Introduction

On February 5, 2026, the U.S. Department of Education (“DOE”) issued a Guidance Letter on prayer and religious expression in American public schooling. This Guidance Letter superseded the previous 2023 Guidance Letter on the same matter from the Biden Administration’s Secretary of Education, Miguel Cardona.

This Legal Brief provides an explanation of the general legal principles schools must keep in mind when designing, implementing, and certifying their religious expression policies.

Why It Matters

Federal law and the Constitution protect religious expression and prayer in American schools. Federal funding for schools is contingent on upholding those protections. By October 1st of every year, Texas school districts must certify to the Texas Education Agency that their policies comply with federal school prayer protections.

As the entity distributing these funds and interpreting those legal and constitutional protections, the DOE’s guidance shows school districts how the DOE will interpret these laws and decide if a district’s policies are compliant. Accordingly, Texas districts should use the Guidance Letter as a resource for determining their eligibility for federal funds through compliance with federal school prayer protections.

Legal Principles Governing Religious Expression

The Guidance Letter outlines four legal principles that school districts must keep in mind when addressing religious expression.

First Principle: The Right to Engage in Religious Expression

School district students, employees, and officials have the right to engage in religious expression on school grounds and during school hours. This expression includes active expression like prayer (whether among students or by teachers and students together) and passive expression (like wearing crosses, yarmulkes, or headscarves). Expression can take place across a variety of situations in the school day.

These rights also extend to students’ parents. The Guidance Letter states that parents have a right to direct their children’s religious upbringing. If school curriculum conflicts with or otherwise burdens that religious upbringing, then the school must accommodate those beliefs, even if it requires significant effort. For example, if a student must pray numerous times throughout the day,the school must accommodate these temporary absences.

Despite needing to respect religious expression, school events, curriculum, and general practices cannot require prayer or other expression from students or employees. For example, if a student tries to lead a mandatory assembly in prayer, that is an unconstitutional promotion of religion by the school.

Second Principle: Disruptive Religious Expression is Not Allowed

When religious expression becomes disruptive, schools have a duty to ensure the expression doesn’t interfere with their educational mission or the rights of other individuals. If a student begins to pray loudly in math class, the school cannot permit the prayer to interrupt instructional time. And if students of one faith begin harassing students of another faith on the basis of the latter student’s religious beliefs, the school must take measures to prevent a hostile environment for students of any faith from forming.

Third Principle: Hostility Towards Religious Beliefs is Unconstitutional

School district officials and employees must understand that their conduct can be imputed to the district. By expressing hostility towards religious beliefs, officials and employees can violate students’ religious expression rights. For example, if a student expressed that marriage is between a man and a woman due to religious principles, and the teacher responded that such a view was “despicable” and lowered the student’s grade, that student’s rights would be violated.

Fourth Principle: Religious Expression Must be Treated Like Secular Expression

Schools may not treat religious expression differently from secular expression. Restrictions on expression must be applied equally between both. For example, if a student wanted to pray during time when students were allowed to talk to each other, a school could not require the praying student to step outside or stop praying. Or if students wanted to start a religious organization, the school would have to provide the same sort of support to that organization as it provides to secular organizations. So long as all student organizations, secular or religious, are treated equally, the school is not promoting particularly religious beliefs.

Summary

The Guidance Letter provides four principles that Texas school districts should keep in mind when it comes to any situation involving religious expression.

1.    There is a general presumption that students, parents, employees, and officials within a public school district have a right to religious expression, which should be accommodated, but never promoted or suppressed.

2.    Disruptive religious expression is not protected by the Constitution. If religious expression interrupts instruction time or creates a hostile environment for other faiths, schools have a duty to stop it.

3.    It is unconstitutional for a public educational institution to be hostile towards any faith. Employees and officials’ speech in official capacities can be imputed to the school.

4.    Schools must treat secular and religious organization and expression alike. Rules treating religious organizations or expression differently from secular ones are unconstitutional.

Overlap with Texas Law & Conclusion

The above principles should be considered when school districts implement statutory requirements under Texas law. The Texas Legislature has implemented several statutes related to religious expression in schools in recent years. The Guidance Letter notes that the Supreme Court has struck down state laws on religious expression in school if those laws “implicate the school itself in a religious practice.”

Texas laws on religious expression in schools typically contain “attorney general” provisions. These provide that, if a school district is sued for implementing a particular law, the Texas Attorney General will take over the representation and pay all costs associated with the litigation. Still, when implementing state laws regarding religious expression in your school district, make sure to consult your legal counsel.

Conclusion

In order to maintain their federal funding, Texas school districts should review their religious expression policies (found in TASB Board Policy FNA) to ensure they are consistent with the Department of Education’s Guidance Letter. Should questions about this Legal Brief, specific religious accommodation questions, or questions about investigations arise, contact Leon, Alcala, Morse & Reynolds or your district’s counsel for further guidance.

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