Department of Ed Releases Post-Kennedy Guidance on Religious Expression in Public Schools

In May 2023, the Department of Education issued guidance on the current state of the law regarding constitutionally protected prayer and religious expression in public schools. Last updated in 2020, the guidance incorporates changes following last year’s U.S. Supreme Court decision in Kennedy v. Bremerton, in which the Court held that a school district violated a high school football coach’s First Amendment rights when the district disciplined him for praying at the 50-yard line after games. (You can read our alert about the Kennedy decision here.)  

In addition to providing updated information about school districts’ obligations to students and employees under the Constitution and federal statutes, the Department’s guidance provides a practical summary of relevant constitutional principles and addresses hypothetical scenarios that may be helpful for schools to consider when reviewing policy and procedures related to religious expression.  

School district obligations under the Constitution 

The updated guidance provides an overview of First Amendment protections of religious exercise and religious expression and its application to public schools, based on Supreme Court jurisprudence leading up to and including Kennedy. The guidance reaffirmed that schools “must maintain neutrality among faiths rather than preferring one or more religions over others.” While schools may not promote or favor religion or “coerce the consciences of students,” schools also may not discriminate against private religious expression by students, teachers, or other employees. Thus, for instance, public schools may not target religious attire in dress codes or provide religious instruction for promotional purposes, but they may teach about religion and promote respect for religious or non-religious viewpoints. 

The guidance also provides updated language regarding schools’ regulation of employee religious speech. As the Supreme Court has held in earlier cases, when teachers and other public school officials speak in their official capacities, they may not engage in prayer or promote religious views. Schools can also reasonably restrict an employee’s private speech at work without violating the First Amendment if the speech may have a detrimental effect on close working relationships, impede the performance of the employee’s duties, or interfere with the regular operations of the school. In Kennedy, however, the Supreme Court broadened the sphere of what constitutes protected private employee speech, further limiting schools’ ability to regulate an employee’s religious expression. The updated guidance states: “In contexts where a school permits teachers, coaches, and other employees to engage in personal speech…it may not prohibit those employees from engaging in prayer merely because it is religious or because some observers, including students, might misperceive the school as endorsing that expression” (emphasis added). Schools can still take “reasonable measures” to ensure that school officials “do not pressure or encourage students” to join in the private prayer of school officials. 

Generally, students have broader First Amendment rights than public school employees when engaging in prayer and other religious activities at school. The Kennedy decision addressed First Amendment issues with respect to school employees only; thus, guidance regarding student religious exercise—e.g., student prayer during non-instructional time, non-curricular events, assemblies, and graduation; organized prayer groups and activities; religious expression in class assignments and homework; and excusals for religious holidays—remains unchanged, for now. 

School district obligations under ESEA/ESSA and the Equal Access Act 

In addition to school districts’ constitutional obligations, the guidance addresses federal statutory requirements for school districts related to their policy and procedures governing religious expression. 

Under the Elementary and Secondary Education Act (ESEA), as amended by the Every Student Succeeds Act (ESSA), school districts must annually certify to the state by October 1 that they have no policy that prevents or denies participation in constitutionally protected prayer in school. The guidance reminds districts of the certification process they should follow and requires states to have a grievance process for students and employees to file complaints against a district for denying them the right to participate in constitutionally protected prayer. Schools that do not file certification or are found to have a policy that violates constitutional principles may be subject to enforcement action. 

Under the Equal Access Act, a public secondary school that creates a “limited open forum”—defined as an opportunity offered by the school to a non-curriculum-related student group to meet on school grounds outside of instructional time—may not refuse student religious groups access to that same forum. The guidance reminds schools that the Act is designed to ensure that student religious activities are given the same access to school facilities as student secular activities. This includes access to school media and the ability for student religious groups to advertise meetings and events to the school community in the same way as other student groups. 

Takeaways 

Despite the many questions left in Kennedy’s wake, the Department’s updated guidance suggests that while public schools may need to take a more nuanced approach in restricting employees’ religious expression post-Kennedy, overall, students’ and employee’s rights to free speech and religious expression—and schools’ regulation of these rights—have not changed dramatically under governing law. We encourage schools to review their policies and procedures pertaining to religious expression and activity to ensure they do not violate the First Amendment rights of students and employees, and to remain compliant with federal law requirements under ESEA/ESSA and the Equal Access Act. We’re here to help, so please reach out to a Franczek attorney if you have any questions.