In 2017, we began lobbying the U.S. Department of Education (USDoE) to update its Guidance on students’ and educators’ freedom of religious expression. We gave them a number of recommendations. To our delight, they used many of our recommendations and in the 2020 release of Constitutionally Protected Prayer and Religious Expression in Public Elementary and Secondary Schools.
On May 15, 2023 the USDoE released its revisions of the Guidance. Should you be concerned about changes that were made? The short answer is, No.
What has changed in 2023?
For the most part, only slight wording changes were made to the Guidance that do not change the overall meaning. For example, references to the Bible, Torah, and Koran were replaced with “religious materials.” When referring to student prayer, the term “grace” was replaced with “a prayer or blessing.”
Due to the recent Supreme Court victory of our friends at First Liberty Institute, the updated Guidance references the Kennedy v. Bremerton School District ruling allowing educators to pray even if students see it. The Guidance now includes:
“...not everything that a public school teacher, coach, or other official says in the workplace constitutes governmental speech, and schools….may not prohibit those employees from engaging in prayer merely because it is religious or because some observers, including students, might misperceive the school as endorsing that expression.”
However, First Liberty attorney Keisha Russell expressed concern that “the administration’s new guidance relies on old propositions derived from the overturned Lemon decision.” In Kennedy v. Bremerton, the Supreme Court overruled a precedent known as the Lemon test, which unnecessarily restricted religious freedom for over 50 years. She reiterated the importance of following the Court’s recent ruling and making sure that “any restriction placed on religious freedom by those outdated cases is restored to the fullest extent required by the First Amendment.”
The updated Guidance has pared down the section addressing the Equal Access Act allowing students to organize religious clubs. It removed a portion of the 2020 Guidance which stated that student clubs have the right to require club leaders to hold to the clubs’ religious beliefs. While this should be obvious, it is not specifically addressed in the Equal Access Act.
The 2023 Guidance adds clarity about school choirs performing religious music:
“[P]ublic schools generally may allow student choirs to perform music inspired by or based on religious themes or texts as part of school-sponsored activities and events, provided that the music is not performed as a religious exercise and is not used to promote or favor religion generally, a particular religion, or a religious belief.”
It also adds a sentence encouraging schools to inform students of their religious freedom. It states that public schools may teach about religion “and promote religious liberty and respect for religious views (or lack thereof) of all.”