Maybe instead of gallivanting out to Las Vegas again this week, Governor Kristi Noem should have stayed home and worked on passing her Legislative agenda. House Bill 1015, Governor Noem’s school prayer mandate, failed its first committee hearing yesterday.
Team Noem weakened its chances of winning its “big push” to put prayer back in school by leading off its House Education testimony with William Jeynes, professor of education at California State University Long Beach. Calling in from California, Dr. Jeynes started with a long ramble about school shootings. He then cited Bill Clinton as an authority on the merits of prayer in school: “…nothing in the First Amendment converts our public schools into religion-free zones, or requires all religious expression to be left behind at the schoolhouse door.”
Alas, for those scoring at home, Clinton’s August 1995 memo from which Jeynes pulls his single line actually argued against mandates like HB 1015 as unnecessary and improper. [I italicize the line Jeynes quotes, then bold the lines that torpedo HB 1015]:
As our courts have reaffirmed, however, nothing in the First Amendment converts our public schools into religion-free zones, or requires all religious expression to be left behind at the schoolhouse door. While the government may not use schools to coerce the consciences of our students, or to convey official endorsement of religion, the government’s schools also may not discriminate against private religious expression during the school day.
I have been advised by the Department of Justice and the Department of Education that the First Amendment permits—and protects—a greater degree of religious expression in public schools than many Americans may now understand. The Departments of Justice and Education have advised me that, while application may depend upon specific factual contexts and will require careful consideration in particular cases, the following principles are among those that apply to religious expression in our schools:
Student prayer and religious discussion: The Establishment Clause of the First Amendment does not prohibit purely private religious speech by students. Students therefore have the same right to engage in individual or group prayer and religious discussion during the school day as they do to engage in other comparable activity. For example, students may read their Bibles or other scriptures, say grace before meals, and pray before tests to the same extent they may engage in comparable non-disruptive activities. Local school authorities possess substantial discretion to impose rules of order and other pedagogical restrictions on student activities, but they may not structure or administer such rules to discriminate against religious activity or speech.
Generally, students may pray in a nondisruptive manner when not engaged in school activities or instruction, and subject to the rules that normally pertain in the applicable setting. Specifically, students in informal settings, such as cafeterias and hallways, may pray and discuss their religious views with each other, subject to the same rules of order as apply to other student activities and speech. Students may also speak to, and attempt to persuade, their peers about religious topics just as they do with regard to political topics. School officials, however, should intercede to stop student speech that constitutes harassment aimed at a student or a group of students.
Students may also participate in before or after school events with religious content, such as “see you at the flag pole” gatherings, on the same terms as they may participate in other noncurriculum activities on school premises. School officials may neither discourage nor encourage participation in such an event.
The right to engage in voluntary prayer or religious discussion free from discrimination does not include the right to have a captive audience listen, or to compel other students to participate. Teachers and school administrators should ensure that no student is in any way coerced to participate in religious activity [President Bill Clinton, memo on religious expression in public schools, August 1995].
HB 1015 is unnecessary, because the First Amendment already allows students to voluntarily pray at school. HB 1015 is improper, because, as Jeynes’s and Noem’s advocacy make clear, it is an effort by the state to encourage students to pray, and the Establishment Clause does not allow the state to promote any religion.
Team Noem then sent one of her oft-churned stable of imported Beltway politicos, Allen Cambon, to recite the office line about HB 1015. But later, during questioning, House Education member Representative Mike Stevens (R-18/Yankton) made Cambon and HB 1015 look arrogant and out of touch:
Representative Mike Stevens, R-Yankton, asked Allen Cambon, a policy advisor to the governor, “How many schools did you contact about this?”
Cambon replied, “We talked with the (state) Department of Education’s office. We saw they were doing this in lots of other states. So the governor felt it was a good opportunity to return a sense of decorum and civic appreciation to our schools, and that’s why we brought the bill.”
“My question was,” Stevens told him, “how many school districts did you contact?”
“We didn’t talk directly with school districts with this bill,” Cambon answered.
“You didn’t talk to anybody?” Stevens asked.
“That’s fair to say,” Cambon said [Bob Mercer, “Gov. Noem’s School ‘Moment of Silence’ Bill Defeated by House Committee,” KELO-TV, 2022.01.21].
Had Team Noem consulted with schools, they’d have heard what lobbyists from the school administrators, the teachers union, the large school group, the United School Association of South Dakota, and the school boards told House Education: just as President Clinton said in 1995, the First Amendment already gives students and staff the freedom to pray silently any time they want in school, without any legislative mandate. Rob Monson of the School Administrators of South Dakota led off opponent testimony with a simple and effective demonstration of his point. He paused before he took the mic, then told the committee he’d used that moment to pray for the defeat of HB 1015. He said that neither he nor any students needed a legislative mandate to carve out time for them to practice their religion:
Prayer has never been forced out of the public schools, nor has it ever left. As I was praying this morning, none of you knew what I was doing, nor could you control what I was doing, and you certainly couldn’t force me to stop what I was doing [Rob Monson, testimony against HB 1015, House Education Committee, 2022.01.21; transcribed from SDPB audio, timestamp ~14:35].
Monson sharply contrasted HB 1015’s mandate for a “moment of silence” with the Legislature’s vigorous resistance to other mandates:
This body has prided itself on individual freedoms. You have not told anyone to wear a mask. You have not told anyone to get a vaccine. In fact, most actions are leaning further in the other direction with personal freedoms. Do you really want to pivot on that now and dictate a moment of silence at our public schools? [Monson, 2022.01.21]
Unlike the Noem Administration, South Dakota Education Association lobbyist Jeremiah M. Murphy did speak with a teacher, one who works a lot with elementary kids. He asked how she would enforce a one-minute moment of silence with second graders. She said she’d have the kids put their heads down on their desk so they wouldn’t get distracted looking at their classmates. Then Murphy read what he called this “curious” bill and noticed what I noticed when I read Noem’s grandstanding press release about the bill in December: HB 1015 forbids any school employee from dictating the action to be taken during the moment of silence. Murphy said HB 1015 thus invites a minute of anarchy, especially from first-graders freed from any teacher direction.
Murphy noted that the teacher he talked to said she already uses moments of silence all the time to calm kids down. Teachers already have that authority, Murphy testified, “So I’m just curious… why we would create a meditation mandate to say stop…top down, we in Pierre know what’s best? You folks in Alexandria, Mitchell, or Parker, you need to be directed from Pierre on how to make this happen.
House Education member Rep. Will Mortenson (R-24/Pierre) expressed his opposition to HB 1015 in an opinion column written before the hearing in which he categorized this school-prayer bill as one of dozens of “clickbait” proposals before this 2022 Legislature. Like Murphy and unlike Noem, Mortenson spoke with teachers and school boards about and heard this state mandate is unnecessary:
When I spoke to the school boards about this topic, I asked if a teacher could hold a moment of silence in class currently. The answer – yes. Further, they told me, a principal could make this a policy for his school or the superintendent for her school district. Finally, school boards are fully authorized to pass this as a resolution, if they thought it would help our kids. If this is a good idea, teachers, principals, superintendents, or school boards can do it today.
Finally, I haven’t seen a trend that would indicate a current or forthcoming problem that HB1005 solves. Instead, teachers have told me that the bill is impractical. I also worry that it could take away time and focus from instruction or cause unforeseen headaches for the teachers and students.
So, common sense dictates opposition to HB1005. It’s an idea that sounds good, but once I looked into it, I’m not sure it will do good [Rep. Will Mortenson, “Mort Report: Hot Topics in Education,” DRGNews.com, 2022.01.21].
Six of Mortenson’s Republican colleagues still voted for this ill-informed, ill-written, unnecessary, and arguably unconstitutional mandate motivated by one politician’s urgent need to make good on a sloppy campaign promise. But some of the most Jesus-freaky members of the committee, including Rep. Drew Dennert (R-3/Aberdeen), Rep. Phil Jensen (R-33/Rapid City), and House Education chair Rep. Lana Greenfield (R-2/Doland) were among the nine who answered Monson’s prayer and voted to kill House Bill 1015.
Again, if Noem had spent as much time talking to teachers and school boards as she has spent talking to Las Vegas audiences, she might have been able to write a better bill and build more support from educators and from members of her own party for her “education” agenda.