Legal Mailbag – 11-10-22

By Attorney Thomas B. Mooney, Neag School of Education, University of Connecticut

The “Legal Mailbag Question of the Week” is a regular feature of the CAS Weekly NewsBlast. We invite readers to submit short, law-related questions of practical concern to school administrators. Each week, we will select a question and publish an answer. While these answers cannot be considered formal legal advice, they may be of help to you and your colleagues. We may edit your questions, and we will not identify the authors.

Please submit your questions to: legalmailbagatcasciacdotorg.

Dear Legal Mailbag:

I am a middle school principal, and recently I had an issue with our lost-and-found. (As a side note, I am constantly amazed at how a student can lose one shoe or a pair of pants – but I digress). One of my school counselors has volunteered to manage the lost and found. She keeps it organized and sends a picture home weekly to parents. In running the lost-and-found, this school counselor has an arrangement with a Christian Ministry organization to donate the clothes to that organization, which has been a long-time donor of feminine hygiene products to us.

The counselor recently made a post indicating where the items were going. Shortly thereafter, I had a teacher approach me with a complaint that we shouldn’t be working with a religious organization and how offensive she found it. I indicated that we weren’t doing anything more than making a donation to an organization that makes donations to us. I also said I would be happy to allow someone else to volunteer to run the lost and found, to do the work, and to identify an alternative organization to provide donations.
Am I wrong on this?

What Should I Do?


Dear What:

Recent decisions of the United States Supreme Court have made it clear that public agencies should not discriminate against organizations simply because they are religious in nature. Accordingly, the teacher’s objection is groundless, and ending the donations from the lost-and-found to the Christian Ministry at this point could expose you to a claim of illegal discrimination on the basis of religion.  

Starting in 2017, the Court has ruled three different times that exclusion of religious organizations from government programs simply because of their religious nature is a violation of the Free Exercise Clause.  In Trinity Lutheran Church of Columbia, Inc. v. Comer, 582 U.S. __, 137 S. Ct. 2012 (2017), for example, a preschool and daycare center affiliated with a church applied for a grant to replace the pea gravel on its playground under a state grant program.  When the State of Missouri rejected the application solely because the center was affiliated with a church, the center sued.  The district court and the Eighth Circuit ruled in favor of Missouri, but the United States Supreme Court reversed.  Writing for the majority, Chief Justice Roberts reviewed the history of cases requiring neutral treatment toward religious entities, and wrote, “The Free Exercise Clause ‘protect[s] religious observers against unequal treatment’ and subjects to the strictest scrutiny laws that target the religious for ‘special disabilities’ based on their ‘religious status.’”  The Court elaborated on the “strictest scrutiny” it must apply:  “Under that stringent standard, only a state interest ‘of the highest order’ can justify the Department’s discriminatory policy,” and the State of Missouri was unable to show any such compelling interest.  

The Court extended this rule in 2018 to a program granting tax credits for donations to grant scholarships.  Espinoza v. Montana Department of Revenue, 591 U.S. __, 140 S. Ct. 2246; 207 L. Ed. 2d 679 (2018).  In implementing the program, the Montana Department of Revenue promulgated a rule prohibiting use of such scholarship funds to attend religious schools.  In Espinoza, however, the Court applied the neutrality principle articulated in the Trinity Lutheran Church case to rule that the exclusion of religious schools from the program was a violation of the Free Exercise Clause.  

Finally, last June the Court applied the neutrality principle to require that parents be allowed to use vouchers provided by a program in Maine for their children to attend sectarian schools. Carson v. Makin, __ U.S. __, 2022 WL 2203333 (2022).  In communities that do not operate a secondary school (or contract with one to provide education to their students), the state provides vouchers for parents to offset tuition charges at schools parents would choose. Such parent choice was limited to accredited schools that are not sectarian.  The Court ruled, however, that the State of Maine violated the free exercise rights of parents who would choose to send their children to religious schools by excluding religious schools from this program.  

As fascinated as you may be with the Court’s newfound tolerance for governmental aid to religious organizations, you may ask how these cases are relevant to your situation because you certainly do not run a government-aid program.   However, given yet another recent United States Supreme Court case, Legal Mailbag is concerned that any agreement with the complaining teacher to find a new organization for these donations would constitute illegal discrimination on the basis of religion.

In another case decided in June, 2022, the Court surprised many observers by holding that the free exercise and free speech rights of a football coach employed by a public school were violated when his employment was terminated after he refused to comply with a school district directive not to pray publicly on the football field after games.  In Kennedy v. Bremerton School District, No. 21-418, 597 U.S. __ (2022), the Court described the facts of the case as follows.  Joseph Kennedy, the coach, engaged in two practices that the school district found objectionable: (1) leading players in a pre-game prayer in the locker room (a practice that predated the coach’s employment), and (2) including overtly religious references in post-game motivation speeches “likely constituting prayer” with students at mid-field.  The coach ended both practices.  But he asked for “the opportunity to wait until the game is over and the players have left the field and then walk to mid-field to say a short, private personal prayer.”  Consistent with then applicable precedent under the Establishment Clause, district officials denied that request, and they forbade Mr. Kennedy “from engaging in ‘any overt actions’ that could ‘appear to a reasonable observer to endorse . . . prayer . . .while he is on duty as a District-paid coach.”  Despite that directive, the coach engaged in prayer at mid-field on three separate occasions thereafter, whereupon he was suspended and ultimately dismissed from employment as a coach.

Writing for the majority, Justice Gorsuch noted that the three constitutional principles involved here – free speech, free exercise, and establishment – are all included in one sentence in the First Amendment, and he expressed the view that these principles should be reconciled, rather than being seen in conflict. The Court started its analysis by noting that the district’s prohibition of such prayers was clearly based on the religious nature of the coach’s actions, which implicated his free exercise rights. The Court then determined that the prohibition also implicated the coach’s free speech rights, because the prohibition related to the content of the coach’s speech.

Finding that Mr. Kennedy had properly raised both free exercise and free speech issues, the Court then considered whether the prohibition against such prayer was required by the Establishment Clause.  The Court rejected the district’s claim that the “tension” between the Free Exercise Clause and the Establishment Clause required the prohibition.  To be sure, the Court considered whether such prayers by the coach immediately after the game could improperly coerce students to engage in religious activity.  However, the Court emphatically rejected the idea that religious activity by a school employee visible to students is inherently coercive: “In the name of 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.”

The Court thus ruled that firing the coach for publicly praying after football games violated his free speech and religious rights.  Similarly, a decision by you to end donations to this organization because of its religious affiliation could be seen as discrimination on the basis of religion without any countervailing justification.  Just tell the complaining teacher to chill out.