Public school districts across the country face an October 1 deadline to certify they do not prevent constitutionally protected prayer — or else they could lose federal funding.

The certification is an annual exercise, but school districts face thorny dilemmas this year at the intersection of religion and school as a result of evolving U.S. Department of Education (DOE) guidance and recent U.S. Supreme Court rulings. The latest federal guidance essentially acknowledges the legal complexities involved, telling school officials they "may wish to consult with their attorneys" as they navigate certain obligations.

School districts can, however, find practical insights from the guidance and rulings on what is constitutionally accepted, what's not, and what's in a gray zone when it comes to students, teachers, coaches, and graduation speakers praying. There are also important takeaways for dress codes, excused absences, and providing employees time off for religious reasons.

The Latest Federal Guidance on Prayer

DOE released updated guidance in May for the annual certification requirement that school districts face to allow constitutionally protected prayer or put their funding at risk under the Elementary and Secondary Education Act of 1965. By October 1, school districts must certify in writing to their state educational agency that they have "no policy that prevents, or otherwise denies participation in, constitutionally protected prayer in public elementary and secondary schools," as detailed in the updated guidance.

The First Amendment prevents public school teachers, administrators, and other employees from encouraging prayer or other religious activity. “Nothing in the First Amendment, however, converts the public schools into religion-free zones," the guidance states, "or requires students, teachers, or other school officials to leave their private religious expression behind at the schoolhouse door."

Here are some of the scenarios DOE walked through:

• Schools can continue to offer a moment of silence but cannot encourage or discourage students from praying during that time.
• Students may pray during or outside of class to the same degree they are allowed to make any other kind of expression during those periods. For example, DOE said a student could bow her head to pray to herself before a test. Schools can set boundaries "to prevent material disruption of the educational program" as long as those boundaries apply equally to prayer and nonreligious expression. Students may also organize prayer groups or religious clubs to the same extent they can organize other noncurricular groups.
• Teachers, coaches, and other employees may pray when they are not acting in their official capacities and it would not result in any coercion of students. "Before school or during breaks, for instance, teachers may meet with other teachers for prayer or religious study to the same extent that they may engage in other conversation or nonreligious activities," the guidance said. Schools can take "reasonable measures" to ensure that teachers and coaches do not pressure students to join them in prayer. However, school leaders cannot assume coercion or pressure will exist simply because a teacher or coach is engaging in the activity. The U.S. Supreme Court's ruling last year in Kennedy v. Bremerton School District protected a coach's right to pray at midfield with students joining him when there was no evidence of coercion. The majority opinion emphasized, "There is no indication in the record that anyone expressed any coercion concerns to the District about the quiet, postgame prayers that Mr. Kennedy asked to continue." Thus, the permissibility of these types of prayers will depend on a fact-specific analysis. From a policy standpoint, schools may not outright ban or permit them. 
• While schools cannot choose speakers for their events or graduations to favor religious speech, they also cannot prevent speakers from praying. "Where a student speaker is selected on the basis of genuinely content-neutral, evenhanded criteria," the guidance said, "and the school does not determine or have control over the content of the student's speech, the expression is not reasonably attributed to the school and therefore may not be restricted because of its religious content." In those cases, schools can make "neutral disclaimers" that the prayer was the speaker's and not the school's speech.   

The Latest Federal Guidance on Other Forms of Religious Expression

While the October certification requirement is focused on prayer, the updated guidance provided new details on other elements of religious expression as well, such as:

• Students can distribute religious literature to their classmates on the same terms as they are permitted to distribute anything else. "Schools may impose the same reasonable time, place, or manner restrictions on distribution of religious literature as they do on non-school literature generally," the guidance said, "but they may not target religious literature for more permissive or more restrictive regulation.”
• While schools cannot provide religious instruction, they can teach about religion. "For example, 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 and other countries are all permissible public school subjects," the guidance said. It also emphasized that students' expression of religious beliefs in their assignments "should be judged by ordinary academic standards of substance, relevance, and other legitimate pedagogical objectives."

In the following two areas — dress codes and excused absences — DOE acknowledged that schools may need outside counsel to find the right balance. 

• Schools may not use dress codes to target or prohibit religious attire. "Students may display religious messages on items of clothing to the same extent and pursuant to the same conditions that they are permitted to display nonreligious messages," the guidance said. Schools must take that same religiously neutral approach to making exceptions to dress codes. The guidance said that federal or state laws "may require schools to make accommodations that relieve substantial burdens on students' religious exercise," and in those cases school officials "may wish to consult with their attorneys.”
• Schools may excuse absences for students related to religion as long as they do not encourage or discourage those absences and they would not impose a burden on other students. "For example, it would be constitutional for schools to excuse students from class to enable them to fulfill their religious obligations regarding prayer, religious holidays, or other observances," the guidance said. This part of the guidance also noted that federal or state laws may require accommodations and that school officials "may wish to consult with their attorneys."

Across all the scenarios the guidance covered, school districts should keep two words in mind: content neutral. As noted in many of the bullet points above, schools are allowed to implement rules and restrictions that are neutral in how they treat religion and other types of content. If the rules neither target religion nor treat religious expression any differently than nonreligious expression, then schools can consider using them to advance their goals.

The Supreme Court's Ruling Impacting Time Off for School Employees

About a month after the guidance came out, the U.S. Supreme Court "upended long-held assumptions over the legal standard used to review employers’ responses to employees’ requests for religious accommodations under Title VII," as our colleague Jonathan Crotty wrote at the time. For almost 50 years, courts have allowed schools and other employers to reject those requests if they presented more than a "de minimis" (very small or trifling) burden to the employer.

In Groff v. DeJoy, the Supreme Court replaced that standard with one requiring employers to conduct an individual analysis of the request's economic impact on the organization based on its size and resources. The result is that schools now have a much higher hill to climb before they can reject a teacher, coach, or other employee's request for time off for religious reasons. The Supreme Court found that the "employer must show … that the burden of granting an accommodation would result in substantial increased costs in relation to the conduct of its particular business." It also said that in order for a cost to constitute an "undue burden," "the requisite burden, privation, or adversity must rise to an 'excessive' or 'unjustifiable' level."

What makes this issue unique for schools is the nature of their budgets, calendars, and supervisory obligations. The cost of a single substitute probably won’t meet the above test, when compared with the large budgets of school districts. However, if a school district is able to show a large amount of substitutes being needed, or an inability to find substitutes and thus a negative impact on students, schools may have more legs to stand on. Likewise, many school districts centralize their breaks around Judeo-Christian holidays. Given that reality and the Supreme Court's new guidance, schools will need to be deliberate in giving employees of other religions the requisite time they need to celebrate their religious holidays as well.

You can guarantee there will be additional litigation to set the boundaries of the Supreme Court's new test. In the interim, schools may consider a cautious approach and allow religious accommodations in cases where there is not a clear economic cost. 

Final Takeaways

Public school districts must allow prayer and other types of religious expression by their students, teachers, coaches, and other employees to the same extent they allow other types of expression. Districts can set content-neutral boundaries for all types of expression, and they should be careful in setting those boundaries in a way that does not target or treat religion any differently. Failing to take that approach can result in litigation.

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