On Jan. 16, the U.S. Departments of Education (USDOE) and Justice jointly issued guidance entitled “Constitutionally Protected Prayer and Religious Expression in Public Elementary and Secondary Schools.”  The document summarizes the current requirements of the law concerning religious expression in public schools.

Guidelines were last issued in 2003 and those older guidelines can be accessed here.

Under the new guidelines, the first section sets out the requirements for a state receiving federal funds under the Elementary and Secondary Education Act of 1965 to ensure a local district’s compliance with the federal Every Student Succeeds Act provisions requiring that no policy of the local district prevents, or otherwise denies participation in, constitutionally protected prayer in public elementary and secondary schools.

Those provisions require that a state must provide a process for filing a complaint against a local district that allegedly denies a person, including a student or employee, the right to participate in constitutionally protected prayer. The state must inform the USDOE of any complaints that have been filed against a local district. The state should also describe what investigation and/or enforcement action has been initiated, and the status of the investigation or action.

The next section details the requirements surrounding student and staff prayer at school. Students may organize prayer groups, religious clubs, and other gatherings before or after school to the same extent that students are permitted to organize other noncurricular student activities groups. Such groups must be given the same access to school facilities for assembling as is given to other noncurricular groups, without discrimination because of the religious perspective of their expression.

School authorities may not discriminate against student groups who meet to engage in religious expression such as prayer. School authorities may disclaim sponsorship of noncurricular groups and events, provided they administer such disclaimers in a manner that neither favors nor disfavors groups that meet to engage in prayer or express religious perspectives. School administrators and other school employees are prohibited by the First Amendment of the U.S. Constitution from encouraging or discouraging prayer, and from actively participating in such activity with students. If a student mentions prayer or religion when completing an assignment, the student’s work should be neither penalized nor rewarded because of its religious perspective.  The guidance also covers student prayer at assemblies and graduations.

The third part of the guidance covers the student distribution of religious materials in school.  It also provides guidance concerning the difference between teaching religion, which is not permissible, and teaching about region, which is permissible. Finally, this section of the document covers dress codes and excusals from class for religious reasons.

The final section of the guidance document covers the basic requirements under the federal Equal Access Act.  This act seeks to ensure that student religious activities are accorded the same access to federally funded public secondary school facilities as student secular activities.  Therefore, student religious groups must be able to use a school’s bulletin boards, public address systems and meeting rooms and times in the same manner as secular groups. Additionally, under the act, student religious clubs may choose only student leaders who are members of that particular religion if the leaders’ duties consist of “leading prayers, devotions, and safeguarding the spiritual content of the meetings.”

Should your board have any questions about the federal guidance, please contact the NJSBA Legal Department at (609) 278-5254 or your board attorney.