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Parental Rights Were Ignored in the Praying Coach Ruling

When students watched him pray, did they feel pressure to join in?
When students watched him pray, did they feel pressure to join in? (Photographer: Win McNamee/Getty Images)

It wasn’t hard to predict that the praying football coach was going to win his case in the US Supreme Court. As far back as oral argument, one could sense the justices’ skepticism about the proposition that a school can fire an employee for (in effect) disclosing to students his own personal religious beliefs and practices. What the justices decided in Kennedy v. Bremmerton School District was that, unless the students were coerced to join in, the football coach who knelt at midfield after games was merely exercising his rights under the Free Exercise Clause of the First Amendment.

As one who’s been writing about the Constitution’s religion clauses for more than three decades, I’m confident that the result is correct, assuming that we can rely on the majority’s summary of the facts. (The dissent sharply disputes the majority’s presentation of record.) But even though the First Amendment issue involved is hardly trivial, Bremmerton is potentially more important for the illumination it casts on the larger and contentious contemporary debate over who gets to decide what kids are exposed to at school.

The majority opinion hardly touches this point, but the question is central to the dissent, ably written for three justices by my law school classmate Sonia Sotomayor, who accurately frames the central issue as whether the coach’s prayer after games “strikes at the core of our constitutional protections for the religious liberty of students and their parents.”

Notice the parents in there: exactly the appropriate framing.

As I’ve long argued, most of the “great” cases about religion and the schools — classroom prayer, flag salute, scientific creationism, you name it — should properly be understood as implicating not the Establishment Clause but the right of parents to make decisions about their children’s education.

This right is one that I suspect most families take for granted, and one the Supreme Court itself endorsed almost a century ago, in Pierce v. Society of Sisters. In 1925, the justices unanimously struck down an Oregon law that would have prohibited most private grade schools and thus effectively force families to send their children to public schools. The rule, wrote the court, “unreasonably interferes with the liberty of parents and guardians to direct the upbringing and education of children under their control.”

That liberty in turn rested on an important principle:

The child is not the mere creature of the State; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations.

Modern scholars tend to ignore or even revile Pierce, but in a nation struggling to be properly pluralistic, the court’s logic should have a certain appeal. Although the parental right the court sets forth might explain many religion and free speech cases — “I don’t want my child to be pressured to pray”; “I don’t want my child to salute the flag” — it would hardly be limited to those circumstances.

Nowadays our debates over education tend toward the Manichaean: The right-wing Christians are coming for our kids! The left-wing critical race theorists are coming for our kids! That sort of silliness. But we might have less railing and more conversation if families had more information from the start about what’s being taught in the classroom, and if their input was openly and sincerely solicited about how best to do it.

My views are perhaps colored by events in my own life: When I was in what was back then called junior high school, my history teacher told us that most of those who owned slaves treated their captive workers kindly, that most of the slaves were happy, and that only a few hotheads wanted to run away. I went home and shared these tidings with my parents, who otherwise would have been unaware of what I was being taught. One of them visited the teacher, who a few days later backed off what she’d told us.

If families get to “direct the upbringing and education” of their children, then at minimum they should always be made aware of what exactly is being taught.

Don’t get me wrong. I’m not proposing a parental veto over what other people’s children learn. An appreciation of the parental rights set forth in Pierce would at least provide a context for public debate. I do believe (no doubt due in part to my own experiences) that parents should have a limited right to opt their children out of objectionable classroom instruction. That right isn’t absolute. I agree with the political scientist Amy Gutmann (currently ambassador to Germany) that the parental right can in many cases be overridden by fair and open democratic processes that themselves are informed by fair and open debate.

On the other hand, the courts should not allow even majorities to force the kids into situations that interfere with parents’ efforts to shape their children’s religious (or nonreligious) world views. And this would of course include situations, such as organized classroom prayer, where students as a formal matter can opt out but in practice often feel peer pressure to join in.

All of which brings us back to the football coach kneeling in prayer after games. If the majority is right that no coercion was involved, that’s the end of the matter. But if Justice Sotomayor is correct that at least some students felt pressured to join in, a problem does indeed arise. The concern, however, isn’t the Establishment Clause. It’s that coercion in matters of religion violates the right of parents to direct their children’s education. Next time around, that’s where the court’s analysis should begin.

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

Stephen L. Carter is a Bloomberg Opinion columnist. A professor of law at Yale University, he is author, most recently, of “Invisible: The Story of the Black Woman Lawyer Who Took Down America’s Most Powerful Mobster.”

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