Religion in State Education Policy
Every year, state legislatures throughout the country introduce legislation that in some way brings together religion and the public education system. This is perhaps becoming more common, as state policymakers recognize the increasingly favorable precedents being put in place by the Supreme Court regarding the presence of religion, religious institutions, and public schools, particularly with the recent line of rulings in Trinity Lutheran, Espinoza, Carson, and Kennedy (which have been ably addressed at greater length by other Canopy Forum authors).
I have been tracking and summarizing bills that involve religion and education throughout the 2023 legislative session (see my ongoing Twitter superthread for more details and future bills), and will be sharing some themes and many examples in this article. I am not a lawyer and will happily leave discussion of the constitutionality and legality of these bills to others, but with so many legislative bodies producing thousands of bills and resolutions each year, it can be easy for state policy to be overlooked. State policy is a crucial arena for competing interpretations of the proper relationship between church and state and the apparently disappearing “play in the joints” between the Establishment and Free Exercise Clauses; those interested in the intersections of law and religion would do well to pay attention to the activities of state policy-making bodies in education and other areas of policy.
At least 61 bills of interest concerning religion and public education systems have been introduced in 30 states so far during the 2023 legislative session. These can largely be divided into the following categories, which will be covered in this essay: prayer and religious expression, curriculum and course offerings, religious displays in schools, regulations for religious schools, attendance and school calendars, and chaplains serving as school counselors. This essay will not address all 61 bills, but it will highlight noteworthy policies and provide many links for readers to explore the actual bill texts themselves. It is worth noting that most of these bills have only been introduced and may have small chance of actually becoming law, but I do indicate those that have been enacted where appropriate below. This essay does not include many other education policy topics that involve religion or religious institutions, such as the emerging trend of parents bill of rights that allow students to be excused from content parents object to for religious reasons, or the large number of school voucher or education savings accounts programs that allow public funds to be used toward tuition at religious institutions of education.
Prayer and Religious Expression
Perhaps the most obvious example of the interplay between state education policy, the intersections of religion and law, and the continuing impact of Supreme Court rulings on informing state education policy can be seen in the presence of bills introduced in legislatures on school prayer. At least two bills were enacted this year (in Idaho and Kentucky) that allow school employees to engage in religious speech while on duty during times when private or personal conduct is allowed. These bills mirror the Kennedy ruling regarding prayer by a public school football coach. Idaho’s bill is even entitled “Coach Kennedy’s Law” and contains a preamble that discusses the case at some length. A similar bill was introduced in Texas but not enacted. Less tied to Kennedy, a bill introduced in Oklahoma regarding staff prayer would establish a Teacher’s Bill of Rights, including the right for a teacher to “pray with, over, or in front of students.”
Other introduced bills have sought to allow student-initiated prayer, with a wide range in scope. Texas introduced a bill, which recently passed one house, that would allow schools to require a “period of prayer and Bible reading on each school day.” The bill is carefully written with many caveats: it would require that participants sign a waiver of Establishment Clause claims and mandate that non-participants may not be physically present or within hearing range. A bill in Hawaii would require K-6 students be given time at least weekly to engage in student-led group or individual prayer.
At least five states have introduced bills regarding prayer at school and school events such as graduation. Most notably, Mississippi introduced a bill that would allow audible prayer at the beginning of each school day and which includes a possible trigger tied to Supreme Court activity: if the state Attorney General determined that the Supreme Court has overruled Engel v. Vitale, provisions in statute that permit school prayer would then be enforced. Alabama, Minnesota, New York, and Pennsylvania introduced bills that would specify that religious expression may not be excluded from a limited public forum, including school events such as graduation ceremonies.
Curriculum and Course Offerings
At least four bills have been introduced (in Iowa, Illinois, Louisiana, and Missouri) that would allow for the offering of classes studying the Bible. These share a number of characteristics including an emphasis that elements such as the history and literature of the Bible will be taught, with requirements for religious neutrality in its teaching. Iowa would allow the display of related historical artifacts, symbols, texts and religious materials, and the Illinois bill would prohibit such courses from “disparaging or criticizing the content within the Old and New Testament.”
A draft bill in Montana — which at this point has only been drafted by the Legislative Services Division as requested by a state representative and not yet formally introduced — would allow a very different type of religious education in public schools. The preface to this bill states that “all the miseries and evils from which humanity suffers” comes from an absence or ignorance of the Bible, that “today’s youth need to have God’s Word integrated into their lives” while living in an “anti-Christian culture,” and that an elective Bible course would “provide students with the marvelous opportunity to study God’s Word and have it change their lives for eternity.” Rather than being restricted to the history and/or literature of the Bible, as seen in the state bills mentioned previously, the elective course allowed by this draft bill would include memorization of scripture, include “illustrations and examples for students to apply the word of God to their own lives” and provide “time to pray for students and to build community.” Finally, the course would only be able to be taught by those who have “demonstrated biblical knowledge” and who are able to support the course “through the accurate use of scriptures.” To fill those roles, districts would need to notify local ministries “and ask for the participation of local pastors from different denominations to identify individuals” to teach the course.
Introduced bills in several other states would address religion in curriculum other than through study of the Bible. North Dakota introduced a bill that would — among many other things, such as prohibiting social emotional learning — allow a teacher to “teach transcendent and universal moral truths.”
A bill introduced in Texas would require schools to teach that “human life begins at conception and has inherent dignity and immeasurable worth from the moment of conception.” West Virginia introduced a bill that would allow teachers in public schools to “teach intelligent design as a theory of how the universe and/or humanity came to exist.” Oklahoma introduced a bill that would require instruction in United States history to include information about “America’s Christian heritage including the influence of the Ten Commandments and the Bible on America’s founding documents.”
Two other bills introduced in Oklahoma would make noteworthy changes to curriculum requirements. These bills share much of the same language: they would define secular humanism as a religion, assert that either critical race theory or nonheteronormativity are “inseparably” tied to secular humanism and are therefore religious, and that instruction related to these topics fails the “lemon [sic] test” and therefore cannot be allowed in public schools. Both bills have much that will likely interest readers, including legally defining religion as a “set of unproven answers to the greater questions,” and defining secular humanism as “a religion that tends to promote licentiousness and to justify practices that are inconsistent with the peace and safety of the state” and with a belief that “man is merely a bundle of chemicals, animated pieces of meat, or accidental particles.”
Both of these introduced Oklahoma bills can ultimately be summarized by their statements that “the Establishment Clause balanced with the Free Exercise Clause… is the controlling constitutional authority in informing this state on how to respond and react to” either “critical race theory” or “self-asserted sex-based identity narrative and sexual orientation orthodoxy.” The attempt to tie a disfavored practice to religion and use the Lemon test to bar it from public schools is certainly a novel approach, but seems poorly timed given the Supreme Court’s recent declaration in Kennedy that “this Court long ago abandoned Lemon and its endorsement test offshoot.”
Religious Displays in Schools
Many states have requirements in statute or regulation regarding the display of “In God We Trust” in public schools. So far in the 2023 legislative session, at least 9 bills have been introduced in 8 states regarding displays in public schools that are in some way religious in nature. Six of these bills, in Kansas, Louisiana, Nebraska, Pennsylvania, South Carolina, and West Virginia, would either require or allow the display of “In God We Trust” in public school buildings. Current Louisiana law requires the display of the national motto in every school building; the bill it introduced this year would expand that requirement to every classroom. The bills in Kansas, Louisiana, and West Virginia would create this requirement for public postsecondary schools in addition to K-12 environments.
A bill introduced in Oklahoma would specify that every school, political subdivision, person, and business has the authority to display a nativity scene (including those with live humans and animals) in its buildings or grounds. Two bills introduced in Texas would create requirements regarding display of the Ten Commandments. One introduced bill, which was recently passed by one house, would require that every public school must display the Ten Commandments in every classroom using the King James translation. Another bill introduced in Texas would require the display of at least one from a list of “historically significant documents to the founding of the United States.” That list, in its entirety, is comprised of the Declaration of Independence, the U.S. Constitution, and the Ten Commandments; functionally enabling but not requiring the Ten Commandments’ display in public schools.
Although I am not including the large number of school choice bills that involve religious institutions in this essay, I would like to highlight some introduced bills on either end of that area of legislative activity. North Carolina introduced a bill prohibiting all nonpublic schools that accept students using scholarship grants from discriminating on the basis of religion, race, national origin, disability status, sexual orientation, and other characteristics. Similarly, a bill in Oklahoma would prohibit private schools that receive state funds from providing religious instruction and activities, or from requiring participation in religious activities. Similar bills have also been introduced in Minnesota (regarding participants in dual enrollment programs) and Vermont. In contrast, a bill introduced in Texas would create an education savings account program, including a provision that the government may not create any rules that impose requirements contrary to or that limit the religious values of a provider, including educational content, and admission and enrollment policies. The bill would also prohibit the state from tying receipt of money to program modification.
Attendance and School Calendar Policies
Arkansas and Oklahoma introduced bills that would not only allow students to use “released time” to participate in religious instruction off school district property, but also allow students to gain academic credits for such participation. Notably, the introduced bill in Oklahoma would exclude released time courses that “undeniably promote licentiousness or practices that are inconsistent with the peace and safety of this state,” which is a characteristic ascribed to secular humanism in introduced bills described previously, and seems to be a way to prohibit instruction related to critical race theory or nonheteronormativity. A small number of bills have also been introduced that involve religion and school calendar considerations. New Jersey introduced a bill that would permit public high school students to opt out of physical education and sports programs during Ramadan if they are observing and fasting. New York would designate Good Friday as a public holiday for all public schools, and ensure that “Good Friday” replace “Spring Recess” and similar terms when referencing the day.
Chaplains as School Counselors
Oklahoma and Texas have both introduced bills this year that would allow chaplains to be employed to perform the duties of school counselors. Although the introduced Texas bill does not provide additional context indicating how chaplain is defined, the introduced Oklahoma bill would use specifically Christian terminology to define chaplain: “an ordained or authorized pastor, minister, priest, or other ecclesiastical dignitary of any denomination who has been duly ordained or authorized by the church to which the person belongs.”
Understanding state policy is a crucial component to understanding politics in the United States writ large. This is particularly true for education policy, which is largely driven by state policymakers and policy making bodies. Although policies made in state capitals are not as likely to make national headlines as those enacted by Congress in the halls of the U.S. Capitol, every year state legislatures introduce, consider, and enact many pieces of legislation relevant to education policy that have significant implications for the separation of church and state. Although it can be difficult to navigate so many policy actions at the state level, readers interested in the intersection of law and religion should keep an eye on what is happening in state legislatures throughout the country.♦
Bryan Kelley is a Policy Analyst at Education Commission of the States. He is particularly interested in education access and equity issues, and often writes on the intersection of public education systems and religious institutions.
Kelley, Bryan. “Religion in State Education Policy.” Canopy Forum, April 27, 2023. https://canopyforum.org/2023/04/27/religion-in-state-education-policy/.