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Constitutional Law

Three Hail Marys: Carson, Kennedy, and the Fractured Détente over Religion and Education

Comment on Carson v. Makin and Kennedy v. Bremerton School District

It is not too optimistic to suggest that [School District of Abington Township v. Schempp1×1. 374 U.S. 203 (1963). ] may well be the last major battle . . . in the area of religion in the public schools. . . . [T]he controversy . . . will begin to disappear as a major national issue.

— Leo Pfeffer, Counsel for the American Jewish Congress, 19632×2. Leo Pfeffer, Joint Advisory Comm. of the Synagogue Council of Am. & the Nat’l Cmty. Rels. Advisory Council, The Supreme Court’s Bible-Prayer Decision (School District v. Schempp; Murray v. Curlett) 8 (1963).

[W]hy isn’t she praying? Isn’t she a Christian?

— Anonymous spectator at a public school basketball game after a seventh-grade player declined to participate in a coach-led team prayer, late 1980s3×3. Doe v. Duncanville Indep. Sch. Dist., 70 F.3d 402, 404 (5th Cir. 1995).

Introduction

On December 28, 1975, the Dallas Cowboys trailed the Minnesota Vikings, 14–10, on the road, in the waning seconds of a playoff game.4×4. Mickey Spagnola, A Pass and a Prayer: History of the Hail Mary, Dall. Cowboys (Nov. 8, 2019, 2:00 PM), https://www.dallascowboys.com/news/a-pass-and-a-prayer-history-of-the-hail-mary [https://perma.cc/424D-7R2R]. Dallas needed a quick touchdown to save its season, but the line of scrimmage stood only at midfield  fifty long yards away from the Vikings’ end zone.5×5. Id. After dropping back to pass in the brisk Minnesota air, legendary Dallas quarterback Roger Staubach heaved the football in the general direction of a darting Drew Pearson, who somehow managed to corral the pass between his elbow and hip to secure an improbable  even miraculous  winning touchdown.6×6. Sam Farmer, Cowboys’ Drew Pearson Shares Inside Info on Original “Hail Mary” Touchdown Pass, L.A. Times (Dec. 21, 2019, 3:04 PM), https://www.latimes.com/sports/story/2019-12-21/cowboys-drew-pearson-inside-info-original-hail-mary-touchdown-pass [https://perma.cc/K46T-4TXN]. “It was a play you hit one in a hundred times if you’re lucky,” Staubach told reporters afterward.7×7. Josh Chetwynd, The Field Guide to Sports Metaphors: A Compendium of Competitive Words and Idioms 63 (2016) (internal quotation marks omitted). “[I]t’s a Hail Mary pass. You throw it up and pray he catches it.”8×8. Id. (internal quotation marks omitted). The Staubach-to-Pearson connection popularized the idea of a Hail Mary event  a desperate attempt that possesses an infinitesimal likelihood of success.9×9. Popularized, not invented. The “Hail Mary” term appeared in football circles dating back at least to the 1920s. In 1922, one Notre Dame player commented after the team defeated Georgia Tech: “Say, that Hail Mary is the best play we’ve got.” Angelo Stagnaro, How the Hail Mary Pass Got that Name, Nat’l Cath. Reg. (Apr. 13, 2017) (internal quotation marks omitted), https://www.ncregister.com/blog/how-the-hail-mary-pass-got-that-name [https://perma.cc/JD3W-R3DD]. Although the term’s colloquial usage began in the sports world, its reach now extends well beyond  including into the legal realm, where judges with some frequency invoke the metaphor, often to reject a litigation long shot.10×10. See, e.g., Lee v. United States, 137 S. Ct. 1958, 1967 (2017) (observing that a criminal defendant “would have rejected any plea leading to deportation — even if it shaved off prison time — in favor of throwing a ‘Hail Mary’ at trial”); United States v. George, 676 F.3d 249, 251 (1st Cir. 2012) (“A Hail Mary pass in American football is a long forward pass made in desperation at the end of a game, with only a small chance of success. The writ of error coram nobis is its criminal-law equivalent.”); In re Lionel Corp., 722 F.2d 1063, 1072 (2d Cir. 1983) (Winter, J., dissenting) (“The courts below were quite right in not treating their arguments seriously for they are the legal equivalent of the ‘Hail Mary pass’ in football.”); Nat’l Football League Players Ass’n v. Pro-Football, Inc., 857 F. Supp. 71, 75–76 (D.D.C. 1994) (“The defendants next turn to the ‘Hail Mary’ of challenges to an arbitrator’s decision, public policy. . . . Such public policy arguments, much like Hail Mary passes, are usually unsuccessful.”), vacated, 56 F.3d 1525 (D.C. Cir. 1995), vacated in part on reh’g, 79 F.3d 1215 (D.C. Cir. 1996); see also Isaac Chotiner, The Supreme Court’s History of Protecting the Powerful, New Yorker (May 17, 2022), https://www.newyorker.com/news/q-and-a/the-supreme-courts-history-of-protecting-the-powerful [https://perma.cc/92M4-SMWH] (interviewing Professor Laurence Tribe, who contended that the modern Republican Party has moved away from the commitments of Chief Justice Roberts in that today’s GOP is “much less Burkean, much less incremental, much more radical and willing to toss Hail Marys”).

Toward the end of last Term, the Supreme Court issued two momentous decisions involving religion and education: Carson v. Makin11×11. 142 S. Ct. 1987 (2022). and Kennedy v. Bremerton School District.12×12. 142 S. Ct. 2407 (2022). In both Carson and Kennedy, the Court found that governmental entities violated the Constitution’s Free Exercise Clause,13×13. U.S. Const. amend. I (“Congress shall make no law . . . prohibiting the free exercise [of religion] . . . .”). even though not so very long ago those claims would have readily been deemed Hail Marys. Indeed, as recently as the turn of the century, it seemed virtually unimaginable that the Supreme Court would have voted to grant certiorari in either Carson or Kennedy, let alone that it would find the underlying claims of religious infringement meritorious. Two decades have succeeded in transforming yesteryear’s Hail Marys into today’s answered prayers.14×14. Justice Sotomayor’s dissent in Carson at times contended that the transformation occurred even more quickly: “What a difference five years makes.” 142 S. Ct. at 2014 (Sotomayor, J., dissenting). Rapid change, it would seem, is not an unfamiliar sight on the landscape of judicial decisions involving religious liberty. Professor Stephen Carter opened his Comment in these pages on Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520 (1993), by noting: “What a difference three years can make.” Stephen L. Carter, The Supreme Court, 1992 Term — Comment: The Resurrection of Religious Freedom?, 107 Harv. L. Rev. 118, 118 (1993). Carter was emphasizing the Court’s turnabout from what he called its “horrible 1990 decision in Employment Division v. Smith,” 494 U.S. 872 (1990). Carter, supra, at 118.

In Carson, the Court held that Maine violated the Free Exercise Clause by prohibiting students from using a state-run tuition assistance program to attend religious schools engaging in religious instruction when they can otherwise use the assistance at all private schools.15×15. Carson, 142 S. Ct. at 2002. That claim would have been a constitutional long shot in 2002 because the Supreme Court had decided in Zelman v. Simmons-Harris16×16. 536 U.S. 639 (2002). only that year — and by the slimmest of possible margins — that students could redeem government vouchers at religious schools without violating the Establishment Clause.17×17. Id. at 662–63. For a contemporaneous view holding out the possibility that Zelman v. Simmons-Harris may not prove to be a durable decision, see Charles Fried, The Supreme Court, 2001 Term — Comment: Five to Four: Reflections on the School Voucher Case, 116 Harv. L. Rev. 163, 174–77 (2002). Zelman v. Simmons-Harris represented a sea change, one that many commentators detested.18×18. See, e.g., Stephen M. Feldman, Religious Minorities and the First Amendment: The History, the Doctrine, and the Future, 6 U. Pa. J. Const. L. 222, 263–65 (2003); Editorial, The Wrong Ruling on Vouchers, N.Y. Times, June 28, 2002, at A26; Dahlia Lithwick, The Supremes Pledge Allegiance to God., Slate (June 27, 2002, 7:08 PM), https://slate.com/news-and-politics/2002/06/the-supremes-pledge-allegiance-to-god.html [https://perma.cc/Q8J9-MYPB]. It is one thing to determine that the funding of religious schools is permissible under the Establishment Clause. But it is quite another to determine that including religion-oriented schools in funding schemes is required by the Free Exercise Clause.19×19. See Carson, 142 S. Ct. at 2006 (Breyer, J., dissenting). Carson took that additional step, and, according to its detractors, hastily enacted a radical reinterpretation of the Religion Clauses. Justice Sotomayor’s dissent in Carson repeatedly struck this temporal point, noting that “in just a few years, the Court has upended constitutional doctrine,” and condemning “the Court’s rapid transformation of the Religion Clauses.”20×20. Id. at 2013–14 (Sotomayor, J., dissenting). At least one legal scholar who celebrated Carson’s outcome, and who had worked for a long time to achieve it, nevertheless observed that the challenge had, at times, seemed a quixotic mission.21×21. See Nicole Stelle Garnett, A Victory for Religious Liberty and Educational Pluralism, City J. (June 22, 2022), https://www.city-journal.org/carson-v-makin-is-a-victory-for-religious-liberty [https://perma.cc/9JEV-M7ZP] (noting that when she initially helped to mount a challenge to the Maine program that was ultimately invalidated in Carson, “it wasn’t clear whether the Constitution even permitted states to include religious schools in choice programs, let alone whether it required them to do so”).

In Kennedy, the Court held that a public school district violated a football coach’s free exercise and free speech rights when it sanctioned him for striding out to midfield following games and taking a knee to bow his head in prayer.22×22. Kennedy, 142 S. Ct. at 2433. The Court focused exclusively upon “the three prayers that resulted in [Coach Joseph Kennedy’s] suspension,” which were relatively brief and did not involve his players, even though he had previously led the team in locker-room prayers and delivered postgame sermons to players at midfield.23×23. See id. at 2424–25. This constitutional claim would have been a long shot in 2000 for many reasons, not least because the Court that year prohibited student-led prayers at public high school football games in Santa Fe, Texas, for violating the Establishment Clause.24×24. Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290, 310–12 (2000). Prayers led by school officials would, if anything, seem to present an even more conspicuous violation of that constitutional provision. Santa Fe Independent School District v. Doe,25×25. 530 U.S. 290 (2000). moreover, expressly directed courts to construe Establishment Clause challenges in their full, rich context, rather than viewing them in the isolated, highly stylized fashion employed in Kennedy.26×26. Id. at 308 (noting that the Establishment Clause inquiry centered on “an objective observer, acquainted with the text, legislative history, and implementation” of the challenged actions in the relevant context (quoting Wallace v. Jaffree, 472 U.S. 38, 76 (1985) (O’Connor, J., concurring in the judgment))).

Distinguished left-leaning scholars noted that Coach Kennedy would have had little chance of prevailing if Justice Kennedy still held the decisive vote regarding such claims.27×27. See, e.g., Greg Bishop, When Faith and Football Teamed Up Against American Democracy, Sports Illustrated (June 13, 2022), https://www.si.com/high-school/2022/06/13/fear-over-scotus-ruling-in-public-school-coach-prayer-case-daily-cover [https://perma.cc/G9MV-UJT5] (noting that Professor Michael Klarman deemed it improbable that Coach Kennedy would have prevailed if Justice Kennedy had remained on the Court). That is no great surprise, of course. But prominent conservatives also long viewed conduct resembling Coach Kennedy’s as contravening the Establishment Clause, notions they articulated before the Court issued Santa Fe. Professor Michael McConnell — the intellectual architect for the accommodationist ascendance in this area — observed in 1991 that “if a public school football coach (or even a member of the team) offers a prayer or other religious inspiration before the game, he will be stopped.”28×28. Michael W. McConnell, A Response to Professor Marshall, 58 U. Chi. L. Rev. 329, 329 (1991). For only one of McConnell’s influential scholarly works exploring accommodation, see Michael W. McConnell, Accommodation of Religion, 1985 Sup. Ct. Rev. 1 (1986). Four years later, in a case evaluating coach-led prayers during public school basketball games, Judge Edith Jones allowed: “There is practically no doubt” that the Court’s interpretation of the Establishment Clause “prevents teachers from actively joining in . . . student-led prayers” because allowing teachers to do so “would imply coercion of non-participants.”29×29. Doe v. Duncanville Indep. Sch. Dist., 70 F.3d 402, 409 (5th Cir. 1995) (Jones, J., concurring in part and dissenting in part). Few facts bring into sharper relief the sheer improbability of Coach Kennedy’s victory this year than that accommodationists (like Professor McConnell) and archconservatives (like Judge Jones) concluded coach-led prayers at public schools were unconstitutional in the 1990s.

Most observers will view Carson and Kennedy as an inseparable pair. Liberals will tend to decry both decisions as forming only the latest attacks on the once-sturdy wall of separation between church and state.30×30. See, e.g., Noah Feldman, Opinion, The Supreme Court Has Just Eroded First Amendment Law, Bloomberg (June 21, 2022, 4:52 PM), https://www.bloomberg.com/opinion/articles/2022-06-21/supreme-court-aids-religious-education-and-erodes-first-amendment [https://perma.cc/3U75-BT6V]; Noah Feldman, Opinion, Supreme Court Is Eroding the Wall Between Church and State, Bloomberg (June 27, 2022, 12:05 PM), https://www.bloomberg.com/opinion/articles/2022-06-27/supreme-court-upends-church-state-law-in-case-of-praying-coach [https://perma.cc/FC3H-LWGK]. For some of Professor Noah Feldman’s earlier assessments of the Religion Clauses, see Noah Feldman, Divided by God: America’s Church-State Problem  And What We Can Do About It (2005). For a critique of Feldman’s position, see Douglas Laycock, Substantive Neutrality Revisited, 110 W. Va. L. Rev. 51, 72–80 (2007). Conservatives will tend to applaud both decisions as eliminating egregious manifestations of antireligion hostility and thus restoring the role that faith can play in our national life.31×31. See, e.g., Patrick M. Garry, Essay, Establishing Religious Freedom, Law & Liberty (July 5, 2022), https://lawliberty.org/establishing-religious-freedom [https://perma.cc/R8Q6-8NTY] (celebrating Carson and Kennedy). This liberal-conservative divide held perfectly at the Supreme Court; the three Justices appointed by Democratic Presidents voted as a bloc to reject the Free Exercise Clause claims in both Carson and Kennedy, while the six Justices appointed by Republican Presidents voted as a bloc to accept such claims in the two opinions.32×32. Carson, 142 S. Ct. at 1992 (majority opinion written by Chief Justice Roberts and joined by Justices Thomas, Alito, Gorsuch, Kavanaugh, and Barrett); id. at 2002 (Breyer, J., dissenting) (joined by Justice Kagan in full and Justice Sotomayor in part); id. at 2012 (Sotomayor, J., dissenting); Kennedy, 142 S. Ct. at 2415 (majority opinion written by Justice Gorsuch and joined by Chief Justice Roberts and Justices Thomas, Alito, and Barrett in full and Justice Kavanaugh in part); id. at 2434 (Sotomayor, J., dissenting) (joined by Justices Breyer and Kagan); Ian Prasad Philbrick, A Pro-Religion Court, N.Y. Times (June 22, 2022), https://www.nytimes.com/2022/06/22/briefing/supreme-court-religion.html [https://perma.cc/F6QC-W5XW]; Adam Liptak & Jason Kao, Looking Back over a Landmark Supreme Court Term, N.Y. Times, July 3, 2022, at A16.

In this Comment, however, I challenge both of these camps, as Carson and Kennedy can be — and should be — disentangled. Viewed through the prism of the Supreme Court’s jurisprudence regulating schools, Carson offered an acceptable outcome, whereas Kennedy unwisely invited the scourge of religious coercion to reenter the nation’s public schools. Although the Supreme Court issued some incendiary decisions at the intersection of religion and education in the 1960s, the Court had in recent decades achieved an improbable détente in this area. A core element of that détente has been its staunch protection of the public school as a place where pupils are free from the specter of religious orthodoxy. With that central tenet firmly in place, the Court issued several education decisions that cheered observers desiring greater accommodations of religion — including a series of opinions enabling religious families to use public money to educate their children at private religious schools. Those decisions were vital to the détente, but they in no way threatened the public school as a sphere where students enjoy religious autonomy. Carson — viewed in isolation — can quite plausibly be understood as maintaining this détente. Kennedy, however, unmistakably fractures the détente, bringing to an immediate halt any era of rapprochement. Only one year after the Supreme Court issued the stirring proclamation that “America’s public schools are the nurseries of democracy,” Kennedy threatens to render them the hotbeds of divinity.33×33. Mahanoy Area Sch. Dist. v. B.L., 141 S. Ct. 2038, 2046 (2021); see Martha C. Nussbaum, Liberty of Conscience: In Defense of America’s Tradition of Religious Equality 232–33 (2008) (noting that “[t]he public schools have long held a special place in Americans’ conception of their democracy,” and observing that the public schools’ democratic foundation renders “Americans . . . unusually sensitive to the ways in which religion might enter divisively into public education”).

Kennedy represents a brazen, radical break with the Supreme Court’s longstanding tradition of construing public schools as special sites of constitutional interpretation. Indeed, during the last several decades, the Supreme Court has developed a distinct constitutional doctrine that applies exclusively within the nation’s public schools.34×34. I borrow this insight from Professor James Ryan’s foundational, first-rate article assessing students’ constitutional rights. See James E. Ryan, The Supreme Court and Public Schools, 86 Va. L. Rev. 1335, 1338–39 (2000). More broadly, the Constitution assumes distinct contours in distinct institutional settings. For work exploring the distinctive constitutional contours of prison, see Justin Driver & Emma Kaufman, The Incoherence of Prison Law, 135 Harv. L. Rev. 515, 525–41 (2021). For work exploring related notions of constitutionally distinct domains, see, for example, Heather K. Gerken, The Supreme Court, 2006 Term — Comment: Justice Kennedy and the Domains of Equal Protection, 121 Harv. L. Rev. 104, 108–22 (2007); Robert C. Post, Constitutional Domains: Democracy, Community, Management (1995); and Paul Horwitz, First Amendment Institutions (2013). When the Court has treated the public school as an arena of constitutional interpretation, it has typically afforded students what might be termed junior-varsity constitutional rights. That is, rather than providing students in public schools with the full-fledged array of constitutional protections that exist in non-school environments, the Supreme Court has often articulated somewhat diluted versions of those rights for the scholastic context.35×35. See Ryan, supra note 34, at 1338–39. This junior-varsity dynamic captures the Court’s approach regarding free speech, where students receive not the “uninhibited, robust, and wide-open” First Amendment rights that exist outside of school,36×36. N.Y. Times Co. v. Sullivan, 376 U.S. 254, 270 (1964). Though New York Times v. Sullivan is a case involving libel, I use it here as being emblematic of the Court’s broad protections for free expression. For a historical overview of the case, see Anthony Lewis, Make No Law: The Sullivan Case and the First Amendment (1991). but instead the more modest protections associated with Tinker v. Des Moines Independent Community School District37×37. 393 U.S. 503 (1969). and its progeny.38×38. Id. at 513–14 (permitting schools to sanction students for speech upon a reasonable fear of a substantial disruption or material interference of school activities). Chief Justice Burger acknowledged this school-specific free speech doctrine when he noted: “[T]he First Amendment gives a . . . student the classroom right to wear Tinker’s armband, but not Cohen’s jacket.”39×39. Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675, 682–83 (1986) (quoting Thomas v. Bd. of Educ., 607 F.2d 1043, 1057 (2d Cir. 1979) (Newman, J., concurring in the result)). The references are, of course, to the black armbands worn to school in protest of the Vietnam War in Tinker and the jacket emblazoned “Fuck the Draft” that was worn in a courthouse in Cohen v. California, 403 U.S. 15, 16 (1971). Similarly, regarding the Fourth Amendment, students do not receive protection against school searches in the absence of “probable cause,” but instead receive the more lenient standard of “reasonable suspicion,” as announced in New Jersey v. T.L.O.40×40. 469 U.S. 325, 345 (1985). Additional examples of public school students receiving diminished constitutional rights could easily be adduced.41×41. See Ryan, supra note 34, at 1338, 1364 (noting that the Due Process Clause rights that students received in Goss v. Lopez, 419 U.S. 565, 579–82 (1975), assumed diluted form compared to due process rights in nonschool settings).

In one exceptional area, however, the Supreme Court has inverted its traditional approach. The Court has repeatedly interpreted the Establishment Clause to afford public school students greater constitutional protections against religious coercion than they would possess outside of school.42×42. See id. at 1339. This capacious understanding of the Establishment Clause is driven by the Court’s view that public schools can become uniquely coercive religious environments, and that preventing educators from becoming proselytizers requires the utmost vigilance.43×43. See id. at 1382 (“[C]hildren in school are young and impressionable, and they are likely to imitate teachers and be susceptible to peer pressure.”). The Supreme Court has thus stated that Establishment Clause concerns are “most pronounced” in “the context of schools,” and that “prayer exercises in public school carry a particular risk of indirect coercion.”44×44. Lee v. Weisman, 505 U.S. 577, 592 (1992) (citing Engel v. Vitale, 370 U.S. 421 (1962); Sch. Dist. of Abington Twp. v. Schempp, 374 U.S. 203 (1963); County of Allegheny v. ACLU, 492 U.S. 573, 661 (1989) (Kennedy, J., concurring in the judgment in part and dissenting in part)); see William P. Marshall, “We Know It When We See It”: The Supreme Court and Establishment, 59 S. Cal. L. Rev. 495, 541 (1986) (“The Court has been its most consistent and forceful in the context of public schools.”). Whereas public school educators typically receive greater constitutional leeway over students’ rights than do other governmental actors, the Court has placed unusually exacting restraints on educators in the Establishment Clause context.45×45. See Ryan, supra note 34, at 1338–39; Justin Driver, The Schoolhouse Gate: Public Education, the Supreme Court, and the Battle for the American Mind 363 (2018) (noting that “educators [receive] less deference over religion than they generally receive” regarding other constitutional provisions, and that “the Establishment Clause . . . presents a highly aberrational mode of constitutional interpretation within the schoolhouse gate”).

Focusing upon the Supreme Court’s history of site-specific constitutional interpretation enables last Term’s prominent religion decisions to be decoupled. This lens makes clear that Kennedy betrayed the Court’s venerable Establishment Clause tradition in the public school setting by not only ignoring the fundamental realities of athletic environments, but also misconstruing Bremerton High School as just another government building.46×46. See Kennedy, 142 S. Ct. at 2433 (describing the school district as “a government entity”). Carson, whatever else its frailties, cannot be accused of similar mischief — assuming, of course, that its reasoning is not eventually extended to intrude into public education in the form of charter schools. Rather, Carson can be viewed as consistent with precedent — notably Meyer v. Nebraska47×47. 262 U.S. 390 (1923).  — that allows private religious schools to chart their own courses.48×48. See id. at 403.

This Comment proceeds in four Parts. Part I recovers the period of widespread religious incursion into public schools, and then details the terms of détente that the judiciary has helped to forge at the intersection of religion and education. Part II contends that Carson can in fact be reconciled with the détente — that is, taking the opinion on its own terms, and assuming that it is not extended to the realm of charter schools, as some scholars have recently urged. Part III demonstrates how Kennedy ruptures the détente by turning a blind eye to realities of both public schools and athletics, settings where the Court had previously demonstrated deep engagement with the underlying complexities. Part IV explores how the Court’s decisions in Carson and Kennedy are linked, investigates the implications of Kennedy’s breaking the terms of détente, and suggests that a third Hail Mary may well be on the horizon. A brief conclusion follows.

Given its focus on the Supreme Court’s role in facilitating détente, it may at first blush seem as though this Comment adopts an exclusively external approach to Carson and Kennedy and ignores the basic constitutional law of the Religion Clauses. I have learned a great deal from external accounts examining the development of constitutional doctrine, and have no doubt that they have influenced my own approach.49×49. For the classic article in this realm featuring an external approach, see John C. Jeffries, Jr. & James E. Ryan, A Political History of the Establishment Clause, 100 Mich. L. Rev. 279, 284 (2001) (noting that their approach pays “little heed . . . to the internal structure and logic of Establishment Clause decisions,” and instead views those decisions as the product of larger cultural forces). In addition, it is certainly true I do not approach these cases with the same methods that legal scholars of religion typically employ.50×50. From one internal viewpoint, particularly the notion that the state should demonstrate neutrality toward religion, Carson can be viewed as correctly decided and Kennedy can be viewed as incorrectly decided. Professor Douglas Laycock has offered an important notion of religious neutrality. See Laycock, supra note 30, at 72 (“[M]oney can be delivered in a way that is consistent with individual choice. Prayers cannot.”). Laycock’s notion of neutrality has profoundly shaped my prior explorations of this area. See Driver, supra note 45, at 364, 521 n.3. Nevertheless, it would be mistaken to construe this Comment as offering only external assessments of Carson and Kennedy. To the contrary, the prudential and doctrinal considerations highlighted in this Comment have been a touchstone of the Supreme Court’s site-sensitive approach to the constitutional law of public schools for the last several decades.51×51. Here, I am drawing on Professor Philip Bobbitt’s six modalities of constitutional interpretation. See Philip Bobbitt, Constitutional Interpretation 12–13 (1991). Those considerations are in no sense external or somehow extralegal; rather, they have long rested at the very heart of the Court’s jurisprudence regarding schools. Until quite recently, then, viewing Carson and Kennedy as school cases involving religion — rather than religion cases involving schools — would have been the standard perspective in this constitutional domain. My approach thus helps to underscore how Kennedy’s disregard for the site-sensitive methodology is the aberration, not the tradition.

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* Justin Driver is the Robert R. Slaughter Professor of Law at Yale Law School. I am grateful to William Baude, Gregory Briker, Laura Ferry, Heather Gerken, Pratheepan Gulasekaram, Emma Kaufman, Randall Kennedy, Randy Kozel, Douglas Laycock, Sanford Levinson, Kerrel Murray, Lucas Powe, and David Schleicher for providing illuminating comments on a previous draft. I received indispensable research assistance and editorial assistance from Samantha Bensinger, Liam Gennari, Jim Huang, Cynthia Long, Patrick Monaghan, James Piltch, Anna Salvatore, and Jordan Thomas. Thanks to the talented, insightful editors of the Harvard Law Review for their faith in the project. This Comment is dedicated to the memory of Walter Dellinger, with gratitude for the many essential lessons he taught.