U.S. Department of Education Issues Updated Guidance on Prayer and Religious Expression in Public Schools

On May 15, 2023, the U.S. Department of Education (“Department”) updated its Guidance on the often complicated issue of prayer and religious expression in public schools. The updated Guidance states that its purpose “is to provide information on the current state of the law concerning constitutionally protected prayer and religious expression in public schools.”

Initially, the Guidance provides a helpful overview of the laws and constitutional principles related to religious expression in a public setting. It goes on to state that public schools may not discriminate against private religious expression by students, teachers, or other employees and that public schools are required to maintain neutrality among faiths and not prefer one or more religions over another.

The Department’s Guidance affirms the generally recognized principle prohibiting public school employees from acting in their official capacities, from directing or favoring prayer. When teachers, coaches, and other school officials are speaking in their official capacities, they may not engage in prayer or promote religious views. Additionally, the Guidance reaffirms the right of public schools to restrict and regulate employees’ private speech if the speech has a detrimental effect on the workplace, including employees’ working relations, impedes the performance of the employee’s duties, or otherwise interferes with the regular school operations. The updated Guidance, however, in what appears to be an acknowledgment of the Supreme Court’s 2022 decision upholding a football coach’s right to pray on the field after a game, states that public schools may not prohibit an employee from engaging in private expression, such as prayer, merely because it is religious, or because some observers, might misperceive the school as endorsing that expression.

The Department’s Guidance contains helpful hypothetical scenarios on prayer and religious expressive activity in the school or at school sponsored events to assist schools in understanding and compliance with the First Amendment. This updated Guidance is a helpful read for public school educators in K-12 and higher education who are called upon to address student or employee religious expression. 

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