U.S. Department of Education Releases New Guidance for Religious Expression in Public Schools

03.24.2026

On February 5, 2026, the United States Department of Education (“USDOE”) released new guidance reinforcing the constitutional right to religious expression in K-12 public schools.[1]  This includes a right to engage in prayer, provided that the school does not compel others to participate in or otherwise affirm the expression and the school does not favor one religion or secular view over another. The new guidance replaces previously released guidance by the USDOE in 2023. 

To receive certain federal funds, federal law requires public school districts to annually certify they do not have policies prohibiting or otherwise interfering with constitutionally protected prayer.  The new guidance does not change this certification process but clarifies the steps school districts must take to ensure its policies do not threaten constitutionally protected religious expression.  To ensure compliance with federal certification requirements, public school districts should consider the following:

1. California school districts must consider religious discrimination complaints as part of their Uniform Complaint Procedures (“UCP”). After the UCP process, complainants may file an appeal with the California Department of Education (“CDE”).^[2]
2. On October 1 of each year, school districts must submit a written certification to the CDE confirming that they do not have any policy that prevents or otherwise denies participation in constitutionally protected prayer.[3]
3. On November 1 of each year, the CDE submits a report to the USDOE identifying any school district that either: (1) did not submit a certification; or (2) received a religious discrimination complaint.

In addition to discussing certification compliance, the new guidance discusses several U.S. Supreme Court decisions that reinforce the principle that all members of a public school community have a constitutional right to religious expression in school, including prayer.  These cases include West Virginia Board of Education v. Barnette, Wisconsin v. Yoder, Mahmoud v. Taylor,[4] and Kennedy v. Bremerton School District.[5] 

To provide greater clarity for public school officials, the USDOE’s updated guidance applies the above-referenced Supreme Court decisions to various factual scenarios in which religious expression may arise:

1. Student Private Prayer: Schools must permit students to pray privately and quietly by themselves, whether in class, at an athletic event, or before a meal, provided that the prayer does not violate ordinary class rules or interrupt class instruction. This guidance differs from the prior guidance, which stated that students may pray when not engaged in school activities or instruction.
2. Student Group Prayer: Schools must permit and support student prayer groups in the same manner that it supports non-religious student groups. Moreover, schools cannot require a student group to adopt a particular viewpoint that violates their religious beliefs. A general principle of neutrality regarding religion is advisable.
3. Religious Expression at School Events: Schools may not sponsor or organize compulsory prayer at official school events. In addition, an individual shall not deliver such prayers on behalf of the school or in such a way that attendance at the prayer is mandatory.  However, schools must allow the participants at such events the individual right to engage in prayer and to join one another in prayer, so long as they do not coerce participation or speak on behalf of the school.
4. Religious Expression in Assignments: Schools must ensure that teachers do not require students to pray or affirm religious beliefs as part of classroom assignments. Likewise, teachers cannot penalize or prohibit students from expressing their religious beliefs in class or in assignments.
5. Public School Employees: Schools must allow staff to express their religious beliefs but may limit expression that coerces beliefs or favors prayer. For example, teachers may pray silently and students may voluntarily participate, but teachers may not instruct or pressure students to participate.  In addition, school employees may engage in religious expression when not engaged in their official duties.
6. Discipline and Harassment: Schools are required to protect students from targeted harassment and thus must find a balance between allowing expression of religious beliefs while protecting students against harassment based on religious beliefs. For example, students may express their religious beliefs about gender identity issues but should not express their opinions regarding specific students.

Impact of California Public Schools

The USDOE is permitted to effectuate compliance if a school district fails to certify that it does not have a policy which prevents or denies participation in constitutionally protected prayer.  Thus, this newly released guidance provides a glimpse into how the USDOE will interpret and enforce the right to religious expression in schools.

If you have any questions or concerns regarding this Alert, please contact your usual AALRR counsel or the authors of this Alert. 

[1] You can read more about the Department of Education’s guidance, titled Guidance On Constitutionally Protected Prayer and Religious Expression in Public Elementary and Secondary Schools, here: https://www.ed.gov/media/document/2026-guidance-constitutionally-protected-prayer-and-religious-expression-public-elementary-and-secondary-schools-113182.pdf.

[2] See more details regarding UCP procedures here: Non-discrimination in Public Schools - Equal Opportunity & Access (CA Dept of Education)

[3] California school districts should watch for further guidance from the California Department of Education regarding the certification process. AALRR attorneys will continue to monitor any updates in light of the USDOE’s new guidance.

[4] Read more about the Mahmoud v. Taylor decision here: https://www.aalrr.com/newsroom-alerts-4143.

[5] Read more about the Kennedy v. Bremerton School District decision here: https://www.aalrr.com/newsroom-alerts-3927.

This AALRR publication is intended for informational purposes only and should not be relied upon in reaching a conclusion in a particular area of law. Applicability of the legal principles discussed may differ substantially in individual situations. Receipt of this or any other AALRR publication does not create an attorney-client relationship. The Firm is not responsible for inadvertent errors that may occur in the publishing process.

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