Guidance on Constitutionally Protected Prayer in Public Elementary and Secondary
Schools
February 7, 2003
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).
[ 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).
[ 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).
[ 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.
[ 5 ]
See Lee v. Weisman
, 505 U.S. 577, 599 (1992);
see also Wallace v. Jaffree
, 472 U.S. 38
(1985).
[ 6 ]
See Weisman
, 505 U.S. at 587.
[ 7 ] 505 U.S. 577 (1992).
[ 8 ] 530 U.S. 290 (2000).
[ 9 ]
Tinker v. Des Moines Indep. Community Sch. Dist.
, 393 U.S. 503, 506 (1969).
[ 10 ]
Capitol Square Review & Advisory Bd. v. Pinette
, 515 U.S. 753, 760 (1995).
[ 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").
[ 12 ]
Santa Fe
, 530 U.S. at 313.
[ 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.
[ 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.
[ 15 ]
Santa Fe
, 530 U.S. at 302;
Mergens
, 496 U.S. at 248-50.
[ 16 ]
Mergens
, 496 U.S. at 250 (plurality opinion);
id.
at 260-61 (Kennedy, J., concurring in part
and in judgment).
[ 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).