FR Doc 03-4693
[Federal Register: February 28, 2003 (Volume 68, Number 40)]
[Notices]
[Page 9645-9648]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr28fe03-81]
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DEPARTMENT OF EDUCATION
Guidance on Constitutionally Protected Prayer in Public
Elementary and Secondary Schools
AGENCY: Department of Education.
ACTION: Notice of availability.
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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.
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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:
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Note: The official version of this document is the document
published in the Federal Register. Free Internet access to the
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Regulations is available on GPO access at: http://
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.
(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 (http://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
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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]
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