Dept of Ed Updates Guidance on Constitutionally Protected Prayer and Religious Expression in K-12 Schools

Today, the U.S. Department of Education released updated guidance regarding constitutionally protected prayer and religious expression in public elementary and secondary schools. This updated guidance comes in the wake of the recent decision in the Supreme Court case Kennedy v. Bremerton School District, involving a public high school football coach who was suspended for having offered a brief personal prayer on the field after games on three occasions (see our blog post about the case here). The Supreme Court held that such prayer was private speech and that the school had not offered a sufficient justification for restricting it.

In a letter addressed to district leaders, the Department provided 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 produced 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.

Consistent with prior guidance, each local educational agency (LEA) must continue to file annually the statutorily required certification with their state educational agency (SEA) that no policy of the LEA prevents, or otherwise denies participation in, constitutionally protected prayer in public elementary and secondary schools, as detailed in Section II of the updated guidance related to prayer. Also, each SEA must continue to send to the Department by November 1 of each year a list of those LEAs that either have not made the requisite certification to the SEA or that have been the subject of a complaint regarding constitutionally protected prayer.

You can read the new guidance here.