All 50 states and the District of Columbia have filed letters with the Department of Education certifying that their school districts are not prohibiting students from saying “constitutionally protected” prayers.
But the department says that about half the states forgot to address a major requirement of the prayer provision of the “No Child Left Behind” Act of 2001, one requiring reporting of prayer-related complaints in districts. Some states, meanwhile, have grumbled about the paperwork obligation of the provision, and several states report that they have district stragglers that have not yet filed their own certifications.
At the heart of the matter is Section 9524 of the law that is the latest reauthorization of the Elementary and Secondary Education Act. Compared with the many complex provisions of the No Child Left Behind law on core education issues like school performance, student assessment, and teacher quality, the prayer provision is short and apparently straightforward.
Districts must certify to their states annually, the section says, that they have no policies denying students the right to take part in “constitutionally protected” prayers. The states must make the same certification to the federal department. The provision was added to the law in response to reports that schools had barred children from saying grace at the lunch table or from bringing religious artifacts to class for show and tell.
As directed by the law, the Education Department released guidance on religious issues in public schools earlier this year. Some advocates of strict church-state separation contend the nonbinding advice pushes the parameters of permissible religious expression at school beyond what the courts have said is constitutional.
The department’s document, issued in February, was intended to provide an overview of legally acceptable instances when students may pray in school, such as during noninstructional time or during designated “moments of silence.” The guidance pleased conservative religious organizations, but was criticized by some civil liberties groups.
“School officials are between a rock and a hard place in either obeying the interpretation of law from the administration, or following the dictates of their local federal courts,” said Barry W. Lynn, the executive director of Americans United for Separation of Church and State, a Washington-based group that issued a lengthy critique of the department’s guidance.
Americans United sent its critique to all state education departments and received several responses indicating that administrators in at least a few states were aware of the potential for conflict between court rulings and the administration’s guidance.
Lawyers for the Illinois state board of education, for example, wrote back to Mr. Lynn and said they agreed that “the federal courts, rather than the U.S. Department of Education, have the ultimate authority to interpret the First Amendment and determine the proper role of religion in public education.”
But Mr. Lynn said the threat of a cutoff of federal funds underlying all the No Child Left Behind Act’s provisions “is a very heavy stick” that will likely prompt many states and districts to simply follow the guidance.
“On the other hand, I think there would be an explosion heard around the country if any school lost its federal funding because it decided to obey the legal precedents in its area instead of [Secretary of Education] Rod Paige’s interpretation of the Constitution,” Mr. Lynn added.
Under the first round of certifications required by the prayer provision in the No Child Left Behind Act, it appears that compliance with the bureaucratic requirements of the department is the immediate concern.
Susan Aspey, a spokeswoman for the federal Education Department, said that while all 50 states had filed their certifications, Indiana and New Hampshire said they were still collecting certifications from school districts and would complete their paperwork sometime this month. She said 26 states failed to tell the department whether they had received any prayer-related complaints against local districts, as the law requires.
“We’re currently following up with those states,” Ms. Aspey said. “We take the law very seriously. The guidance is very straightforward and clear.”
Apparently, though, some parts of the certification process are not so clear to the states.
The Ohio Department of Education, for instance, asked the federal agency to clarify whether districts can certify their compliance with the prayer provision as part of larger applications for funding under the No Child Left Behind law. The state said the “administrative burden associated with compliance of Section 9524" in this round had cost taxpayers in excess of “a half-million dollars.”
J.C. Benton, a spokesman for the Ohio department, said the official who made that calculation was out of the office last week. Mr. Benton said he didn’t know how that official had arrived at the $500,000 figure.
Officials in other states say the guidance makes clear that a district’s certification of compliance with the prayer provision “may be provided as part of the application process for ESEA programs.”
The Texas Education Agency tells districts on its Web site that by applying for federal aid under the No Child Left Behind law, they already agreed to accept “all the special provisions and assurances” required by the law, and thus “no further action is required” to certify compliance with the prayer provision.
But Houston lawyer Kelly J. Coghlan has filed a complaint with the TEA and the federal Education Department objecting to the blanket certification. He notes that most districts signed the more general certifications by last September, well before the federal guidance was even issued.
The TEA is awaiting the federal agency’s response to Mr. Coghlan’s complaint, said DeEtta Culbertson, a TEA spokeswoman.
Several states told the department they had a handful of districts that had not yet made their certifications by the April 15 deadline for the states to report to the federal department. Arizona told the department that as of late April, 88 local education agencies—many of them charter schools—had failed to comply with the law.
By last week, however, only one charter school was left on the state’s overdue list, said Amy Rezzanico, a spokeswoman for the Arizona department.