When it comes to hot-button political topics, religion in public schools has long ranked near the top. This remains true in Texas, where the state Senate passed a bill to authorize the boards of trustees in school districts or non-religious charter schools to establish a policy allowing a period for prayer and the reading of religious texts for students and employees during the school day. It names the Bible but no others specifically, although the time for prayer would be open to any faith.
Senate Bill 11's author, Texas State Senator Mayes Middleton, argued that the legal concept of the separation of church and state is based on a letter from Thomas Jefferson to the Danbury Baptists "that has been twisted completely out of control." The bill must pass a House vote to become Texas law. Senate Bill 10, which calls for the displaying of the Ten Commandments, also recently passed the Senate. A similar law passed in Louisiana was struck down as unconstitutional.
A Brick in the Wall
The First Amendment of the U.S. Constitution deals with the relationship between the government and religion. The Establishment Clause addresses the need for separation of church and state. Stating that the government should be uninvolved in religious matters, it also prevented the establishment of a national religion and prohibited the favoring of any faith over others.
The Free Exercise Clause guarantees the right for all citizens to engage in the religion they choose. It also forbids the government to impose any type of religion.
Together, the two are designed to keep what Jefferson referred to as "a wall of separation of church and state." Both clauses have a history of being supported by court decisions. One of the more recent examples was Roake v. Brumley, which issued a preliminary injunction in 2024 blocking a Louisiana law requiring the placement of the 10 Commandments in every public school classroom.
Under Senate Bill 11, the board of trustees for each school district or non-religious charter school must follow a procedure that includes getting a consent waiver from each student and employee. Part of the consent waiver includes waiving the right to bring a First Amendment violation claim against the district.
While a parent can later opt out of allowing their children to participate in a prayer session, the wording of the bill specifically denies them the right to then file a First Amendment claim. The bill also notes that if a district has the attorney general defend them against a claim, the attorney general has the authority over all claims or settlements. If the attorney general isn't used, the state is not liable for the costs of any claims or settlements.
When Life Gives You Lemons ...
State Senators opposing the bill questioned why children who had the ability to pray before and after school needed to pray during the time designated for educational learning. It's uncertain how the new law would work, as a classroom couldn't be used for prayer unless all students and employees had filed consent forms.
If passed, it seems likely the proposed law would face a strong legal challenge. The U.S. Supreme Court created a three-prong test in Lemon v. Kurtzmannregarding when a government action violates the Establishment Clause. The "Lemon Test" demands that, to avoid infringing on constitutional rights, a law must:
- Have a secular legislative purpose
- Neither advance nor inhibit religion
- Not foster excessive government entanglement with religion
The Supreme Court has recently modified existing precedent regarding prayer in schools. Middleton has cited Kennedy v. Bremerton as proof that the courts are reconsidering the separation of church and state.
Kennedy held that a football coach could publicly pray on the field after games. However, the Supreme Court in Kennedy held that the prayer was a private act not involving his official duties as a coach and school employee. Would the same qualification apply if Texas sets aside official educational time for prayer? Should the law pass, it's a question federal courts will have to decide.
Related Resources
- Religious Activities Allowed at Public Schools (FindLaw's Student Rights)
- The First Amendment (FindLaw's U.S. Constitution)
- Louisiana's 10 Commandments Law Sparks Legal Battle (FindLaw's Courtside)
