What's New about the New Guidance on Religious Freedom

A closer look at the Department of Education’s new Guidance on Constitutionally Protected Prayer and Religious Expression in Public Elementary and Secondary Schools

By Eric Buehrer

President Trump and Eric Buehrer during the Oval Office announcement

On January 16, 2020, President Trump announced the release of the Guidance on Constitutionally Protected Prayer and Religious Expression in Public Elementary and Secondary Schools. I had the privilege of joining the President, Secretary Betsy DeVos, Deputy Attorney General Jeffrey Rosen, along with a few students, parents, and teachers for the press event in the Oval Office.

Accountability

In 2002, Congress amended the Elementary and Secondary Education Act to require that public schools certify they have no policy against students praying at school. That was a rather low bar. A school might not have had an official policy against prayer, but in practice they might have repressed it.

The new Guidance (Section 8524(b) adds accountability where SEA’s (State Education Agencies) must send to the Secretary (by November 1st) a list of LEAs (Local Education Agencies) that have not filed the required certification or that have been the subject of a complaint to the SEA alleging that the LEA has a policy that prevents, or otherwise denies participation in, constitutionally protected prayer in public elementary and secondary schools. This includes complaints that the SEA may deem meritless.

Our Recommendations

Eric Buehrer with Secretary Betsy DeVos in the White House

In the spring of 2017, our team at Gateways to Better Education, including Dr. William Jeynes, professor of education at Cal State University, Long Beach, first wrote to Secretary DeVos informing her of the previous administration’s neglect in reissuing the guidelines. They had not been updated since 2003. We also made specific recommendations to improve them.

We suggested they return portions of the 1995 guidance that had been removed in 2003. This dealt with student expression beyond merely prayer. The department acted on our advice and included the following:

“Students may also speak to, and attempt to persuade, their peers about religious topics just as they do with regard to political topics.”
“Religious Literature – Students have a right to distribute religious literature to their schoolmates on the same terms as they are permitted to distribute other literature that is unrelated to school curriculum or activities. Schools may impose the same reasonable time, place, and manner or other constitutional restrictions on distribution of religious literature as they do on non-school literature generally, but they may not single out religious literature for special regulation.”
“Teaching about Religion – Public schools may not provide religious instruction, but they may teach about religion. For example, philosophical questions concerning religion, the history of religion, comparative religion, the Bible (or other religious teachings) as literature, and the role of religion in the history of the United States and other countries all are permissible public school subjects. Similarly, it is permissible to consider religious influences on philosophy, art, music, literature, and social studies. Although public schools may teach about religious holidays, including their religious aspects, and may celebrate the secular aspects of holidays, schools may not observe holidays as religious events or promote such observance by students.”

The department also included our recommendation for guidance on student dress codes:

“Student Dress Codes and Policies – Schools enjoy substantial discretion in adopting policies relating to student dress and school uniforms. Schools, however, may not single out religious attire in general, or attire of a particular religion, for prohibition or regulation. If a school makes exceptions to the dress code for nonreligious reasons, it must also make exceptions for religious reasons, absent a compelling interest. Students may display religious messages on items of clothing to the same extent that they are permitted to display other comparable messages. Religious messages may not be singled out for suppression, but rather are subject to the same rules as generally apply to comparable messages.”

In addition to these improvements, the department added a brief section with guidance on the Equal Access Act based on recent court rulings and interpretations from the Justice Department. The Equal Access Act allows for religious student clubs to be formed on campus. It added an important statement on the right for student clubs to require its leadership to hold the club’s religious beliefs. While this may seem obvious, there are some activists who are pushing to require clubs to not “discriminate” against people who want to lead the club but not believe in the clubs religious doctrines.

Several times in the new guidelines, the words “religious content” were replaced with “religious perspective.” This subtle change will help as the pressure grows on educators to suppress the religious viewpoints of students on controversial cultural topics such as abortion, same-sex marriage, and gender identity. The new guidance makes clear, these students’ religious perspectives are not to be silenced.

We are grateful to Secretary DeVos and the USDOE for highlighting the rights of students and teachers to live out their faith at school.

Now the work must begin to spread the word to every school, every student, every teacher, and every parent. - Eric Buehrer, President, Gateways to Better Education