| GUIDANCE
ON CONSTITUTIONALLY PROTECTED PRAYER IN PUBLIC ELEMENTARY AND SECONDARY SCHOOLS
Introduction Section
9524 of the Elementary and Secondary Education Act ("ESEA") of 1965, as amended
by the No Child Left Behind Act of 2001, requires the Secretary to issue guidance
on constitutionally protected prayer in public elementary and secondary schools.
In addition, Section 9524 requires that, as a condition of receiving ESEA funds,
a local educational agency ("LEA") must certify in writing to its State educational
agency ("SEA") that it has no policy that prevents, or otherwise denies participation
in, constitutionally protected prayer in public schools as set forth in this guidance. The
purpose of this guidance is to provide SEAs, LEAs, and the public with information
on the current state of the law concerning constitutionally protected prayer in
the public schools, and thus to clarify the extent to which prayer in public schools
is legally protected. This guidance also sets forth the responsibilities of SEAs
and LEAs with respect to Section 9524 of the ESEA. As required by the Act, this
guidance has been jointly approved by the Office of the General Counsel in the
Department of Education and the Office of Legal Counsel in the Department of Justice
as reflecting the current state of the law. It will be made available on the Internet
through the Department of Education's web site (www.ed.gov).
The guidance will be updated on a biennial basis, beginning in September 2004,
and provided to SEAs, LEAs, and the public. The
Section 9524 Certification Process In
order to receive funds under the ESEA, an LEA must certify in writing to its SEA
that no policy of the LEA prevents, or otherwise denies participation in, constitutionally
protected prayer in public elementary and secondary schools as set forth in this
guidance. An LEA must provide this certification to the SEA by October 1, 2002,
and by October 1 of each subsequent year during which the LEA participates in
an ESEA program. However, as a transitional matter, given the timing of this guidance,
the initial certification must be provided by an LEA to the SEA by March 15, 2003. The
SEA should establish a process by which LEAs may provide the necessary certification.
There is no specific Federal form that an LEA must use in providing this certification
to its SEA. The certification may be provided as part of the application process
for ESEA programs, or separately, and in whatever form the SEA finds most appropriate,
as long as the certification is in writing and clearly states that the LEA has
no policy that prevents, or otherwise denies participation in, constitutionally
protected prayer in public elementary and secondary schools as set forth in this
guidance. By
November 1 of each year, starting in 2002, the SEA must send to the Secretary
a list of those LEAs that have not filed the required certification or against
which complaints have been made to the SEA that the LEA is not in compliance with
this guidance. However, as a transitional matter, given the timing of this guidance,
the list otherwise due November 1, 2002, must be sent to the Secretary by April
15, 2003. This list should be sent to: Office
of Elementary and Secondary Education
Attention: Jeanette Lim
U.S.
Department of Education
400 Maryland Avenue, S.W.
Washington, D.C.
20202 The SEA's
submission should describe what investigation or enforcement action the SEA has
initiated with respect to each listed LEA and the status of the investigation
or action. The SEA should not send the LEA certifications to the Secretary, but
should maintain these records in accordance with its usual records retention policy. Enforcement
of Section 9524 LEAs
are required to file the certification as a condition of receiving funds under
the ESEA. If an LEA fails to file the required certification, or files it in bad
faith, the SEA should ensure compliance in accordance with its regular enforcement
procedures. The Secretary considers an LEA to have filed a certification in bad
faith if the LEA files the certification even though it has a policy that prevents,
or otherwise denies participation in, constitutionally protected prayer in public
elementary and secondary schools as set forth in this guidance. The
General Education Provisions Act ("GEPA") authorizes the Secretary to bring enforcement
actions against recipients of Federal education funds that are not in compliance
with the law. Such measures may include withholding funds until the recipient
comes into compliance. Section 9524 provides the Secretary with specific authority
to issue and enforce orders with respect to an LEA that fails to provide the required
certification to its SEA or files the certification in bad faith. Overview
of Governing Constitutional Principles The
relationship between religion and government in the United States is governed
by the First Amendment to the Constitution, which both prevents the government
from establishing religion and protects privately initiated religious expression
and activities from government interference and discrimination. [ 1
] The First Amendment thus establishes certain limits
on the conduct of public school officials as it relates to religious activity,
including prayer. The
legal rules that govern the issue of constitutionally protected prayer in the
public schools are similar to those that govern religious expression generally.
Thus, in discussing the operation of Section 9524 of the ESEA, this guidance sometimes
speaks in terms of "religious expression." There are a variety of issues relating
to religion in the public schools, however, that this guidance is not intended
to address. The
Supreme Court has repeatedly held that the First Amendment requires public school
officials to be neutral in their treatment of religion, showing neither favoritism
toward nor hostility against religious expression such as prayer. [ 2
] Accordingly, the First Amendment forbids religious
activity that is sponsored by the government but protects religious activity that
is initiated by private individuals, and the line between government-sponsored
and privately initiated religious expression is vital to a proper understanding
of the First Amendment's scope. As the Court has explained in several cases, "there
is a crucial difference between government speech endorsing
religion, which the Establishment Clause forbids, and private
speech endorsing religion, which the Free Speech and Free Exercise Clauses protect."
[ 3 ] The
Supreme Court's decisions over the past forty years set forth principles that
distinguish impermissible governmental religious speech from the constitutionally
protected private religious speech of students. For example, teachers and other
public school officials may not lead their classes in prayer, devotional readings
from the Bible, or other religious activities. [ 4 ]
Nor may school officials attempt to persuade or compel students to participate
in prayer or other religious activities. [ 5 ]
Such conduct is "attributable to the State" and thus violates the Establishment
Clause. [ 6 ] Similarly,
public school officials may not themselves decide that prayer should be included
in school-sponsored events. In Lee v. Weisman [ 7
], for example, the Supreme Court held that public
school officials violated the Constitution in inviting a member of the clergy
to deliver a prayer at a graduation ceremony. Nor may school officials grant religious
speakers preferential access to public audiences, or otherwise select public speakers
on a basis that favors religious speech. In Santa Fe Independent School
District v. Doe [ 8 ],
for example, the Court invalidated a school's football game speaker policy on
the ground that it was designed by school officials to result in pregame prayer,
thus favoring religious expression over secular expression. Although
the Constitution forbids public school officials from directing or favoring prayer,
students do not "shed their constitutional rights to freedom of speech or expression
at the schoolhouse gate," [ 9 ]
and the Supreme Court has made clear that "private religious speech, far from
being a First Amendment orphan, is as fully protected under the Free Speech Clause
as secular private expression." [ 10 ]
Moreover, not all religious speech that takes place in the public schools or at
school-sponsored events is governmental speech. [ 11 ]
For example, "nothing in the Constitution ... prohibits any public school student
from voluntarily praying at any time before, during, or after the school day,"
[ 12 ] and 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. Likewise, local school authorities
possess substantial discretion to impose rules of order and pedagogical restrictions
on student activities, [ 13 ]
but they may not structure or administer such rules to discriminate against student
prayer or religious speech. For instance, where schools permit student expression
on the basis of genuinely neutral criteria and students retain primary control
over the content of their expression, the speech of students who choose to express
themselves through religious means such as prayer is not attributable to the state
and therefore may not be restricted because of its religious content. [ 14
] Student remarks are not attributable to the state
simply because they are delivered in a public setting or to a public audience.
[ 15 ] As the Supreme Court
has explained: "The proposition that schools do not endorse everything they fail
to censor is not complicated," [ 16 ]
and the Constitution mandates neutrality rather than hostility toward privately
initiated religious expression. [ 17 ] Applying
the Governing Principles in Particular Contexts Prayer
During Noninstructional Time Students
may pray when not engaged in school activities or instruction, subject to the
same rules designed to prevent material disruption of the educational program
that are applied to other privately initiated expressive activities. Among other
things, students may read their Bibles or other scriptures, say grace before meals,
and pray or study religious materials with fellow students during recess, the
lunch hour, or other noninstructional time to the same extent that they may engage
in nonreligious activities. While school authorities may impose rules of order
and pedagogical restrictions on student activities, they may not discriminate
against student prayer or religious speech in applying such rules and restrictions. Organized
Prayer Groups and Activities Students
may 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
non-curricular student activities groups. Such groups must be given the same access
to school facilities for assembling as is given to other non-curricular groups,
without discrimination because of the religious content of their expression. School
authorities possess substantial discretion concerning whether to permit the use
of school media for student advertising or announcements regarding non-curricular
activities. However, where student groups that meet for nonreligious activities
are permitted to advertise or announce their meetings—for example, by advertising
in a student newspaper, making announcements on a student activities bulletin
board or public address system, or handing out leaflets—school authorities
may not discriminate against groups who meet to pray. School authorities may disclaim
sponsorship of non-curricular groups and events, provided they administer such
disclaimers in a manner that neither favors nor disfavors groups that meet to
engage in prayer or religious speech. Teachers,
Administrators, and other School Employees When
acting in their official capacities as representatives of the state, teachers,
school administrators, and other school employees are prohibited by the Establishment
Clause from encouraging or discouraging prayer, and from actively participating
in such activity with students. Teachers may, however, take part in religious
activities where the overall context makes clear that they are not participating
in their official capacities. Before school or during lunch, for example, 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. Similarly, teachers
may participate in their personal capacities in privately sponsored baccalaureate
ceremonies. Moments
of Silence If
a school has a "minute of silence" or other quiet periods during the school day,
students are free to pray silently, or not to pray, during these periods of time.
Teachers and other school employees may neither encourage nor discourage students
from praying during such time periods. Accommodation
of Prayer During Instructional Time It
has long been established that schools have the discretion to dismiss students
to off-premises religious instruction, provided that schools do not encourage
or discourage participation in such instruction or penalize students for attending
or not attending. Similarly, schools may excuse students from class to remove
a significant burden on their religious exercise, where doing so would not impose
material burdens on other students. For example, it would be lawful for schools
to excuse Muslim students briefly from class to enable them to fulfill their religious
obligations to pray during Ramadan. Where
school officials have a practice of excusing students from class on the basis
of parents' requests for accommodation of nonreligious needs, religiously motivated
requests for excusal may not be accorded less favorable treatment. In addition,
in some circumstances, based on federal or state constitutional law or pursuant
to state statutes, schools may be required to make accommodations that relieve
substantial burdens on students' religious exercise. Schools officials are therefore
encouraged to consult with their attorneys regarding such obligations. Religious
Expression and Prayer in Class Assignments Students
may express their beliefs about religion in homework, artwork, and other written
and oral assignments free from discrimination based on the religious content of
their submissions. Such home and classroom work should be judged by ordinary academic
standards of substance and relevance and against other legitimate pedagogical
concerns identified by the school. Thus, if a teacher's assignment involves writing
a poem, the work of a student who submits a poem in the form of a prayer (for
example, a psalm) should be judged on the basis of academic standards (such as
literary quality) and neither penalized nor rewarded on account of its religious
content. Student
Assemblies and Extracurricular Events 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 on the basis of genuinely neutral,
evenhanded criteria and retain primary control over the content of their expression,
that expression is not attributable to the school and therefore may not be restricted
because of its religious (or anti-religious) content. 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. 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. Prayer
at Graduation School
officials may not mandate or organize prayer at graduation or select speakers
for such events in a manner that favors religious speech such as prayer. Where
students or other private graduation speakers are selected on the basis of genuinely
neutral, evenhanded criteria and retain primary control over the content of their
expression, however, that expression is not attributable to the school and therefore
may not be restricted because of its religious (or anti-religious) content. To
avoid any mistaken perception that a school endorses student or other private
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. Baccalaureate
Ceremonies School
officials may not mandate or organize religious ceremonies. However, if a school
makes its facilities and related services available to other private groups, it
must make its facilities and services available on the same terms to organizers
of privately sponsored religious baccalaureate ceremonies. In addition, a school
may disclaim official endorsement of events sponsored by private groups, provided
it does so in a manner that neither favors nor disfavors groups that meet to engage
in prayer or religious speech.
Notes: [
1 ] The relevant portions of the First Amendment provide: "Congress shall make
no law respecting an establishment of religion, or prohibiting the free exercise
thereof; or abridging the freedom of speech . . . ." U.S. Const. amend. I. The
Supreme Court has held that the Fourteenth Amendment makes these provisions applicable
to all levels of government—federal, state, and local—and to all types
of governmental policies and activities. See Everson v. Board of Educ.,
330 U.S. 1 (1947); Cantwell v. Connecticut, 310 U.S. 296 (1940).
[ Return to text ] [
2 ] See, e.g., Everson, 330 U.S. at 18 (the First Amendment "requires
the state to be a neutral in its relations with groups of religious believers
and non-believers; it does not require the state to be their adversary. State
power is no more to be used so as to handicap religions than it is to favor them");
Good News Club v. Milford Cent. Sch., 533 U.S. 98 (2001). [ Return
to text ] [
3 ] Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290, 302 (2000) (quoting
Board of Educ. v. Mergens, 496 U.S. 226, 250 (1990) (plurality opinion));
accord Rosenberger v. Rector of Univ. of Virginia, 515 U.S. 819,
841 (1995). [ Return to text ] [
4 ] Engel v. Vitale, 370 U.S. 421 (1962) (invalidating state laws
directing the use of prayer in public schools); School Dist. of Abington
Twp. v. Schempp, 374 U.S. 203 (1963) (invalidating state laws and policies
requiring public schools to begin the school day with Bible readings and prayer);
Mergens, 496 U.S. at 252 (plurality opinion) (explaining that "a school may not
itself lead or direct a religious club"). The Supreme Court has also held, however,
that the study of the Bible or of religion, when presented objectively as part
of a secular program of education (e.g., in history or literature classes), is
consistent with the First Amendment. See Schempp, 374 U.S. at 225.
[ Return to text ] [
5 ] See Lee v. Weisman, 505 U.S. 577, 599 (1992); see also
Wallace v. Jaffree, 472 U.S. 38 (1985). [ Return
to text ] [
6 ] See Weisman, 505 U.S. at 587. [ Return
to text ] [
7 ] 505 U.S. 577 (1992). [ Return to text
] [
8 ] 530 U.S. 290 (2000). [ Return to text
] [
9 ] Tinker v. Des Moines Indep. Community Sch. Dist., 393 U.S. 503,
506 (1969). [ Return to text ] [
10 ] Capitol Square Review & Advisory Bd. v. Pinette, 515 U.S. 753,
760 (1995). [ Return to text ] [
11 ] Santa Fe, 530 U.S. at 302 (explaining that "not every message"
that is "authorized by a government policy and take[s] place on government property
at government-sponsored school-related events" is "the government's own"). [ Return
to text ] [
12 ] Santa Fe, 530 U.S. at 313. [ Return
to text ] [
13 ] For example, the First Amendment permits public school officials to review
student speeches for vulgarity, lewdness, or sexually explicit language. Bethel
Sch. Dist. v. Fraser, 478 U.S. 675, 683-86 (1986). Without more, however,
such review does not make student speech attributable to the state. [ Return
to text ] [
14 ] Rosenberger v. Rector of Univ. of Virginia, 515 U.S. 819 (1995);
Board of Educ. v. Mergens, 496 U.S. 226 (1990); Good News Club
v. Milford Cent. Sch., 533 U.S. 98 (2001); Lamb's Chapel v. Center
Moriches Union Free Sch. Dist., 508 U.S. 384 (1993); Widmar v. Vincent,
454 U.S. 263 (1981); Santa Fe, 530 U.S. at 304 n.15. In addition,
in circumstances where students are entitled to pray, public schools may not restrict
or censor their prayers on the ground that they might be deemed "too religious"
to others. The Establishment Clause prohibits state officials from making judgments
about what constitutes an appropriate prayer, and from favoring or disfavoring
certain types of prayers—be they "nonsectarian" and "nonproselytizing" or
the opposite—over others. See Engel v. Vitale, 370 U.S. 421,
429-30 (1962) (explaining that "one of the greatest dangers to the freedom of
the individual to worship in his own way lay in the Government's placing its official
stamp of approval upon one particular kind of prayer or one particular form of
religious services," that "neither the power nor the prestige" of state officials
may "be used to control, support or influence the kinds of prayer the American
people can say," and that the state is "without power to prescribe by law any
particular form of prayer"); Weisman, 505 U.S. at 594. [ Return
to text ] [
15 ] Santa Fe, 530 U.S. at 302; Mergens, 496 U.S. at
248-50. [ Return to text ] [
16 ] Mergens, 496 U.S. at 250 (plurality opinion); id.
at 260-61 (Kennedy, J., concurring in part and in judgment). [ Return
to text ] [
17 ] Rosenberger, 515 U.S. at 845-46; Mergens, 496 U.S. at 248 (plurality
opinion); id. at 260-61 (Kennedy, J., concurring in part and in judgment).
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