Guidance on Constitutionally Protected Prayer and Religious Expression

Three weeks ago the Department of Education issued an updated “Guidance” document addressing prayer and other religious expression in our public schools. The DOE is required by law to do this, and school districts are required to certify that they are honoring the constitutional rights of students and employees with regard to religion.

Guidance on this topic was first issued under President Clinton in 1995. It was updated in 2003 and again in 2020. And now this.

It’s not surprising that DOE would update the Guidance on this topic after last year’s Kennedy v. Bremerton School District Supreme Court ruling. The Kennedy decision is cited in four of the 21 footnotes to the Guidance.

The new Guidance reflects the impact of that decision, noting in several ways that students and employees, even when “on the job,” can offer quiet, brief, private prayers. That’s what SCOTUS concluded that Coach Kennedy was doing at the 50-yard line after each football game. In line with the Kennedy decision the Guidance tells us that schools may not prohibit:

employees from engaging in prayer merely because it is religious or because some observers, including students, might misperceive the school as endorsing that expression.

The Guidance also makes it clear, however, that the Kennedy decision goes no further than that:

For example, teachers, coaches, and other public school officials acting in their official capacities may not lead students in prayer, devotional readings, or other religious activities, nor may they attempt to persuade or compel students to participate in prayer or other religious activities or to refrain from doing so.

It’s all posted for your reading pleasure at


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