New Texas law codifies public school students’ religious expression rights

AUSTIN?Texas parents whose children are enrolled in public schools have a new tool protecting their children’s right to express religious viewpoints in school. It is the Religious Viewpoints Antidiscrimination Act, and Texas Gov. Rick Perry signed it into law Aug. 14. Its provisions went into effect Sept. 1.

The RVAA mandates that Texas school districts exercise neutrality towards public school students’ voluntary expressions of religious viewpoints. School districts must treat a student’s voluntary expression of a religious viewpoint in the same manner the district treats a voluntary expression of an otherwise permissible secular or non-religious viewpoint.

State Rep. Charlie Howard of Sugar Land introduced the RVAA as H.B. 3678, hoping that it would clear up what he saw as a misunderstanding among too many Texas school administrators. He was frustrated by the uneven application of the U.S. Constitution’s First Amendment protections of voluntary religious expression by public schoolchildren. In recent years, school districts have impermissibly sanctioned schoolchildren for invoking the name of Jesus Christ in prayers before football games, wearing crosses in school, sending Christmas cards to troops overseas, or even making Easter cards in class.

“We have a situation where administrators either don’t understand the law or choose not to follow it. I hope it is just the first one,” Howard said in an interview with the TEXAN. “This act contains no new law. It simply says, ‘Here is what the First Amendment says.'”

Under the RVAA, school districts must adopt a policy that opens up limited public forums for student speakers at all school events at which a student is to publicly speak. That includes pep rallies, graduations and football games. The forums should be organized so they do not discriminate against a student’s voluntary expression of a religious viewpoint.

The focus of the forum provision is on public activities like graduations. The forums are limited because districts must develop a method based on neutral criteria for selecting student speakers at these school events. To make sure student speeches do not get out of control, the act specifically does not protect student speakers from punishment or censorship for obscene, vulgar, offensively lewd, or indecent expressions.

The RVAA also protects religious expression in class assignments. Codifying existing Supreme Court precedents, students may express their beliefs about religion in homework, artwork, and other written or oral assignments, without discrimination based on the religious content of their submissions.

Kelly Shackelford, president of the Plano-based Free Market Foundation and general counsel of its legal division, said this might be the most overlooked but important protection of the act. He said many teachers feel compelled to halt classroom discussions among students if the students are expressing religious viewpoints.

“The law protects the teachers because it allows the discussion to ensue regardless of religious viewpoints,” Shackelford told the TEXAN.

But he was quick to point out that teachers and administrators can still exercise control over student expressions in classrooms or public forums for speech that is unprotected by the First Amendment.

“The act specifically recognizes that lewd, obscene or uncivil expressions have always been unprotected,” Shackelford said. “But if a student is speaking on topic, districts can’t discriminate against the content of the speech simply because the student comes at it from a religious viewpoint.”

Finally, the RVAA allows students to organize prayer groups, religious clubs, see-you-at-the-pole gatherings, or other religious gatherings before, during, and after school to the same extent that students are permitted to organize other non-curricular student activities and groups. Once again, Howard said this provision simply codifies Supreme Court cases that instruct school districts to treat voluntary student organizations equally and not discriminate against them simply because they are religious.

To encourage districts to enact religious expression policies that comply with the RVAA, lawmakers included in it a model policy. The five-part model policy covers every aspect of the RVAA’s protection of student expression of religious viewpoints generally at school and specifically in class assignments, opening of limited public forums, selection of student speakers at graduation or non-graduation events, and freedom to organize religious groups and activities.

“Here is a policy that, if districts adopt it, will provide a safe harbor protecting them from lawsuits,” Howard said.

Shackelford said some critics have objected to the RVAA’s model policy by claiming it would not reduce litigation nor save dollars. They fear that people who hear the religious expressions of students in limited public forums and are offended by the religious content will sue. Shackelford said this “dollars” objection reveals a basic misunderstanding of the protection the model policy gives to school districts.

“If a district adopts the model policy provided in a state law, and then if that policy is challenged in court, the state attorney general will defend the state law,” Shackelford said. “But if the school district puts together its own policy that doesn’t follow state law, then guess who defends that policy if it is challenged in court? It won’t be the state attorney general because he will have no obligation to defend it; it will be the school district and its taxpayers.”

Shackelford believes Texas’ RVAA is the first of its kind enacted in the United States. Howard is optimistic that other states will enact similar protections for their citizens.

“I encourage Texas parents who have children in public schools to contact their school boards and urge them to adopt the model policy in this bill,” Howard said.

Howard continued: “This act is a win for school children because it gives them a forum for religious expression in public schools. It is a win for administrators because it provides a policy they can enact that follows the law. It is a win for taxpayers because it helps protect them from having to pay for lawsuits against school districts they are funding with their tax dollars.”

The complete text and legislative history of H.B. 3678 can be viewed and downloaded at http://www.legis.state.tx.us.

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