This past September, Kirk Strang presented at the WASDA New Superintendents Academy on the topic of Student Rights and Responsibilities in the Era of Polarized Political Landscape.
In this five-part series, we’re sharing a detailed look at Kirk’s presentation, which focuses on the many facets of student speech and expression, including:
- Part 1: Basic Principles, Seminal Case Law & Building Your Defense
- Part 2: Oral or Written Speech
- Part 3: Clothing
- Part 4: Prayer
- Part 5: Summary of Speech Schools Might Be Able to Regulate (Sometimes)
In Part 4 of our series, we’re tackling student speech and expression as it relates to prayer with a focus on:
- Student Prayer
- Generally
- In Specific Contexts
- Student Religious Expression
- Religious Literature
- Student Dress Codes & Policies
Student Speech & Expression: Prayer
STUDENT PRAYER — GENERALLY
- The First Amendment protects student prayer from government interference and discrimination.
-
Public school officials may not show favoritism toward, nor hostility against, religious expression such as prayer.*
*Good News Club v. Milford Cent. Sch., 533 U.S. 98 (2001); McCreary Cnty. v. Am. Civil Liberties Union of Ky., 545 U.S. 844 (2005).
-
Our Supreme Court has provided that ”[P]rivate religious speech, far from being a First Amendment orphan, is as fully protected under the Free Speech Clause as secular private expression.**
**Capitol Square Review & Advisory Bd. v. Pinette, 515 U.S. 753, 760 (1995).
STUDENT PRAYER, IN SPECIFIC CONTEXTS
- In May 2023, the U.S. Department of Education issued updated guidance on constitutionally protected prayer and religious expression in public schools. The Department addressed the following contexts:
- Prayer During Non-instructional 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.” -
Organized Prayer Groups and Activities.
“Students may organize prayer groups and religious clubs to the same extent that students are permitted to organize other noncurricular student activity groups …[W]here 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 that meet to engage in religious expression such as prayer.”
NOTE: Religious student groups must be afforded the same access to school facilities for assembling as is afforded to other noncurricular groups.
- School Employees.
Teachers, school administrators, and other school employees may not:- encourage or discourage students’ private prayer (or other religious activity), and
-
actively participate in such activity with students in their official capacities.
NOTE: The 2023 update emphasizes that employees may engage in private prayer when not acting in their official capacities and where their prayer “does not result in any coercion of students.” (e.g., while on a lunch break in the staff room).
- Moments of Silence.
“If a school has a ‘moment 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 may not encourage or discourage this practice. - Prayer/Religious Expression 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 perspective of their submissions. Such home and classroom work should be judged by ordinary academic standards of substance, relevance, and other legitimate pedagogical objectives.” -
Student Assemblies and Noncurric ular Events.
“Student speakers at school assemblies and noncurricular activities such as sporting events may not be selected on a basis that either favors or disfavors religious perspectives. Where a student speaker is selected on the basis of genuinely content-neutral, evenhanded criteria, 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 (or content opposing religion) and may include prayer.”NOTE: The Department recommends that school officials make neutral disclaimers to clarify that student speech in these circumstances is not the school’s speech.
-
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 content-neutral, evenhanded criteria, and schools do not determine or have control over their speech, however, that expression is not attributable to the school and therefore may not be restricted because of its religious content (or content opposing religion) and may include prayer.”
- Prayer During Non-instructional Time.
Student Speech & Expression: Religious Expression
STUDENT RELIGIOUS EXPRESSION
- 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 restrictions on distribution of religious literature as they do on non-school literature generally.
- Schools may not single out religious literature for special regulation.
- Student Dress Codes and Policies.
- Schools “may not single out religious attire in general, or attire of a particular religion, for prohibition or regulation.”
- “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.”
This brings us to the end of Part 4 of the series. In Part 5, we’ll wrap up the series on student speech and expression with what Kirk likes to call his, “summary of speech schools might be able to regulate (sometimes).”
Additional articles based on WASDA Conference presentations that may be of interest: