Earlier this month, the federal Department of Education (DOE) issued guidance on constitutionally protected prayer and religious expression in public elementary and secondary schools. This updated guidance supersedes and replaces the prior Guidance on Constitutionally Protected Prayer and Religious Expression in Public Elementary and Secondary Schools (2023) issued under the Biden Administration. That guidance is no longer in effect.
In its press release announcing the new guidance, DOE summarized the following key points:
- Students, teachers, and other school officials have a right to pray in school as an expression of individual faith, as long as they’re not doing so on behalf of the school.
- Public schools may not sponsor prayer nor coerce or pressure students to pray. For example, a school principal may not lead a prayer at a mandatory school assembly.
- Public schools can regulate student speech that “materially disrupts classwork or involves substantial disorder or invasion of the rights of others.” For example, a student can’t pray out loud during math class in a way that prevents others from learning, provided such disruptions are handled consistently with other forms of speech.
- Religious speech should be treated the same as secular speech. For example, an essay with religious content should be graded by the same academic standards as a secular essay of similar quality.
- Religious student organizations should likewise be treated the same as secular student organizations. For example, if a school offers support or recognition to secular student clubs, it must provide the same support to religious student clubs.
Federal law requires DOE to issue guidance to state educational agencies, local educational agencies and the public on constitutionally protected prayer in public elementary and secondary schools. As a condition of receiving ESEA funds, a local educational agency must certify in writing to its state educational agency that it has no policy that prevents, or otherwise denies participation in, constitutionally protected prayer in public elementary schools and secondary schools, as detailed in the DOE guidance. This certification is due by Oct. 1.
Districts should continue to work with legal counsel to ensure their policies and practices 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 OSBA legal division at 855-OSBA-LAW.