On May 15, 2023, the U.S. Department of Education (“Department of Education”) released updated guidance on constitutionally protected school prayer and religious expression in the public school setting. This guidance was issued after the recent U.S. Supreme Court decision, which upheld a high school football coach’s right to pray after football games. Kennedy v. Bremerton School District, 142 S. Ct. 2407 (2022). The guidance is intended to “provide information on the current state of the law concerning constitutionally protected prayer and religious expression in public schools.”

To assist schools in applying the ruling in this recent Supreme Court decision, the Department of Education addressed eight (8) different scenarios involving prayer at school and school events. The Department of Education also provided guidance on applying constitutional principles regarding religious expression other than prayer in the public school setting.

The Department of Education states public schools may not discriminate against private religious expression by students, teachers, or other employees and that public schools must maintain neutrality among faiths and not prefer one or more religions over another. The Department of Education asserts that public school employees are prohibited from directing or favoring prayer or promoting religious views when acting in their official capacities. Public schools have the right 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 regular school operations. However, in light of the recent Supreme Court decision, the Department of Education acknowledges that public schools may not prohibit an employee from engaging in private religious expression, such as prayer. 

The guidance provides a good overview for schools to understand the constitutional principles regarding prayer and religious expression in a public school. Moreover, the scenarios are helpful because they provide the legal analysis and guide schools in responding to requests or questions about student and school staff religious expression in a public school setting or public school-sponsored event.

If you have any questions regarding the recently updated Department of Education Guidance on Constitutionally Protected Prayer and Religious Expression in Public Elementary and Secondary Schools, please contact your Tressler attorney.