MESSAGE TO
NON-TEXAS SCHOOL BOARDS
BY KELLY COGHLAN
1.
Texas has adopted the “Schoolchildren’s Religious Liberties Act”
(also known as the “Religious Viewpoints Antidiscrimination Act”)
with the intent of bringing Texas schools into compliance with
existing Supreme Court precedent. Since the Texas Act codifies
present U.S. Supreme Court holdings, the provisions of the law (and
recommended model policy part of the law) should be of interest to
school districts located in all states desiring their schools to be
in compliance with Supreme Court precedent.
2.
Every school board member and superintendent in every state should
seriously consider adopting the model policy portion of the Texas
Act as its own local policy.
3.
Every school board member and superintendent should read the
following documents (all of which can be printed from this website):
a.
Copy of
New ACT ("School Children's Religious Liberties Act").
b.
Model Policy.
c.
US Department of Education Prayer Guidance.
d.
Why a
Model Policy.
e.
Any
other documents from this website.
4.
In support of the provisions of the model policy, one should read
the U.S.
Department of Education issued “Guidance on Constitutionally
Protected Prayer in Public Elementary and Secondary Schools”
(“Prayer Guidance”). As a condition to receiving federal funds,
each school district in America must annually certify that it “has
no policy [that] prevents, or otherwise denies participation in,
constitutionally protected prayer in public elementary and secondary
schools as set forth in this guidance.” The Prayer Guidance makes
it clear that voluntary prayer and other faith-based expression
publicly stated by students over school microphones is allowable at
student assemblies, extracurricular events, and graduations if an
appropriate student speaker policy has been enacted by the school
district. Any person can report a school district to the U.S.
Department of Educations that is out of compliance with the Prayer
Guidance. If a school district is found to be out of compliance, it
can lose its federal funding (requiring the short-fall to be made up
through higher taxes).
5.
Recognizing that most schools’ lawyers are not constitutional
specialists and do not feel that they have the expertise draft such
a policy, Kelly Coghlan, one of the attorneys who helped the U.S.
Department of Education formulate the Prayer Guidance, drafted a
model policy that translates the Prayer Guidance into a usable local
policy for school districts. It is the same model policy that is
now part of the Texas statute.
6.
If
you are a school district outside of Texas, you can adopt the
same model policy that is suggested in the Texas Act targeted to
bring your school into compliance with the U.S. Department of
Education Prayer Guidance and with holdings of the United States
Supreme Court.
7.
If a
school district decides that there is even one time that the school
will permit a student to publicly address an audience at a
school event (including graduations), then the school district needs
a written policy covering student speakers. The school district has
written polices addressing most every other conceivable issue, and
it certainly needs one addressing this important one concerning
student expression. If there is no written policy, it leaves the
school district open to law suits. If a student speaker says
something that someone does not like, and there is no written
policy, then the speech of the student may be attributable to the
school district. If suit is filed against the school district to
hold the school district responsible for the content of the
student’s speech, how will the district defend itself with no
written policy in place? It will just be left up to the court to
guess, and that is not the legal position that any school district
wants to find itself.
8.
In
adopting any policy, including the model policy discussed here,
school officials may not be motivated by either of the following:
(1) the hope that students will pray or express some other religious
viewpoint, (2) the fear that students will pray or express some
other religious viewpoint. Board members, superintendents and school
officials are legally prohibited from considering either. Whether
or not a student would ever use a speaking opportunity for prayerful
or other religious speech, as opposed to similar secular or other
speech, is speculation regarding which a school board must not
indulge and must not interject into discussions or considerations.
9.
It
would be just as unconstitutional for a school board to reject a
student speaker model policy for the purpose of preventing
prayer as it would be for the same school board to adopt a student
speaker model policy for the purpose of promoting prayer.
These actions would represent the two extremes of the same
unconstitutional governmental non-neutrality. In the first
instance, the impermissible governmental purpose would be to
discourage and prohibit the free exercise of religion, violating the
Free Exercise and Free Speech Clauses, and in the second instance
the impermissible governmental purpose would be to encourage and
establish religion, violating the Establishment Clause.
10.
The
first two clauses of the First Amendment to the United States
Constitution state: Congress [a term interpreted to include school
districts and school officials] shall make no law [a term
interpreted to include school policies and practices] respecting an
establishment or religion, or prohibiting the free exercise
thereof." A school board member's support for a student speaker
policy must be based on secular (not religious or pro-prayer)
grounds. Likewise, a school board member's opposition to a student
speaker policy must be based on secular (not anti-religious or
anti-prayer) grounds.
11.
Non-government citizens may talk all they want about how they
support or oppose prayer and religious viewpoints, but school board
members must avoid doing so and avoid making this a consideration in
deliberations and decisions.
12.
Why
the drastic difference between what ordinary citizens can do as
contrasted to what school board members can do? Because the First
Amendment of the Constitution applies only to what government
officials (school board members, superintendents, teachers, coaches,
and the like) may or may not do in their official capacities. The
First Amendment does not apply to actions of ordinary citizens. The
Constitution does not prohibit individual citizens from doing acts
that tend either to establish or discourage religion. Only the
government and government officials are required to be neutral on
the topic or religion while acting in official governmental
capacities.
13.
Thus, each board member must vote based upon whether or not he or
she believes that worthy educational purposes and goals can likely
be advanced by enacting a policy providing students with speaking
opportunities.
14.
Any
school board meeting set to consider the issue of a student speaker
policy will likely draw those who wish to speak for or against
"prayer" rather than secular reasons for adopting or rejecting a
student speaker policy. The district should therefore take
affirmative steps to protect itself from unfounded accusations later
that the district has based its decisions upon religious or
anti-religious arguments. At the beginning of the meeting, the
district should read a prepared disclaimer (and enter it into the
official record) that makes clear that the school district is not
legally allowed to act with a religious or anti-religious purpose:
As citizens who
address the board, you are free to express your views on religious
subjects, the existence or non-existence of a Supreme Being, and any
other matter on which you wish to address the school board. All
citizens should feel free to share their views and concerns with
their elected officials. School officials (including the
superintendent and school board members), however, are legally
prohibited from acting with a purpose to either encourage or
discourage religion or religious expression. The school district,
superintendent, and school board, must act, and will act, with
strict neutrality regarding matters of religion, will not act with a
religious or anti-religious purpose in considering and deciding
matters that come before the board, and will make decisions based
wholly upon secular considerations, as required by law.
Appropriate
Points of Discussion and Consideration for School Board Members:
1.
As a policy
matter, should the school district allow student speakers at any of
its school events (including graduations)?
a.
Discuss:
What are the educational and other secular reasons for
prohibiting student speakers at school events? List them:
i.
_____________________________________________
ii.
_____________________________________________
b.
Discuss:
What are the educational and other secular reasons for permitting
student speakers at school events? List them:
i.
The
opportunity presents educational
opportunities for students in the areas of speech, English, grammar,
and civics;
[i]
ii.
The opportunity gives students experience with speaking
in public, organizing their thoughts, and making a concise oral
presentation before an audience;
iii.
The opportunity gives students a greater sense of
ownership in their school's activities/events through student
involvement;
iv.
The opportunity promotes a continuation of student
maturity, growth, and education by placing additional
responsibilities upon students;
v.
Introductions of various school events by students
provide a method for marking the opening of school events that
provide student participation and involvement;
[ii]
vi.
Introductions of various school events by students
provide a method of bringing the audience to order;
vii.
Introductions of various school events by students focus
the audience on the purpose of the event;
viii.
In the case of graduations, there are certain students
who have earned the right to speak.
i
Rather than merely learning about speech,
English, grammar, and civics, public speaking involves
students in the actual practice and application
of these subjects. Students involved in speaking at
events have to organize their thoughts, author, prepare,
practice, and deliver a concise oral presentation before
a live audience, providing these students with valuable
opportunities for learning and application of public
speaking and presentation skills. See Emily
Shartin, The Holly Fest: A Time to Speak Clearly,
Boston Globe,
Dec. 7, 2000, at 8 (discussing the benefits of public
speaking and how the process and practice of
articulating one’s thoughts before an audience help high
school students in other academic areas and in exam
taking), 2000 WL 3358387. These speaking opportunities
can be as educational and beneficial as any academic
class. It would be wasteful to allow these events and
activities to pass week after week without the school
utilizing them as opportunities for its students to
advance their communicative skills—which would surely
prove important to them in whatever they choose to do
after high school.
ii In
public schools, students participate in numerous
recurring activities having natural beginnings and
endings, such as sporting events, graduations,
assemblies, and the school day itself. Just prior to
the start of each activity, there is usually noise,
walking around, and talking. Attaining attention,
silence, and focus normally requires some act to mark
the beginning of each occasion.
ŠKC06-07
