On May 15, the U.S. Department of Education (USDOE) released an updated guidance document on districts’ obligations related to school prayer and religious expression at school by students and school employees. The guidance provides an overview of the constitutional landscape of school prayer and religious expression and reminds districts as to some of their administrative and reporting requirements under federal law.

In Part I of the guidance, USDOE notes that Section 8524(a) of the Elementary and Secondary Education Act of 1965 (ESEA), as amended by the Every Student Succeeds Act (ESSA), requires it to issue guidance on school prayer. In order to receive funds under ESEA, a district must annually submit a certification to USDOE that its policies do not prevent, or otherwise deny participation in, constitutionally protected prayer in public elementary and secondary school. The certification is due by Oct. 1. The law also requires state educational agencies (SEA) such as the Ohio Department of Education to submit a list of districts who do not file the required certification. An SEA must also file a list of complaints it has received alleging that a district has violated the school prayer requirements in the law, whether or not it ultimately found those complaints to be meritorious.

Part II of the guidance contains an overview of the substantive requirements under the First Amendment related to prayer and religious expression in schools. School districts must navigate two separate First Amendment principles:

  • The establishment clause which forbids the district from prescribing any sort of prayer or coercing students or employees to participate in prayer; and
  • The free exercise clause which forbids the district from improperly restricting the rights of students or employees to exercise their religious freedoms.

Over the years, the U.S. Supreme Court has issued a number of opinions on this topic, most recently in Kennedy v. Bremerton School Dist., 142 S. Ct. 2407 (2022), which we covered in the Legal Ledger. The USDOE guidance document includes a helpful summary of the principles the Court has outlined in those opinions. Readers should avail themselves of the guidance document for a full substantive overview of these principles.

The guidance document does not alter any of the district’s already existing obligations in the realm of school prayer. Districts should continue to work with legal counsel to ensure that their policies comply with the relevant case law and reporting requirements outlined in federal law. For general questions about the guidance or covered topics, members are welcome to contact the legal division of OSBA at 855-OSBA-LAW.

Posted by John R. Price on 5/19/2023