Brooklyn Law Review


Jordan Halper


The COVID-19 pandemic fanned the flames of a fire that had been slowly but steadily burning since 2016, arming the loudest warriors of America’s endless culture war with a slew of new divisive issues. Virtually overnight, parental rights groups began capitalizing on the frustration in their communities in order to spur political change, training their ire toward public schools. What began as a crusade against mask mandates and vaccines manifested into a well-funded effort by ultraconservative groups to undermine the public education system as a whole. Against this backdrop, the legislative prayer exception—which was meant to sanction the practice of opening sessions of legislative and other deliberative public bodies with prayer as a part of our nation’s history and tradition and thus compatible with the Establishment Clause—now sows more division than unity. This doctrine rests on the premise that invoking religion in this context is not “establishment,” but rather a means of lending gravity to the occasion or a “tolerable acknowledgment” of widely held beliefs. Despite detailed accounts of the history and tradition of prayer in this nation, none of the Court’s precedents have dictated any specific test or limit for legislative prayer beyond compatibility with historical practice, leaving open the question of how far the exception extends and in what contexts. A question that remains unresolved is whether a school board should be considered a legislature within the meaning of this exception or a school-sanctioned event, where prayer is generally prohibited. The issue has been further complicated the Court’s pronouncement in Kennedy v. Bremerton School District in 2022 that none of the Court’s formal tests—the Lemon test, the Endorsement test or the Coercion test—are applicable when evaluating an Establishment Clause challenge, as the clause must only be interpreted by reference to history and tradition—thus upending the current debate. In light of this abrogation, all government sanctioned prayer will effectively be treated like legislative prayers and therefore likely accepted, including in schools. This note will advocate for a new approach that can distinguish between “tolerable acknowledgement of beliefs widely held” and the kind of religious indoctrination that the current zealotry surrounding school boards is trending toward. This proposed test first examines (1) if a meeting’s purpose includes judicial or executive functions or only legislative tasks; (2) the presence of students at the meeting and the purpose of their attendance; (3) the degree of control the board holds over the prayer; and (4) any overriding history or tradition. It then determines whether the practice of prayer is coercive. In order to meaningfully protect the secularization of public schools, this test seeks to account for the concerns that arise when children are implicated in an Establishment Clause challenge, while acknowledging history and tradition, as Kennedy now mandates.