Constitutionally-Protected Prayer

February 2003

Don't get nervous when you hear more talk of school prayer these days. The law regarding prayer in public schools has not changed, but the No Child Left Behind Act of 2001 amended the Elementary and Secondary Education Act of 1965 to require the Secretary of Education to issue guidance on constitutionally protected prayers in public and elementary schools.

Also, local educational agencies who receive federal funds will have to certify in writing that it has no policy that "prevents, or otherwise denies participation in, constitutionally-protected prayer in public schools." This certification must be made each October 1, but that deadline was extended to March 15, 2003 in this initial year.

No doubt there is some major politics behind this provision of the law and it is sure to offend some. However, this exercise can be more helpful than you might realize. You can use it in a positive way to help staff and students understand Supreme Court decisions that affect religious expression on public school campuses. The truth is, few school districts get this right. The popular notions of what 'separation of church and state' mean are often wrong and when people's rights are violated by an unsuspecting educator or an overzealous student, a firestorm can erupt that will distract everyone from the task of education. This is a good time to ensure that staff and students alike understand their constitutionally-protected freedoms.

So what is constitutionally-protected prayer?

Many people mistakenly think the Supreme Court banned prayer from public schools. It did not! It only banned state-sponsored prayer in public schools. Learning the difference can help make your district a better place for all students for those who are religious and those who are not.

In short, the First Amendment forbids the government from sponsoring religious activity, but at the same time protects religious activity initiated by private individuals. Thus teachers and other public school officials many not lead their classes in prayer or devotional readings from sacred texts, nor compel any student to participate in a religious activity. Moments of silence are permissible as long as school employees neither encourage nor discourage students from praying. They may not decide that prayer will be included in school-sponsored events such as graduation or football games and cannot mandate or organize religious ceremonies, such as baccalaureate ceremonies. Outside their official capacities, however, teachers may participate in religious activities such as in prayer groups or Bible studies with other teachers or employees during lunch or break times.

Students, however, do not "shed their constitutional rights to freedom of speech or expression at the schoolhouse gate," School student may pray during the school day when they are not engaged in school activities or instruction. They may pray or discuss religious materials with fellow students at recess, lunch hour or other noninstructional times. Students may organize prayer groups religious clubs in the same way other students are permitted to organize non-curricular student groups. They may also express their beliefs about religion in their homework, artwork and other written and oral assignments and not be penalized for its religious content. Public presentations, however, should ensure that they are not utilizing the classroom as a captive audience to proselytize other students.

More details can be found on the Department of Education web site.

It's amazing how a community that learns to appreciate these First Amendment freedoms will find the ability to respect their differences and work together more effectively for public education. If your school has not done any training in this area, now might be a good time to do so. It could yield far greater benefits than just satisfying a new law.

Wayne Jacobsen, President,


Worldviews Education Watch (WEW) is a free service provided by BridgeBuilders offering the latest information on religious liberty and public education drawn from court cases, policies and current events. It will also share examples of successful partnerships and cooperation between public schools and faith communities.

To subscribe send email to: and request, "Subscribe Worldviews Watch."

Go Back to Current Issues