WARNING TO SCHOOL DISTRICTS:
ABOUT ADOPTING THE TASB ALTERNATIVE POLICY
A safe harbor model
policy (Sec. 25.156) for schools to include in their local policies
is a part of the new Schoolchildren’s Religious Liberties Act (also
named the Religious Liberties Antidiscrimination Act). The model
policy has the approval of the Texas Legislature as the recommended
policy for school districts to adopt to comply with the new law.
If a school district
adopts and follows the suggested model policy that is part of the
new Act, the district is automatically assured of being in
compliance with the Act regarding all matters covered in the model
Not only was the Act’s
model policy drafted and reviewed by numerous constitutional
attorneys across the country, the policy was
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 policy. Before being included in the Act, the language of
the model policy went through rigorous hearings before the Texas
House of Representatives State Affairs Committee and the Texas
Senate Education Committee.
Adopting the Act’s
recommended model policy is the safest route for school districts
and assures the school district of help from the Texas Attorney
General in the event of a facial challenge since the model policy is
part of the Act. While a school is free to have TASB or others
draft a policy, a school will be on its own to legally defend that
policy against any legal challenges.
Why would any district
take the unnecessary risk when a viable, tested, and approved policy
is already part of the new law? As a part of the new Act, the model
policy has the imprimatur of the Texas legislature, and thus of the
citizens of Texas who elected such officials.
untested and unapproved alternative policy has been submitted to
schools by TASB which significantly deviates from the Act’s model
policy. TASB has even added its own definitions having no cogent
basis under the Act or in law. The manufactured definitions that
TASB has added are an apparent attempt to narrow the application of
the law and to thwart the clear language, spirit and legislative
intent of the Act.
It is the author’s opinion that adoption of the TASB alternative
policy will put a school in violation of the Act and open that
school to legal claims.
“Important Message to Texas School Boards” (click here for a copy)
explains the legal problems with the TASB alternative policy. This
document needs to get into the hands of all 1,040 school districts.
Time is short because within the few weeks, all school boards will
be voting on what policy to adopt.
[Coghlan is a Houston
constitutional trial attorney 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.,
and is the legal author of the Religious Viewpoints
Antidiscrimination Act. Website
www.kellycoghlan.com. The article’s contents are the personal
opinions of the author and are not legal advice, warranties or