U.S. Ed Dept Balances First Amendment Principles in Revised Guidance on Prayer, Religious Activity in Schools
The founders left us with a balancing act on religion: the First Amendment guarantees the free exercise of religion, but forbids the government establishment of one. On the whole, an updated policy from the Biden Administration’s Department of Education does a good job of explaining – and promoting – that balance in its new guidance for state and local education agencies on what is, and what is not, permitted in prayer and religious expression in elementary to secondary schools.
Comparing the additions and deletions of this policy from the Trump administration’s version reveals – as one might expect from a left of center administration – added emphasis on the “no establishment” clause. But the new policy contains no shocking departures from traditional constitutional protections. Instead, it doubles down on the distinction between religious expression that is government-sponsored, and that which is privately expressed.
After noting Supreme Court jurisprudence that “it is no part of the business of government to compose official prayers for any group of the American people,” the updated policy declares that “nothing in the First Amendment, however, converts the public schools into religion-free zones, or requires students, teachers, or other school officials to leave their private expression at the schoolhouse door.”
Somewhat defensively, the policy notes that the “principles outlined in this updated guidance are similar” to the 2020 guidance. The new policy clearly responds to the U.S. Supreme Court’s Kennedy v. Bremerton School District opinion (2022), aka “the praying coach case,” in which the Court upheld the right of a coach to pray on a football field after a game.
It cautions that schools have some right to discipline a schoolteacher, coach, or other employee for improper speech. It particularly empowers schools to discipline teachers who “pressure or encourage” students to join private prayer. “However,” the policy adds, “not everything that a public-school teacher, coach or other official says in the workplace constitutes governmental speech, and schools have less leeway to regulate employees’ genuinely private expression.”
The new policy upholds the right of teachers and other school employees to meet for prayer before school or during breaks. It upholds the central place religion has held in music, history, and literature. It allows philosophical questions concerning religion, the history of religion, comparative religion, religious texts as literature, and the role of religion in the history of the United States. It recognizes that much classical music has religious themes, which is no bar to the classics being played or sung by students.
The updated policy affirms the right of students to “express their beliefs about religion in homework, artwork, and other written and oral assignments free from discrimination based on the religious perspective of their submissions.”
Most commendably, the policy calls for the teaching of these twin First Amendment principles as an “opportunity to assist America’s youth in developing an understanding of these constitutional protections as they apply to people of all faiths and no faith and an appreciation for the core American values and freedoms that undergird them.”
In an age of culture wars, it is refreshing to see a policy from a Republican administration revised by a Democratic administration with stronger emphasis – as you would expect -- on government neutrality, while maintaining the enduring respect for religious freedom rooted in the U.S. Constitution.