On January 16, 2020, the U.S. Department of Education released updated guidance regarding religious expression in public schools. As we all know, the First Amendment prohibits the government (including public schools) from favoring or opposing religion – there’s nothing new on that front. For example, teachers still can’t lead classes in prayer, and students are still protected by the Constitution when they engage in private religious speech or expression. As a refresher, the First Amendment protects the following:
- Student prayer at school during non‑instructional time or activities
- Student prayer gatherings before or after school, as well as religious groups that operate in a similar manner to other non‑curricular student groups
- School employee prayer when it is clear the employee is not acting in his/her official capacity
- Student religious, off-campus released time
- Student religious expression or opinions in homework and class assignments, where contextually appropriate
- Distribution of religious literature to the same extent similar, non‑religious literature may be distributed
As always, schools and school personnel may not compel others to participate in any sort of religious activity or expression, either.
So, what new light is shed on the First Amendment? In short, nothing. The guidance reaffirms the current administration’s commitment to protect both religious expression in schools as well as the right to refrain from such expression. It demonstrates the administration’s policy emphasis on religious freedom but will ultimately have little, if any, day‑to‑day impact for school administrators and personnel. Lusk Albertson recommends review of the guidance to individuals who would like to remind themselves of specific religious expression/activities permitted in schools, as well as the boundaries of such expression/activities.
The U.S. Department of Education’s guidance on prayer can be found here.