[Federal Register Volume 68, Number 40 (Friday, February 28, 2003)]
[Notices]
[Pages 9645-9648]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-4693]


-----------------------------------------------------------------------

DEPARTMENT OF EDUCATION


Guidance on Constitutionally Protected Prayer in Public 
Elementary and Secondary Schools

AGENCY: Department of Education.

ACTION: Notice of availability.

-----------------------------------------------------------------------

SUMMARY: As required by section 9524 of the Elementary and Secondary 
Education Act of 1965, as amended by the No Child Left Behind Act of 
2001 (NCLB), the Secretary of Education on February 7, 2003, issued 
guidance on constitutionally protected prayer in public elementary and 
secondary schools. The purpose of this guidance is to provide State 
educational agencies (SEAs), local educational agencies (LEAs), and the 
public with information on this important topic. The guidance also sets 
forth and explains the responsibilities of SEAs and LEAs with respect 
to this aspect of the NCLB. This guidance is set forth in the appendix 
to this notice.

FOR FURTHER INFORMATION CONTACT: Jeanette Lim, Office of Elementary and 
Secondary Education, U.S. Department of Education, 400 Maryland Avenue, 
SW., Washington, DC 20202-2241. Telephone: (202) 401-0113. Information 
on this guidance is available on the Internet through the Department of 
Education's Web site at: http://www.ed.gov/inits/religionandschools/.
    If you use a telecommunications device for the deaf (TDD), you may 
call the Federal Information Relay Service (FIRS) at 1-800-877-8339.
    Individuals with disabilities may obtain this document in an 
alternative format (e.g., Braille, large print, audiotape, or computer 
diskette) on request to the contact person listed under FOR FURTHER 
INFORMATION CONTACT.

SUPPLEMENTARY INFORMATION: As a condition of receiving funds under the 
Elementary and Secondary Education Act, an LEA must certify in writing 
to its SEA that it has no policy that prevents, or otherwise denies 
participation in, constitutionally protected prayer in public schools 
as set forth in this guidance.
    The guidance clarifies the rights of students to pray in public 
schools. As stated in the guidance, ``* * * the First Amendment forbids 
religious activity that is sponsored by the government but protects 
religious activity that is initiated by private individuals'' such as 
students. Therefore, ``[a]mong other things, students may read their 
Bibles or other scriptures, say grace before meals, and pray or study 
religious materials with fellow students during recess, the lunch hour, 
or other noninstructional time to the same extent that they may engage 
in nonreligious activities.'' Public schools should not be hostile to 
the religious rights of their students and their families.

[[Page 9646]]

    At the same time, school officials may not ``compel students to 
participate in prayer or other religious activities.'' Nor may 
teachers, school administrators, and other school employees, when 
acting in their official capacities as representatives of the State, 
encourage or discourage prayer or actively participate in those 
activities with students.

Electronic Access to this Document

    You may view this document, as well as all other Department of 
Education documents published in the Federal Register, in text or Adobe 
Portable Document Format (PDF), on the Internet at the following site: 
www.ed.gov/legislation/FedRegister.
    To use PDF, you must have Adobe Acrobat Reader, which is available 
free at this site. If you have questions about using PDF, call the U.S. 
Government Printing Office (GPO), toll free, at 1-888-293-6498; or in 
the Washington, DC, area at (202) 512-1530.

    Note: The official version of this document is the document 
published in the Federal Register. Free Internet access to the 
official edition of the Federal Register and the Code of Federal 
Regulations is available on GPO access at: http://www.access.gpo.gov/nara/index.html.


(Authority: 20 U.S.C. 7904).

    Dated: February 24, 2003.
Rod Paige,
Secretary of Education.

Appendix--Guidance on Constitutionally Protected Prayer In Public 
Elementary and Secondary Schools--February 7, 2003

Introduction

    Section 9524 of the Elementary and Secondary Education Act 
(``ESEA'') of 1965, as amended by the No Child Left Behind Act of 
2001, requires the Secretary to issue guidance on constitutionally 
protected prayer in public elementary and secondary schools. In 
addition, section 9524 requires that, as a condition of receiving 
ESEA funds, a local educational agency (``LEA'') must certify in 
writing to its State educational agency (``SEA'') that it has no 
policy that prevents, or otherwise denies participation in, 
constitutionally protected prayer in public schools as set forth in 
this guidance.
    The purpose of this guidance is to provide SEAs, LEAs, and the 
public with information on the current state of the law concerning 
constitutionally protected prayer in the public schools, and thus to 
clarify the extent to which prayer in public schools is legally 
protected. This guidance also sets forth the responsibilities of 
SEAs and LEAs with respect to Section 9524 of the ESEA. As required 
by the Act, this guidance has been jointly approved by the Office of 
the General Counsel in the Department of Education and the Office of 
Legal Counsel in the Department of Justice as reflecting the current 
state of the law. It will be made available on the Internet through 
the Department of Education's Web site (www.ed.gov). The guidance 
will be updated on a biennial basis, beginning in September 2004, 
and provided to SEAs, LEAs, and the public.

The Section 9524 Certification Process

    In order to receive funds under the ESEA, an LEA must certify in 
writing to its SEA that no policy of the LEA prevents, or otherwise 
denies participation in, constitutionally protected prayer in public 
elementary and secondary schools as set forth in this guidance. An 
LEA must provide this certification to the SEA by October 1, 2002, 
and by October 1 of each subsequent year during which the LEA 
participates in an ESEA program. However, as a transitional matter, 
given the timing of this guidance, the initial certification must be 
provided by an LEA to the SEA by March 15, 2003.
    The SEA should establish a process by which LEAs may provide the 
necessary certification. There is no specific Federal form that an 
LEA must use in providing this certification to its SEA. The 
certification may be provided as part of the application process for 
ESEA programs, or separately, and in whatever form the SEA finds 
most appropriate, as long as the certification is in writing and 
clearly states that the LEA has no policy that prevents, or 
otherwise denies participation in, constitutionally protected prayer 
in public elementary and secondary schools as set forth in this 
guidance.
    By November 1 of each year, starting in 2002, the SEA must send 
to the Secretary a list of those LEAs that have not filed the 
required certification or against which complaints have been made to 
the SEA that the LEA is not in compliance with this guidance. 
However, as a transitional matter, given the timing of this 
guidance, the list otherwise due November 1, 2002, must be sent to 
the Secretary by April 15, 2003. This list should be sent to:
    Office of Elementary and Secondary Education, Attention: 
Jeanette Lim, U.S. Department of Education, 400 Maryland Avenue, 
SW., Washington, DC 20202.
    The SEA's submission should describe what investigation or 
enforcement action the SEA has initiated with respect to each listed 
LEA and the status of the investigation or action. The SEA should 
not send the LEA certifications to the Secretary, but should 
maintain these records in accordance with its usual records 
retention policy.

Enforcement of Section 9524

    LEAs are required to file the certification as a condition of 
receiving funds under the ESEA. If an LEA fails to file the required 
certification, or files it in bad faith, the SEA should ensure 
compliance in accordance with its regular enforcement procedures. 
The Secretary considers an LEA to have filed a certification in bad 
faith if the LEA files the certification even though it has a policy 
that prevents, or otherwise denies participation in, 
constitutionally protected prayer in public elementary and secondary 
schools as set forth in this guidance.
    The General Education Provisions Act (``GEPA'') authorizes the 
Secretary to bring enforcement actions against recipients of Federal 
education funds that are not in compliance with the law. Such 
measures may include withholding funds until the recipient comes 
into compliance. Section 9524 provides the Secretary with specific 
authority to issue and enforce orders with respect to an LEA that 
fails to provide the required certification to its SEA or files the 
certification in bad faith.

Overview of Governing Constitutional Principles

    The relationship between religion and government in the United 
States is governed by the First Amendment to the Constitution, which 
both prevents the government from establishing religion and protects 
privately initiated religious expression and activities from 
government interference and discrimination.\1\ The First Amendment 
thus establishes certain limits on the conduct of public school 
officials as it relates to religious activity, including prayer.
    The legal rules that govern the issue of constitutionally 
protected prayer in the public schools are similar to those that 
govern religious expression generally. Thus, in discussing the 
operation of Section 9524 of the ESEA, this guidance sometimes 
speaks in terms of ``religious expression.'' There are a variety of 
issues relating to religion in the public schools, however, that 
this guidance is not intended to address.
    The Supreme Court has repeatedly held that the First Amendment 
requires public school officials to be neutral in their treatment of 
religion, showing neither favoritism toward nor hostility against 
religious expression such as prayer.\2\ Accordingly, the First 
Amendment forbids religious activity that is sponsored by the 
government but protects religious activity that is initiated by 
private individuals, and the line between government-sponsored and 
privately initiated religious expression is vital to a proper 
understanding of the First Amendment's scope. As the Court has 
explained in several cases, ``there is a crucial difference between 
government speech endorsing religion, which the Establishment Clause 
forbids, and private speech endorsing religion, which the Free 
Speech and Free Exercise Clauses protect.''\3\
    The Supreme Court's decisions over the past forty years set 
forth principles that distinguish impermissible governmental 
religious speech from the constitutionally protected private 
religious speech of students. For example, teachers and other public 
school officials may not lead their classes in prayer, devotional 
readings from the Bible, or other religious activities.\4\ Nor may 
school officials attempt to persuade or compel students to 
participate in prayer or other religious activities.\5\ Such conduct 
is ``attributable to the State'' and thus violates the Establishment 
Clause.\6\
    Similarly, public school officials may not themselves decide 
that prayer should be included in school-sponsored events. In Lee v. 
Weisman,\7\ for example, the Supreme Court held that public school 
officials violated the Constitution in inviting a member of the 
clergy to deliver a prayer at a graduation ceremony. Nor may school 
officials grant

[[Page 9647]]

religious speakers preferential access to public audiences, or 
otherwise select public speakers on a basis that favors religious 
speech. In Santa Fe Independent School District v. Doe,\8\ for 
example, the Court invalidated a school's football game speaker 
policy on the ground that it was designed by school officials to 
result in pregame prayer, thus favoring religious expression over 
secular expression.
    Although the Constitution forbids public school officials from 
directing or favoring prayer, students do not ``shed their 
constitutional rights to freedom of speech or expression at the 
schoolhouse gate,''\9\ and the Supreme Court has made clear that 
``private religious speech, far from being a First Amendment orphan, 
is as fully protected under the Free Speech Clause as secular 
private expression.''\10\ Moreover, not all religious speech that 
takes place in the public schools or at school-sponsored events is 
governmental speech.\11\ For example, ``nothing in the Constitution 
* * * prohibits any public school student from voluntarily praying 
at any time before, during, or after the schoolday,''\12\ and 
students may pray with fellow students during the school day on the 
same terms and conditions that they may engage in other conversation 
or speech. Likewise, local school authorities possess substantial 
discretion to impose rules of order and pedagogical restrictions on 
student activities,\13\ but they may not structure or administer 
such rules to discriminate against student prayer or religious 
speech. For instance, where schools permit student expression on the 
basis of genuinely neutral criteria and students retain primary 
control over the content of their expression, the speech of students 
who choose to express themselves through religious means such as 
prayer is not attributable to the state and therefore may not be 
restricted because of its religious content.\14\ Student remarks are 
not attributable to the state simply because they are delivered in a 
public setting or to a public audience.\15\ As the Supreme Court has 
explained: ``The proposition that schools do not endorse everything 
they fail to censor is not complicated,''\16\ and the Constitution 
mandates neutrality rather than hostility toward privately initiated 
religious expression.\17\

Applying the Governing Principles in Particular Contexts

Prayer During Noninstructional Time

    Students may pray when not engaged in school activities or 
instruction, subject to the same rules designed to prevent material 
disruption of the educational program that are applied to other 
privately initiated expressive activities. Among other things, 
students may read their Bibles or other scriptures, say grace before 
meals, and pray or study religious materials with fellow students 
during recess, the lunch hour, or other non-instructional time to 
the same extent that they may engage in nonreligious activities. 
While school authorities may impose rules of order and pedagogical 
restrictions on student activities, they may not discriminate 
against student prayer or religious speech in applying such rules 
and restrictions.

Organized Prayer Groups and Activities

    Students may organize prayer groups, religious clubs, and ``see 
you at the pole'' gatherings before school to the same extent that 
students are permitted to organize other non-curricular student 
activities groups. Such groups must be given the same access to 
school facilities for assembling as is given to other non-curricular 
groups, without discrimination because of the religious content of 
their expression. School authorities possess substantial discretion 
concerning whether to permit the use of school media for student 
advertising or announcements regarding non-curricular activities. 
However, where student groups that meet for nonreligious activities 
are permitted to advertise or announce their meetings--for example, 
by advertising in a student newspaper, making announcements on a 
student activities bulletin board or public address system, or 
handing out leaflets--school authorities may not discriminate 
against groups who meet to pray. School authorities may disclaim 
sponsorship of non-curricular groups and events, provided they 
administer such disclaimers in a manner that neither favors nor 
disfavors groups that meet to engage in prayer or religious speech.

Teachers, Administrators, and other School Employees

    When acting in their official capacities as representatives of 
the state, teachers, school administrators, and other school 
employees are prohibited by the Establishment Clause from 
encouraging or discouraging prayer, and from actively participating 
in such activity with students. Teachers may, however, take part in 
religious activities where the overall context makes clear that they 
are not participating in their official capacities. Before school or 
during lunch, for example, teachers may meet with other teachers for 
prayer or Bible study to the same extent that they may engage in 
other conversation or nonreligious activities. Similarly, teachers 
may participate in their personal capacities in privately sponsored 
baccalaureate ceremonies.

Moments of Silence

    If a school has a ``minute of silence'' or other quiet periods 
during the school day, students are free to pray silently, or not to 
pray, during these periods of time. Teachers and other school 
employees may neither encourage nor discourage students from praying 
during such time periods.

Accommodation of Prayer During Instructional Time

    It has long been established that schools have the discretion to 
dismiss students to off-premises religious instruction, provided 
that schools do not encourage or discourage participation in such 
instruction or penalize students for attending or not attending. 
Similarly, schools may excuse students from class to remove a 
significant burden on their religious exercise, where doing so would 
not impose material burdens on other students. For example, it would 
be lawful for schools to excuse Muslim students briefly from class 
to enable them to fulfill their religious obligations to pray during 
Ramadan.
    Where school officials have a practice of excusing students from 
class on the basis of parents' requests for accommodation of 
nonreligious needs, religiously motivated requests for excusal may 
not be accorded less favorable treatment. In addition, in some 
circumstances, based on Federal or State constitutional law or 
pursuant to State statutes, schools may be required to make 
accommodations that relieve substantial burdens on students' 
religious exercise. School officials are therefore encouraged to 
consult with their attorneys regarding such obligations.

Religious Expression and Prayer in Class Assignments

    Students may express their beliefs about religion in homework, 
artwork, and other written and oral assignments free from 
discrimination based on the religious content of their submissions. 
Such home and classroom work should be judged by ordinary academic 
standards of substance and relevance and against other legitimate 
pedagogical concerns identified by the school. Thus, if a teacher's 
assignment involves writing a poem, the work of a student who 
submits a poem in the form of a prayer (for example, a psalm) should 
be judged on the basis of academic standards (such as literary 
quality) and neither penalized nor rewarded on account of its 
religious content.

Student Assemblies and Extracurricular Events

    Student speakers at student assemblies and extracurricular 
activities such as sporting events may not be selected on a basis 
that either favors or disfavors religious speech. Where student 
speakers are selected on the basis of genuinely neutral, evenhanded 
criteria and retain primary control over the content of their 
expression, that expression is not attributable to the school and 
therefore may not be restricted because of its religious (or anti-
religious) content. By contrast, where school officials determine or 
substantially control the content of what is expressed, such speech 
is attributable to the school and may not include prayer or other 
specifically religious (or anti-religious) content. To avoid any 
mistaken perception that a school endorses student speech that is 
not in fact attributable to the school, school officials may make 
appropriate, neutral disclaimers to clarify that such speech 
(whether religious or nonreligious) is the speaker's and not the 
school's.

Prayer at Graduation

    School officials may not mandate or organize prayer at 
graduation or select speakers for such events in a manner that 
favors religious speech such as prayer. Where students or other 
private graduation speakers are selected on the basis of genuinely 
neutral, evenhanded criteria and retain primary control over the 
content of their expression, however, that expression is not 
attributable to the school and therefore may not be restricted 
because of its religious (or anti-religious) content. To avoid any 
mistaken perception that a school endorses student or other private 
speech that is not in fact attributable to the school, school 
officials

[[Page 9648]]

may make appropriate, neutral disclaimers to clarify that such 
speech (whether religious or nonreligious) is the speaker's and not 
the school's.

Baccalaureate Ceremonies

    School officials may not mandate or organize religious 
ceremonies. However, if a school makes its facilities and related 
services available to other private groups, it must make its 
facilities and services available on the same terms to organizers of 
privately sponsored religious baccalaureate ceremonies. In addition, 
a school may disclaim official endorsement of events sponsored by 
private groups, provided it does so in a manner that neither favors 
nor disfavors groups that meet to engage in prayer or religious 
speech.

Footnotes

    \1\ The relevant portions of the First Amendment provide: 
``Congress shall make no law respecting an establishment of 
religion, or prohibiting the free exercise thereof; or abridging the 
freedom of speech * * *'' U.S. Const. amend. I. The Supreme Court 
has held that the Fourteenth Amendment makes these provisions 
applicable to all levels of government--federal, state, and local--
and to all types of governmental policies and activities. See 
Everson v. Board of Educ., 330 U.S. 1 (1947); Cantwell v. 
Connecticut, 310 U.S. 296 (1940).
    \2\ See, e.g., Everson, 330 U.S. at 18 (the First Amendment 
``requires the state to be a neutral in its relations with groups of 
religious believers and non-believers; it does not require the state 
to be their adversary. State power is no more to be used so as to 
handicap religions than it is to favor them''); Good News Club v. 
Milford Cent. Sch., 533 U.S. 98 (2001).
    \3\ Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290, 302 (2000) 
(quoting Board of Educ. v. Mergens, 496 U.S. 226, 250 (1990) 
(plurality opinion)); accord Rosenberger v. Rector of Univ. of 
Virginia, 515 U.S. 819, 841 (1995).
    \4\ Engel v. Vitale, 370 U.S. 421 (1962) (invalidating state 
laws directing the use of prayer in public schools); School Dist. of 
Abington Twp. v. Schempp, 374 U.S. 203 (1963) (invalidating state 
laws and policies requiring public schools to begin the school day 
with Bible readings and prayer); Mergens, 496 U.S. at 252 (plurality 
opinion) (explaining that ``a school may not itself lead or direct a 
religious club''). The Supreme Court has also held, however, that 
the study of the Bible or of religion, when presented objectively as 
part of a secular program of education (e.g., in history or 
literature classes), is consistent with the First Amendment. See 
Schempp, 374 U.S. at 225.
    \5\ See Lee v. Weisman, 505 U.S. 577, 599 (1992); see also 
Wallace v. Jaffree, 472 U.S. 38 (1985).
    \6\ See Weisman, 505 U.S. at 587.
    \7\ 505 U.S. 577 (1992).
    \8\ 530 U.S. 290 (2000).
    \9\ Tinker v. Des Moines Indep. Community Sch. Dist., 393 U.S. 
503, 506 (1969).
    \10\ Capitol Square Review & Advisory Bd. v. Pinette, 515 U.S. 
753, 760 (1995).
    \11\ Santa Fe, 530 U.S. at 302 (explaining that ``not every 
message'' that is ``authorized by a government policy and take[s] 
place on government property at government-sponsored school-related 
events'' is ``the government's own'').
    \12\ Santa Fe, 530 U.S. at 313.
    \13\ For example, the First Amendment permits public school 
officials to review student speeches for vulgarity, lewdness, or 
sexually explicit language. Bethel Sch. Dist. v. Fraser, 478 U.S. 
675, 683-86 (1986). Without more, however, such review does not make 
student speech attributable to the state.
    \14\ Rosenberger v. Rector of Univ. of Virginia, 515 U.S. 819 
(1995); Board of Educ. v. Mergens, 496 U.S. 226 (1990); Good News 
Club v. Milford Cent. Sch., 533 U.S. 98 (2001); Lamb's Chapel v. 
Center Moriches Union Free Sch. Dist., 508 U.S. 384 (1993); Widmar 
v. Vincent, 454 U.S. 263 (1981); Santa Fe, 530 U.S. at 304 n.15. In 
addition, in circumstances where students are entitled to pray, 
public schools may not restrict or censor their prayers on the 
ground that they might be deemed ``too religious'' to others. The 
Establishment Clause prohibits state officials from making judgments 
about what constitutes an appropriate prayer, and from favoring or 
disfavoring certain types of prayers--be they ``nonsectarian'' and 
``nonproselytizing'' or the opposite--over others. See Engel v. 
Vitale, 370 U.S. 421, 429-30 (1962) (explaining that ``one of the 
greatest dangers to the freedom of the individual to worship in his 
own way lay in the Government's placing its official stamp of 
approval upon one particular kind of prayer or one particular form 
of religious services,'' that ``neither the power nor the prestige'' 
of state officials may ``be used to control, support or influence 
the kinds of prayer the American people can say,'' and that the 
state is ``without power to prescribe by law any particular form of 
prayer''); Weisman, 505 U.S. at 594.
    \15\ Santa Fe, 530 U.S. at 302; Mergens, 496 U.S. at 248-50.
    \16\ Mergens, 496 U.S. at 250 (plurality opinion); id. at 260-61 
(Kennedy, J., concurring in part and in judgment).
    \17\ Rosenberger, 515 U.S. at 845-46; Mergens, 496 U.S. at 248 
(plurality opinion); id. at 260-61 (Kennedy, J., concurring in part 
and in judgment).

[FR Doc. 03-4693 Filed 2-27-03; 8:45 am]
BILLING CODE 4000-01-U