To what extent is public school prayer and other religious expression legally protected? This may seem like an academic question, since children are now largely limited to remote learning. As teachers, parents, and children look ahead to resuming in-person school activities, the U.S. Department of Education’s updated “Guidance on Constitutionally Protected Prayer and Religious Expression in Public Elementary and Secondary Schools” provides helpful clarification about applicable religious freedom protections. Such guidance may be particularly important for those who have found comfort and hope through their faith, while living through the COVID-19 pandemic.
Required Federal Guidance in 2003: Focus on Prayer as Religious Speech
Under applicable federal law, the U.S. Department of Education is required to issue guidance to state and local educational agencies, and the public, address constitutionally protected religious activities in public elementary schools and secondary schools. Correspondingly, public schools are legally required to periodically certify that they do not prevent such constitutionally protected activities, as a condition of receiving certain federal funds.
In 2003, the Dept. of Ed. first issued such required guidance, largely focusing on prayer, related religious speech, and how schools could be neutral spaces where students and teachers could exercise these constitutionally protected rights. More specifically, the Dept. of Education instructed that elementary and secondary school students may do the following:
- pray during non-instructional time;
- participate in organized prayer groups and activities;
- pray during moments of silence, instructional time, student assemblies, extracurricular events, graduation, and baccalaureate ceremonies; and
- express religious beliefs in their school assignments.
2003 Guidance: Helpful, But Was It Enough?
The 2003 Guidance provided important legal parameters for students, parents, teachers, and school administrators who had grappled with all types of questions involving prayer and other religious expression in public schools. But many grey legal areas remained, with varying degrees of respect accorded to people seeking to express and live out their faith. Such uncertainty can exact a heavy toll, such as students being ostracized for seeking to express their faith in action, students being precluded or discouraged from doing so, and inconsistent enforcement.
Some specific questions involving religion and religious expression may include the following: May a student wear a shirt or jewelry expressing religious beliefs? May a student write an essay about his or her religious beliefs? What about a book report on literature with religious themes, perhaps even the Bible or the Koran? To what extent may students actively share their faith with other students, seeking to persuade them to believe in a certain faith paradigm? How is that different from sharing political beliefs or views on moral issues, climate change, sports teams, or other often controversial issues?
Updated Federal Guidance in 2020: Expanded Protection for Religious Expression
Until this year, the Dept. of Ed. issued no further formal guidance to update its 2003 Guidance. Then on January 16, 2020, the Dept. of Ed. published “Guidance on Constitutionally Protected Prayer and Religious Expression in Public Elementary and Secondary Schools.” This 2020 Guidance answers many of the above questions with affirmative and more explicit protections for such religious expression.
Perhaps the most telling change is that the Dept. of Education’s 2020 Guidance adds “Religious Expression” in the publication’s title. The 2020 Guidance thus keeps its 2003 Guidance intact but expands the scope of recognized religious liberty protections. With such expansion, the 2020 Guidance clarifies how legal protections for prayer in schools can be understood and applied against the backdrop of constitutional protections for broader religious expression in schools.
For example, the 2020 Guidance updates prayer language to “religious expression” or “religious exercise, including prayer” terminology. This language change reflects a paradigm shift from “prayer” and “religious exercise” as interchangeable terms. Prayer is now rightly understood as one type of religious exercise (as well as speech) that is constitutionally protected.
In addition, the 2020 Guidance updates discrimination prohibitions based on “religious content” to now read “religious perspective.” Student protections are thus now broadened from not only religious “content” but also content containing religious “perspectives.” This approach squares with constitutional proscriptions against “excessive entanglement” with religion, namely, that laws and regulations should be avoided if they call for government inquiry into an activity’s religious nature. As the 2020 Guidance instructs: “Public schools also may not restrict or censor prayers on the ground that they might be deemed ‘too religious’ to others. The Establishment Clause prohibits State officials from making judgments about what constitutes an appropriate prayer, and from favoring or disfavoring certain types of prayers—be they ‘nonsectarian’ and ‘non-proselytizing’ or the opposite.”
Practical Applications for Broadened Religious Expression Protection
The practical effect of the 2020 Guidance should be that even more religious activity in public schools will be legally protected. Here are six notable areas of expanded and clarified religious expression protections:
New Section Focused on Religious Expression
The 2020 Guidance contains an entirely new section devoted to religious expression in public schools. The same constitutional principles undergirding legal protections for school prayer now apply equally to students’ additional religious expression, such as:
- Distributing religious literature;
- Being taught about religion (as distinct from receiving religious instruction);
- Wearing religious attire, subject to generally applied, non-discriminatory policies; and
- Being excused from class based on parents’ religiously motivated requests for religious accommodation (addressed in the 2003 Guidance but located in a different section).
Equal Access for Religious Expression
The 2020 Guidance jives with the federal Equal Access Act (20 USC § 4071), which equalizes access to federally funded school facilities. More specifically, student religious groups may do the following:
- Enjoy the same right of access to school facilities as other secular groups;
- Hold prayer services, Bible readings, or other worship exercises;
- Publicize such meetings using the same school media as other student groups;
- Meet during lunch or other non-instructional time; and
- Require their leaders to be members of their religion.
Teachers’ Religious Expression
The 2020 Guidance expressly includes teachers in its broadened recognition of protected religious expression. The 2003 Guidance instructed that teachers may engage in religious activities so long as they did not act in their official capacities. The 2020 Guidance provides the helpful clarification that such protection extends to teachers “even during their workday at a time when it is permissible to engage in other private conduct such as making a personal telephone call.”
Student Evangelism as Religious Expression
The 2020 Guidance explicitly protects evangelistic activity: “Students may also speak to, and attempt to persuade, their peers about religious topics just as they do with regard to political topics.” This directive is generally consistent with the 2003 Guidance, but it demonstrates a stronger recognition of protected religious expression in public schools.
Religious Pluralism Affirmed
While the 2003 Guidance did not exclude any religions, the 2020 Guidance lists Torahs and Korans alongside Bibles and other scriptures as religious texts. By explicitly including the Jewish and Muslim sacred texts, the 2020 Guidance thus emphasizes that religious liberty is a foundational and human aspect of the United States’ pluralistic society.
Enforcement Teeth, Too
To better protect the religious liberty interests at stake, the 2020 Guidance adds enforcement mechanisms, such as more detailed complaint and enforcement procedures along with the Dept. of Education Secretary’s capability to effectuate compliance. In contrast, the 2003 Guidance contained only generic compliance language. Notably, state and local educational agencies that receive certain federal funds (per the Elementary and Secondary Education Act of 1965) must annually certify in writing that no policy “prevents, or otherwise denies participation in, constitutionally protected prayer in public elementary and secondary schools.” Failure to comply with the 2020 Guidance thus may result in loss of federal funding and other enforcement penalties.
Onward: What’s Next for School Prayer and Other Religious Expression?
To what extent will students, their families, and teachers appreciate and enjoy these enhanced legal protections for religious expression? Will school personnel understand them as well, and therefore refrain from efforts to reduce or prohibit religious expressions such as prayer, evangelism, essays on religious topics, and religious apparel? Will any schools lose federal funding or face other adverse consequences from the U.S. Dept. of Ed. for noncompliance?
As with many religious liberty matters of constitutional import, such issues may get worked out through lawsuits, other legal channels, or more informal challenges. The 2020 Guidance’s enhanced recognition of the rights of students and teachers to pray, meet, and otherwise engage in religious activities in public schools provides important clarifications and allows more effective enforcement against potential religious liberty violations. Such updated federal guidance should thus better equip individuals and educators alike, as our country looks toward re-opening schools this fall.
 See 2020 Guidance. Correspondingly, the U.S. Dept. of Education also issued a notice of a proposed rule related to religious activities in public schools and to federal grant eligibility, to align with the U.S. Supreme Court case of Trinity Lutheran Church of Columbia, Inc. v. Comer (2017). For additional guidance regarding Trinity Lutheran, in which the Supreme Court held that government grants may not be discriminatorily denied to religious organizations, see https://wagenmakerlaw.com/blog/supreme-court-reproaches-missouri-religious-discrimination-and-protects-religious-liberty).
 For other applications the First Amendment’s “excessive entanglement” test, see https://wagenmakerlaw.com/blog/churches-and-irs-why-trump%E2%80%99s-call-repeal-johnson-amendment-makes-constitutional-sense and https://wagenmakerlaw.com/blog/oral-argument-heard-and-against-clergy-housing-allowance.