Conservative legal groups raise concerns over Biden’s new public school prayer guidance


Conservative legal groups have expressed concern over the Biden administration’s recently announced guidance on religious expression in public schools, believing that it might lead to an increase in violations of First Amendment rights for teachers and students.

On Monday, the United States Department of Education released the details of a new guidance, titled “Guidance on Constitutionally Protected Prayer and Religious Expression in Public Elementary and Secondary Schools.”

“The purpose of this updated guidance is to provide information on the current state of the law concerning constitutionally protected prayer and religious expression in public schools,” stated the Education Department.  

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“The principles outlined in this updated guidance are similar to the U.S. Department of Education's … 2003 and 2020 guidance on constitutionally protected prayer in public schools and with guidance that President Clinton issued in 1995.”

Keisha Russell, counsel at the First Liberty Institute, said in a statement emailed to The Christian Post on Tuesday that there are concerns with the newly released guidance.

“We respect that the Biden administration acknowledges the important religious liberty rights of public school employees as the Supreme Court declared in its Kennedy decision last year,” stated Russell.

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Nevertheless, Russell warned that “the administration’s new guidance relies on old propositions derived from the overturned Lemon decision,” referring to a 1971 Supreme Court decision. The decision allowed for government involvement in religion provided that it served a secular purpose, did not inhibit or advance religion and did not result in an excessive entanglement of church and state.

More recent Supreme Court decisions have moved away from the so-called "Lemon Test" standard advanced by the 1971 decision and other 20th century rulings, with the high court deciding that religious expression on government property does not have to fulfill the aforementioned three-pronged standard. 

“We commit to ensuring that any restriction placed on religious freedom by those outdated cases is restored to the fullest extent required by the First Amendment,” Russell added.

Greg Chafuen, legal counsel with the Alliance Defending Freedom, told CP that while much of the new guidance “reiterates the previous guidance issued in the final days of the Trump administration with a few stylistic changes,” these changes “could lead to confusion.”

One example, according to Chafuen, was that the new guidance appears to be “suggesting that schools have to purge religious messages from any student speech if the school in any way controls the student’s speech.”

Chafuen also noted that the Biden administration’s guidance “removes two sections that protected the rights of students and teachers,” the first being “a section that ensured that students could pray during the lunch hour.”

“This could lead to more violations of students’ rights to pray during free time, just like what happened to ADF client Chase Windebank in Windebank v. Academy School Dist. #20,” he explained.

“The guidance also removes another section that ensured that student groups could choose group leaders that agree with the groups’ mission. This could lead to more violations of students and teachers’ right to association.”

Chafuen told CP that he could see more litigation surrounding the aforementioned issues of lunchtime prayer and religious group membership issues because of the guidance.

“This guidance may lead to more violations of student and teacher rights sooner rather than later and we stand ready to support students and teachers in protecting their rights,” he added.

While conservative groups have taken issue with parts of the new guidance, progressive organizations like the Americans United for Separation of Church and State have hailed the new federal measures.

“We applaud the Biden administration for updating the guidance, which centers the religious freedom of public school students. As the administration reaffirms, public schools must be open and inclusive for students of every religion and none,” said Americans United President and CEO Rachel Laser in a statement released Monday.

“Perhaps most importantly, the guidance emphasizes that public school employees, including teachers and coaches, may not coerce students to pray. Nothing about the Supreme Court’s 2022 decision in Kennedy v. Bremerton School District changes the fact that the Constitution prohibits public schools from sponsoring prayer.”

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