ABOUT NEW ACT: RELIGIOUS STUDENTS’ RIGHTS CLARIFIED
BY KELLY COGHLAN
Schools are not
religion-free zones, school officials are not prayer-police,
religious students are not enemies of the state, and the Texas
Religious Viewpoints Antidiscrimination Act (also known as the
Schoolchildren’s Religious Liberties Act) makes that clear. The
Act, which goes into effect at the beginning of the 2007-2008 school
year, provides much needed guidance for school officials who have
sometimes felt compelled to quash students’ religious expressions
for fear of lawsuits. The new law pulls together Supreme Court
rulings into a format that is easy to understand and apply.
"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.” 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.”
This Act does not
require or suggest that any child express a prayer or other
religious viewpoint, it just protects them if they do. Whether or
not a student will ever use a speaking opportunity to express a
religious viewpoint on an otherwise permissible topic is a matter
upon which school officials must not speculate, opine or discuss
since school officials must remain neutral. Doing otherwise will
land a school in constitutional hot water. However, parents,
pastors, students, citizens and all other non-school-officials are
free to encourage students to publicly pray and honor God whenever
students have the opportunity to do so.
The first sentence of
the Act (Sec. 25.151) provides that “A school district shall treat a
student’s voluntary expression of a religious viewpoint, if any, on
an otherwise permissible subject in the same manner the district
treats a student’s voluntary expression of a secular or other
viewpoint on an otherwise permissible subject and may not
discriminate against the student based on a religious viewpoint
expressed by the student on an otherwise permissible subject.” The
remainder of the new law instructs school districts how to properly
apply this legal declaration.
A safe harbor model
policy (Sec. 25.156) for schools to include in their local policies
is a part of the Act. If a school district adopts and follows the
suggested model policy, the district is automatically assured of
being in compliance with the Act regarding all matters covered in
the model policy. 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. Adopting the Act’s model
policy is the safest route for school districts and assures the
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. Why would any district
take the unnecessary risk when a tested policy is already part of
the law? Bewilderingly, an 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. 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.
The Act’s model policy
covers the following subjects: Student Expression of Religious
Viewpoints, Student Speakers at Non-Graduation Events, Student
Speakers at Graduation Ceremonies, Religious Expressions in Class
Assignments, and Freedom to Organize Religious Groups and
Activities.
The Act establishes
safeguards to assure that a student’s religious viewpoint, if any,
is not attributable to the school or mistaken as affirmatively
sponsored by the school by requiring (1) limited public forums for
student speakers, (2) selection of speakers based on neutral
criteria, and (3) disclaimers to be read and/or printed clearly
establishing the individual nature of the expressed viewpoint.
Section 25.152 requires
the “establishment of a limited public forum for student speakers at
all school events at which a student is to publicly speak” in order
to, inter alia, “eliminate any actual or perceived
affirmative school sponsorship or attribution to the district of a
student’s expression of a religious viewpoint, if any.” The 2001
Supreme Court case of Good News v. Milford Central School
holds: “[S]peech 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.”
Thus, the Texas statute, by using the limited public forum format
simply codifies the language of the Supreme Court.
Schools are not required
to have student speakers for any occasion, and, thus, are not
required to establish any limited public forums for student
speakers. But if there are to be student speakers, a limited public
forum is required. For schools that opt to adopt 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.” 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 novel here. 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.
Why have student speakers? Public speaking fosters numerous
educational benefits in established pedagogical areas such as
Speech, English, Grammar, Drama and Civics. Students have to
organize their thoughts, author, prepare, practice, and deliver a
concise oral presentation before a live audience, providing valuable
educational opportunities. What a waste to allow school events to
pass without utilizing them as opportunities for students to advance
their communicative skills—important skills for any career. Some
districts may be tempted to reduce or eliminate student speakers
altogether, but this would not only be counter-educational but would
likely stir up legal issues rather than avoid them. If a district’s
motivation for reducing or eliminating student speakers is to assure
that no religious viewpoint will be expressed, that is an
unconstitutional motivation inviting legal challenge.
Finally, sections 25.153
& 154 of the Act codify the almost identical language of sections of
the U.S. Dept. of Education “Guidance on Constitutionally Protected
Prayer in Public Elementary and Secondary Schools,” drafted by the
attorneys of the U.S. Dept. of Education and U.S. Dept. of Justice.
The Act is an
anti-discrimination law protecting students’ voluntary expressions
of religious viewpoints to the same degree—no more and no less—as
students’ voluntary expressions of secular or other viewpoints on
otherwise permissible subjects and topics. Religious children do
not receive special rights, extra opportunity, preferential
treatment or extra protection, just equal rights, equal opportunity,
equal treatment and equal protection. That’s fair.
[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
representations]
ŠKC06-07
