Message to Texas School Boards

IMPORTANT & TIME SENSITIVE: PLEASE SEE THAT A COPY IS IMMEDIATELY DELIVERED
TO THE SUPERINTENDENT, SCHOOL BOARD, AND ATTORNEY FOR THE DISTRICT:___________________________________________

TO TEXAS SCHOOL BOARDS FOR AUGUST MEETING: THE RELIGIOUS
VIEWPOINTS ANTIDISCRIMINATION ACT AND STATE’S MODEL POLICY

The following is written by and are the opinions of the attorney who drafted the Texas Schoolchildren’s Religious Liberties/Religious Viewpoints Antidiscrimination Act (hereinafter “Act”):

1. It is the author’s opinion that adoption of the TASB Alternative Sample Policy, and similar policies following the TASB model, will put school districts in violation of the Act.

2. On Friday, August 10, 2007, TEA sent to all school districts a letter of intent from Representative Charlie Howard and Representative Warren Chisum, the joint-authors of the Act,. If your district has not yet received a copy, please notify TEA and obtain one immediately.

BACKGROUND:

3. Before the beginning of the 2007-2008 school year, every Texas school district that will have a student speaker at any school function or event (including graduations) must either (1) adopt the safe harbor Model Policy that is recommended by the State and included as a part of the Act, or (2) adopt its own policy that must comply with all aspects and provisions of the Act.

4. A safe harbor Model Policy (Sec. 25.156) is written into the Act. It was included to make it easy and inexpensive for schools to comply with the Act by adopting and following the Model Policy. Not only was the policy field-tested in a number of public school districts for up to 6 years from Texas to Illinois, superintendents from two such school districts testified in the House and Senate that no student had abused or exploited any speaking opportunity, embarrassed the school district, or caused any lawsuit or complaint under the operation of the policy.

5. Before being included in the Act, the Model Policy underwent the legislative scrutiny of hearings before the Senate Education Committee and House State Affairs Committee and has the imprimatur of the Texas Legislature as the recommended policy for school districts to adopt. As an enacted part of the law, the Model Policy has the approval of the Texas Legislature, Governor, and thus the citizens of Texas who elected these officials.

6. If a school district adopts and follows the Act’s Model Policy, the school district is automatically assured of compliance with the Act regarding all matters covered in the Model Policy. This is the only way that a school district will have this assurance—and that is one less concern and financial risk for the district.

7. The Attorney General is in the business of defending legislation, and the Model Policy is a part of the Act (which is now part of the Education Code). TASB’s alternative policy and similar policies following the TASB model are not a part of this or any other legislation. If a school is challenged for adopting and following the Act’s Model Policy it is an attack on the legislation itself, and a school should clearly enjoy the assistance of the Attorney General in any such suit. While a school may adopt a different policy, that district will have no assurance of being in compliance with the Act and will be on its own to defend that policy against legal challenges to its lawyer’s experimentations—wasted taxpayer dollars.

PROBLEMS WITH TASB’S ALTERNATIVE SAMPLE POLICY AND SIMILAR ONES:

8. On July 27, TASB emailed all of its Texas school districts a package of documents entitled “Student Expression—Urgent Starting Points” addressing the new Act. Bewilderingly, in addition to the Act’s Model Policy, TASB has submitted to districts what it calls its “Alternative Sample Policy” to compete with the Legislature’s Model Policy. TASB’s Alternative Sample Policy significantly deviates from the Act’s Model Policy and from the Act itself. As part of its Alternative Sample Policy, TASB has added its own definitions to key phrases of the Act, which, in the author’s opinion, find no basis in the Act or in law (and, in fact, are contradictory to the clear words, meaning, and legislative history of the Act). The definitions added by TASB have the effect of severely narrowing and restricting the application of the Act and thwarting the clear language, spirit, and legislative intent.

9. As an example, TASB’s newly added definition of “to publicly speak” is as follows:

For purposes of this policy, “to publicly speak” means to address an audience at a school event using the student’s own words. A student is not using his or her own words when the student is reading or performing from an approved script, is delivering a message that has been approved in advance or otherwise supervised by school officials, or is making brief introductions or announcements.” (emphasis added).

10. This flies in the face of the language of the Act itself. At Section 25.152 of the Act, the section begins with, “To insure that the school district does not discriminate against a student’s publicly stated…expression…a school district shall adopt a policy, which must include the establishment of a limited public forum for student speakers at all school events at which a student is to publicly speak.” (emphasis added). “Publicly speak” is defined in the first part of the sentence as any time something is “publicly stated” by a student. The requirements added by TASB to the meaning of “publicly speak” (per its new definition) fly in the face of the broad language of the Act. Had the Legislature intended to include all of these additional hurdles, provisions, and restrictions before a student could express a religious viewpoint without discrimination, the Legislature would have written it into the Act. The Act speaks in the broadest terms, with no such restrictions. Adding this aberrant definition violates the clear language of the Act itself.

11. By adding its own definitions, TASB invites schools to avoid application of the Act by simply requiring that anything ever spoken by a student over a school microphone (or otherwise) first be “approved in advance” and/or be “supervised by school officials” and/or be deemed as “brief introductions or announcements.” Since all student introductions and speeches are “supervised by school officials” and since a school could begin requiring that all student introductions and speeches be reviewed and “approved in advance,” the Act is entirely thwarted and turned on its head via the TASB definitions.

12. As part of the legislative history of the Act, the requirement of limited public forums was expressly included, inter alia, to eliminate this type of ploy. In the testimony before both the House State Affairs Committee and the Senate Education Committee, the author testified to the following:

An additional reason the Bill provides for “limited public forums” for student speakers is to make schools PLAY FAIR. This eliminates a “PLOY” (MANUEVER) used by some schools of turning the students into government spokesmen and then telling the students that since they are government spokesmen, they can’t mention God. A limited public forum is restricted as to the SUBJECT students may speak on; but it prohibits schools from discriminating against religious viewpoints of students on otherwise permissible subjects (Good News Club v. Milford).

13. TASB continues to champion this maneuver even in the face of clear legislation (with a supportive legislative history) expressly intended to eliminate it.

14. As a further example of TASB’s adding definitions outside the Act, TASB’s definition of a “school event” is as follows:

For purposes of this policy, a “school event” is a school-sponsored event or activity that does not constitute part of the required instruction for a segment of the school’s curriculum, regardless of whether the event takes place during or after the school day. (emphasis added).

15. Under this definition, a district could arguably claim that most anything that occurs during or after school in which there is some teacher/coach/school-official oversight falls within “required instruction for a segment of the school’s curriculum.”

16. The provisions and substance of the Act’s Model Policy demonstrate what the Legislature considered, at a minimum, as being within the definition of “school event.” By including in the safe harbor Model Policy the occasions of “opening announcements and greetings for the school day,” and “football games,” (as well as a further list of activities) as being “school event[s]” to which the law would apply, the Legislature has indicated that its intended definition of “school event” (as used at Section 25.152 of the Act) would include, at a minimum, these enumerated occurrences--which do not depend on whether or not the public is invited. At a minimum, “opening announcements and greetings for the school day,” “football games,” “other athletic events,” “assemblies,” “pep rallies,” and the like are “school event[s]” under the Act. The language and provisions of the Act demonstrate that the Legislature intended for “school event” to be defined broadly.

17. Neither TASB nor any other organization has been granted rule making authority by the Legislature under the Act to add definitions outside the Act’s express language, intent, and legislative history, or to narrow or change the applicability of the Act in any way.

18. The only way a school district can be assured of being in compliance with all provisions of the Act is to adopt and follow the Act’s Model Policy. Why would a school district take the unnecessary risk when a viable, tested, and State approved Model Policy is already included as part of the Texas Education Code.

19. Before a district adopts one of the competing policies, the school should insist that the drafter of the policy--whether TASB or a private law firm--guarantee the district free legal representation and indemnification of the district against all damages, court costs, and attorney’s fees in the event the policy is found to violate the Act. This is the only way to put the matter on a level playing field. Otherwise, the district is gambling with taxpayer’s money.

SAFEGUARDS FOR SCHOOL DISTRICTS WHEN ENACTING POLICY:

20. The Act does not require or suggest that any student express a prayerful or other religious viewpoint on an otherwise permissible subject/topic, it just protects students if they do. While parents, pastors, students, citizens and other non-school-officials are free to encourage students to express prayerful or other religious viewpoints whenever students have the opportunity to do so, school officials acting in their official capacities are not legally permitted to do so. Why? Because the First Amendment of the Constitution applies only to what government officials (school board members, superintendents, teachers, and the like) may or may not do in their official capacities. The prohibitions of the First Amendment do not apply to actions of ordinary citizens. The Constitution does not prohibit individual citizens from doing acts that tend to establish religion. Government officials, on the other hand, are required to be neutral on the topic of religion while acting in official governmental capacities.

21. In adopting any policy that comes before a school board (including the policy required under the Act), school officials may not be motivated by either (1) the hope that students will pray or express some other religious viewpoint, or (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 to express a prayerful or other religious viewpoint, as opposed to expressing a secular viewpoint, is speculation regarding which a school board and school officials must not indulge and must not interject into discussions or considerations.

22. The school board meeting set to consider adopting a policy under the Act may draw those who wish to express religious or anti-religious views to try to persuade the Board. Districts might therefore want to take affirmative steps to protect themselves 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 might choose to read a prepared disclaimer (and enter it into the official record) that makes clear that the school district is not legally permitted to act with a religious or anti-religious purpose and must remain neutral regarding such matters, stating something of this nature:

As citizens who address the board, you are free to express your views on religious or anti-religious subjects 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 FOR BOARD DISCUSSION:

1. ISSUE: As a policy matter, should the District permit 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 and discuss:

i. _____________________________________________

ii. _____________________________________________

b. Discuss: What are the educational and other secular reasons for permitting student speakers at school events? List them and discuss:

i. The opportunities present educational opportunities for students in such areas as Speech, English, Grammar and Civics.

ii. The opportunities give students experience with speaking in public, authoring, preparing, practicing, organizing their thoughts, and delivering a concise oral presentation before a live audience providing 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.

iii. Since these speaking opportunities can be as educational and beneficial as an 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 in life.

iv. The speaking opportunities promote a continuation of student maturity, growth, and education by placing additional responsibilities upon students.

v. Introductions of various school events by students provide a practical method for marking the opening of school events, bringing the audience to order, and focusing the audience on the purpose of the event—providing students valuable participation, involvement, and greater ownership in their school’s activities and events.

vi. In the case of graduations, there are certain students who have earned the right to speak.

2. ISSUE: If there are to be any student speakers, should the District adopt the Act’s Model Policy or some other policy?

a. Discuss: What are the benefits of adopting the Act’s Model Policy?

i. Model Policy is a “safe harbor” that if adopted and followed will assure the District of legal compliance with the Act, thus removing the financial and legal risks of adopting a policy that violates any part of the Act.

ii. Model Policy underwent legislative scrutiny of hearings before the Senate Education Committee and House State Affairs Committee and has the imprimatur of the Texas Legislature and Governor as the recommended policy for school districts to adopt.

iii. Model Policy has been field tested in public schools from Texas to Illinois for up to 6 years and been shown to work well with no students abusing or exploited any speaking opportunities, embarrassing the school district, or causing any lawsuits or complaints under the policy. Any policy other than the Act’s Model Policy has no proven track record.

iv. Adoption of Model Policy should assure the assistance of the Texas Attorney General in the event of a facial challenge to the District’s adoption of the Model Policy since it is part of the actual legislation. Adopting a TASB or other policy would not have this protection.

v. Model Policy was drafted and reviewed by numerous constitutional attorneys across the country before being included in the Act.

vi. Model Policy gives choices and flexibility over important decisions left to the District’s discretion.

vii. District and taxpayers will not have to incur attorney’s fees and expenses to research and draft its own policy or to periodically have the policy reviewed or changed to attempt to comply with the Act.

viii. District and taxpayers will not have to risk tax dollars to defend claims that its policy violates the Act.

ix. If the Model Policy is not adopted, the District will never have assurance that it is in compliance with the Act.

x. District will be on its own to defend any legal challenges to an aberrant policy.

xi. If the District adopts the Model Policy now, it doesn’t foreclose making modifications later. In the mean time the District will have the assurance of being in compliance with the Act.

b. Discuss: What are the benefits of not adopting the Act’s Model Policy?

i. _____________________________________________

ii. _____________________________________________

3. ISSUE: If the District adopts the Act’s Model Policy, there are sections of the Model Policy that give the District choices that must be made. How should the District craft the Model Policy in these areas?

a. Discuss: Go though the Model Policy, pick out the areas in which choices must be made, and discuss what would work best for the District (these initial choices can always be changed and adjusted later by the Board).

OVERVIEW OF ACT:

23. In recent times some Texas public schools had begun forbidding children from using the words “Merry Christmas” in December, “Jesus” at Easter, “St. Valentine’s Day” in February, or bringing Bibles to school, or handing out candy-canes due to their religious message. The First Amendment does not turn public schools into religion-free zones or school officials into prayer-police or students of faith into enemies of the state.

24. This Act was needed. The Act codifies Supreme Court precedent. For instance, in Santa Fe ISD v. Doe, although the school district lost because the Court essentially held that students were being coerced to pray, the students won when the Supreme Court held that “nothing in the Constitution as interpreted by this Court prohibits any public school student from voluntarily praying at any time before, during, or after the schoolday.” In Good News Club v. Milford the Court held that “speech discussing otherwise permissible subjects cannot be excluded from a limited public forum on the ground that the subject is discussed from a religious viewpoint…. [Excluding a] religious perspective constitutes unconstitutional viewpoint discrimination.” The Act is an adoption and codification of Santa Fe and Good News Club and other Supreme Court cases, not an attempt to avoid them. The author has posted a “Summary of the State of the Law Regarding Faith-Based Viewpoints Expressed by Students in Public Schools” at www.kellycoghlan.com.

25. The Act doesn’t require or even suggest that students express a religious viewpoint, it just protects them if they do. The Act is an antidiscrimination law that protects religious viewpoints to the same degree—no more and no less—as secular viewpoints on the same subjects. It is an equal-opportunity law, providing a level playing field for faith-based expression. The Act doesn’t give religious viewpoints special protection, just equal protection. Religious students don’t get extra rights, just equal rights. They don’t get preferential treatment, just equal treatment. If school students are not allowed to stand up and shout something of secular content, neither can they shout something of religious content.

26. To understand why the Model Policy does not need to be changed one must first have a good grasp of the Constitutional differences between a “topic/subject” on the one hand and a “viewpoint” on the other. Unfortunately, most school-law attorneys do not appear to focus their practices on constitutional law. Before the Act (including the Model Policy section) was introduced as legislation it underwent the scrutiny of numerous constitutional attorneys across the country, and then the scrutiny of the Texas Legislature. After the ACLU came to the first hearing, read the bill, heard the testimony, heard the constitutional discussions, and understood what the law was about, they did not show up to speak in opposition to the Act at any subsequent hearings or anytime thereafter.

27. The hyperbole of many school-law attorneys seems to be targeted toward scaring schools away from a proven and vetted policy toward something else. The Act was not intended to become the financial relief act for school-law attorneys. It was not intended to become a platform for lawyer turf wars. It was intended to make it easy and inexpensive for schools to comply with the law.

28. Under the Model Policy, the eligible student speakers are student council officers, senior class officers, captain(s) of the football team (and any other neutrally selected student leaders the school designates). Student speakers have normally been student leaders; so nothing new here. The fact that some of these students hold elected positions of honor is irrelevant as long as their elections were not on the issue of picking a student to pray. The Supreme Court has pointed to students whose selection is based on neutral criteria such as the typically elected “student body president or even a newly elected prom king or queen” as speakers who could use speaking opportunities to express faith-based prayerful views, without violating the Establishment Clause (see Santa Fe ISD v. Doe, 530 U.S. at 304-05 n.15, 316 n.23, 321). As a logistical matter, having a smaller rather than larger number of speakers proved to be more manageable in the districts that have been using the policy for some years. Just as at graduations, not every student gets to speak. It has always been a great honor to have attained a student leadership position to be allowed to publicly address the school; and the Model Policy maintains that honor

29. Under the Model Policy, a student speaker will publicly introduce the beginning of football games and the opening announcements/greetings for the school day (and any other events the school designates). From the inception of public education and football games, these two identified occasions have traditionally been introduced by student speakers; so nothing new here. Students are required to stick to the subjects/topics enumerated under the policy: “introductions must be related to the purpose of the event and to the purpose of marking the opening of the event, honoring the occasion, the participants, and those in attendance, bringing the audience to order, and focusing the audience on the purpose of the event.”

30. "This law is a victory for freedom and non-discrimination for every young Texan," said Rep. Charlie Howard who introduced the bill. “It is win-win for students, school administrators and teachers. No longer will a cloud of confusion obscure the rights to individual expression students enjoy under the U.S. Constitution. School officials need no longer fear the threat of lawsuits simply for allowing students to exercise their constitutional rights.” The Act had broad backing from both parties, was co-sponsored by Democratic Senators Mario Gallegos and Royce West, and received overwhelming bipartisan support of 108-28 in the House and 27-3 in the Senate. Houston attorney Joe Reynolds, a 16-year member of the Texas A&M Board of Regents, who has represented more Texas school districts than any other attorney said, “This is the best piece of legislation for school districts that has been introduced in the past 50 years.”

[Kelly Coghlan is a Houston constitutional trial attorney, Life Fellow of the Texas Bar Foundation, Life Fellow of the Houston Bar Foundation, and author of Those Dangerous Student Prayers. He has represented 159 students and parents as amici curiae before the U.S. Supreme Court on faith-based issues, obtained the first federal injunction preventing censorship of a student’s voluntary public prayer in Ward v. Santa Fe I.S.D culminating in a final judgment for the student, and is the legal author of the Texas Schoolchildren’s Religious Liberties Act/Religious Viewpoints Antidiscrimination Act. Website www.kellycoghlan.com. This document’s contents are the personal opinions of the author and are not legal advice, warranties, or representations. Please consult your attorney] ©KC94-07