January 16, 2020
Dear Chief State School Officers:
Today, as required by section 8524(a) of the Elementary and Secondary Education Act of 1965 (ESEA), 20 U.S.C. § 7904(a), I am pleased to issue updated guidance on constitutionally protected prayer in public elementary and secondary schools. The guidance has not been updated since 2003, when it was first issued, although the law requires the U.S. Department of Education (Department) to do so regularly. Now, we correct this omission.
Our updated guidance covers topics such as prayer during non-instructional time, accommodation of prayer during instructional time, prayer at graduation, moments of silence, the gathering of religious student groups for prayer, and the rights of teachers and other school employees. It also includes information about the Equal Access Act, which applies to public secondary schools, that is substantially drawn from Religious Expression in Public Schools: A State of Principles issued by the Honorable Richard W. Riley, former U.S. Secretary of Education, in 1998. Prayer is a form of religious expression, and this additional information provides relevant context.
Local educational agencies (LEAs) must continue to file the statutorily required certification with the State educational agency (SEA) that no policy of the LEA prevents, or otherwise denies participation in, constitutionally protected prayer in public elementary and secondary schools, as detailed in Section II of the updated guidance. LEAs are not required to certify compliance with Sections III and IV of the updated guidance, addressing religious expression and the Equal Access Act, respectively. An LEA's failure to make the statutorily required certification to the SEA or making such certification in bad faith may warrant an enforcement action by the Department against the LEA. Such measures include withholding funds until recipients comply with the law.
Also, each SEA must continue to send to the Department by November 1 of each year a list of those LEAs that either have not made the requisite certification to the SEA or that have been the subject of a complaint regarding constitutionally protected prayer. The updated guidance clarifies that an SEA must provide a process for filing a complaint against an LEA that allegedly denies a person, including a student or employee, the right to participate in constitutionally protected prayer. To the extent the SEA has notice of a public legal charge or complaint such as a lawsuit filed against an LEA regarding constitutionally protected prayer, the SEA must report that complaint to the Department. These requirements were not spelled out in the 2003 guidance.
The U.S. Department of Justice's Office of Legal Counsel and the Department's Office of General Counsel have both approved the updated guidance, and it will be made publicly available on the Department's website at https://www2.ed.gov/policy/gen/guid/religionandschools/prayer_guidance.html. For additional information about the updated guidance, please contact Mark Washington at Mark.Washington@ed.gov.
The Department's updated guidance affirms our citizens' essential and historic liberty to freely engage in prayer and other religious expression, as our Constitution guarantees and the decisions of the U.S. Supreme Court command. Of course, government, teachers, and others in authority should never compel public school students to participate in prayer or other religious activities. But students do not shed their First Amendment rights, including the right to pray, at the public schoolhouse gate.