WASHINGTON, D.C. — Public schools that fail torecognize students’ constitutionally protected rights to religiousexpression risk losing federal funding according to new guidance released by theDepartment of Education Feb. 7.The guidance, required to be issuedannually to assist schools in complying with the No Child Left Behind Act of2001, is intended to clarify the current case law concerning constitutionallyprotected prayer in public schools. In turn, school districts must certify thatthey have no policies that are in conflict with the rights outlined in theguidance. If they do not comply, the Education Department can withhold fundingallocated through the Elementary and Secondary Education Act.Theguidance explains specific religious expression public school students must bepermitted to participate in, including the right to pray duringnon-instructional time, organize prayer groups or religious clubs and expressreligious beliefs in homework, artwork or speeches.This guidance omits aspecific defense of a student’s right to distribute religious literatureon campus, which was included in a similar document issued by the educationdepartment in 1998. This clause, if included, might have encouraged schooldistricts to develop open policies toward the distribution of student-producedmaterials, both religious and non-religious.The 1998 guidelines, signedby then Education Secretary Richard Riley said, “Students have a right todistribute religious literature to their schoolmates on the same terms as theyare permitted to distribute other literature that is unrelated to schoolcurriculum or activities. Schools may impose the same reasonable time, place,and manner or other constitutional restrictions on distribution of religiousliterature as they do on non-school literature generally, but they may notsingle out religious literature for special regulation.”The newguidance, signed by current Education Secretary Roderick Paige, does not includethis paragraph. Susan Asbey, a spokesperson for the Education Department,defended the omission.“The [No Child Left Behind Act] requiredthat we issue guidance on prayer in schools and it says nothing aboutdistribution of material,” Asby said.Matthew Staver, the presidentof the Liberty Counsel, defends many students who are punished when they attemptto distribute religious materials at school. He said he is confident that thenew version of the guidelines will help prove his client’s cases. He citedthe section in the guidance that allows religious students equal rights toadvertise in school media or hand out leaflets to advertise club meetings. Hesaid he does not think this version of the guidance negates clauses in the olderversion.The guidance does include language that could be beneficial tostudent journalists beyond the context of religious expression. For example, itsays, “Student remarks are not attributable to the state simply becausethey are delivered in a public setting or to a publicaudience.”Several advocacy groups are weighing in on the guidance,and the Department of Education has drawn praise and criticism for it efforts toclarify student rights.John Whitehead, president of the civil libertiesorganization, The Rutherford Institute, lauded the Bush Administration forgiving the Department of Education the right to withhold funds from schools thatdo not comply.Jeremy Leaming, spokesperson for Americans United ForSeparation of Church and State, said he was concerned that the guidancemisrepresents court case precedent.“These guidelines areconstructed in a way to push the envelope on the kind of prayer activities thatare permitted in the public schools,” Leaming said.Tom Hutton, astaff attorney for the National School Board Association, said he is alsoconcerned that the guidance may confuse school districts because it gives theimpression that areas where the federal appeals courts have split, such asprayer at graduation ceremonies, are now settled.No formal action isbeing taken against the guidance or the Department of Education at this time,but Leaming said Americans United has pledged legal assistance to any publicschool that feels it is unjustly denied funding for failure to comply with theguidance.Schools must submit certification of compliance by March15.
To read the guidelines online visit: www.edu.gov