Speak of the Devil: U.S. Department of Education Releases Guidance on Religious Expression in Schools

Though perhaps not as grandiose as engravings on stone tablets, the U.S. Department of Education (USDOE) recently released guidance on constitutionally protected prayer and religious expression in schools, in accordance with the Elementary and Secondary Education Act of 1965 (ESEA). The guidance can be found here.

Constitutional Principles

Generally, the First Amendment’s Establishment and Free Exercise Clauses prevent the government from establishing religion and protect religious exercise and religious expression from unwarranted government interference and discrimination. Schools are prohibited from promoting or favoring religion or coercing their students’ consciences, and also from discriminating against private religious expression by students, teachers, or other employees. Importantly, schools must maintain neutrality among all faiths.

Application in Schools

The USDOE guidance includes a substantial list of situations within the public school context in which concerns about student or employee prayer or religious expression may arise, including:

• Student Prayer and Religious Activities. Students may generally engage in prayer or religious expression during instructional and non-instructional time to the same degree they may engage in nonreligious private expression during those times. Nevertheless, student expression remains subject to neutrally and uniformly applied school rules intended to prevent a material disruption to the educational program. Schools may also permit students to attend off-campus religious instruction or be excused from class to remove a burden on their religious exercise.
• Religious Expression in Class Assignments and Homework. Students may express their religious beliefs in assignments free from discrimination based on the religious perspective of their submissions. Schools should judge student work by ordinary academic standards of substance, relevance, and other legitimate pedagogical objectives.
• Student Dress Codes and Policies. When adopting and enforcing dress codes and policies, schools may not target religious attire in general, or a particular religion’s attire, for prohibition or regulation. If the school makes exceptions to the dress code to accommodate nonreligious student needs, then the school must make comparable exceptions for religious needs. Further, students may display religious messages on their clothing to the same extent and pursuant to the same conditions that they may permit nonreligious messages.
• Organized Prayer Groups and Activities. Students may organize prayer groups and religious clubs to the same extent students are permitted to organize other noncurricular student groups. The groups must be given the same access to school facilities as other noncurricular groups. Such student groups may also advertise in the same ways nonreligious activities are permitted to advertise (e.g., school newspaper, PA system), but the school may issue appropriate, neutral disclaimers of the school’s sponsorship or approval of noncurricular groups or events.
• Student Assemblies, Graduations, and Noncurricular Events. School officials may not mandate or organize prayer at graduation, and student speakers at assemblies, graduations, and noncurricular activities (e.g., sporting events) may not be selected on a basis that either favors or disfavors religious perspectives. Nevertheless, where a student speaker is selected on the basis of genuinely content-neutral, evenhanded criteria, and the school does not determine or have control over the content of the student’s speech, then the expression is not reasonably attributed to the school and may include prayer. In that case, school officials may make appropriate, neutral disclaimers to clarify that the speech is the speaker’s, not the school’s.
• Baccalaureate Ceremonies. While school officials may not mandate or organize religious baccalaureate ceremonies, if the school’s facilities are made available to other private groups, then they must also be made available on the same terms to a group organizing a baccalaureate ceremony. Again, the school may disclaim any official sponsorship or approval of the event.
• Teachers, Administrators, and Other School Employees. While teachers, school officials, and other employees may not encourage or discourage private prayer or other religious activity, they are not prohibited from engaging in private prayer during the workday if: (1) they are not acting in their official capacities, and (2) their prayer does not result in any coercion of students. Employees engaging in religious expression or observance may not compel, coerce, persuade, or encourage students to join in the employee’s prayer or other religious activity, and a school may take reasonable measures to ensure that students are not pressured or encouraged to join in their teachers’ or coaches’ private prayer.
• Teaching about Religion. Public schools may not provide religious instruction, but they may teach about religion and promote religious liberty and respect for individuals’ religious views (or lack thereof). Permissible subjects may include philosophical questions concerning religion, the history of religion, religious texts as literature, and the role of religion in history, as well as religious influences in art, music, and literature.

As a condition of receiving ESEA funds, by October 1, schools must annually certify in writing to their state education agency (i.e., the Michigan Department of Education) that they have no policy that prevents, or otherwise denies participation in, constitutionally protected prayer in public elementary and secondary schools, as described in this guidance. The failure to do so may result in a compliance agreement, a cease and desist order, or the withholding of ESEA funds.

Aside from concerns regarding ESEA compliance, following this guidance may help in preventing claims regarding First Amendment violations. Nevertheless, First Amendment issues can be especially nuanced and require a fact-specific analysis. If you have questions about religious expression in schools, please contact a Thrun attorney.