Illinois State Board of Education Has Process Whereby Individuals Can Report Violations of Their Right to Pray in Public Elementary and Secondary Schools

The Supreme Court has repeatedly held that the First Amendment requires public school officials to show neither favoritism toward nor hostility against religious expression such as prayer.  Although the Constitution forbids public school officials from directing or favoring prayer in their official capacities, students and teachers do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”[1]

For example, “nothing in the Constitution . . . prohibits any public school student from voluntarily praying at any time before, during, or after the schoolday,”[2] and students may pray with fellow students during the school day on the same terms and conditions that they may engage in other conversation or speech.  Students may also speak to, and attempt to persuade, their peers about religious topics just as they do with regard to political topics.

The Department of Education is required by law to issue guidance regarding the constitutionally protected right to pray in public elementary and secondary schools and to revise this guidance every two years.[3]  On January 16, 2020, the Department revised the guidance for the first time since 2003.  The guidance explains that the Elementary and Secondary Education Act (ESEA) of 1965 requires that as a condition of receiving funds, local educational agencies (LEA) must certify in writing to their state educational agencies (SEA) that the LEA has no policy that prevents, or otherwise denies participation in, constitutionally protected prayer in public elementary and secondary schools.

A covered LEA must provide this certification to the SEA by October 1.  There is no specific federal form for the certification.  By November 1, each SEA must send to the Secretary a list of those LEAs that have not filed the required certification or that have been the subject of a complaint to the SEA alleging a violation of the right to constitutionally protected prayer in public schools.  Furthermore, the 2020 Guidance clarifies that the SEA must provide a process for filing a complaint against an LEA that allegedly denies a person, including a student or employee, the right to participate in constitutionally protected prayer.

In response, the Illinois State Board of Education (ISBE) created a helpful website with resources for families and a complaint mechanism for individuals who believe their right to constitutionally protected prayer in public elementary and secondary schools has been violated.  Specifically, there is a standardized protected prayer complaint form and dedicated email address (protectedprayer@isbe.net) for receipt of complaints.  The Department commends the ISBE for taking seriously this fundamental right.  The Department notes that SEAs are not required to adopt ISBE’s process, but that ISBE’s process represents one way in which SEAs may comply with their obligations under Section 8524(b) of the ESEA.

[1] Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 506 (1969).

[2] Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290, 313 (2000).

[3] 20 U.S.C. § 7904(a).