On February 5, 2026, the United States Department of Education (USDOE) issued updated guidance on constitutionally protected prayer and religious expression in public elementary and secondary schools. This updated guidance supersedes the 2023 Guidance issued under the Biden Administration. Both the 2023 and 2026 guidance require that, to receive federal funding, elementary and secondary public schools must certify that they have no policy that prevents or denies constitutionally protected prayer.
The 2023 Guidance
The 2023 Guidance was issued by the Biden Administration to reflect the Supreme Court’s 2022 ruling in Kennedy v. Bremerton School District, which affirmed the right of a football coach to pray in the middle of the field after each game, as long as the students “were not required or expected to participate.”
The 2023 Guidance emphasized that individuals may pray and express religious beliefs in schools when not engaged in instruction or school activities, and that religious expression in homework, artwork, or school clubs must be treated the same as non-religious expression, emphasizing that both religious and secular expression receive equal access to school services. In other words, under the 2023 Guidance, religious expression by students and school staff is allowed as long as it is non-coercive and neutral toward other beliefs.
The 2026 Guidance
This new guidance replaces the prior guidance and reflects the 2025 Supreme Court ruling in Mahmoud v. Taylor, in which the Court held a school district violated parents’ free exercise of religion by requiring their children to participate in instruction that violates a family’s religious beliefs.
Following the Court’s ruling in Mahmoud, the 2026 guidance shifts the policy tone to emphasize broad individual religious rights and religious free-exercise interests as guiding principles. Rather than the “separation between church and state” which many are accustomed to, the 2026 document emphasizes “a stance of neutrality among and accommodation toward all faiths, and hostility toward none.”
Notably, the 2026 guidance contains a thorough analysis of the Supreme Court’s decision in Mahmoud, devoting almost 1/3 of the guidance to it and explaining how it strengthened the primacy of parents’ free exercise of religion over a school’s curriculum.
The rest of the document, however, does not mention parents or families; rather, it focuses on the rights of individuals. In that regard, the 2026 Guidance is similar in content to the 2023 Guidance but with a greater emphasis on individual rights. The 2026 Guidance also includes hypothetical scenarios, which schools may find helpful.
For practical purposes, the difference between the two documents is in the presentation. The 2023 Guidance states that school officials may not formally lead or promote prayer or religious activities. Meanwhile, the 2026 Guidance states that school officials may pray individually but not on behalf of the school. The effect is similar – prayer in schools cannot be coercive – but the new document emphasizes the rights of the individual.
The 2026 Guidance also provides examples: a student is allowed to pray in class but may be prevented from doing so when the prayer disrupts instruction.
With regard to school-sponsored activities, both documents emphasize that schools cannot sponsor or coerce prayer at school events, but the 2026 Guidance also states that individual expression of religion at these events is protected as long as the school does not appear to endorse it.
How does this Affect Schools?
Many of the policies put in place following the 2023 guidance will remain applicable; however, districts should:
• Review policies that could be interpreted as restricting any individual’s prayer or religious expression, whether in the context of prayer, dress, or possession of religious materials on school property.
• Ensure that activities occurring during non-instructional time have equal access to facilities and privileges as a non-religious activity (e.g. after-school clubs), and that this access is determined by neutral criteria;
• Staff should address religious expression based on its disruption to instruction and not on its content. By way of example, religious expression that is not targeted harassment, threats, or advocacy of unlawful physical violence, even if it offends, is considered free speech.
• Allow student speech that contains religious content if the selection criteria are neutral and the religious content does not originate from the school (the school can add a neutral disclaimer that the views expressed are the students’ own).
Bottom Line For Schools
We anticipate that schools, parents and guardians, employees, and students alike will have many questions and concerns about this issue. KingSpry’s Education Law Practice Group is keeping abreast of these developments and is prepared to aid school entities in developing policies as the standards and laws evolve.
