Biden Administration Undermines Religious Liberty, Removing Important Guidance and Protections in Its Updated Memorandum on Religious Freedom in Schools

Last week, the Biden Administration released its updated guidance on prayer and religious expression in public schools. In the past, the purpose of this guidance was to provide clarity on the exercise of religious freedoms in the school setting and to extend the greatest protection possible for these freedoms. The Biden Administration’s guidance, however, does quite the opposite by removing important clarification on decades-long religious traditions and activities permitted under the First Amendment.

The removal of this information is, no doubt, yet another attempt to undermine religious freedom and practices in our country. Instead of bringing legal clarity and protection to students and teachers in the exercise of their First Freedom in school, the changes intentionally muddy the water making what was once clearly protected activity seem vague and dubious. It will undoubtedly lead to further misinterpretation of the First Amendment and limits on religious liberty by school systems that the Constitution and Supreme Court precedent do not support and even directly oppose.

Here are some of the most troubling changes in Biden’s new guidance on religious freedom in schools:

The new guidance removes any mention of the decades-long tradition of “see you at the pole ” under the section “Organized Prayer Groups and Activities.” “See you at the pole” is a decades-long tradition whereby hundreds of students and citizens across our nation gather annually on the same day around school flagpoles before the school day begins to pray for students, schools, and the nation. In the prior guidance, “see you at the pole” gatherings were specifically identified as a practice expressly permitted and protected under the First Amendment – one that must be permitted by schools on the same grounds as other noncurricular student events. The Biden Administration’s removal of this nationwide event is, no doubt, intended to discourage students from engaging in this protected activity.

The new guidance also removes an entire section titled “Leadership of Religious Student Groups.” This section outlined federal law that protects student clubs and groups’ rights under the Equal Access Act. Under this Act, religious student groups have the freedom to restrict leadership positions to only those members that demonstrate dedication to a particular religion and/or beliefs. This important principle allows religious groups to stay true to their beliefs and values. The Biden Administration’s removal of this entire section demonstrates a clear attack on religious student groups that wish to safeguard their religious and/or spiritual beliefs and choose leaders who are consistent with and dedicated to upholding those beliefs.

Also removed from the new guidance is clarification for schools and students alike that schools may excuse students for off-premises religious instruction. This freedom is crucial to a host of students and their families who wish to observe important religious celebrations and/or holidays and traditions during the school year without penalization.

The new guidance also removes the express prohibition on schools to censor prayers, including those the school may deem “too religious” to others. As the previous guidance correctly noted, “The Establishment Clause prohibits State officials from making judgments about what constitutes an appropriate prayer.” In other words, student religious speech is private speech, and the government has no authority to edit or restrict such speech. Biden’s new guidance reverses course to suggest that schools have a “special interest in regulating speech that occurs under their supervision.” This flies in the face of First Amendment case law.

Finally, the new guidance removes language that prohibited schools from singling out religious messages for suppression pursuant to dress code policies. While it is true that schools may adopt policies relating to student dress and school uniforms, schools cannot single out religious expression for suppression. Religious speech and expression enjoy vigilant protection under the First Amendment.

The Biden Administration’s new guidance is further evidence of what we’ve known for quite some time: The current Administration is no friend to religious freedoms secured by the First Amendment. Despite this misinformation campaign to censor religious freedom and speech, the ACLJ stands ready and will continue to fight to vigilantly protect these rights through education and, where necessary, legal intervention. If you have questions regarding your rights as a student, parent, teacher, or school administrator, you can find helpful information on our website. Specifically, you can find helpful Know Your Rights articles on student prayer in school, parental rights in education, holiday observance in school, students’ rights to religious liberty, and teachers’ First Amendment rights. You can also reach out to us for legal assistance.