Trump administration updates guidance to schools about prayer and religious activities
Counsel differs from Biden administration’s advice more in tone than in substance
At last week’s National Prayer Breakfast, President Donald Trump told the crowd and video audience that he was protecting the right to prayer in the nation’s public schools — and, in essence, that he would face serious opposition for doing so:
And today, I’m also pleased to announce that the Department of Education is officially issuing its new guidance to protect the right to prayer in our public schools. That’s a big deal. Now the Democrats will sue us, but we’ll win it, we’ll win it. They’ll sue us, they sue us for everything.
But chances of such a lawsuit is extremely unlikely: The fact is that this month’s new guidelines issued by the U.S. Department of Education regarding prayer and other religious practices in public schools offer very little that wasn’t in the guidelines issued by the Joe Biden administration in 2023.1
The guidelines, officially titled Guidance on Constitutionally Protected Prayer and Religious Expression in Public Elementary and Secondary Schools, of the two administrations do differ significantly in tone. The 2023 rules emphasize how students are entitled to pray and engage in religious activities in essentially the same way they can discuss or carry out secular activities, while the 2026 guidance puts a strong rhetorical emphasis on how public schools are required to protect student and teacher religious rights without hostility to religion. But both sets of guidelines appear to accurately convey the state of constitutional law at the time they were written.
The 2023 guidelines were written partly as a response to Kennedy v. Bremerton School District, the 2022 case in which the U.S. Supreme Court upheld the right of a football coach to pray in a public location after a football game. And the new guidelines were written partly as a response to Mahmoud v. Taylor, the 2025 case in which the court recognized the religion-based right of parents to opt their children out of some instruction that involved LGTBQ-themed storybooks.
The new guidelines see Mahmoud as one in a long line of decisions that protect the religious rights of both parents and teachers:
These cases [including Mahmoud], although not directly about school prayer, clarify the larger legal framework governing the relationship between public schools and matters of religious faith. First, the Court has, over eighty years, steadily upheld the constitutional rights of parents and their children to participate in public schooling (or not) in ways consistent with those parents’ and students’ sincere understanding of what their religious faith requires. This includes instances when the accommodation conflicts with ordinary school policy or curriculum and thus requires significant effort on the part of the school. Second, the Court has consistently required public schools to justify their burdens on religious faith under the strict scrutiny rubric, and has regarded many asserted state interests — including saluting the flag, getting an education through age sixteen, avoiding disruptions related to opt-outs, and providing a supportive environment to one group of students — as insufficient under that rubric. Third, the Court has consistently regarded the rights in question as belonging both to children and to their parents. Fourth, the Court has protected children’s and parents’ religious interests not only from direct coercion but also from indirect burdens, both curricular and cultural, on children’s development and the religiously inflected values of their faith. Fifth, a public school may never force or pressure a child to declare or affirm something contrary to his or his family’s religious beliefs.
New advice puts more emphasis on teachers
The main substantive difference between the old guidelines and the new ones is that the most recent guidelines are more explicit about the religious rights of teachers. For example, while the old guidelines said that school districts may not “prohibit those employees from engaging in prayer merely because it is religious or because some observers, including students, might misperceive the school as endorsing that expression,” the new guidelines explicitly state that a teacher can publicly say grace before lunch with students joining her in doing so, “but she may not instruct her class to pray with her, pressure them to pray with her, or create an atmosphere in which students are favored if they pray with her.”
The new guidelines also state that teachers may “dress in accordance with their religious faith,” while the old guidelines are silent on that issue. Both sets of guidelines state that students may dress according to their faith on the same terms that they can decide to wear clothing without religious meaning.
Key guidelines
Among the other faith-related guidelines for public schools, which generally echo those of the Biden administration:
🟪 Schools must permit students to pray privately and quietly by themselves while at school or on school activities. Students may also pray in a speaking voice on the same terms as any other student might engage in nonreligious speech. But schools to not have to allow students to pray in ways that violate ordinary class rules or interfere with instruction.
🟪 Student organizations with a religious purpose must be allowed to operate on the same terms as student organizations with secular purposes.
🟪 Schools may not sponsor or organize compulsory prayer at official events such as ceremonies, assemblies, graduations or sporting events. No person may deliver such prayers on behalf of the school or in such a way that attendance at the prayer is mandatory.
🟪 Teachers may not require students to pray or otherwise affirm religious beliefs as part of classroom instruction or written or oral assignments, even if it is part of an otherwise secular lesson.
🟪 Teachers must allow students to discuss their religious beliefs in presentations, homework, exams, or other assignments free from discrimination based on the student’s religious perspective or lack thereof. 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.
🟪 Public schools are entitled to maintain ordinary discipline and are required to protect students from targeted harassment, even when the harassing student or students claim a religious basis for their actions.
A lawsuit also is unlikely because the administration’s guidance is just a set of formal recommendations. The guidelines are not binding on state and local school systems but are intended merely to provide an overview of constitutional law.