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).
     

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