In 2020, the U.S. Department of Education (ED) updated congressionally mandated federal guidance on student religious expression in public schools. At the 2020 National Prayer Breakfast, President Trump highlighted this “historic action to defend religious liberty, including the constitutional right to pray in public schools.” The American Civil Liberties Union noted that the updated guidance is almost identical to the original guidance issued in 2003 by the ED under President George W. Bush. Indeed, there have been no new U.S. Supreme Court decisions on students’ religious rights in public schools to interpret since then, which has caused some to question why an update was needed. But while some skepticism about the administration’s motives might be warranted, this certainly is an area of constitutional law where better legal literacy among educators is needed.
In announcing the guidance, the administration highlighted examples where ill-informed school officials have inappropriately restricted student religious expression in the erroneous belief that any religious expression in public school is problematic under the First Amendment’s Establishment Clause. To be certain, the First Amendment does not eradicate religious speech or faith from the school environment. To emphasize a message that bears repeating, no one has “banished God” or “banned prayer” in schools. Personal religious expression is not only allowed but protected. Both the Establishment Clause and the Free Exercise Clause of the First Amendment are important to understand when examining religion in public schools.
The Establishment Clause
When school officials promote a specific religion or religious practice in public schools, that violates the Establishment Clause. An example of such a violation would be if a teacher encouraged her troubled students to join her particular religious community. Courts use three primary tests to determine whether a school practice or policy offends the Establishment Clause. Under the “Lemon test”—named after a 1971 Supreme Court case, Lemon v. Kurtzman—a school’s practice is unconstitutional if it meets one of the following three conditions:
- Its purpose is religious.
- Its primary effect either advances or impedes religion.
- It creates an excessive entanglement between government and religion.
An alternative to the Lemon test is the “endorsement test,” whereby a school’s policy will be struck down if the court finds a reasonable person would perceive the policy as endorsing or disapproving of religion. There is also the “coercion test,” where the Establishment Clause is violated if a school official proselytizes or coerces students to participate in a religious activity. If a principal or teacher led a prayer at graduation, the action would violate all three tests.
The Supreme Court has outlined when other religious activities can cross the line into compulsion and violate religious protections under the Establishment Clause. For example, more than 50 years ago in Engel v. Vitale (1962), the Supreme Court prohibited the practice of organized school prayer when it ruled that students cannot be compelled to recite a nondenominational prayer at a public school. In Wallace v. Jaffree (1985), the Supreme Court struck down an Alabama law encouraging silent prayer during the start of the school day because it clearly endorsed a religious viewpoint instead of merely allowing and protecting it. In 1992, the Supreme Court in Lee v. Weisman forbade a clergy member from leading a prayer at a high school graduation ceremony where the principal’s role in selecting the religious leader and offering him guidelines for the prayer amounted to school sponsorship of prayer and had a coercive element for students attending the ceremony. Likewise, the Supreme Court in Santa Fe Independent School District v. Doe (2000) struck down a student-led prayer at a high school football game, again where the prayer appeared to be school-sponsored because the school’s policy encouraged prayer.
Free Exercise Clause
But remember, the First Amendment does not eradicate personal religious speech or faith from the school environment. Specifically, under the Free Exercise Clause, school officials generally need to have a compelling reason to substantially burden a student’s sincerely held religious practice. A violation might occur, for example, if a school official prohibited a student from reading his Koran at lunch or saying the rosary on a school bus. If a student invited her classmates to go to her church, that invitation would be protected by the First Amendment’s free speech and free exercise clauses. If students pray together at school, on their own initiative and not led by a teacher or school official, and on their own time, that too is constitutionally protected.
The common theme here is a bedrock American principle: Private religious expression is protected in the public square but should not be required or encouraged by a government that represents all of us, with our many different viewpoints on religion. K–12 students are a captive, impressionable audience and may not understand that the religious expression is not endorsed by the school.
To be sure, this relatively simple proposition does not provide an easy answer to every situation that arises in public schools. The guidance that Congress mandated in 2003 was an attempt to summarize the Supreme Court precedent about student religious expression in an accessible way and avoid misunderstandings. Among its points:
- Student speakers at student assemblies and extracurricular activities such as sporting events may not be selected on a basis that either favors or disfavors religious speech. Where student speakers are selected based on genuinely neutral, evenhanded criteria and retain primary control over the content of their expression, that expression is not attributable to the school. It therefore may not be restricted because of its religious—or anti-religious—content. To avoid any mistaken perception that a school endorses student speech that is not, in fact, attributable to the school, school officials may make appropriate, neutral disclaimers to clarify that such speech—whether religious or nonreligious—is the speaker’s and not the school’s.
- By contrast, where school officials determine or substantially control the content of what is expressed, such speech is attributable to the school and may not include prayer or other specifically religious (or anti-religious) content.
It is also worth noting that federal law requires the guidance to be updated every other year, something that never has happened. And while it seems likely, as some assert, that constitutional violations in schools more frequently promote, rather than inhibit, religious viewpoints, it is also true that school officials still sometimes get it wrong the other way.
So, the minor updates to the student religious expression in public schools guidance may not be a “historic action.” Even so, in a nation comprising people of every conceivable religious persuasion, including the nonreligious, the updated guidance is a useful reminder about how to protect the constitutional rights of students.
Tom Hutton is a Honolulu-based independent consultant, a former school board attorney and charter school authorizer, and serves as the executive director of the Education Law Association. Suzanne E. Eckes is a professor at Indiana University in Bloomington, IN. She is also a co-author of Principals Avoiding Lawsuits and a past president of the Education Law Association.
Engel v. Vitale, 370 U.S. 421 (1962).
Lee v. Weisman, 505 U.S. 577 (1992).
Lemon v. Kurtzman, 403 U.S. 602 (1971).
Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290 (2000).
Wallace v. Jaffree, 427 U.S. 38 (1985).
U.S. Department of Education (2003). Guidance on constitutionally protected prayer in public elementary and secondary schools. Retrieved from www2.ed.gov/policy/gen/guid/religionandschools/prayer_guidance-2003.html.
U.S. Department of Education (2020). Guidance on constitutionally protected prayer and religious expression in public elementary and secondary schools. Retrieved from https://www2.ed.gov/policy/gen/guid/religionandschools/prayer_guidance.html.