The US Department of Education has issued new guidance on religious expression in public schools, stating that while the government may not promote or favour religion or coerce students, schools cannot discriminate against private religious expression by students, teachers or other employees. The guidance aims to clarify ongoing debates regarding what kinds of religious expression are legal in public school settings. The guidance also stresses that schools must maintain neutrality among faiths, rather than favouring one or more religions over others. It was sparked, in part, by the Supreme Court’s 2022 ruling in Kennedy v. Bremerton, which sought to hold public prayer gatherings on the 50-yard line after games.
As featured on the U.S. Department of Education, public schools cannot promote or favor any religion or coerce students’ consciences. However, schools also cannot discriminate against private religious expression by students, teachers, or other employees. The department issued new guidance on May 15 to clarify the ongoing debates over what kinds of religious expression are legal in public school settings.
The official guidance counters claims of religious conservatives that schools have become religion-free zones. It also counters claims of liberals that no religious expression should be allowed. The federal guidance says that schools must maintain neutrality among faiths rather than preferring one or more religions over others. This echoes decades of Supreme Court rulings and federal law.
The restatement of what’s allowable was sparked, in part, by the Supreme Court’s 2022 ruling in Kennedy v. Bremerton. In that case, a high school assistant football coach sought to hold public prayer gatherings on the 50-yard line after games. The court’s ruling in favor of the coach was narrow but also confusing, critics contend, because the court did not accurately state the nature of the prayers being led by the coach. What the court said was permissible and what the coach actually was doing are two different things.
The new guidance states that a public school and its officials may not prescribe prayers to be recited by students or school authorities. It is a cornerstone principle of the Supreme Court’s Establishment Clause jurisprudence that “it is no part of the business of government to compose official prayers for any group of the American people to recite as a part of a religious program carried on by the government.” However, nothing in the First Amendment converts public schools into religion-free zones or requires students, teachers, or other school officials to leave their private religious expression behind at the schoolhouse door. The line between government-sponsored and privately initiated religious expression is vital to a proper understanding of what the Religion and Free Speech Clauses of the First Amendment prohibit and protect.
The Supreme Court has ruled that there is a difference between “impermissible governmental religious speech” and “private religious speech.” The guidance notes that the distinction is not always clear, and it provides examples of what is permissible and what is not. For example, a student may pray silently or with other students during non-instructional time, such as before or after school, or during lunch. A student may also wear religious clothing or jewelry, bring religious books to school, and talk about his or her religious beliefs with classmates. However, a teacher may not lead a class in prayer, display religious symbols in a classroom, or promote one religion over another.
The guidance also notes that schools may teach about religion in an objective, secular manner that neither promotes nor inhibits religion. This includes teaching about the role of religion in history, literature, art, and music. However, schools may not use the study of religion as a pretext for promoting or inhibiting religion.
Considering everything, the U.S. Department of Education’s new guidance on religious expression in schools clarifies what kinds of religious expression are legal in public school settings. The guidance notes that public schools cannot promote or favor any religion or coerce students’ consciences. However, schools also cannot discriminate against private religious expression by students, teachers, or other employees. The guidance distinguishes between impermissible governmental religious speech and private religious speech and provides examples of what is permissible and what is not.
