On February 5th, the U.S. Department of Education issued a new 2026 Guidance on Constitutionally Protected Prayer and Religious Expression in Public Elementary and Secondary Schools. The new Guidance marks a notable shift toward greater protection for religious expression by both students and school employees in the school setting.
Relying on the Supreme Court’s 2022 decision in Kennedy v. Bremerton School District (see previous article) and the Court’s last term decision in Mahmoud v. Taylor (see previous article) the Department states that public school teachers and other employees may engage in visible, personal prayer, in the presence of students, during times when they are not acting in their official capacity. This represents a meaningful expansion from prior Department Guidance, which treated most staff religious expression as potentially coercive or impermissibly “endorsing” religion.
Similarly, the Guidance permits student prayer in school when done “privately and quietly by themselves” and in a speaking voice on the same terms as any other student would engage in non-religious speech.
The 2026 Guidance is organized into four key sections, each addressing a different aspect of religious expression in public schools.
Part I: Student Prayer and Religious Expression:
Outlines students’ rights to pray individually or in groups during non‑instructional time and to express religious viewpoints in assignments on equal terms with secular viewpoints.
Part II: Teachers, Administrators, and Other School Employees:
Explains when staff may engage in private religious expressions, such as brief, personal prayer, so long as they are not acting in their official capacity or pressuring students.
Part III: Local Educational Agency Certification:
Requires districts to certify annually that they have no policies restricting constitutionally protected prayer and that they are complying with statutory obligations.
Part IV: Guidance on the Equal Access Act:
Reiterates that secondary schools receiving federal funds must provide religious student groups with the same access to facilities and resources as other non‑curricular clubs. The Guidance supersedes and replaces the Department’s 2023 Guidance on the same topic under the Biden Administration. For school districts, issues of religion in public schools remain complex legally and can easily lead to constitutional litigation.
Contact any of our student/special education practice group attorneys with your inquiries. We will closely monitor the Department’s enforcement efforts regarding its Guidance. We will discuss the Guidance (with the benefit of some hindsight) at our Fall Year in Review Conferences with our partners at IASPA.
