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Last week, during the observance of National Religious Freedom Day, the Trump administration issued new guidance on religious freedom in public schools. In a separate action, the administration also proposed a new rule to protect the rights of religious student groups at public universities.

What is the new guidance on religious freedom in public schools?

As required by federal law, the purpose of this updated guidance is to “provide information on the current state of the law concerning religious expression in public schools.” According to the current law:

• 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, Torahs, Korans, 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.

• School authorities are allowed to impose rules of order and pedagogical restrictions on student activities, though they may not discriminate against student prayer or religious perspectives in applying such rules and restrictions.

• 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 noncurricular student activities groups. Such groups must be given the same access to school facilities for assembling as is given to other noncurricular groups,

• School authorities possess substantial discretion concerning whether to permit the use of school media for student advertising or announcements regarding noncurricular activities. However, where student groups that meet for nonreligious activities are permitted to advertise or announce their meetings, school authorities may not discriminate against groups who meet to engage in religious expression such as prayer.

• School authorities may disclaim sponsorship of noncurricular groups and events, provided they administer such disclaimers in a manner that neither favors nor disfavors groups that meet to engage in prayer or express religious perspectives.

• When acting in their official capacities as representatives of the state, teachers, school administrators, and other school employees are prohibited by the First Amendment from encouraging or discouraging prayer, and from actively participating in such activity with students. Teachers, however, may take part in religious activities where the overall context makes clear that they are not participating in their official capacities.

• Teachers may take part in religious activities such as prayer even during their workday at a time when it is permissible to engage in other private conduct, such as making a personal telephone call.

• 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 and other school employees may neither require, encourage, nor discourage students from praying during such time periods.

• 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.

• Schools may excuse students from class to remove a significant burden on their religious exercise, including prayer, where doing so would not impose material burdens on other students. For example, it would be lawful for schools to excuse Muslim students from class to enable them to fulfill their religious obligations to pray during Ramadan.

• 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 and relevance and against other legitimate pedagogical concerns identified by the school.

• Student speakers at student assemblies and noncurricular activities such as sporting events may not be selected on a basis that either favors or disfavors religious perspectives.

• 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 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 and may include prayer.

• 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.

• 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 speech.

• Students have a right to distribute religious literature to their schoolmates on the same terms as they are permitted to distribute other literature unrelated to school curriculum or activities. Schools may impose the same reasonable time, place, and manner or other constitutional restrictions on distribution of religious literature as they do on non-school literature generally, but they may not single out religious literature for special regulation.

• Public schools may not provide religious instruction, but they may teach about religion. For example, philosophical questions concerning religion, comparative religion, the Bible (or other religious teachings) as literature, and so on, are permissible public school subjects.

• Schools enjoy substantial discretion in adopting policies relating to student dress and school uniforms. Schools, however, may not single out religious attire in general, or attire of a particular religion, for prohibition or regulation. If a school makes exceptions to the dress code for nonreligious reasons, it must also make exceptions for religious reasons, absent a compelling interest.

• Students may display religious messages on items of clothing to the same extent that they are permitted to display other comparable messages.

• 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.

Does the new directive on school prayer change current federal law?

No, the new directive merely updates guidance issued in 2003 by President George W. Bush. By law, the Department of Education is required by statute to issue new guidance on school prayer every two years. But President Bush failed to update the guidance in 2004, 2006, and 2008; President Obama failed to update it in 2010, 2012, and 2016; and President Trump failed to update the guidance in 2018.

What is the purpose of the new proposed rule on religious freedom in public colleges and universities?

The new rule is being introduced to ensure the Department of Education is in compliance with the Supreme Court ruling in Trinity Lutheran Church of Columbia, Inc. v. Comer (2017). In the Trinity Lutheran case, the Court reaffirmed that the government “cannot exclude individual Catholics, Lutherans, Mohammedans, Baptists, Jews, Methodists, Non-believers, Presbyterians, or the members of any other faith, because of their faith, or lack of it, from receiving [public] benefits.”

The stated purpose of the proposed rule is to restore religious liberty and prevent discrimination against faith-based organizations and to act in a manner consistent with the government’s obligation to be neutral in matters of religion. It proposes to remove and amend regulations that would impose burdens on faith-based organizations, provide special benefits to faith-based organizations, or treat faith-based organizations and religious individuals differently than other organizations or individuals.

What does the new proposed rule on religious freedom in public colleges and universities affect?

Some of the effects of the proposed rule are:

• Will clarify that faith-based organizations and subgrantees are eligible to receive a grant or subgrant under a program of the Department of Education on the same basis as any other private organization, ensure nondiscrimination against faith-based organizations, and strengthen religious freedom protections.

• Clarify that a faith-based organization that participates in department-funded programs retains its autonomy, right of expression, religious character, and independence from federal, state, and local governments.

• Ensure that faith-based and non-faith-based organizations shall, on equal terms, be eligible to obtain, use, and keep grant funds.

• Requiring public institutions that receive a direct grant or subgrant from a state-administered formula grant program of the Department of Education to comply with the First Amendment and with their stated institutional policies on freedom of speech, including academic freedom, and to not deny to a faith-based student organization any of the rights, benefits, or privileges that are otherwise afforded to non-faith-based student organizations, as a material condition of the grant.