Ten Commandments in Schools: Why Courts Are Reaching Opposite Conclusions

Can a state require every public school classroom to display the Ten Commandments?

Federal courts are currently answering that question in different ways, and the disagreement could eventually reach the U.S. Supreme Court.

In this episode of Legal Ledger Sidebar, OSBA attorneys Sara Clark and Jennie Hardin break down recent court decisions from Texas, Louisiana and Arkansas involving laws requiring the Ten Commandments to be displayed in public school classrooms. They explain how the Supreme Court's decision in Kennedy v. Bremerton changed the legal framework for church-state cases, why courts are now focused on "history and tradition," and how two courts reviewing nearly identical issues reached opposite conclusions.

The discussion also explores:
• The end of the Lemon test.
• The role of Stone v. Graham in modern court decisions.
• What lawyers mean by a "circuit split."
• Whether the U.S. Supreme Court could eventually weigh in.
• Why Ohio school leaders should pay attention, even though Ohio does not currently have a similar law.

Legal Ledger Sidebar is a podcast from the Ohio School Boards Association that examines legal developments affecting public education and school governance.

For more resources, training and advocacy updates from the Ohio School Boards Association, visit ohioschoolboards.org.

Transcript

SPEAKER_00 0:00

The following program is a presentation of the Ohio School Boards Association. Could a state require every public school classroom to display the Ten Commandments? Hey everyone, it's Scott Gurfin. Right now, courts across the country are answering that question very differently. And that disagreement could eventually end up before the U.S. Supreme Court. On this week's OSBA Legal Ledger Sidebar, I'm joined by OSBA attorneys Sarah Clark and Jenny Harden, and we're going to talk about why two federal courts looked at the nearly same issue and reached almost opposite conclusions. Sarah and Jenny, thanks for being here. And even though these cases aren't happening in Ohio, school leaders here are watching closely because the Supreme Court's approach to religion in schools has clearly shifted in recent years. So let's get into these cases. And Sarah, let's start with the Texas case and what happened there.

SPEAKER_02 0:59

Yeah, so this is a case, as you mentioned, out of Texas, it's the Alamo Independent School District versus Nathan case. And in that case, Texas did exactly like what we're talking about. They enacted a law that required public school classrooms to display the Ten Commandments. There were several parents from multiple different religious backgrounds that ended up suing the district and said this is a violation under the Establishment Clause, which uh prohibits the government from endorsing or establishing a religion, and also argued that it violated the free exercise clause, which protects individuals' uh rights to exercise religion without government interference. And so Texas and Louisiana both had very similar laws. Um in the Louisiana uh instance, they said this wasn't ready for review yet by a court, but in Texas, um, the district court initially blocked that and said, yes, we agree. This violates the establishment clause. It it um there's no secular purpose to the law and it undermines parental rights and basically coerces children into um observing the religious sect that is um uh displayed. And so the Fifth Circuit, this got appealed to the Fifth Circuit, um, and it combined both the Texas and the Louisiana cases, and it reversed the district court's decision, and they relied on a case called Kennedy versus Bremerton.

SPEAKER_00 2:19

Yeah, and we've talked about Kennedy, that decision on this podcast before, and that case really changed how the courts analyze uh church-state questions.

SPEAKER_02 2:27

Yeah, that's exactly right. So um Kennedy basically abandoned a very long-standing test that's called Lemon. Um, Lemon versus Kurtzman was a test that for many, many years served as how we analyzed establishment clause cases. And they were looking at things like is the purpose of the law secular? Does it inhibit or advance religion? Um, and does it excessively entangle government and religion? And so that was the test. When we had that test in place, there was a decision out of Kentucky that the Supreme Court analyzed called Stone versus Graham. That's a 1980 case. Um, and they basically said, yes, this is under the Lemon test. The posting of the Ten Commandments violates the establishment clause. Um and so for many, many years, you know, obviously whatever the math works out to there, but back to 1980, uh, that has been the law, right? The Supreme Court weighed in on that. Um when this court took a look at this, the Fifth Circuit, they said you can apply that stone case because it relied on Lemon. It relied on this test that the court overruled in Bremerton. And we're throwing all these case names out there, but that's which I realize. But basically they were saying that the legal framework that we've used for 40 plus years is no longer the framework anymore. Um, and so the new framework, this Kennedy framework, is basically asking the question: does the law resemble a founding era religious establishment? That's our new test. And so I think there's a question probably about what does that mean, right?

SPEAKER_00 3:53

Yeah, so what does the court mean when it talks about history and tradition?

SPEAKER_02 3:58

Yeah, so they that is a great question. And I think that's what we're going to be grappling with for many, many years. Um, and the court basically says that that requires you to delve back into these historical sources and scholarship from the late 18th century, right? Which everybody is just gonna um, you know, what is the what did the founding fathers understand these words to mean when they when they wrote the Constitution? Um and so the court spends a lot of time, this is an 118-page decision, they spend a lot of time in this decision discussing what an establishment of religion has historically meant. And they're focusing on things like the Church of England and the religious establishments of colonial times, in the opinion. And so when they do that, they're looking at things like um the fact that these historical establishments required things like compulsory church uh attendance, right? If you didn't attend church, you would be fined, you'd have punishment for not attending, you couldn't hold a legislative position. Um, and uh there were religious taxes, so taxes that were levied to repair churches and sort of manage the church. And so what the court concluded in this case, the Fifth Circuit said, this doesn't look anything like that, right? This is a classroom display in the building, and that doesn't resemble these historical establishments. It's not punishing anybody for not um who rejects those Ten Commandments. Um, they're not levying any taxes when they post these signs. And so the court ultimately said this isn't a violation of the establishment clause.

SPEAKER_00 5:26

So how did the court handle arguments that these displays uh could still feel uh coercive to students?

SPEAKER_02 5:33

Yeah, they disagreed. So they said in both cases, you know, neither Texas nor the Louisiana law required students to engage in religious exercise. There was no requirement that they observe these, um they weren't taught to adopt the commandments, and so there really wasn't any sort of coercive effect. It didn't, um there was no punishment for for disagreeing with them. Um I think that the language in the court decision said a poster is not a summons to prayer, right? So they they did not buy those arguments.

SPEAKER_00 6:01

So, Jenny, the Arkansas court saw things uh differently, right?

SPEAKER_01 6:06

They did. Yeah, they did see things differently. So the law is very similar. The Arkansas law is uh Act 573. It required posting the Ten Commandments in every school room uh in public schools across the state. Um it required a specific text from a specific Bible. Um, and parents from multiple religious backgrounds, just as in Texas and Louisiana, came forward and said, we're not we we feel that this is an infringement of both uh the establishment clause and our free exercise rights under both under the First Amendment. In this case, the district court said, we agree. Um this requirement is a violation of those First Amendment rights, and it blocked the enforcement of the statute, but only in the eight districts where parents challenged the law.

SPEAKER_00 6:57

So did the Arkansas court, though, apply the same uh history and tradition analysis from the Kennedy case?

SPEAKER_01 7:04

It it ish, sort of. Um, it said yes, we're gonna apply that same test, and in fact, it had uh it reviewed some findings or information provided to it by a history uh expert. Um, but it reached a completely different conclusion, even though it you applied the same tests. First of all, it didn't reject Stone versus Graham, it said Stone versus Graham is still good law. Just because the Kennedy court rejected the Lemon test doesn't mean that they rejected all of the progeny or cases that emerged from that test, including uh Stone v. Graham. Um, it looked at the historical arguments uh and it said uh that state-mandated religious speech in public schools is still prohibited, which the court says in Kennedy. So Kennedy doesn't abandon that. Um and then it said that there were no historical practices or understandings to support the posting of the Ten Commandments in public school classrooms, and it rejected the application of this historical practices and understandings test in this context, uh, particularly because it felt that the speech was coercive.

SPEAKER_00 8:18

So if the court didn't focus on the Kennedy test, uh what did it focus on?

SPEAKER_01 8:23

It focused a lot on the experiences of the individual families, the parents, the students involved in the case. Um it talked about the religious diversity issue, the fact that the Ten Commandments that were posted were based on one particular uh religion. Uh it talked about the fact that parents have the right to direct the religious education of their students, which is what the Supreme Court again focused on another case that we haven't actually mentioned yet, which is the Mahmoud decision uh that came down last year. Um, and they talked about the fact that there's societal pressure on kids in stuff in schools, um, and whether students would perceive this posting to be the endorsement of one religious tradition over others.

SPEAKER_00 9:08

So you've essentially got two courts looking at very similar laws, reaching very different conclusions. Uh kind of sounds like the legal systems version of uh referees calling the same play differently.

SPEAKER_02 9:23

That's a great analogy, and that's exactly what's happening here. So we we talk about the fact that the Constitution doesn't come with footnotes, right? It doesn't outline how to analyze this or what they were thinking when they wrote it. Um and so you've got different courts that are interpreting this differently, you've got different philosophies at play, you've got different readings of and how much weight you should be giving court precedent, and you've got different views, as we talked about, of what history and tradition means and what we're factoring in on that decision as well.

SPEAKER_01 9:49

Yeah, and it's it's not a new debate. I mean, this is like a a quilt that we keep adding more and more pieces to. Um, so the question of how religion and public schools interact with one another is debated, has been debated for many, many years. And the only thing that's changing is how courts are addressing these questions with this new structure.

SPEAKER_00 10:11

Yeah. Uh Jenny, lawyers love talking about uh circuit splits.

unknown 10:16

Yeah.

SPEAKER_00 10:16

Circuit splits. Um why is that?

SPEAKER_01 10:18

Um okay. Well, circuit splits are super interesting. That's where two circuit courts take different positions. Now that hasn't quite happened here yet, because what we have is a circuit court decision with Louisiana and Texas. Um that's the Fifth Circuit. And then we have a district court decision with the Arkansas case. So there are 94 um district courts that cover regions, and then there are circuit courts which cover larger regions, and then there's a federal circuit court. I'm not gonna get into that. Um so the Supreme Court sits above them all as the ultimate decider. Um, and when there's a true circuit split where two federal circuit courts have taken completely varying decisions, that's when the Supreme Court comes in and says, no, no, this is the correct interpretation, this is the way we're gonna go. Again, that hasn't happened yet. The Arkansas decision is likely to be um uh appealed to the circuit. So now we wait to see two things. Uh whether there is a circuit court split in this case, and whether the Supreme Court takes that up. They don't always take them up.

SPEAKER_00 11:27

So, Sarah, does Ohio currently have a law similar to the ones that are being challenged in Texas, Louisiana, and uh Arkansas?

SPEAKER_02 11:35

Um no, the short answer is no. Uh there is the probably the closest thing is Senate Bill 34, which is called the Historical Educational Displays Act. This is pending. This hasn't been adopted yet or passed yet, but that has uh the Ten Commandments on a list of optional uh documents that the district can choose to display. And so the district would have to, or schools would have to basically adopt a policy that displays at least four of nine uh historical documents, and that's one of them. So so why does this matter for Ohio districts if we don't have this type of law? I think it's something obviously that they could adopt. Sure. So that's first, but also beyond the law, I think that the the conversations that are happening in these cases are very important, right? We're seeing a tremendous number of um questions come up about religion in school. We're seeing a lot of challenges, as we've mentioned. Some of these 40-year precedents are being overturned. And so we're we're getting a lot of um feedback from the courts about where that line is between establishing religion and allowing people to exercise the religion in schools. And so uh we have that case, the Kennedy case, that history his history, history and tradition test. And this is an opportunity for you know the Supreme Court in this case to sort of weigh in on what that means and how administrators, school districts, um, everyone should apply it.

SPEAKER_00 12:51

Well, thanks for breaking all this down. And uh, Jenny, where where can our uh listeners, viewers find out more information?

SPEAKER_01 12:59

Well, they can find out from the same place we found it out from, which is uh the school law summary that the lawyers at the in the legal division prepare uh four times a year for people who are members of the legal assistance fund. So if your district isn't a member of the legal assistance fund and you'd like to see the school law summary, which summarizes these and other important developments in school law across the country, um, you can join the legal assistance fund for $250 a year. And this publication will be one of your benefits. You can also call us and talk to us. We shockingly enjoy talking about this stuff.

SPEAKER_00 13:36

Right. And if you missed it on the screen there, it's uh 855 OSBA Law.

SPEAKER_01 13:42

Exactly.

SPEAKER_00 13:43

Is the OSBA legal hotline, and callers are waiting to hear from you, right? That's right.

SPEAKER_01 13:49

Operators are standing by.

SPEAKER_00 13:52

Well, these cases may not directly involve Ohio schools right now, but they are part of a much larger national conversation about religion, public education, and where courts draw constitutional lines. And as those legal standards continue to evolve, school leaders everywhere are paying attention. Thanks for joining us on this week's Legal Ledger sidebar. Be sure to subscribe, and we'll see you on the next episode.