Department of Education Releases Updated Guidance on Constitutionally Protected Prayer and Religious Expression in Public Elementary and Secondary Schools
The Department today released an updated version of its Guidance on Constitutionally Protected Prayer and Religious Expression in Public Elementary and Secondary Schools.
Background
Section 8524 of the Elementary and Secondary Education Act of 1965 (ESEA) requires the Secretary of Education to issue biennial guidance to state educational agencies (SEAs), local educational agencies (LEAs), and the public on constitutionally protected prayer in public elementary and secondary schools. The guidance is also reviewed by the Department of Justice’s Office of Legal Counsel to verify that it reflects the current state of the law.
As a condition of receiving ESEA funds, each LEA must annually 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 detailed in the Department’s guidance. Each SEA must, in turn, report to the Secretary which LEAs have not submitted certifications and which LEAs are the subject of complaints alleging noncompliance.
LEA certifications are due to SEAs by October 1. SEA reports to the Secretary are due by November 1.
Quick Summary of Changes
1. Emphasis on Religious Expression Rights of School Employees
The 2026 guidance affirmatively protects visible, personal prayer by school employees, including voluntary prayer involving both students and staff. The guidance emphasizes that an employee’s prayer is protected when it is private, non-coercive, and done outside an employee’s official duties.
2. Emphasis on Parental Rights and the Strict Scrutiny Standard of Review
The guidance incorporates recent parental-rights jurisprudence and treats school actions that undermine family religious beliefs or burden religious development as triggering heightened constitutional scrutiny, even when policies are neutral and generally applicable.
3. Broader Compliance and Certification Scope
LEAs must now certify compliance with the full body of religious-expression principles in the guidance—not only prayer-specific rules—effectively expanding the universe of district policies that may be treated as relevant to ESEA compliance.
What Does It Mean to Certify Compliance With the Guidance?
The Department’s description of what LEAs are certifying has shifted in a meaningful way.
2023 Guidance
The 2023 guidance began with an overview of the section 8524 certification and enforcement process along with a summary of governing constitutional principles. This was followed by an analysis of (1) how those principles apply in particular public school contexts related to prayer and, separately, (2) how those principles apply to religious expression other than prayer, such as religious expression in class assignments and homework and excusals for religious activities.
This distinction was significant, as the guidance expressly stated that LEAs were required to certify compliance only with the prayer-specific components (Part II of the guidance), not the components related to religious expression more generally (Part III of the guidance). The guidance also included a brief discussion of additional requirements related to prayer and religious expression to which public schools may be subject, including the Equal Access Act.
2026 Guidance
The 2026 guidance follows a similar structure but with some important differences in organization and framing.
Significantly, the 2026 guidance eliminates the structural distinction between constitutionally protected prayer in public schools and other forms of religious expression. Instead, it discusses concepts of prayer and religious expression together in a single section focused on specific scenarios applying the governing constitutional principles.
The 2026 guidance also places increased emphasis on the constitutional protection of private, voluntary religious expression by both students and school employees, including “the right, not only of students to pray, but also of public school teachers and officials to engage in individual acts of prayer—and to pray with students—during the conduct of their work.”
Additionally, the 2026 guidance states that LEAs must certify that no policy of the LEA prevents, or otherwise denies participation in, constitutionally protected prayer as detailed in Parts II, III, and IV of the guidance, rather than only the prayer-specific section as under the 2023 guidance.
Finally, the 2026 guidance removes references to the Equal Access Act and other requirements not based on constitutional principles.
Why This Matters
The certification obligation is no longer described as limited solely to discrete prayer-specific rules. Instead, LEAs are now certifying that none of their policies conflict with the broader set of constitutional principles articulated throughout the guidance, including:
Student religious expression
Employee religious expression
Religious expression in assignments, student groups, and school events
Distinctions between private expression and official school speech
The treatment of religious expression relative to secular expression
The guidance also emphasizes that private, voluntary religious expression does not become impermissible merely because it is visible, because students are present, or because an observer might perceive endorsement; rather, the focus is on whether expression is private, non-coercive, and outside an employee’s official duties.
In effect, the Department is describing the ESEA certification requirement by reference to the full body of religious-expression analysis contained in the guidance, not merely to prayer-specific requirements.
Implications for Enforcement
Historically, federal oversight under section 8524 has largely focused on whether certifications were submitted, rather than on substantive review of district policies. The revised guidance signals a broader conception of what the Department views as within the scope of section 8524 enforcement.
In particular, while the statute itself continues to refer to “constitutionally protected prayer,” the Department is now describing that phrase by reference to an integrated set of constitutional principles governing all forms of religious expression in public schools.
As a practical matter, this suggests:
The Department may evaluate district policies affecting religious expression more generally, not only explicit prayer policies.
District policies on employee speech, student speech, student groups, assignments, dress, and school events may now be treated as relevant to section 8524 compliance.
The risk profile shifts from a purely procedural certification obligation toward a more substantive compliance posture.
Bottom Line
Although the statute is unchanged, the 2026 guidance materially expands how the Department describes the content of the certification obligation for purposes of compliance and enforcement. LEAs should not assume that compliance is limited to narrow prayer policies. Instead, districts should review their broader policies governing religious expression to assess consistency with the principles articulated across Parts II–IV of the guidance.
Contact Us
For questions about how the 2026 guidance affects your district’s policies or certification obligations, please contact our team.