open to all. 

The last two weeks of April featured a rare doubleheader at the Supreme Court, as the justices took up two cases dealing with the intersection of religious liberty and public education. In both instances, plausible outcomes could thrust the courts ever deeper into the daily operation of U.S. schools, with attendant line-drawing, hair-splitting and interference likely for decades to come.

But the court has a way out of that thicket that would respect the secular nature of public schooling while guaranteeing parents their right of free expression. And that is to declare that states must find a way to provide taxpayer support for a pluralistic education system, one that funds religious schools in addition to the public schools — though not necessarily through the charter school mechanism.

This approach might sound like judicial overreach, but it is much preferable to the road we are otherwise heading down — one that will bring endless lawsuits about the rules surrounding charter schools, as well as litigation to determine when and how religious parents can opt their children out of lessons and programs that public schools mandate but that parents find objectionable. The latter issue was  at play in last week’s case, . The particular question was whether the school district in Montgomery County, Maryland, violated parents’ First Amendment rights by not letting them opt their children out of early elementary lessons on LGBTQ-themed storybooks — books that clearly carry messages at odds with their religious views.

That question is easy, though, compared to others that might follow, as Justice Ketanji Brown Jackson . For example, do parents of faith have the right to insist that their children not be assigned to gay teachers? To pull their high school students out of biology classes that discuss human evolution? Is it feasible, much less educationally advisable, to turn public schools into an a la carte experience?

Imagine that last week’s case had been about Montgomery County, Ohio, instead of Montgomery County, Maryland. There, religious parents have the ability to send their children to private schools — including religious schools — at , thanks to Ohio’s multi-faceted school-choice options. That’s not the case in Montgomery County, Maryland, where district schools are the only taxpayer-funded options. (Someone might inform , who asserted that religious parents could always opt for religious private schools instead of public ones, without acknowledging the burden of paying for tuition.)

For states with private school choice programs, the courts could show more deference to public school districts, knowing that religious parents have the option of exiting those schools entirely, rather than on a lesson-by-lesson basis. And to do so with the support of government funding.

Such an approach would also be helpful when it comes to the issue at play in the other half of the double-header, Wednesday’s St. Isidore of Seville v. Drummond. Here, the question is whether the state of Oklahoma, and the with charter school laws, discriminate against nonprofit religious organizations by prohibiting them from applying to create and run public charter schools aligned with their faiths.

This case hinges on whether charter schools are “state actors,” i.e., public schools. If so, they clearly trigger the First Amendment’s Establishment Clause and cannot be religious. The contrary view is that charter schools should be considered private, in which case Oklahoma is indeed guilty of “rank discrimination,” as Justice Brett Kavanaugh put it, by not allowing religious entities to win contracts to run faith-based schools — in the same way that it would be unfair to disallow Catholic Charities from managing government-funded food banks or foster care services.

That may be so. Yet for the court to mandate that states support religious charter schools against their will would be to create massive upheaval in the charter sector. After all, federal and state law and practice for 30 years have rested on the assertion that charter schools are, in fact, public schools, and therefore state actors. For example, they must accept all applicants and, if oversubscribed, use lotteries, not selective admissions, to determine who will attend.  Could states require religious charter schools to abide by these same rules? Meaning that, for example, they would have to admit students and families who don’t adhere to their faith? What about LGBTQ children or families? (St. Isidore claims it will accept everyone.) What’s more, a determination that charter schools are private may mean — especially in blue states — that they’ll no longer be eligible for state formula funding, .

But here, too, the court could take a wider view. It could rule that so long as states provide some vehicle to support religious education, they would not be required to do so through the charter school mechanism specifically. In the case of Saint Isidore, it could simply participate in Oklahoma’s existing . Indeed, Jackson wondered aloud about Oklahoma’s voucher program — perhaps an indication that she’s already seeing the big picture.

Mandating that states provide public support for religious schools might sound like a long shot. No doubt it would lead to massive bellyaching in blue states and from the usual suspects in teachers unions and the rest of the education blob. But beyond being a grand slam for kids and families, it might be the best way to avoid constant judicial micromanagement of the public schools for decades to come.

Oklahoma’s high court ruled last year that a Catholic charter school — the first of its kind in the nation — violates state and federal law. Initially, Roberts appeared to agree that the stakes seemed greater than those in earlier cases about religious schools taken up by the court.

“This does strike me as a much more comprehensive involvement,” Roberts said. 

But later in the arguments, Roberts indicated that there may be less daylight between those earlier cases and the matter of the Oklahoma school. In one, a religious school wanted to participate in a state program that provided . Another focused on whether a Christian school could serve students who received .

Roberts asked Gregory Garre, a former U.S. solicitor general considered to be one of his if the test in this case was whether the St. Isidore of Seville Catholic Virtual School was “a creation and creature of the state.” Garre argued the case for Oklahoma Attorney General Gentner Drummond, a Republican who sued the school and the charter board.

“All of those” parties in the previous cases were state actors, Roberts said, “and we held that under the First Amendment, you couldn’t exclude people because of their religious belief.”

With Justice Amy Coney Barrett’s recusal, the four remaining conservative — and — justices were sympathetic to the school’s petition. Justice Brett Kavanaugh questioned how the state could prevent St. Isidore from opening a charter without running afoul of constitutional protections against religious exclusion. 

“All the religious school is saying is ‘Don’t exclude us on account of our religion,’ ” he told Garrre. “When you have a program that’s open to all comers except religion …that seems like rank discrimination.”

The debate over religious charter schools has captivated — and divided — school choice and religious advocates nationwide since early 2023, when Catholic church leaders in Oklahoma City and Tulsa first asked the state to grant a charter to St. Isidore. The case has rocked the charter sector at a time when many Christian conservatives, emboldened by President Donald Trump’s election, have pushed to infuse more biblical teaching into public classrooms. 

‘One particular faith’

The scene outside the court, where supporters and opponents alike gathered on the plaza, demonstrated the high stakes surrounding the case.

“Faith flourishes best when it is supported voluntarily,” said Rev. Paul Brandeis Raushenbush, president and CEO of Interfaith Alliance and the great grandson of Justice Louis D. Brandeis. “Will our government endorse one particular faith with taxpayer dollars? We believe the answer must be no.”

Nearby, a black-robed choir from a Virginia Christian school sang hymns and EdChoice, an advocacy organization, organized a rally in support of St. Isidore.

Nicole Stelle Garnett, the Notre Dame law professor who the legal argument that inspired the school’s application, took photos with her students and prayed with them before entering the court. Walking through the door, she said, brought back memories of her year as a clerk for Justice Clarence Thomas. 

That’s when she became friends with Barrett — the reason, many believe, the justice recused herself. The two taught at Notre Dame, were neighbors in South Bend, Indiana, and their children grew up together. Following the arguments, she said she was still processing the debate. But she later issued a statement saying that the court made “abundantly clear that Oklahoma cannot discriminate against religious organizations in a program that supports privately operated schools.”

As Roberts noted, the court’s previous cases on public funds for religious education focused on whether states must include faith-based schools in voucher-like programs. But in the Oklahoma case, leaders chose to directly fund a school that teaches Catholicism — a leap, many argue, that would violate the First Amendment’s Establishment Clause and clearly entangle government with religion. 

“These are state-run institutions,” said Justice Elena Kagan, one of court’s three liberals. “They give the charter schools a good deal of curricular flexibility, because that’s thought to be a good educational thing. But with respect to a whole variety of things, the state is running these schools and insisting upon certain requirements.”

Oklahoma attorney general , backed by , made the same argument last year to the state supreme court, parting ways with most of his conservative state’s political leaders, who support the school’s application. They include Gov. Kevin Stitt, who attended the oral arguments, and state Superintendent Ryan Walters.

Justice Ketanji Brown Jackson drew a line between the Oklahoma school and the previous cases in which religious groups sought inclusion in a state program, such as one that provided access to playground surfacing materials. In this case, she said, the religious school seeks to be exempted from state charter law, which requires schools to be non-sectarian.

“As I see it, it’s not being denied a benefit that everyone else gets,” she said. “It’s being denied a benefit that no one else gets, which is the ability to create a religious public school.”

‘Boomerang effect’

Some of the opposition to religious charters comes from unexpected quarters. The libertarian Cato Institute’s Neal McCluskey, for example, is a staunch supporter of private school choice. But he  that allowing explicit religious teaching in charter schools would “dangerously entangle the state with religion.”

If Roberts sides with Drummond, the 4-4 decision would allow state supreme court decision to stand. But if the court returns a 5-3 ruling, states that want to avoid religious charter schools could require most board members to be public officials, McCluskey said.

As Justice Neil Gorsuch suggested, proponents of religious charter schools may end up with more state control than they want. 

“Have you thought about that boomerang effect for charter schools?” he asked.

A ruling in favor of St. Isidore would “cause uncertainty, confusion and disruption for potentially millions of schoolchildren and families across the country,” Garre told the court. 

But the extent of that impact could vary by state. 

In Virginia, for example, school districts authorize and have tighter control over charter schools, which makes them more like state actors, said Carol Corbet Burris, executive director of the Network for Public Education and a frequent critic of charter schools. 

In Ohio, by contrast, nonprofits are among the organizations that can , and for-profit companies are involved in running over half of them. 

“For years, charters have benefited from being in a nebulous space between public and private,” Burris said. She notes that charter schools, for example, received paycheck protection program loans during the pandemic, but public schools didn’t. “They claim public when it is in their interest, private when it is not. There is a reason that this is the case that the charter world dreaded.”&�Բ�����;

But Starlee Coleman, president and CEO of the National Alliance for Public Charter Schools, is less concerned about such “ivory tower” questions. She’s worried about whether the nation’s nearly 8,000 charter schools will be able to pay their bills. St. Isidore of Seville Catholic Virtual School, backed by the , argues that it’s essentially a private organization. If the court agrees, it could disrupt funding to charter schools across the country. 

“Every single state constitution in this country requires per-pupil funding to be spent only on public schools,” Coleman said. The argument that charter schools are private, she said, could “turn off the money that they want.”

In recent months, the Alliance has been bracing for a decision that could throw the charter sector into what Coleman called “operational uncertainty.” If the court declares that charters are not “state actors,” she said, federal and state funding for the schools, which serve nearly 4 million students, could be in jeopardy. Red states looking to expand school choice may be eager to sort out the legislative challenges and potential lawsuits that follow. But blue states, where leaders already want to , might be more reluctant. 

“I live in Texas. We’ll figure it out,” she said. But if states like New York, California and Massachusetts stop funding students at charter schools, Coleman asked, “Where do those kids go?”

In Colorado, state funding covers 98% of costs for the roughly 1,000 students who attend Loveland Classical Schools, said Executive Director Ian Stout. Without that funding, the two sites would likely have to close. If he had to charge tuition, most families, Stout said, couldn’t afford it. 

The of another scenario: If the court rules charters are private, school districts could just absorb existing charter schools to keep them public, or at least add more government oversight. But that would mean the loss of flexibility that has defined the sector since charter schools began in 1991.

“As public charter schools, we knowingly embrace that grand bargain —  public funds and local autonomy for accountability,” Stout said. Giving that up, he said, “would be counterproductive to the original intent of school choice.”

It’s already challenging to run charters in a progressive states like California, where the politically powerful blames charters for enrollment loss in district schools, said Rich Harrison, CEO of Lighthouse Community Public Schools. The network of four schools serves low-income minority students in East Oakland. If St. Isidore wins, he wonders if the public view of charters overall would suffer. 

“Operators like us, who are trying to do really important work in urban blue states, are going to be faced with much more scrutiny,” Harrison said. “We’re going to be lumped into this agenda on the right, which isn’t helpful at all for the communities we serve.”

‘Against their wishes’

Derek Black, a constitutional law professor at the University of South Carolina, agrees the financial fallout from a decision in favor of St. Isidore could be great. But instead of states abandoning charter schools, he’s concerned the court could force “states to fund [religious] schools against their wishes.”

He argues that because charters are “state actors,” one with an explicitly religious mission would violate the First Amendment’s Establishment Clause. 

Even if the decision falls in their favor, St. Isidore’s leaders have already decided . A late-June ruling, they said, wouldn’t give them enough time to enroll families in the online program, hire staff and make other preparations for the 2025-26 school year.

But other advocates for religious charters are getting ready to act if the court opens the door to private charter schools.

“I would love to be able to apply for 100 Jewish religious charters,” said Peter Deutsch, a former Congressman from Florida and founder of the Ben Gamla network of Hebrew language charter schools. 

He dismisses concerns from the Alliance that a ruling in favor of St. Isidore would cause states to turn their back on charter schools, calling them “an integral part of the American educational experience.”

While a Democrat, he agrees with conservatives that charter schools can practice religion. Such a ruling, he said, would “be transformative.” The vast majority of non-Orthodox Jewish students currently . 

“This has the potential to literally change the Jewish community in America in a significant meaningful way — more so than anything in my lifetime,” he said.

St. Isidore promised to accept students of any religion even though it plans to fully teach the Catholic faith. But Deutsch said Orthodox Jews might have a problem with accepting those who don’t follow their religion. 

“There is definitely a question of an Orthodox school allowing non-Jews to be in their school,” he said. “I don’t know how they’re going to deal with it.”&�Բ�����;

Leaders of the Catholic church support St. Isidore’s argument. In to the court, the U.S. Conference of Catholic Bishops argued that educating students is “not a traditional, exclusive public function” and that in early American history, private, religious schools worked with the government to provide schooling. 

The brief also touted recent results on the National Assessment of Educational Progress showing that Catholic schools perform higher in math and reading than public schools. The “data shows why Oklahoma would want to contract with a school like St. Isidore for charter-school services,” the brief said.

But some Catholic school leaders have strong reservations about how a ruling in favor of St. Isidore would impact religious schools.

Greg Richmond, superintendent of the Archdiocese of Chicago Catholic Schools, said religious school leaders that want to open a charter should brace themselves for giving up some control in exchange for public funds. As the founder of the National Association of Charter School Authorizers, he’s intimately familiar with how the system works. 

“It’s not going to be just an infusion of cash,” he said. 

In a February post for the blog, he described scenarios that could create dilemmas for religious leaders. Could Catholic charters punish students for not attending mass? Could they fire a teacher who announces in class that he’s an atheist? He answered “no,” explaining that such outcomes would create “a lite version” of existing parochial schools.

“I actually don’t think anyone really knows how it would play out in this country,” he said. “I’m sure the courts would get pulled in again and again to mitigate some of the conflicts.”&�Բ�����;

Disability rights advocates also warn that students could lose special education services if  charter schools are ruled to be private. St. Isidore’s says it might not accept students with disabilities whose services would “significantly alter the regular classroom process,” and that services or accommodations for students can’t be “in opposition to church teaching.”

Under the , school districts provide “equitable services,” like speech therapy, to students in private schools. Parents who choose private schools can also request a district to pay for an evaluation. But there’s no guarantee that the private school will accommodate students’ needs. 

“There’s no individualization,” said Jennifer Coco, interim executive director of the Center for Learner Equity, a nonprofit that advocates for students with disabilities in charter schools. “Whenever something that was public becomes private with regards to children, rights under IDEA, by and large, do not follow.”&�Բ�����;

However the Court rules, the first state to grapple with its effects will be Oklahoma, where the legal battle began. Even before the justices agreed to hear the case, Barry Schmelzenbach, director of the Oklahoma Public Charter School Association, began talking with lawmakers about legislative fixes that might be necessary. He wants to prevent a situation in which “a system providing education for 50-some thousand students across the state all of a sudden can’t make payroll” because it’s been cut off from public funds.

But Schmelzenbach finds reassurance in the state’s strong history of support for school choice.

“Neither side of the debate wants to see existing charter schools harmed,” he said. “If our funding goes, then there’s also no funding for new charter schools — sectarian or not.”

A group of parents sued the Montgomery County Public Schools in Maryland, arguing that requiring children to sit through storybook readings on topics such as a and a girl giving to another girl offends their religious beliefs.

“We were forced to choose between God and education,” said Billy Moges, a Christian mother of three and a board member for Kids First, an advocacy group that formed to oppose the district’s move. She pulled her children out of the school system when officials ended the opt-out policy and has since started a private Christian school, , that meets in a Silver Spring church. 

“We’re not asking for any special treatment,” she said. ‘We’re asking for our rights to be restored.”

Regardless of who wins, the case will head back to the district court for further action.

The appeal centers on parents’ request to reinstate the opt-out policy until the district court can rule on whether the district violated their rights. But the court’s conservative majority may also use the oral arguments to address the underlying facts, said Joshua Dunn, executive director of the Institute of American Civics at the University of Tennessee, Knoxville.

“The school board didn’t relent, and then compelled students to sit through these books being read,” he said. “I just think that for some of the justices on the court, that’s going to strike them as extraordinarily wrong-headed.”&�Բ�����;

District officials say the books, intended for pre-K through third grade, were never intended to push views about sex and gender. The opt outs, they argue, became increasingly disruptive and contributed to absenteeism because some parents let their children skip the whole day if a lesson included one of the books. 

Opt-outs “stigmatized LGBTQ students and students who have LGBTQ families,” said Aditi Fruitwala, a staff attorney with the American Civil Liberties Union, which supports the district. Reinstating the policy, she said, would “undermine the entire purpose of a public education system, which is to create good citizens who can thrive in a society with people from a variety of backgrounds, faiths and cultures.”&�Բ�����;

The case, , illustrates the growing tension between inclusion and religious freedom. That’s likely the reason the conservative-learning court agreed to hear the appeal, Fruitwala said. The parents who sued — Muslim, Catholic and Orthodox Christian — also have the : Solicitor General John Sauer will participate in the oral arguments. In a brief, the Department of Justice said the board’s policy forces parents to be in “dereliction of their religious duties” by sending their children to public school. Twenty-six Republican-led states and 66 members of Congress also support the parents. 

Religiously diverse

Over the past few years, confrontations over these issues have escalated in districts across the country. In February, parents in the , district, near Rochester, objected to the district’s use of The Rainbow Parade, a picture book about a young girl and her two mothers attending a Pride parade. 

Nationally, the public leans in favor of schools allowing parents to opt their children out of lessons about sexual orientation and gender identity. Fifty-four percent agreed with that view in a Pew Research poll , but the partisan divide was stark: Support for opt outs was 79% among Republicans, compared with 32% among Democrats.

Despite clashes over such materials from to , both sides of the conflict agree that Montgomery County offers an especially apt setting for the debate. The county is one of the most in the nation, according to the Public Religion Research Institute. 

Will Haun, senior counsel at Becket, a law firm that focuses on religious liberty and represents the parents, said it’s “astonishing,” that such a district would abandon the longstanding practice of accommodating parents’ opt-out requests.��

Fruitwala said the district’s rich religious and diversity is precisely why the books belong in the curriculum. District leaders, she said, have an “opportunity to incorporate books from a wide variety of cultures and perspectives and backgrounds that reflect the families in the school district.”&�Բ�����;

The 160,000-student district’s effort to bring more diversity to its reading program began in 2022-23, when the school board voted to add six books featuring LGBTQ characters. Officials said they chose the titles for the same reasons they would add any storybooks to the curriculum — to teach sentence structure, word choice and style.

In a brief to the U.S. Court of Appeals for the Fourth Circuit, the National Education Association and its Maryland and Montgomery County affiliates highlighted comments from teachers that demonstrated students’ eager response to the books. 

A veteran second grade teacher relayed what happened when she read , a picture book about a mother who makes a rainbow-colored wig for her transgender daughter. “Upon hearing the words, ‘I’m a transgender girl,’ one of the children in my class called out, ‘That’s like my sister!’ This child felt seen,” the teacher said, according to the brief.

Ignoring LGBTQ families, district leaders say, puts schools at risk of violating state that prohibit discrimination on the basis of sexual orientation or gender identity. 

The ruled that refusing to allow children to opt out of the readings put no burden on religious parents. That’s when the families appealed to the Supreme Court.

They argue that since the district permits families to opt their children out of sex education, under a state law, that choice should extend to books that represent LGBTQ themes in other subjects. 

“All the school board had to do,” Haun said, “was simply recharacterize sexuality and gender instruction as English language arts and they get out of a long-standing national consensus that allows parents to opt their children out of that kind of instruction.”

Last fall, the district in question — My Rainbow and , a rhyming alphabet book about a puppy that runs off during a Pride parade. But Rev. Rachel Cornwell, a Methodist minister who has two students in Montgomery County schools, said she wouldn’t be surprised if the district was forced to remove all of the storybooks.

She wishes the parents would suggest different books rather than leave the district. 

“I think the vast majority of people in Montgomery County support the inclusion of these books into the curriculum,” she said. “These are not books about sex. They are books about people’s lives and about the diversity of our community.”&�Բ�����;

As the mother of a transgender son, she said she and other LGBTQ families want their children to feel like they belong.

“We’re not trying to indoctrinate anybody or say this is right or wrong,” she said. “That’s for you to have a conversation about with your kid at home.”

is a series for children of all ages. If you have a question you’d like an expert to answer, send it to curiouskidsus@theconversation.com.

Q: Can a school ban a child from praying, or do schools have to provide accommodations for children with certain beliefs? – Isaac T., 17, Flint, Michigan

The case also has large ramifications for the nation’s charter school sector, potentially settling a debate over whether charters are public or private. 

Last summer, the Oklahoma Supreme Court ruled against St. Isidore of Seville Catholic Virtual School. The school appealed the case to the Supreme Court last fall.

A proposed Christian charter school is taking its case to the U.S. Supreme Court, hopeful that a conservative supermajority will offer a sympathetic ear to the notion that schools that practice religion should not be barred from receiving public funds.

and Oklahoma’s filed separate petitions with the court Monday, asking the justices to decide an issue that could not only upset accepted norms about charter schools, but radically shift legal understanding about the boundaries between church and state. 

While the court might not make a call for months, several experts predict that if it takes up the case, the justices in the majority would likely rule in favor of St. Isidore.

“I believe that if the Supreme Court decides to review it … they will reverse the Oklahoma decision and allow the religious charter school,” Martha Field, a Harvard University law professor, said last month on emerging school models held at Harvard. “I would not support such a decision, but I believe it is coming.”

The case centers on a dispute over whether or not a public charter school, where students practice religion as part of the curriculum, violates the Establishment Clause of the First Amendment. In April, Oklahoma Attorney General Gentner Drummond, a Republican, argued that state officials broke the law when they approved the charter — an argument the state Supreme Court backed in June. But attorneys for the school and religious freedom advocates say St. Isidore is essentially a private contractor that receives public funding to offer a service — not an arm of the government. 

“The Supreme Court has made it clear repeatedly in the last few years that if the government opens up a program to private organizations …  it can’t then say ‘But if you’re religious, you’re not eligible,’ ” said Phil Sechler, senior counsel at Alliance Defending Freedom, a conservative Christian law firm and advocacy group that represents the charter board. “That’s essentially what Oklahoma did.”

In response to the petitions, Drummond warned that allowing religious charter schools would open the “floodgates” to non-Christian religions like “radical Islam or even the Church of Satan.”

In its brief, the charter board said the state’s stance toward “minority faiths” is still “open hostility toward religion” and poses a “grave threat” to religious parents.

“Those with progressive values may send their children to progressive charter schools on the state’s dime. Those who subscribe to the principles of Montessori education may send their children to Montessori charter schools for free,” the petition states. “But religious parents may not avail themselves of this same benefit because the would-be charter school they desire is religious.”

‘State actors’

During oral arguments in Oklahoma, one judge asked whether the state was being used as a “test case” to overturn prevailing legal opinions on church-state separation. A national movement of wants the courts to rule in favor of greater religious freedom in schools. 

Americans United for the Separation of Church and State, an advocacy organization, is suing over Louisiana’s law that classrooms post the 10 Commandments, and is currently over Oklahoma state Superintendent Ryan Walters’s mandate that teachers use the Bible in their lessons. 

But one element that could cast doubt on the Supreme Court’s willingness to hear the Oklahoma case is its refusal last year to take about charter schools — one that religious freedom advocates hoped would have paved the way for faith-based charters. 

In , three families sued the school, saying its dress code requiring girls to wear skirts violated their constitutional rights. The charter founders argued that as a nonprofit, the school should be free to enforce rules in line with its traditional values, raising the question of whether a charter school is public or private. 

The U.S. Court of Appeals for the Fourth Circuit said no, and the school appealed to the Supreme Court.

While the justices asked for the U.S. solicitor general’s , suggesting some were intrigued by the issues presented, they ultimately turned it down.

As the school’s founders argued in Peltier, supporters of religious charters say that nonprofits, including churches, don’t automatically become “state actors” because they receive public funds. At that same Harvard conference, Mike Moreland, a Villanova University law professor, offered up an analogy.

“Boeing, by entering into an agreement to produce airplanes as a government contractor for the Pentagon, doesn’t become a state actor,” he said. Charter schools, therefore, don’t “turn into state actors for purposes of First Amendment analysis.”

Those who agree with him point to a 1982 case, , in which the Supreme Court said a private school receiving substantial public funding to educate troubled teens was not acting under the “color of state law” when it fired six employees. 

The Ninth Circuit reached a similar conclusion in a more that involved a charter school, but focused on employment issues rather than what students learn in the classroom. 

Those cases could indicate which way the court would lean if it takes the case, said William Jeynes, an at California State University Long Beach, the third panelist at the Harvard event. 

“The Supreme Court loves precedent,” he said. 

Opponents of religious charter schools say religious freedom proponents are fueling a non-existent debate. 

”State laws are clear,” said Starlee Coleman, president and CEO of the National Alliance for Public Charter Schools. “Charter schools are public schools created by the government, and the government is not allowed to establish any religious public schools.”

‘Incredibly popular’

Former Justice Stephen Breyer, a liberal, raised the possibility of a religious charter school in a in which the court ruled 5-4 that officials could not exclude a Christian school from a state tax credit scholarship program simply because it was religious.

“What about charter schools?” he asked in his dissent, saying that the court’s ruling introduced “uncertainty” about the distinction between public and nonpublic schools. He reiterated his concern in , a 2022 opinion in which the court ruled 6-3 that states with school choice programs can’t discriminate against schools that teach religion.

The case focused on a Maine program that pays families to attend private school if their own communities lack a public high school. Breyer wrote that requiring states to fund religious schools blurred the lines between public and private entities. He asked if that “transformation” means that districts with charters “must pay equivalent funds to parents who wish to give their children a religious education?”

Six months later, Oklahoma’s former Attorney General John O’Connor and state Solicitor General Zach West expanded on the majority’s opinion to say religious organizations should not be prohibited from opening charter schools. When he took office in 2023, Drummond, O’Connor’s replacement, threw out his predecessor’s interpretation.

Since then, Drummond has been at odds with fellow Republicans on the issue, including Walters and Gov. Kevin Stitt. Despite his warning that the charter violates the law, the state’s virtual charter school board voted last October to approve the contract with the Archdiocese of Oklahoma City and the Diocese of Tulsa. That prompted Drummond’s lawsuit.

When the school and the charter board lost, Stitt said the decision “sent a troubling message that religious groups are second-class participants in our education system. Charter schools are incredibly popular in Oklahoma — and all we’re saying is: We can’t choose who gets state dollars based on a private entity’s religious status.”

Even after the state Supreme Court ruled against the school, the state charter board initially refused to rescind its contract and then joined St. Isidore in appealing the decision to the U.S. Supreme Court. 

Under pressure from Drummond, who called the charter “a serious threat to the religious liberty of all four million Oklahomans,” the board finally voided the contract in August. 

While the school was prepared to serve up to 500 students this fall, it received less than half that number of applications.

Despite the court’s traditional deference to existing case law, Field noted that the current justices haven’t shown the for previous opinions they disagree with. Overturning is just one example she cited.  

For someone who clerked for former Chief Justice Earl Warren in the 1960s — when the court prayer and Bible readings in the classroom — she said it’s been disconcerting to see the legal ground shift so radically. 

“It seems that a lot of people here don’t like the Warren court,” she told the Harvard attendees.  “When I went to law school, separatism was the doctrine, and we all believe whatever we learned in law school.”

TOPEKA — A Kansas elementary school principal who invited an evangelical Christian missionary to pass out Bibles to students during their recess in May violated the First Amendment, the American Civil Liberties Union of Kansas warned Monday in a letter to the district.

Katie Struebing, the principal of East Elementary School in the roughly 2,000-person city of Belleville, invited a member of the evangelical Christian organization Gideons International, Ben Dreesen, to hand out Bibles to students during recess on May 7, wrote Monica Bennett, legal director for the ACLU of Kansas, in the Monday letter. Gideons International is often credited with the introduction of Bibles to American hotel rooms.

Ahead of Dreesen’s visit, Struebing told staff that she would visit classrooms at the roughly 250-student school to inform students of “the nice man” handing out Bibles, according to . A student’s parents informed the ACLU about Dreesen’s visit.

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Bennett wrote that Struebing allowed Dreesen on school grounds during school hours, accompanied him while he passed out Bibles to students and involved fellow school district staff in the matter. The principal lent her “credibility and authority” to Dreesen, “in effect placing a stamp of approval on his message and subjecting students to a religiously coercive atmosphere,” Bennett wrote.

Plus, the principal violated the Republic County school district’s own policy, which states that district employees aren’t allowed to use classrooms to “promote or convey” religious viewpoints, Bennett wrote.

The goal of the letter was “to educate and remind the principal and the school district what’s required with respect to separation of church and state,” Bennett told Kansas Reflector.

The First Amendment and U.S. court decisions require neutrality from government institutions when it comes to establishing or favoring a religion or nonreligion.

Struebing declined to comment, directing the Reflector’s inquiry to the school district superintendent, Tami Knedler, who did not respond.

This is at least the second incident in Kansas this year involving Bible distribution to students in public schools. In April, Butler County school district employees informed parents they intended to invite Gideon missionaries to hand out Bibles to Bluestem Elementary School students, according to the letter. District officials gave parents the option of excusing their children from the visit if they provided signed permission slips.

“After receiving criticism, including from Christian parents, invoking the First Amendment separation of church and state clause, the district walked back the decision,” Bennett wrote.

The public is aware of the law when it comes to religion in public schools, so school officials ought to be aware of the law as well, Bennett told the Reflector. In the letter, she referenced a and a that indicated the majority of Americans do not believe public schools should be influencing religious beliefs.

“It’s important to point out that our laws recognize the rights of individuals to worship, or not worship, according to their own conscience, and they have the right to pass on whatever their beliefs are onto their children,” Bennett said.

School districts should respect that, she said.

“The ACLU of Kansas strongly discourages you from welcoming missionaries on school grounds to distribute Bibles in the future,” the letter said.

is part of States Newsroom, a nonprofit news network supported by grants and a coalition of donors as a 501c(3) public charity. Kansas Reflector maintains editorial independence. Contact Editor Sherman Smith for questions: info@kansasreflector.com. Follow Kansas Reflector on and .

Six West Virginia schools were notified Thursday that policies in their student handbooks may violate students’ First Amendment rights by requiring them to participate in certain activities like standing for flag-raising ceremonies and the Pledge of Allegiance and removing hats for the national anthem, among other things.

The notice — which was sent as to the schools — came from the West Virginia arm of the American Civil Liberties Union on the 81st anniversary of the landmark legal case West Virginia State Board of Education v. Barnette. In 1949, The U.S. Supreme Court ruled in that case that students cannot be forced or compelled to salute a flag or recite the Pledge in schools. Policies that direct otherwise, according to the case, are a clear violation of the students’ freedom of speech.

“The Constitution affords protection for Americans to freely express our beliefs and ideas. That protection expands beyond written and spoken word; it extends to symbolic speech as well,” ACLU-WV Legal Director Aubrey Sparks wrote in the letter. “One powerful way that people can express themselves is by choosing to remain silent when everyone else is agreeing, or remaining sitting when everyone else stands. Barnette codified that right. Students still have that right in schools today.”

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Staff from the ACLU, according to a , reviewed student handbooks for all schools in the state to ensure their policies were compliant with the rulings in Barnette.

Schools that received the letters due to having policies in violation of the law are: Calhoun Middle/High School, Riverside High School in Kanawha County, Summers County Comprehensive High School, Richwood High School in Nicholas County, Sissonville Middle School in Kanawha County and John Adams Middle School, also in Kanawha County.

The policies in the student handbook vary school by school.

Riverside High, for example, that students must rise and remove hats during the national anthem and flag ceremonies held during extracurricular activities.

At and middle schools, the handbooks state that students must stand for the Pledge of Allegiance during class. If they don’t recite the Pledge, they must remain silent.

The letters sent Thursday urge leaders at the listed schools to review their policies with consideration of the Barnette ruling and amend them if needed to “ensure that they meet constitutional obligations.”

“Schools are often the first places that students learn about their civic obligations, their constitutional rights, and the importance of being brave enough to engage in speech that’s not always popular,” Sparks wrote in the letter. “The First Amendment exists to safeguard the diversity of thought and expression, which are essential components of a thriving democratic society. Protecting free speech in public schools is paramount, something that was determined by the Supreme Court in West Virginia v. Barnette eighty-one years ago.”

is part of States Newsroom, a nonprofit news network supported by grants and a coalition of donors as a 501c(3) public charity. West Virginia Watch maintains editorial independence. Contact Editor Leann Ray for questions: info@westvirginiawatch.com. Follow West Virginia Watch on and .

“The distinction between private conduct and state action turns on substance, not labels,” Justice Amy Coney Barrett wrote in a unanimous opinion in a case that involved a but that “applies to all government officials.”

“For social-media activity to constitute state action, an official must not only have state authority, he must also purport to use it,” the court said. “If the official does not speak in furtherance of his official responsibilities, he speaks with his own voice.”&�Բ�����;

Now a must apply that standard to a California dispute in which two members of the San Diego-area Poway school board blocked parents who trolled the officials with lengthy and critical comments on Facebook and X.

Cory Briggs, who represents parents Christopher and Kimberly Garnier, said he thinks the U.S. Court of Appeals for the Ninth Circuit will rule in his clients’ favor. He said Michelle O’Connor-Ratcliff, a current board member, and T.J. Zane, who served from 2014 to 2022, “possessed actual authority to speak as [district] trustees and in fact exercised that authority when they used the social media accounts at issue here to engage with their constituents.”

The case is one of four before the court involving social media this term. In Friday’s opinion, the justices sought to resolve a conflict among the appellate courts. The Sixth Circuit found that the Port Huron city manager did not act “under the color of law,” when he blocked a resident who complained about local efforts to prevent COVID. But the Ninth Circuit agreed with the Garniers, a couple who complained about how the board members handled both racial and financial matters. They argued that the board members used their accounts as extensions of their elected positions.��

The opinion didn’t satisfy a leading First Amendment advocate who sued former President Donald Trump in 2017 over the same issue. Katie Fallow, senior counsel of the Knight First Amendment Institute at Columbia University, said she was pleased the court said officials still have to uphold constituents’ rights to petition the government. But she said she was disappointed it didn’t go further, that the standard could be difficult to apply in many real-life situations. 

“The Court did not adopt the more practical test used by the majority of the courts of appeals, which appropriately balanced the free speech interests of public officials with those of the people who want to speak to them on their social media accounts,” she said in a . “We hope that in implementing the new test crafted by the Supreme Court today, the courts will be mindful of the importance of protecting speech and dissent in these digital public forums.”

In her opinion on the Sixth Circuit case, Lindke v. Freed, Barrett offered an example of when an official might not be infringing on a citizen’s rights.

“Imagine that Freed posted a list of local restaurants with health-code violations and deleted snarky comments made by other users,” she wrote. “If public health is not within the portfolio of the city manager, then neither the post nor the deletions would be traceable to Freed’s state authority — because he had none.”

Even on social media, officials are allowed to have private lives, she said. But she also warned that if officials occasionally use personal accounts to address official business, completely blocking members of the public might prevent those citizens from commenting on those issues. 

“A public official who fails to keep personal posts in a clearly designated personal account, therefore, exposes himself to greater potential liability,” she wrote. 

Public schools and universities would be required to display “In God We Trust” in every classroom, according to a bill that is advancing in the House of Delegates.

While the legislation, , permits the motto plaques to be donated, it doesn’t come with any funding — meaning that, should it pass, cash-strapped and could be on the hook for paying for the signage.

Del. Evan Hansen, D-Monongalia, said on Thursday during a House Judiciary Committee meeting that there could be “potentially thousands or tens of thousands” of classrooms in the state where the national motto must be shown.

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“It brings into question who’s going to pay for it and how much is it going to cost?” he questioned.

Potential cost for implementing the bill wasn’t shared with committee members.

According to the measure, “In God We Trust” would have to be displayed on a poster or in a frame along with the United States flag. It would have to be displayed in a “conspicuous place.”

The Senate’s of the legislation — passed in January — had required a motto plaque in every classroom, but the House Education Committee the bill so that it would just require the signage in a main building of the school.

On Thursday, Del. Geoff Foster, R-Putnam, put forth an in the House Judiciary Committee to change the bill back to the Senate’s intent — requiring the signage in every classroom.

Travis Mollahan, associate vice president of government relations at West Virginia University, told lawmakers that it would require the signage in more than 700 rooms on the university’s campuses.

The university, which has faced a multi-million dollar budget shortfall, of faculty positions and must also a campus carry bill passed by state lawmakers.

Foster said WVU should be able to dip into its state’s appropriations to purchase the signage.

“I don’t think it’s too much to ask without the [sign] size limitation that we have this posted in every classroom,” he said.

Del. Shawn Fluharty, D-Ohio, raised concerns that requiring the signage in every classroom could violate the First Amendment.

“The bill has gone from the state mandating an area to the state mandating it into a physical classroom that students can’t avoid,” Fluharty said. “Maybe we can have an amendment where members of this body can read the Constitution a lot more often because it just made this bill null in its effect.”

Foster pushed back on that, saying the country’s motto was already circulated through schools while kids learned about currency.

The committee passed the bill onto the House floor for consideration.

This is the second time the Senate has attempted to pass the bill through — the House didn’t take it up for a vote last year. Sen. Mike Azinger, R-Wood, is lead sponsor of the measure.

Del. David Kelly, R-Tyler, who approved the bill, cautioned lawmakers “to be careful how far down this road we go” in regards to pushing patriotism onto students.

“It’s not what we have on our wall about God that’s going to make a difference in anyone’s lives. It’s how we live before them that’s going to make a difference in their lives,” he said.

is part of States Newsroom, a nonprofit news network supported by grants and a coalition of donors as a 501c(3) public charity. West Virginia Watch maintains editorial independence. Contact Editor Leann Ray for questions: info@westvirginiawatch.com. Follow West Virginia Watch on and .

Amid reports of heightened antisemitism and Islamophobia in schools and colleges since the start of the Israel-Hamas war, a senior Education Department official said the agency has received a “huge, huge influx” of civil rights complaints that have led to a surge in federal investigations. 

Since the Oct. 7 attack by Hamas terrorists on Israel and the subsequent bombing and invasion of Gaza by the Israeli military, the into schools’ and colleges’ responses to complaints of discrimination based on shared ancestry, which includes antisemitism and Islamophobia. 

Of the new investigations, the senior official told The 74, 19 are in response to conduct that unfolded in schools in the last two months alone. Of the incidents since Oct. 7 that are now under investigation, 17 took place on college campuses. 

Last fiscal year, by contrast, the office opened 28 shared ancestry investigations over the entire 12-month period. The year before, there were just 15. Such inquiries seek to determine whether schools adequately respond to incidents that create hostile learning environments in violation of Title VI of the Civil Rights Act, which prohibits discrimination based on race, ethnicity or national origin. 

“We are deeply concerned about the incidents that we’ve seen reported in schools all over the country, and about the safety of students, and the protection of non-discrimination rights for students in P-12 schools as well as in institutions of higher education,” Catherine Lhamon, the department’s assistant secretary for civil rights, said in an interview Wednesday with The 74. “We’re very, very concerned about what we’re seeing in schools.”

Though officials declined to comment on the specifics of active federal investigations, a spike in reported antisemitic and Islamophobic incidents in and outside of schools have convulsed the nation and elevated student safety concerns. 

Near Louisiana’s Tulane University, a clash between pro-Palestinian and pro-Israel and police are investigating a as a potential hate crime targeting an Arab Muslim student. At Rutgers University, officials chapter following claims the group disrupted classes and vandalized campus. At Harvard University, a rabbi to hide the campus menorah each night of Hanukkah due to vandalism fears. In California, a with involuntary manslaughter and battery after an alleged physical altercation broke out at a demonstration that led to the death of a Jewish protester. 

Outside of schools, police said a 6-year-old Chicago boy was in an alleged anti-Muslim attack, and in Burlington, Vermont, three college while walking down a sidewalk over Thanksgiving weekend. 

The escalating confrontations have embroiled school leaders, who have been criticized for failing to clamp down on hate speech and discrimination. Just days after in Washington about rising antisemitism on college campuses, Elizabeth Magill resigned as University of Pennsylvania president. She and the presidents of Harvard University and the Massachusetts Institute of Technology were accused of being equivocating and evasive after giving carefully worded replies to repeated questions about whether calling for the “genocide of Jews” violated their schools’ code of conduct. Magill responded that it’s “a context-dependent decision,” underscoring school leaders’ obligations to ensure safe learning environments while protecting people’s free speech rights. 

Harvard University President Tuesday after facing similar scrutiny for her testimony at the congressional hearing and unrelated plagiarism allegations.

Of the 29 active federal Title VI investigations opened since Oct. 7, just eight are focused on incidents in K-12 schools — including at three of the nation’s 10 largest districts. Among them are the New York City Department of Education, the Clark County School District in Las Vegas, Hillsborough County Schools in Tampa, Florida, and the Cobb County School District in suburban Atlanta.

Though the circumstances prompting the investigations remain unknown, many of the institutions included on the Education Department’s list of active investigations have experienced high-profile incidents involving discrimination. 

In New York City, a raucous, and prompted a lockdown after a teacher posted a picture of herself at a pro-Israel rally on social media. Also turning to social media, one student said the teacher “is going to be executed in the town square,” and another promoted “a riot” against her. 

In suburban Atlanta, the Cobb County School District sparked controversy following the Hamas attack to the school community that warned of an “international threat,” noting that “while there is no reason to believe this threat has anything to do with our schools, parents can expect both law enforcement and school staff to take every step to keep your children safe.” Because of the message, several Muslim parents said their children had become the targets of Islamophobic bullying. 

In , the civil rights office highlighted hypothetical instances that put school districts at odds with their Title VI obligations. Among them: A Jewish student is targeted by his peers with swastikas and Nazi salutes but his teacher tells him to “just ignore it” without taking steps to address the harassment. Another example involves school officials failing to remedy a Muslim student’s complaints that she was called a “terrorist” and told “you started 9/11.”

Even before the most recent conflict between Hamas and Israel, law enforcement agencies across the U.S. have reported an uptick in hate crimes over the last several years, including on campuses. 

Reported hate crimes surged 7% between 2021 and 2022, released by the Federal Bureau of Investigation in October, including a 36% increase in anti-Jewish incidents — which accounted for more than half of incidents based on religion. Among all reported hate crimes, 10% occurred at K-12 schools and colleges.

The Education Department last month released its most recent Civil Rights Data Collection, the first since the pandemic. Students reported 42,500 harassment allegations during the 2020-21 school year, including bullying on the basis of sex, race, sexual orientation, disability and religion. Of those, 29% involved harassment or bullying on the basis of race while only a sliver — 3% — involved students saying they were targeted because of their religion. 

The current climate has put Jewish college students on edge, according to , a nonprofit focused on eradicating antisemitism. Since the beginning of the academic year, 73% of Jewish college students said they’ve been witness to antisemitism. Prior to this school year, 70% reported experiencing antisemitism throughout their entire college experience. Yet just 30% of Jewish college students said their college administration has taken sufficient steps to address anti-Jewish prejudice. 

During a televised interview on MSNBC Friday, Jonathan Greenblatt, the national director and CEO of the Anti-Defamation League, said he thought conditions would improve on college campuses for Jewish students because the Title VI investigations now being launched by the Education Department would force college administrators to take action. 

Muslim Americans of all ages have similarly . In a two-week period between Oct. 7 and Oct. 24, reports of bias incidents and requests for help at the Council on American-Islamic Relations surged 182% from the average 16-day period in 2022. 

As lawmakers call on school leaders to take a stronger stance against hate speech, they’ve faced pushback from free speech advocates. Earlier this month, New York of “aggressive enforcement action” if they failed to discipline students “calling for the genocide of any group of people.” In a statement, the Foundation for Individual Rights in Education, a right-leaning nonprofit focused on students’ free speech rights, said Hochul’s admonition “cannot be squared with the First Amendment.”&�Բ�����; 

“Colleges and universities can and should punish ‘calls for genocide’ when such speech falls into one of the narrowly defined categories of unprotected speech, including true threats, incitement and discriminatory harassment,” the group said in the statement. “But broad, vague bans on ‘calls for genocide,’ absent more, would result in the censorship of protected expression.”

The senior Education Department official said that schools must “navigate carefully” their obligations under Title VI and the First Amendment. Even if a student’s speech is protected, the official said, school leaders still have an obligation to uphold all students’ nondiscrimination rights.

“What concerns me is when a school community throws up its hands and says, ‘This speech is protected and so there’s nothing more for us here,’” said Lhamon, the assistant secretary for civil rights. “That may be true, but that’s only true where a hostile environment isn’t created that the school needs to respond to.”

But some justices said the public deserves to know when the official is using their account as a private citizen.

“What makes these cases hard is that there are First Amendment interests all over the place,” said Justice Elena Kagan. 

In the lawsuit, , a California couple, said two Poway Unified School District board members violated their free speech rights when they blocked them on Facebook and Twitter, now X. Even if the accounts were personal, the parents argued, the members used them to discuss official school business.

“What you have is both of the petitioners using ‘we’ and ‘our’ when they talk about what the [school] board is doing,” said Pamela Karlan, who represents Christopher and Kimberly Garnier, parents of three children in the San Diego-area district. “Anybody who looks at that is going to think this is an official website. It looks like an official website. It performs all the functions of an official website.”

The board members insist that as private citizens, they had a right to restrict content. They objected to the Garniers repeatedly posting the same comments,and argued that the couple’s lengthy responses alleging racial discrimination and financial management were distracting and made it difficult for others to engage online. 

Their attorney compared the board members’ social media accounts to personal property.

“The state itself did not control or even facilitate their operation of the pages,” said Hashim Mooppan. He added that his clients, Michelle O’Connor-Ratcliff, a current board member, and T.J. Zane, who left the board last year, “wielded no greater rights or privileges than any other private citizen denying access to their own property.”&�Բ�����;

Despite concerned parents and community activists packing school board meetings in recent years, the majority of public comment on schools, and on government policy in general, takes place online. That’s why the court’s decision will have implications far beyond education. The court on Tuesday also heard a similar case from Michigan that essentially asks the same question: When does a public official’s social media activity amount to “state action?” The cases are among five the court will hear this term that on the role free speech plays in the digital sphere.

“I don’t think it’s immediately apparent which way they’ll go,” said Kristin Lindgren, deputy general counsel for the California School Boards Association, which submitted a brief in support of the board members. 

Lindgren, who listened to the three hours of oral arguments Tuesday, said the three liberal justices appeared more sympathetic to the public’s right to know if their representative is acting in an official capacity, while the conservative majority focused on the board members’ freedom to discuss district issues as private citizens. “I don’t think the court wants to remove a public official’s private First Amendment rights to speak off the cuff.”

Regardless of the court’s ultimate opinion, she said it’s clear that both board members and the public need guidance on the issue.

Appearance matters, the U.S. Court of Appeals for the said when it ruled in favor of the Garniers. The opinion said the board members, “clothed their pages in the authority of their offices,” and that First Amendment protections “apply no less” to the internet than they do “the bulletin boards or town halls of the corporeal world.”

Justice Brett Kavanaugh, one of the court’s conservatives, said it may come down to whether constituents can get their information elsewhere. 

“A lot of this will depend on whether it’s reposting or exclusive posting,” he said. “That’s the kind of practical information that people are going to need.”

The disclaimer issue

Justices devoted much of their time to the question of whether a public official must inform constituents when they’re speaking privately or in an official capacity.��

“Government officials can operate in their personal capacity and in their official capacity,” Justice Ketanji Brown Jackson said, agreeing with Mooppan, the members’ attorney. But she added, “Why should they get to choose whether or not they’re doing one or the other without making a clear disclaimer? How do we know which you have chosen?”

Karlan noted that the Poway district even requires board members to “identify personal viewpoints as such and not as the viewpoint of the board.” But O’Connor-Ratcliff, she said, didn’t do that and predominantly used her Facebook page to communicate about school activities such as visiting classrooms during instructional time. “The only reason she has the power to do that is because of her official capacity.”

Mooppan countered that requiring officials to post such disclaimers is too heavy a burden and would have a chilling effect.

“Some of those people aren’t going to do it, and they’re gonna lose their First Amendment rights,” he said. “That’s the exact opposite of how the First Amendment normally works.”

The court’s opinion is likely to hinge on the extent of a public official’s authority, said Katie Fallow, senior counsel at the Knight First Amendment Institute at Columbia University. For example, individual school board members don’t speak for the entire board.

But the second case, , focuses on a city manager, who has more power to act individually. In that case, the Sixth Circuit ruled that the public official was acting completely on his own.��

Fallow predicted the Supreme Court is unlikely to adopt the Sixth Circuit’s “very narrow” view.

“The court seemed to be indicating that it would use a test that considered whether a public official was using a private social media account to carry out the duties or exercise the authority of government,” she said. “The question is how broad and flexible that test will be.”&�Բ�����;

On Tuesday, the court will consider whether those officials — in one case, board members for the San Diego-area Poway school district — can block constituents from responding to posts on platforms like Facebook and X.

“Government accountability … goes down the toilet if officials can effectively ‘mute’ their critics,” said Cory Briggs, an attorney who represents Poway parents Christopher and Kimberly Garnier. “Nobody is required to read the comments on social, but preventing them from being expressed in the first place ensures that nobody ever hears dissenting voices.”

Michelle O’Connor-Ratcliff, a current board member, and T.J. Zane, who served from 2014 to 2022, argue that they were acting as private citizens and, therefore, had a right to cut off the Garniers’ ability to reply. They complained that the couple essentially trolled them, repeatedly posting the same comments — in one instance, more than 200 times in a 10-minute period — and cluttered up their feeds.

But the Garniers say both O’Connor-Ratcliff and Zane identified themselves as government officials and that, by all appearances, used social media as an extension of their board positions. Blocking them — no matter how annoying or off topic their posts might have been — was a violation of free speech and their First Amendment right to petition their government, according to . The U.S. Appeals Court for the 9th Circuit agreed.

In an age when the public is far more likely to air concerns about government online than attend an official meeting, the case has major implications not just for how parents engage with school board members, but for how citizens in general interact with their elected leaders. It’s one of two cases before the court on Tuesday that pose the same question — whether an official’s use of a private social media account amounts to “state action.”

involves a city manager in Port Huron, Michigan, who blocked a resident after he complained about local efforts to prevent COVID transmission. In that case, the federal appeals court took the opposite view, saying the manager did not act “under the color of law.”&�Բ�����;The split between the lower courts prompted the Supreme Court to take up the cases.

Like the Garniers, some First Amendment experts want the court to uphold the 9th Circuit’s decision. Katie Fallow, senior counsel at the Knight First Amendment Institute at Columbia University, said if an official discusses government business on social media, the First Amendment still applies, even if using the account isn’t a formal part of the job.

“They use it to talk to the public about their policies and solicit input from constituents,” she said. “The question is, ‘Does the public consider this to be the source of official pronouncements?’ ”

Fallow has experience with the issue. The Knight Institute in 2017 because he blocked critics on Twitter. The Institute won the case at the appellate level, but the Supreme Court dismissed it because Twitter’s former owners in 2021 following the uprising at the U.S. Capitol. (Trump’s account has since .)

O’Connor-Ratcliff and Zane — like Trump — opened their accounts before they took public office. “Once elected, they keep using it,” Fallow said. “They want their brand and their followers.”

Neither O’Connor-Ratcliff, Zane, nor their attorney agreed to an interview prior to oral arguments, but representatives for other elected officials have been closely following both cases. 

The California School Boards Association wrote in to the court that if the Garniers win, boards would have to “police” members’ social media accounts and could potentially face more litigation . During elections, the association added, incumbents would be limited in controlling unflattering posts while challengers would be free to restrict negative comments.

Board members need a “practical test” that clarifies “when social media activity transforms from personal to state action,” the association wrote. Because of the “rapidly evolving nature” of social media, the rules should apply across all current and future platforms, the brief said.

The filed a brief in the case because “federal government officials also use social media accounts,” and whatever the court decides would apply to those officials and employees.

Years of conflict

The Garniers, who have three children in the district , have a troubled relationship with Poway officials that goes beyond social media posts. In 2013, Christopher, who once worked as a coach in Poway schools, filed a wrongful termination lawsuit against the district. Then in 2015, a judge granted the district a against him requiring that he stay away from his children’s school and its former principal. He was accused of making verbal threats, disrupting a meeting and pounding on car windows — allegations he denied.

Christopher, who is Black, argues that he was singled out because of his race and that the district treats minority students unfairly. It’s an issue that surfaced in comments his wife posted on the board members’ Facebook pages. According to court documents, Kimberly posted: “I have children of color in the district, and I don’t want them going to school and seeing a noose.”&�Բ�����;

Christopher’s replies focused on both racial and financial matters. Following several of O’Connor-Ratcliff’s posts, he wrote that the board members, among other officials, “refuse to meet with our interracial family.” In another lengthy Facebook reply, posted multiple times, Christopher argued that Black students in the predominantly white district were disproportionately suspended and that he didn’t receive all the discipline data he requested through a public records request.

He was an outspoken critic of former Superintendent John Collins, who to not reporting more than $300,000 in consultant income, a misdemeanor. Collins was sentenced to five years probation and had to repay the district $185,000. 

“Trustees lack the intestinal fortitude to fire this man,” Christopher replied in response to several posts from 2015. Briggs, the Garniers’ attorney, said his clients thought financial oversight had not improved since the board fired Collins in 2016.

“How many times should constituents be allowed to express admittedly legit criticism of their elected representative’s performance?” Briggs asked. “The answer can only be: as many as it takes to get [them] to do better or to get [them] voted out of office.”

‘Strange bedfellows’

The case predates the pandemic. But the COVID era — with its virtual government meetings and restrictions on in-person gatherings — has only intensified the level of vitriol on social media.

Data shows that Americans who rely on social media for news tend to be younger and more likely to have school-age children. Forty percent were in the 30-49 age range, according to . Online threats of violence against public officials, meanwhile, have increased, , especially toward judges and prosecutors. But at the height of debates over mask mandates and vaccines, superintendents and school board members were also targets of online intimidation and bullying.

Jonathan Zachreson of Roseville City, California, has been on both sides of the issue. During the pandemic, he advocated for reopening schools and against a vaccine mandate for students. State Sen. Richard Pan, who wanted to for students, even blocked him on Twitter (now X).

Now Zachreson is on his town’s school board. After he was elected, he said the district advised members on the legal issues surrounding social media. To him, there’s no gray area.

“Either don’t talk about school business or don’t block people — it’s like one or the other,” he said. 

But he added that as with public meetings, there should be limits on “disorderly” behavior, like spamming. The question, he said, is whether the Supreme Court will draw that line.

Andrew McNulty, a Denver attorney, said he can’t predict how the court — with a 6-3 conservative majority — will rule on the cases. He’s particularly interested because he represents a Denver Public School parent who filed last month against a board member who blocked her on Facebook.

“There’s so much conservative backlash about censoring speech,” McNulty said. The court has also agreed to hear cases from on whether tech companies can be sued or penalized if they block or limit content. And it will consider in which Missouri and Louisiana accused the Centers for Disease Control and Prevention of conspiring with social media companies to suppress opposition to COVID vaccines, mask mandates and school closures. 

Until now, against Trump was the most high-profile case over the issue. But Democrats have also been sued for blocking critics. In 2019, progressive New York Congresswoman Alexandria Ocasio-Cortez with a former Republican state lawmaker and talk show host she blocked on Twitter. 

“The First Amendment makes strange bedfellows,” McNulty said. “It crosses the ideological spectrum.”

The American Civil Liberties Union of Michigan (ACLU) sent a letter Tuesday urging Michigan’s public school district leaders to “to affirm your commitment to public education, the First Amendment, and the welfare of all students in your community by resisting” efforts to ban books in schools.

“When school officials attempt to create a ‘sanitized’ learning space by eliminating controversial texts from school libraries, they undermine this critical function of public education,” wrote Loren Khogali, ACLU of Michigan executive director. “And when books can be removed based on parents’ complaints about the author’s message or point of view, it paves the way for an unending series of attempts by one group or another to cleanse a school of reading material based on what a vocal faction finds objectionable.”

In addition to Khogali, the letter was signed by ACLU of Michigan Legal Director Dan Korobkin and ACLU of Michigan staff attorney Jay Kaplan.

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The ACLU’s letter was sent to hundreds of superintendents and school board presidents throughout the state, State Superintendent Michael Rice and Michigan Board of Education President Casandra Ulbrich.

Organized efforts to challenge certain books from school libraries, many of which are books that contain LGBTQ+ characters or themes, have grown since last school year.

A recent from PEN America — an organization that advocates for the protection of free speech — found that from July 2021 to June 2022 there were 2,532 instances of individual books being banned in 32 states.

Michigan, which ranked sixth in the nation for most books bans, had 41 book bans in four districts in the first nine months of the 2021-22 school year.

“In the end, schools become another arena for political warfare, rather than a space of learning for our youth. Neither students nor their communities are well-served by this practice,” the letter reads.

is part of States Newsroom, a network of news bureaus supported by grants and a coalition of donors as a 501c(3) public charity. Michigan Advance maintains editorial independence. Contact Editor Susan Demas for questions: info@michiganadvance.com. Follow Michigan Advance on and .

A spate of policies banning books and tamping down teachings on race and gender proliferated nationwide in 2021 and 2022 — but are those rules actually legal? The American Civil Liberties Union has launched a multi-state effort to find out by challenging them in court.

The approach includes a mixture of lawsuits, public records requests and legal letters alleging the right-wing rules violate the First Amendment and other constitutional protections.

In Mississippi, a letter from the organization helped reverse a mayor’s decision to withhold $110,000 in funding from a local library until librarians removed LGBTQ literature. In Virginia, the ACLU urged a state court to dismiss a ban on the sale and distribution of the books and — which it did. And in Florida, a lawsuit litigated by the organization seeks to throw out provisions of the state’s “Stop W.O.K.E.” law that infringe on college and university instructors’ long-established academic freedoms.

“These laws have absolutely no relationship to any legitimate pedagogical interest and, in fact, are purely partisan political tools,” said Emerson Sykes, ACLU staff attorney. “We focus on challenging these laws in court.”

To date, legislation limiting classroom discussion of race and gender has been proposed in 42 states and adopted in 17, according to an . Many outlaw “divisive” topics and lessons that cause students to “​​feel discomfort, guilt, anguish” on account of their race or gender. Some explicitly ban the teaching of critical race theory, a graduate-level scholarly framework examining how racism is embedded in American institutions. The term has become a catch-all many Republicans use to describe teachings about systemic racism.

Right-wing, mostly white parent groups such as and have pushed for the bills, which have been supported almost exclusively by conservative politicians. Those who favor the restrictions broadly argue that classroom teachings about race can serve to divide students and give them a pessimistic view of the country’s history. They contend LGBTQ material can make students vulnerable to sexual predation, though those claims , and should be under the purview of parents, not schools.

Simultaneous moves to ban books have also spread in response to parent activism. With more than in schools and libraries from January through August, 2022 is on track to surpass 2021’s count, which was already “the highest number of attempted book bans since we began compiling these lists 20 years ago,” ALA President Patricia Wong said in an April .

So far, the ACLU has challenged classroom censorship efforts in 10 states, including three lawsuits against rules limiting teachings on race and gender. In its more than 100 years of operation, the organization’s have extended across all political ideologies, including defending the rights of the KKK and Nazis to express their views peacefully. 

The number of challenges to anti-CRT laws could soon increase, said Sykes,

“We are actively tracking and considering litigation in multiple states at the moment.”

Here’s a nationwide look at what has played out so far:

Oklahoma

In October 2021, the ACLU and affiliate organizations filed a lawsuit, BERT v. O’Connor, challenging a statewide bill that restricts public school instruction on race and gender. As a result of the law’s approval, according to the ACLU, school districts in the state have told teachers to avoid using terms such as “diversity” and “white privilege” in their classrooms, and have removed , and other seminal books from reading lists.

The court’s decision will have ramifications for Tulsa, the state’s second-largest school district, which received a in its accreditation status after the State Board of Education found an implicit bias training it administered was in violation of the state anti-CRT law. The city, which was the site of the 1921 Tulsa Race Massacre that left hundreds of Black residents dead and over 1,250 homes destroyed, had recently doubled down on teaching the dreadful, long-buried episode. The demotion does not prevent teachers from covering that history, but some fear may lead teachers and school leaders to feel as if they are on thin ice.

New Hampshire

New Hampshire is among the 17 states that have passed laws restricting lessons on race and gender. The ACLU’s lawsuit, Mejia v. Edelblut, alleges that the Granite State’s legislation is so vague that it violates the 14th Amendment, because teachers’ innocent misunderstandings can place their jobs in jeopardy. The state chapter of the National Education Association, one of the plaintiffs, said teachers repeatedly voiced they were confused about what they could and could not teach, and were scared of the repercussions for guessing wrong. Letters to the state asking for clarification, the ACLU says, went unanswered.

Florida

Gov. Ron DeSantis signed Florida’s Stop W.O.K.E. Act in April, tamping down on teachers’ and employers’ ability to hold discussions related to race and gender. “We will not let the far-left woke agenda take over our schools and workplaces,” DeSantis said.

But the law has already run into legal difficulties. In August, a federal judge placed an injunction on the provisions that apply to the workplace. Now, a group of seven professors and one undergraduate student, represented by the ACLU, have also challenged the law’s restrictions on colleges and universities.

“There is a longstanding history in the Supreme Court and courts across our country of recognizing the freedom of professors, lecturers and educators in higher education to determine what to teach and how to teach it,” said Leah Watson, senior staff attorney with the American Civil Liberties Union’s Racial Justice Program.

Tennessee

In February, after the McMinn County Board of Education decided to remove the graphic novel from the eighth-grade curriculum, the ACLU of Tennessee calling for the board to share the parent complaints it received over the book.

Virginia

After Virginia initiated proceedings to block the sale and distribution of two books, Gender Queer and A Court of Mist and Fury, the ACLU and ACLU of Virginia filed a alongside several independent bookstores urging a state court to dismiss the obscenity proceedings against the two works. On Aug. 30, the court followed that recommendation and dismissed the attempted ban.

“The First Amendment is clear — disliking the contents of a book doesn’t mean the government can ban it,” the ACLU on Twitter.

Missouri

A Trump-appointed federal judge denied an ACLU motion for a preliminary injunction against the Wentzville School District’s book ban. The ACLU of Missouri originally filed a class action lawsuit on behalf of two Wentzville students after the school district pulled several books with Black, Hispanic, Asian and LGBTQ main characters from the shelves of its libraries. The lawsuit sought to temporarily halt the district’s book review policy. A trial on whether to permanently ban the district from enforcing that policy is .

Montana

The ACLU of Montana in February filed a public records request after officials in Kalispell, Montana held meetings over whether to ban by Jonathan Evison and Gender Queer by Maia Kobabe. The board dismissed the first potential ban and has delayed a decision regarding the second. 

Meanwhile, books were left in the Kalispell book drop in early August. Local police investigated and concluded that the books — none of them controversial titles — were mistakenly donated after being used for target practice, but the unnerving incident spurred the resignation of at least two librarians.

Nebraska

In late May, a Nebraska school district three days after the 54-year-old outlet published an LGBTQ-themed edition. The superintendent of Northwest Public Schools, in Grand Island, Nebraska, said the paper’s final issue was not the sole reason for its elimination. But school board Vice President Zach Mader was , saying, “If (taxpayers) read that (issue), they would have been like, ‘Holy cow. What is going on at our school?’”

In response, the ACLU of Nebraska submitted a public records request for all documents and communication records related to the decision scrapping the publication. The district’s legal representatives have said they are currently . The ACLU also sent a letter to the superintendent warning that the move violated students’ constitutional rights and other federal protections.

“The District’s unlawful attempts to quash student journalism and student opinions violate students’ rights to freedom of speech and equal protection under the Nebraska and United States Constitutions,” said the . “We urge the District to immediately remedy these violations [by] reinstat[ing] both the school paper and the journalism program.”

Mississippi

In January, Ridgeland Mayor Gene McGee withheld $110,000 from the town’s public library, giving librarians an ultimatum: get rid of LGBTQ literature or lose operational funds that had been slated for the building. The ACLU of Mississippi in February responded with a warning letter to McGee. “You have no authority to undertake such measures, and your actions are unconstitutional,” staff attorney McKenna Raney-Gray wrote. Following the letter, the funding was delivered to Ridgeland Public Library.

Idaho

In May, the Nampa School District banned 22 books from libraries and classrooms, including by Khaled Hosseini, by Margaret Atwood and by Toni Morrison. Concerned over a potential First Amendment violation and the possibility of bias in the board members’ decision, the ACLU of Idaho in July filed a public records request for all communications related to the board’s adoption of the policy.

Late Thursday, Chief U.S. District Judge Mark Walker issued a preliminary injunction in a suit challenging the employer portion of Florida’s Stop W.O.K.E. Act, suspending enforcement of the law in the workplace. The Obama-nominated judge wrote in his Honeyfund v. DeSantis : 

“In the popular television series Stranger Things, the ‘upside down’ describes a parallel dimension containing a distorted version of our world. Recently, Florida has seemed like a First Amendment upside down. Normally, the First Amendment bars the state from burdening speech, while private actors may burden speech freely. But in Florida, the First Amendment apparently bars private actors from burdening speech, while the state may burden speech freely.”

A separate lawsuit filed Thursday morning challenges the portion of the law that applies to colleges and universities.

A federal lawsuit filed Thursday charges that a Florida law designed to “fight back against woke indoctrination” by limiting classroom discussions of race and gender violates the constitutional free speech rights of college students and professors.

Florida’s Stop Wrongs Against Our Kids and Employees (Stop W.O.K.E.) Act took effect July 1. It prohibits workplaces and schools from requiring training or instruction that may make some people feel they bear “personal responsibility” for historic wrongdoings because of their race, gender or national origin.

But Jerry Edwards, staff attorney with the ACLU of Florida, one of the legal organizations behind the case, said the law unconstitutionally censors the free expression of higher education students and educators.

“The Stop W.O.K.E. Act is a shameful result of propaganda and fearmongering,” he said in a statement. “A free state does not seek to curtail the inalienable right to free expression in its college and university classrooms.”

The Florida Department of Education did not respond to multiple requests for comment.

Florida is one of 17 states that have sought to restrict how educators cover topics related to race and gender, according to a . 

However, it’s the only state that applies its censorship law to higher education, said Leah Watson, senior staff attorney with the American Civil Liberties Union’s Racial Justice Program.

“There is a longstanding history in the Supreme Court and courts across our country of recognizing the freedom of professors, lecturers and educators in higher education to determine what to teach and how to teach it,” she told The 74. 

Seven Florida professors and one undergraduate are named as plaintiffs, represented by the national ACLU, ACLU of Florida, NAACP Legal Defense Fund and the law firm of Ballard Spahr. The suit names the state university system’s board of governors and several other officials as defendants. It requests an injunction seeking an immediate halt to enforcement of the bill in colleges and universities.

Plaintiff Russell Almond is an associate professor teaching statistics at Florida State University and covers how to use race as a variable in empirical research. Provisions in the Stop W.O.K.E. Act that prohibit educators from presenting “colorblind” ideologies as racist put his teachings in jeopardy, the lawsuit charges.

Another professor, Dana Thompson Dorsey, will teach a course in “Critical Race Studies: Research, Policy and Praxis” at the University of South Florida this school year. She fears that explaining how racism is embedded in American institutions — a central aspect of the scholarly framework — could put her in violation of the law. While the Sunshine State does not explicitly ban Critical Race Theory, Gov. Ron DeSantis’s office has said the law is intended to .

“In Florida, we will not let the far-left woke agenda take over our schools and workplaces. There is no place for indoctrination or discrimination in Florida,” DeSantis said after he signed the bill into law in April.

The act forces many educators to present foundational principles of their disciplines in a “false light,” presenting them as “disputed when it’s honestly not,” said Watson. 

Plaintiff Johana Dauphin, a senior at Florida State University, worries that she will be ill prepared for graduate school if the law interferes with her professors’ ability to convey key understandings that students in other states receive.

“I fear that this law will cause my professors to avoid discussing race and gender altogether, which will result in my perspective and lived experience as a Black, female student being effectively minimized and erased in the classroom,” said Dauphin. “As a student, I deserve to see myself and the issues that impact me — including issues around race and gender — reflected in my classroom discussions.”

Thursday’s filing marks the third lawsuit the ACLU has brought against a statewide censorship law. Similar cases in Oklahoma and have yet to be decided.

A previous legal challenge seeking to prevent the Stop W.O.K.E. Act from taking effect was dismissed by a federal judge in June. Chief U.S. District Judge Mark Walker clarified in a 23-page order that he was not “determining whether the challenged regulations are constitutional, morally correct or good policy.” Rather, the four plaintiffs — two professors, a student and a diversity, equity and inclusion consultant — .

Other lawsuits challenging the Florida law remain undecided. At an early August hearing, Walker appeared to arguments leveled against the state by several businesses, including a Ben & Jerry’s franchise. The federal judge emphasized the vagueness of a particular section that labels training discriminatory if it causes an employee to believe a person of “one race, color, sex, or national origin cannot and should not attempt to treat others without respect to race, color, sex or national origin.”

“Apparently, I’m a person of below-average intelligence, because I have no idea what that means,” said Walker.

John Ohlendorf, an attorney representing the state, defended the provisions: “The state of Florida has a compelling interest in preventing employers from forcing employees to listen to speech that suggests one race is inherently superior to another.”

The case brought Thursday is “framed differently” than prior challenges, Watson said. It has yet to be assigned, but it’s possible Walker could be the one to review it. Should that happen, the ACLU hopes for a speedy ruling, as he has moved in a matter of weeks on previous decisions around the bill. 

“We’re confident the Stop W.O.K.E. Act unconstitutionally infringes upon academic freedom and students’ right to learn,” said Watson. “I’m not able to comment predicting what the court may say.”

The Court’s ascendant conservative majority, which has proven increasingly friendly to petitions concerning religious freedom over the last few years, in Kennedy v. Bremerton, one of the last to be determined in the 2022 term. The case stretched back to 2015, when conflict first arose between the coach, Joseph Kennedy, and the leadership of the Washington State public high school where he worked.��

After an escalating disagreement over Kennedy’s practice of post-game prayer — and whether observers would assume it constituted a government endorsement of religion — he was placed on administrative leave and given a poor professional evaluation. He subsequently left the job.

In a lengthy opinion, Justice Neil Gorsuch argued that the school’s actions violated Kennedy’s First Amendment rights, likening his postgame ritual to the protected actions taken by classroom teachers when donning a Muslim headscarf or praying silently before lunch in a cafeteria.

“Here, a government entity sought to punish an individual for engaging in a brief, quiet, personal religious observance doubly protected by the Free Exercise and Free Speech Clauses of the First Amendment,” Gorsuch wrote. “The Constitution neither mandates nor tolerates that kind of discrimination.”

While addressing a relatively narrow corridor of First Amendment jurisprudence — the case doesn’t deal directly with officially mandated prayer in educational settings, or even academically related functions — Kennedy will likely change the way school districts and other public authorities approach public acts of faith. Specifically, the ruling signals a willingness to reconsider the balance between the Constitution’s Establishment Clause (barring the establishment of a state religion) and the Free Exercise Clause (prohibiting the government from interfering in religious practice). 

In a move that during oral arguments in April, the majority effectively sidelined the so-called Lemon test, a three-part rubric for determining whether a particular government action subverts the Establishment Clause. Derived from the 1971 Lemon v. Kurtzman case, the rule held that those acts must serve some secular purpose; that they neither promote nor encumber religion; and that they not foster “excessive entanglement” between government and religion.

Dismissing the test, Gorsuch said that the Supreme Court had long since abandoned its “abstract and ahistorical approach to the Establishment Clause.”&�Բ�����;

Joshua Dunn, a political scientist at the University of Colorado Colorado Springs, said that in the wake of the ruling, public schools “will have a more difficult time claiming that the speech of employees is part of their official duties and thus subject to government control.”

“The most important result of today’s opinion is that it completely lays to rest the Lemon test,” Dunn wrote in an email. “The vast majority of cases where [this test was] applied involved public education. Instead, the court said that judicial application of the Establishment Clause should be guided [by] the clause’s historical understanding and application. Schools and school districts will certainly have more flexibility in accommodating religious expression after today.”

Writing for the Court’s liberal minority, Justice Sonia Sotomayor characterized the plaintiff’s actions as anything but quiet and personal, citing multiple photos of football players joining their coach in prayer. To call Kennedy a private actor, even as he held a public role and prayed in an open venue, was to “misconstrue the facts,” she argued.

“The record reveals that Kennedy had a longstanding practice of conducting demonstrative prayers on the 50-yard line of the football field,” wrote Sotomayor. “Kennedy consistently invited others to join his prayers and for years led student athletes in prayer at the same time and location. The Court ignores this history.” 

The decision is only the latest in which conservative members of the Court cautioned local governments to more stringently avoid what they characterized as discrimination against religion. Last week, the same 6-3 majority struck down a Maine statute barring parochial schools from accepting public funding. That ruling, and several others preceding it, have led some legal experts to wonder if further blurring of the public and religious spheres is still to come. 

The full spectrum of religious activity across the nation’s 130,000 public schools, whether led by students or staff, is difficult to know for certain. In conducted by the Pew Research Center, roughly four-in-ten American teenagers said they regularly witnessed prayers held before sporting events. About six-in-ten respondents said they saw prayers occur before lunch.

Rachel Laser, president of the group Americans United for Separation of Church and State, which represented the Bremerton school board in the case, said the ruling represented “the greatest loss of religious freedom in our country in generations.”

“Today, the court continued its assault on church-state separation, by falsely describing coercive prayer as ‘personal’ and stopping public schools from protecting their students’ religious freedom,” she said. “It is no coincidence that the erosion of the line between church and state has come alongside devastating losses on so many of the rights we cherish.”

The conservative majority on the U.S. Supreme Court on Monday appeared to be leaning in favor of a Bremerton, Washington, football coach who prayed on the field after games, despite his school district’s instructions to stop. 

The case, , centers on whether the coach’s prayer amounted to government speech and, therefore, whether it violated the Constitution’s separation of church and state. Joseph Kennedy, the coach, argues he was unfairly put on leave for his actions.

In arguments Monday, Justice Brett Kavanaugh noted that the coach’s prayer was “not audible to all players.”

“They’re not all there,” he said. “They don’t have to be there. It’s not a team event.”

The case is the second focusing on schools and religion the court has heard this term, with a conservative supermajority on the bench leaning toward fewer restrictions on religious liberty. In December, the justices heard oral arguments in a over public funding for private religious schools.

Joshua Dunn, a political science professor at the University of Colorado, Colorado Springs,  said that he doesn’t expect five justices to lean the district’s way, especially since this was a case that four of the conservative justices signaled they wanted to hear when Kennedy first petitioned the court in 2019.

John Taylor, a law professor at West Virginia University, added that it’s not just the most conservative justices on the court — Samuel Alito, Clarence Thomas and Neil Gorsuch — who see their role as “protecting conservative Christians from what they regard as oppression by the liberal, secular order.” But Brett Kavanaugh and Amy Coney Barrett “also sound the same themes on occasion.”

In Monday’s hearing, the justices posed a variety of hypothetical scenarios to both attorneys to get at the extent of a school employee’s religious freedoms under the First Amendment and what to do when exercising those rights infringe on student freedoms. Justice Brett Kavanaugh asked if an employee could make the sign of the cross, for example, and Justice Sonia Sotomayor asked if the district could fire someone who wore a Nazi swastika on their arm if they said it was part of their religion. 

Richard Katskee of Americans United for Separation of Church and State, representing the district, called Kennedy’s prayers a form of coercion, adding that students worried they would lose playing time if they didn’t participate and that the coach even “announced in the press that those prayers are how he helps these kids be better people.”

Justice Elena Kagan, one of the three liberals on the court, said the district had a right to discipline the coach because even if he didn’t directly threaten to sideline players who didn’t participate, the activity puts “undue pressure” on students who have different beliefs or have no religion. 

“We’re worried that the students will feel, ‘He gets to put me into a football game or not. He gets to …give me an A in math class or not,’ ” Kagan said. “This is a kind of coercion that’s improper for 16-year-olds.”

The main question in this case, Taylor said, is whether the court will try to characterize the coach’s actions as completely private or “take a broader swing at Supreme Court precedents.”

Paul Clement, attorney for First Liberty Institute, a nonprofit law firm representing Kennedy, argued before the court that the district would have a hard time making a case for coercion because it disciplined him for two games in which students didn’t participate in prayers. 

He added that the district’s argument focused on whether officials might appear to be endorsing the prayers because they occurred at a school football game. But he likened the coach’s prayers to those of soccer player Mohamed Salah and football player Tim Tebow.

“Right after Tim Tebow scores the touchdown, he’s absolutely the center of attention, yet he engages in a religious exercise,” Clement said. “It’s private, it’s permissible and the government can’t stop it.”&�Բ�����;

The justices made several references to the so-called Lemon test, which stems from Lemon v. Kurtzman, a 1971 case on church-state separation. The court in that case held that allowing religious expression is a form of endorsement, or establishment. But some of the justices noted that the standard is no longer relevant. 

“I don’t think that is a test anymore,” Justice Alito said. “We haven’t applied that in two decades, and so I don’t think that helps … on the school cases.”

Note: An earlier version of this story, including the headline, incorrectly stated that Joseph Kennedy was fired by his school district for praying after football games.