On May 15, the Biden-Harris Administration released updated guidance on the current state of the law concerning constitutionally protected prayer and religious expression in public schools.
The guidance includes multiple sections, including an introduction, clarification to the extent to which prayer in public schools is legally protected, and constitutional principles that relate to religious expression in public schools more broadly, not limited to prayer.
Moreover, the guidance highlights requirements under other federal and state laws relevant to prayer and religious expression. These sections are designed to advise state educational agencies and local educational agencies on how to comply with governing law.
The principles outlined in the updated guidance are similar to the U.S. Department of Education’s 2003 and 2020 guidance on constitutionally protected prayer in public schools and with guidance that President Bill Clinton issued in 1995.
The Department’s Office of the General Counsel and the Office of Legal Counsel in the U.S. Department of Justice have verified that the updated guidance reflects the current state of the law concerning constitutionally protected prayer in public elementary and secondary schools.
In a May 15, 2023, letter to chief state school officers and district and school leaders, U.S. Secretary of Education Miguel Cardona wrote:
Prayer and other forms of religious exercise and expression continue to be practices of deep significance to many students, teachers, coaches, and other school employees across a range of diverse faiths and backgrounds. The Department last issued such guidance on January 16, 2020. Since then, the U.S. Supreme Court and other federal and state courts have further considered the scope of fundamental First Amendment protections and addressed their application in public schools. In particular, the Supreme Court’s decision in Kennedy v. Bremerton School District has resulted in increased discussion nationwide about prayer and religious expression in public schools. The Kennedy decision involved a public high school football coach who was suspended for having offered a brief personal prayer on the field after games on three occasions. The Supreme Court held that such prayer was private speech and that the school had not offered a sufficient justification for restricting it.
Given recent developments, it is important that school districts and the public have an accurate understanding of the current state of the law and the scope of public schools’ authority to regulate the way in which teachers, coaches, and other school employees may engage in religious expression in the presence of the students under their care. For instance, the guidance continues to recognize the important legal principle that school employees may take part in protected religious expression such as prayer, even during their workday, at a time when it is permissible to engage in other private conduct. School employees may not, however, pressure students to join in that personal religious expression.
The Department is providing this revised guidance as required by section 8524(a) of the Elementary and Secondary Education Act of 1965 (ESEA), codified at 20 U.S.C. §7904(a). This updated guidance is similar to guidance that the Department promulgated in 2003 and in 2020, and that President Clinton issued in 1995. The prior guidance discussed how constitutional principles apply in various educational contexts such as prayer during non-instructional time, accommodation of prayer during instructional time, prayer at graduation, moments of silence, the gathering of religious student groups for prayer, and the rights and responsibilities of teachers and other school employees. The updated guidance retains much of that discussion because the state of the law has not changed materially in many of those contexts.