Search Results

A state college or university, through its administrators and, in some contexts, its faculty and students, is a constitutional actor. This statement surprises many who work in public higher education. Because students, staff, faculty members, and visitors retain their constitutional rights, those who act on behalf of public colleges and universities are constitutional actors, the paramount duty is to obey the Constitution. The constitutional obligations trump other duties under statutes, regulations, guidance documents, union agreements, internal policies, and faculty rules. Because they are flawed human beings, university administrators are no more or no less virtuous than other governmental actors are. Like other government officials, higher education administrators may pursue their own interests at the expense of the public interests, may reward their friends and punish their enemies, and may subordinate the constitutional rights of others to their own well-intentioned policy objectives. Constitutional conflict and constitutional litigation are inevitable. Like government officials outside of academe, a public college or university’s constitutional actors must ensure their own behavior conforms to the Constitution while striving to ensure their colleagues also comply. Although constitutional conflicts for public universities arise in many contexts, disputes involving the “first freedom” of religious liberty are quite common. Americans are a religious people and, while they differ on fundamental theological questions, there is a broad consensus around the existence of a higher power. Consequently, their government’s foundational documents explicitly acknowledge the unalienable right of religious liberty. This acknowledgment takes the form of the Establishment Clause, which prevents the government from favoring a particular faith, and the Free Exercise Clause, which prohibits government interference with religious practice.

In public schools in the United States, the landscape of religious expression is an ever-changing terrain where individual rights intersect with institutional responsibilities. Students attending public schools enjoy First Amendment rights, including the freedom to exercise their religion and express their beliefs. While the Establishment Clause prohibits schools from endorsing specific religions, students can engage in non-disruptive religious activities on campus. These activities may encompass praying, distributing religious literature, and forming religious clubs, provided they are initiated by students rather than sponsored by the school. Striking a balance is crucial, and administrators must navigate potential conflicts by ensuring that any restrictions are content-neutral and applied consistently to all expressive activities. Public school employees face more nuanced boundaries concerning religious expression due to their roles as government representatives. The Establishment Clause restricts employees from using their positions to endorse or promote religious beliefs. Despite this, employees retain the right to practice their religion both inside and outside the school environment. Teachers, for example, can address students’ questions about religion within an academic context but must avoid proselytizing or imposing personal beliefs. Schools are expected to accommodate reasonable requests for religious practices, such as prayer breaks or dress code modifications, unless they create an undue burden on the school’s operations. Public schools must delicately balance upholding individuals’ constitutional rights with maintaining a neutral and inclusive educational environment. The Supreme Court has, for decades, grappled with what test(s) to apply when analyzing alleged Establishment Clause violations. Two of the three tests relied upon, in some fashion or another, have been cast aside by the current Supreme Court. They have instead opted to rely on an analysis focusing on the intent of the founding fathers. What appears to be a huge win for advocates of prayer in public schools will surely be a continued legal battle for decades to come.