& TIME SENSITIVE: PLEASE SEE THAT A COPY IS IMMEDIATELY DELIVERED
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”):
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.
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.
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.
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.
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
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.
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
PROBLEMS WITH TASB’S ALTERNATIVE SAMPLE POLICY AND SIMILAR
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.
example, TASB’s newly added definition of “to publicly speak” is as
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).
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.
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.
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
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).
continues to champion this maneuver even in the face of clear
legislation (with a supportive legislative history) expressly intended
to eliminate it.
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).
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.”
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.
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.
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.
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:
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.
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.
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
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:
a policy matter, should the District permit student speakers at any of
its school events (including graduations)?
What are the educational and other secular reasons for prohibiting
student speakers at school events? List them and discuss:
What are the educational and other secular reasons for permitting
student speakers at school events? List them and discuss:
opportunities present educational
opportunities for students in such areas as Speech, English, Grammar and
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.
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.
The speaking opportunities promote a continuation of
student maturity, growth, and education by placing additional
responsibilities upon students.
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.
In the case of graduations, there are certain students
who have earned the right to speak.
there are to be any student speakers, should the District adopt the
Act’s Model Policy or some other policy?
What are the benefits of adopting the Act’s Model Policy?
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.
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.
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.
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.
Policy was drafted and reviewed by numerous constitutional attorneys
across the country before being included in the Act.
Policy gives choices and flexibility over important decisions left to
the District’s discretion.
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.
and taxpayers will not have to risk tax dollars to defend claims that
its policy violates the Act.
Model Policy is not adopted, the District will never have assurance that
it is in compliance with the Act.
will be on its own to defend any legal challenges to an aberrant policy.
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.
What are the benefits of not adopting the Act’s Model Policy?
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?
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:
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
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
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.
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
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.
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
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.”
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
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
This document’s contents are the personal opinions of the author and are
not legal advice, warranties, or representations. Please consult your