ACLJ Takes Action To Protect the Rights of Teachers To Express Their Faith Through Prayer at the Pole


November 14, 2023

5 min read

Religious Liberty



The ACLJ has taken action again to protect the rights of participants in the public school system to express their faith. We’ve shared with you our fight to protect the rights of students to act according to their faith in public school and our fight to protect the rights of parents to make their children’s educational decisions. Since Board of Education v. Mergens, where ACLJ Chief Counsel Jay Sekulow argued for the rights of students to form a Christian club, we have fought for the rights of Christians to express their faith in the educational system. This time, we are taking action to protect the right of a teacher to engage in prayer outside the school building before the school day begins.

Our client, a teacher in Texas, had gathered with two friends and fellow teachers to pray at the school flagpole before school began as part of See You at the Pole, a national event where millions of people around the country gather at flagpoles to pray. The school principal called these teachers into his office. He told them that they could not pray at the pole or in the presence of students, because if they did so, students may see and join in. He told them that it was against the law for them to pray publicly where students could see them. He was fine with them praying hidden away from view but made clear that they could not pray where anyone else might see.

This is not the law. On the contrary, the Constitution protects the rights of religious employees to exercise their faith, even publicly, so long as they are not doing so in a coercive way. Recently, in Kennedy v. Bremerton, the Supreme Court made clear that teachers and coaches do not lose their First Amendment rights at the schoolhouse door. We filed an amicus brief in the case and fought for this victory for religious freedom, defending the rights of teachers to engage in appropriate acts of public religious expression.

The policy of the school in Kennedy was similar to the policy we addressed here; it ordered Coach Kennedy not to engage in any “demonstrative” religious activity in front of his students in order to avoid any possibility that students might participate. The school attempted to justify this policy on the basis of the Establishment Clause. The Court wholeheartedly rejected this policy as a violation of the First Amendment, repudiating its purported basis in the Establishment Clause.

The only added twist here is the District’s suggestion not only that it may prohibit teachers from engaging in any demonstrative religious activity, but that it must do so in order to conform to the Constitution.

Such a rule would be a sure sign that our Establishment Clause jurisprudence had gone off the rails. In the name of protecting religious liberty, the District would have us suppress it. Rather than respect the First Amendment’s double protection for religious expression, it would have us preference secular activity. Not only could schools fire teachers for praying quietly over their lunch, for wearing a yarmulke to school, or for offering a midday prayer during a break before practice. Under the District’s rule, a school would be required to do so. It is a rule that would defy this Court’s traditional understanding that permitting private speech is not the same thing as coercing others to participate in it.

Thus, the Supreme Court in Kennedy rejected the notion that public school employees can be categorically prohibited from praying in public. The Establishment Clause contains no such requirement; on the contrary, the Constitution protects the rights of public school employees to engage in religious speech, even before others, when that speech is not in their official capacity. The Court concluded, “Mr. Kennedy has demonstrated that his speech was private speech, not government speech” because when he prayed, “[h]e was not instructing players, discussing strategy, encouraging better on-field performance, or engaged in any other speech the District paid him to produce as a coach.”

In other words, a school can prevent employees from getting distracted when they are supposed to be acting according to their official duties. But what it cannot do is prevent school employees who are off the clock from expressing their religious faith. Specifically, a school cannot prohibit any religious expression where children might be present based on the fear that children might participate in or see the religious activity. The right of teachers to express their religious beliefs is too strong for that.

We sent a demand letter to our client’s school, demanding that they take action and stop infringing upon her First Amendment rights. Her right to pray is not limited to situations where she is in private and no one can see her. She has a right to pray when not acting in her official capacity. If the school system refuses to protect her First Amendment rights, then we will . . . in court.