The White House recently announced two initiatives aimed at addressing perceived discrimination in education against students and institutions based on religion. We address one of those initiatives—proposed regulations aimed at increasing access to public funds for faith-based colleges—in a separate Franczek alert. The administration also issued new guidance addressing the rights of K-12 students and teachers to freely exercise religion, including to pray, in schools. The guidance does not create new law, but rather aims to clarify for schools when religious activities in schools must be allowed. The guidance reminds schools that although they may not endorse religion under the First Amendment, and although they can limit some religious speech in schools to avoid doing so, they cannot limit all religious speech in schools. The guidance also creates new responsibilities for school districts and state associations with respect to religious nondiscrimination and related complaints. This guidance builds on numerous executive orders and other actions by the administration to increase the rights of religious organizations and individuals since 2017.
Reminder of First Amendment Standards
The guidance includes a number of examples of situations in which student prayer must be allowed in K-12 schools, including:
- Students can voluntarily pray at any time before, during, or after school as long as it does not cause a substantial disruption or violate another generally applicable rule.
- Students may pray with fellow students during the school day on the same terms and conditions that they may engage in other conversation or speech.
- Students may speak to and attempt to persuade their peers about religious topics just as they do with regard to political topics.
- Students can organize prayer groups, religious clubs and “see you at the pole” gatherings before school to the same extent that students are permitted to organize other noncurricular student groups. These groups must be given the same access to school facilities as other groups.
The guidance also provides example of religious conduct in which teachers may engage at school:
- Teachers can take part in religious activities where the overall context makes clear that they are not participating in their official capacities.
- Teachers can pray even during their workday at a time when it is permissible to engage in other private conduct such as making a personal cell phone call.
- Before school or during lunch, teachers may meet with other teachers for prayer or Bible study to the same extent that they may engage in other conversation or nonreligious activities.
- Teachers may participate in their personal capacities in privately sponsored baccalaureate ceremonies or similar events.
The guidance does not address when other employees, such as administrators or coaches, whose positions can be attributable to the school district even outside the contractual school day, can engage in prayer.
The guidance does not delve into the many difficult issues regarding how to distinguish between when a student or employee’s actions cross the line into conduct that can be prohibited. For example, can a high school football coach kneel down and pray on the fifty yard line after a football game? Can a high school football player “take a knee” during the national anthem before a game? But the guidance makes clear that schools that answer these questions in a way with which the Department of Education disagrees may be subject to additional scrutiny, making it even more essential for school districts to consult with counsel before limiting religious speech at school.
Certification Requirements
The guidance does require for the first time that public schools and other K-12 recipients of federal funds certify annually to their state departments of education that they do not have policies in place that prevent students from engaging in constitutional prayer at school. This certification is required for school districts to receive funds under ESEA.
State education departments are now also required to offer a method to receive and respond to complaints against school districts alleging denials of the right to free exercise at school. The state agencies will then report to the U.S. Department of Education any school districts that fail to meet reporting requirements as well as information about complaints and lawsuits against school districts claiming a denial of the right to pray.
It is unclear how state agencies will become aware of lawsuits other than by happenstance, as the guidance does not require schools to report such information to the state agencies. Regardless, these new requirements will almost certainly lead to more involvement in complaints of discrimination on the basis of religion at both the state and federal levels.
