On February 5, 2026, the U.S. Department of Education issued new "Guidance on Constitutionally Protected Prayer and Religious Expression in Public Elementary and Secondary Schools," replacing its 2023 guidance. While the underlying constitutional standards have not changed, the department’s 2026 guidance reflects a recalibrated enforcement posture that places greater emphasis on the individual religious liberty rights of students, parents, and school employees, consistent with recent Supreme Court precedent. The 2026 guidance emphasizes accommodation of religious expression within public schools while reiterating that schools themselves may not sponsor or coerce religious activity.

What This Means for Districts

1. Annual certification requirements from districts. Districts must annually certify in writing to their state educational agency (SEA) that they have no policy that prevents or otherwise denies participation in constitutionally protected prayer in public schools. The department is authorized to enforce compliance with these certification requirements and may take actions against noncompliant local education agencies (LEAs), including withholding federal funds.

2. Ability to opt out. The 2026 guidance discusses the Supreme Court’s recent decision in Mahmoud v. Taylor at length. In Mahmoud, the Supreme Court recognized that parents have a constitutional right under the First Amendment free exercise and free speech clauses to direct their children’s education in accordance with sincerely held religious beliefs. That right extends to opting students out of curricular content that parents contend contravenes those beliefs.

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