The Fathers Have Eaten Sour Grapes: History is the Wrong Test for Establishment Clause Questions in Public Schools

The old quip goes, “As long as there are math tests, students will pray in the schools.” There is, however, a distinction between private and public prayers; the former allows religious students to find peace and comfort in a moment of anxiety, and the latter openly divides the religious majority from the religious and nonreligious minority, ostracizing the minority and exacerbating their nerves. This Note examines the constitutionality of religious exercises initiated by public school faculty and staff at public education’s founding, arguing that the special considerations present when considering prayer in these contexts are too important to be limited by history. This Note will demonstrate that religion in schools cannot be held constitutional based on historical practice alone because the practices promulgated in early American educational history are incompatible with modern values. Part II discusses Establishment Clause jurisprudence. Part III discusses the ambiguities in Kennedy’s historical standard and the history of American public education, noting specifically the policies and practices implemented to effectuate early education reformers’ goals of a “nonsectarian” education. Part IV discusses how those practices are incompatible with modern values, beliefs, and practices, demonstrating the prospective harm posed by Kennedy’s vague historical standard. Part V briefly concludes and implores the Court to consider the impending repercussions of using history, alone and unqualified, as the sole consideration to evaluate religious expression in public schools.