The Biden administration has issued new guidance for teachers and students regarding prayer in school. Unlike a regulation or law, guidance is not technically legally binding, but federal law requires schools to certify they are following the guidance. It serves as a recommendation or suggestion to ensure proper adherence to the law. 

There are three important aspects to this guidance that should inform how voters understand this action.  

1. Reaffirms religious protections in public schools  

The administration has reiterated the status quo on the practice and observation of religion. School officials cannot “prescribe prayers to be recited” by students or other individuals in the school. Also, the guidance confirms that students do maintain their protection to voluntarily and privately pray and engage in religious speech.  

“Students shouldn’t have to leave their religion at the schoolhouse door. The administration is right to reaffirm such guidance,” Bill Duncan, Sutherland Institute’s religious freedom policy fellow, said in a recent interview.

2. Excludes updated case law that expands religious freedom protections for school officials 

According to Duncan, the Biden administration is “not carefully taking into consideration” the most recent U.S. Supreme Court rulings, which he says ultimately makes the guidance “out of touch” with the currently binding rules of the court in interpreting what the Constitution permits. 

For instance, the guidance specifically mentions that “[w]hen teachers, coaches, and other public school officials speak in their official capacities, they may not engage in prayer or promote religious views.” But in June 2022, the Supreme Court decided a case that actively protects a coach’s ability to engage in prayer. 

While the administration created this guidance to minimize gray areas surrounding religious practice in schools, by using outdated case law the administration has imposed stricter guidelines than the court has interpreted as permissible. 

3. Illustrates that legislation is a better way to address religious freedom than executive guidance 

“Utah’s passage of HB 163 is ideal in this instance,” said Duncan, because the legislative process is better at thoughtfully addressing nuanced issues like religious freedom in a way that can give clarity.  

Previously, Utah students participating in sports weren’t allowed to alter athletic uniforms to observe their religious obligations – for example, wearing specific religious clothing or garments. HB 163, passed and signed in the 2023 legislative session, protects students’ ability to wear religious clothing while still participating in sports.  

“The legislative branch clearly defined the parameters of religious participation for students and school officials,” Duncan said. “Utah has done a good job handling tricky cases like this. … They get ahead of issues and conflicts,” and do it in a bipartisan way. 

The Biden administration would do well to look to states like Utah, which has led on religious freedom policy, and work to encourage legislative action either on the federal or state level, rather than relying on guidance or regulation to make policy points. 

For a more in-depth perspective on this article, read our Insights piece here.