Student Speech & the First Amendment: Religious Speech & Expression

In this 7-part series, we’ve been covering all of the topics from Kirk Strang’s presentation, Student Speech & the First Amendment, from September’s WASDA fall conference.

So far in the series we’ve covered:

• Part 1: How to Be Prepared in a Polarized Political Landscape
• Part 2: Student Speech & Expression
• Part 3: Oral or Written Speech
• Part 4: Clothing, as well as Speech Schools Might be Able to Regulate (Sometimes)
• Part 5: Student Handbooks & Codes of Conduct
• Part 6: Student Use of Technology

In the final installment of the series, we’re wrapping things up by diving into religious speech and expression.

Major talking points include:

• Student Prayer: Generally
• Student Prayer: In Specific Contexts
• Student Religious Expression

STUDENT PRAYER: GENERALLY

1. The First Amendment protects student prayer from government interference and discrimination.
2. Public school officials may not show favoritism toward nor hostility against religious expression such as prayer.^*

3. 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.”^**

   ^*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).

   ^**Capitol Square Review & Advisory Bd. v. Pinette, 515 U.S. 753, 760 (1995).

STUDENT PRAYER: IN SPECIFIC CONTEXTS

1. 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:

   1. 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.” 

   2. 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.

STUDENT RELIGIOUS EXPRESSION

1. 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.”

   1. Schools may impose the same restrictions on distribution of religious literature as they do on non-school literature generally.
   2. Schools may not single out religious literature for special regulation.

This brings us to the conclusion of our series. Our next series focuses on the latest on pupil suspension and expulsion.

Additional articles that may be of interest:

• Addressing Practitioner HR Issues, Part 4: Employee Speech, Plus Staff & Religious Accommodations in Schools
• Student Speech & Expression, Part 4: Prayer