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No Child Left Behind
Constitutionally Protected Prayer In Schools (2/03)

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February 28, 2003

By March 15, 2003, in accordance with Section 9524 of the Elementary and Secondary Education Act, as amended by the No Child Left Behind Act of 2001 ("NCLB"), School Districts are required to certify to the New York State Education Department ("SED"), in writing, that Districts do not have policies that prevent or otherwise deny participation in constitutionally protected prayer in its public elementary and secondary schools.

The long-awaited guidance issued by the Secretary of the United States Department of Education ("USDOE") on February 7, 2003, extends the timeline under NCLB for certification from October 1, 2002 to March 15, 2003.

Before certifying to SED by the March 15, 2003 deadline, Districts should examine their policies to ensure that they do not prevent, or otherwise deny participation in, constitutionally protected prayer. According to the USDOE guidance, constitutionally protected prayer includes:

1. the ability of students to privately engage in prayer during non-instructional time;

2. the ability of students to organize prayer groups and religious clubs without discrimination, to the same extent that students are permitted to organize other non-curricular student activities and groups;

3. the ability of teachers, administrators, and other school employees, when not acting in their official capacities, to take part in religious activities;

4. the ability of students to silently pray, or not pray, during moments of silence;

5. the right of students to be excused or dismissed from school for purposes of religious instruction and/or religious exercise;

6. the ability of students to express religious beliefs in class assignments without penalty and/or reward;

7. the ability of students to speak at student assemblies and extra-curricular activities without restriction of religious content when the speech is not determined and/or substantially controlled by the school;

8. the ability of schools to select speakers for graduation events without restriction on religious content when the selection is based on genuinely neutral, evenhanded criteria, and not attributable to the school; and

9. the evenhanded use of school facilities and related services by organizers of privately sponsored religious ceremonies.

In response to the USDOE guidance, SED issued specific requirements for the submission of the school prayer certification. Districts may obtain a copy of these requirements from SED's web site at http://www.emsc.nysed.gov. SED requires the use of the following language for certification:

    As a condition of receiving federal funds under the Elementary and Secondary Education Act, as amended by the No Child Left Behind Act of 2001 ("NCLB"), the local educational agency hereby certifies that no policy of the local educational agency prevents, or otherwise denies participation in, constitutionally protected prayer in public elementary schools and secondary schools, as detailed in the current guidance issued pursuant to NCLB Section 9524(a).

In addition, the certification must: indicate the name of the local educational agency; be signed and dated by the President of the Board of Education, the Superintendent of Schools, or other Chief School Officer who is authorized to sign the certification; and include the authorized individual's printed name and title.

The certification must be submitted no later than March 15, 2003 to the following address:

Title I State Coordinating Office
New York State Education Department
Room 461
Education Building Annex
Albany, New York 12234

A District that fails to file the required certification, or files its certification in bad faith, may be subject to enforcement actions, including the withholding of federal funds.

Following the initial March 15, 2003 certification filing, Districts that continue to participate in Elementary and Secondary Education Act programs must continue to certify on an annual basis. Annual certifications must be submitted to SED by October 1st of each subsequent year.

If you have any questions, please contact:

In Central New York, call 315-218-8000 or e-mail:

R. Daniel Bordoni dbordoni@bsk.com
Jodi Lynn Butler jbutler@bsk.com

In the Capital District, call 518-462-7421 or e-mail:

Nicholas J. D'Ambrosio ndambrosio@bsk.com

In Western New York, call 716-853-7262 or e-mail:

Richard C. Heffern rheffern@bsk.com

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