A new Texas law intended to protect the rights of students to religious expression when they speak at school events such as football games and morning announcements has sent hundreds of districts scrambling to adopt customized policies—and left some nervous about the prospect of lawsuits.
The policies are being adopted under the Religious Viewpoints Antidiscrimination Act, or RVAA, approved resoundingly by the legislature in April and intended to clarify how Texas school districts apply the First Amendment of the U.S. Constitution, and to give compliant districts a shield against lawsuits.
Although districts rushed to adopt the policies before the 2007-08 school year began, many school officials were miffed by what they saw as a heavy-handed effort by the state to dictate local policy, and were skeptical about whether religious intolerance in school was a significant problem to begin with.
“There are already a lot of opportunities for students to express their religions, whether it’s prayer around the flagpole, prayer with friends around lunch,” said Richard M. Abernathy, a lawyer whose firm represents about 25 districts, including the 33,000-student Plano school system.
The law generated fierce debate and publicity before and after its enactment.
In legislative hearings, several parents testified that their children had been prohibited from wishing soldiers “Merry Christmas” at school, or from passing out pencils printed with the slogan “Jesus is the Reason for the Season.”
“Texans take their religion very seriously,” said one participant in the debate, Kathy Miller, the president of the Texas Freedom Network. Her Austin-based nonprofit citizens’ group, which says it has a membership of 28,000, campaigned unsuccessfully against the law.
‘Limited Public Forum’
The new law, signed by Gov. Rick Perry, a Republican, in June, states that to assure that a district will not discriminate against students’ expression of religious viewpoints, the district “shall establish a limited public forum for student speakers at school events in which students are to publicly speak.”
Texas State Legislature
Student Speakers at Nongraduation Events
The school district hereby creates a limited public forum for student speakers at all school events at which a student is to publicly speak. For each speaker, the district shall set a maximum time limit reasonable and appropriate to the occasion. Student speakers shall introduce:
(1) football games;
(2) any other athletic events designated by the district;
(3) opening announcements and greetings for the school day; and
(4) any additional events designated by the district, which may include, without limitation, assemblies and pep rallies.
Texas Association of School Boards
Introductory Speakers
Student speakers shall be given a limited public forum to introduce:
1. [List events that student speakers may introduce. Specify events by campus level, e.g., “high school football games.”]
Plano School District
Introductory Speakers
Notwithstanding any other provision of this policy, student speakers shall be given a limited public forum to introduce:
1. daily announcements at campuses where there is a public address system; and
2. any additional events designated by the district.
SOURCE: Education Week
A limited public forum, according to federal court rulings, is a venue—for example, an assembly podium, school announcement period, or even an Internet discussion board—that the state has made available to the public for expressive activity. In the public school context, when a student is speaking in a limited public forum, teachers or school officials generally cannot interfere unless the student makes statements that are obscene, defamatory, or disruptive.
But, in an unusual move, the Texas law also includes as part of its text a complete model policy for school districts. That policy, which the law’s prime backers urged school boards to adopt verbatim, says that school football games, morning announcements, and graduation ceremonies are among the events that will be considered limited public forums.
The policy also says that districts should publish disclaimers at graduation ceremonies and other events so they would not appear to endorse students’ expression of religious views. And it states that schools should use neutral selection methods to designate student speakers, without reference to religious beliefs.
Elements of the policy rankled some district officials, in part because the recommended policy was too specific about spelling out what would be considered a limited public forum.
But the bill’s main authors, Reps. Charlie Howard and Warren Chisum, both Republicans, sent a letter to all the state’s school boards saying that by adopting the policy, a district would be insulated from court challenges based on the law, which would be defended by the Texas attorney general. The Texas Education Agency also issued a letter to school boards endorsing the model policy.
The representatives’ letter also suggested that an alternative policy developed by the Texas Association of School Boards, or TASB, “significantly deviates” from the model policy and would “put districts in violation of RVAA,” referring to the law.
‘Unattractive’ Options
Officials of the school boards’ group, however, bristled at the suggestion that local officials were compelled to follow the prescriptive state guidelines.
“The entire purpose of offering an alternative was to demonstrate to school districts how they could choose, either by using the TASB policy or creating their own, that they had an opportunity to make their own changes,” said Joy Baskin, the director of legal services for the Texas school boards’ group, based in Austin.
The association, which provides its policy service to approximately 1,000 Texas school districts, has not finished collecting information about how various districts have chosen to comply with the law. But Ms. Baskin said it appears that a majority of districts adopted customized policies that drew both on the one in the law and on the TASB alternative, though hundreds of districts have adopted the state model, she said.
Not all districts rushed to have a policy in place before the start of school.
William C. Bednar, an Austin lawyer, said last week that the four districts that he represents have not yet approved policies. “We’re trying to find a policy course for the districts that we represent that would be in substantial compliance” with the law and at the same time avoid legal risks, he said.
Acting too hastily, Mr. Bednar said, would also expose the districts to legal risks. “Would you rather be sued in state court for not complying with the act than in federal court for violating the First Amendment?” Mr. Bednar said. “It’s an unfortunate and unattractive choice of options.”
Mr. Abernathy, who represents the Plano school district, said that district looked at the legislature’s model policy and cut elements that didn’t apply. Football games, for instance, do not typically have student introductions in Plano, and public announcements are typically done by students only at the elementary level.
Rather than add football games and other events as an occasion for limited public forums, the Plano school board passed a policy stating that if a school wants to have student introductions, the principal must make a request to the district. The legal protection that the law and policy provide remains to be seen, Mr. Abernathy said. He noted that, in a limited public forum, students may express ideas on any topic—not just on religion—that are arguably related to the occasion, as long as they are not defamatory or obscene.
And many observers said they believe that lawsuits may soon appear testing districts’ application of the new law. “It’s pretty universal that [districts] see there will be litigation,” Dennis Eichelbaum, an Auston-based lawyer said. “One of the nicknames for the bill is that it’s the ‘Lawyers’ Retirement Fund Act.’ ”
