MESSAGE TO NON-TEXAS SCHOOL BOARDS
 
BY KELLY COGHLAN

1.      Texas has adopted the “Schoolchildren’s Religious Liberties Act” (also known as the “Religious Viewpoints Antidiscrimination Act”) with the intent of bringing Texas schools into compliance with existing Supreme Court precedent.  Since the Texas Act codifies present U.S. Supreme Court holdings, the provisions of the law (and recommended model policy part of the law) should be of interest to school districts located in all states desiring their schools to be in compliance with Supreme Court precedent. 

2.      Every school board member and superintendent in every state should seriously consider adopting the model policy portion of the Texas Act as its own local policy.

3.      Every school board member and superintendent should read the following documents (all of which can be printed from this website):

a.    Copy of New ACT ("School Children's Religious Liberties Act").

b.      Model Policy.

c.      US Department of Education Prayer Guidance.

d.    Why a Model Policy

e.      Any other documents from this website.

4.      In support of the provisions of the model policy, one should read the U.S. Department of Education issued “Guidance on Constitutionally Protected Prayer in Public Elementary and Secondary Schools” (“Prayer Guidance”).  As a condition to receiving federal funds, each school district in America must annually certify that it “has no policy [that] prevents, or otherwise denies participation in, constitutionally protected prayer in public elementary and secondary schools as set forth in this guidance.”  The Prayer Guidance makes it clear that voluntary prayer and other faith-based expression publicly stated by students over school microphones is allowable at student assemblies, extracurricular events, and graduations if an appropriate student speaker policy has been enacted by the school district.  Any person can report a school district to the U.S. Department of Educations that is out of compliance with the Prayer Guidance.  If a school district is found to be out of compliance, it can lose its federal funding (requiring the short-fall to be made up through higher taxes). 

5.      Recognizing that most schools’ lawyers are not constitutional specialists and do not feel that they have the expertise draft such a policy, Kelly Coghlan, one of the attorneys who helped the U.S. Department of Education formulate the Prayer Guidance, drafted a model policy that translates the Prayer Guidance into a usable local policy for school districts.  It is the same model policy that is now part of the Texas statute. 

6.      If you are a school district outside of Texas, you can adopt the same model policy that is suggested in the Texas Act targeted to bring your school into compliance with the U.S. Department of Education Prayer Guidance and with holdings of the United States Supreme Court.

7.      If a school district decides that there is even one time that the school will permit a student to publicly address an audience at a school event (including graduations), then the school district needs a written policy covering student speakers.  The school district has written polices addressing most every other conceivable issue, and it certainly needs one addressing this important one concerning student expression.  If there is no written policy, it leaves the school district open to law suits. If a student speaker says something that someone does not like, and there is no written policy, then the speech of the student may be attributable to the school district.  If suit is filed against the school district to hold the school district responsible for the content of the student’s speech, how will the district defend itself with no written policy in place?  It will just be left up to the court to guess, and that is not the legal position that any school district wants to find itself. 

8.      In adopting any policy, including the model policy discussed here, school officials may not be motivated by either of the following: (1) the hope that students will pray or express some other religious viewpoint, (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 for prayerful or other religious speech, as opposed to similar secular or other speech, is speculation regarding which a school board must not indulge and must not interject into discussions or considerations. 

9.      It would be just as unconstitutional for a school board to reject a student speaker model policy for the purpose of preventing prayer as it would be for the same school board to adopt a student speaker model policy for the purpose of promoting prayer.  These actions would represent the two extremes of the same unconstitutional governmental non-neutrality.  In the first instance, the impermissible governmental purpose would be to discourage and prohibit the free exercise of religion, violating the Free Exercise and Free Speech Clauses, and in the second instance the impermissible governmental purpose would be to encourage and establish religion, violating the Establishment Clause. 

10.  The first two clauses of the First Amendment to the United States Constitution state:  Congress [a term interpreted to include school districts and school officials] shall make no law [a term interpreted to include school policies and practices] respecting an establishment or religion, or prohibiting the free exercise thereof."  A school board member's support for a student speaker policy must be based on secular (not religious or pro-prayer) grounds.  Likewise, a school board member's opposition to a student speaker policy must be based on secular (not anti-religious or anti-prayer) grounds.

11.  Non-government citizens may talk all they want about how they support or oppose prayer and religious viewpoints, but school board members must avoid doing so and avoid making this a consideration in deliberations and decisions. 

12.  Why the drastic difference between what ordinary citizens can do as contrasted to what school board members can do?  Because the First Amendment of the Constitution applies only to what government officials (school board members, superintendents, teachers, coaches, and the like) may or may not do in their official capacities.  The First Amendment does not apply to actions of ordinary citizens.  The Constitution does not prohibit individual citizens from doing acts that tend either to establish or discourage religion.  Only the government and government officials are required to be neutral on the topic or religion while acting in official governmental capacities. 

13.  Thus, each board member must vote based upon whether or not he or she believes that worthy educational purposes and goals can likely be advanced by enacting a policy providing students with speaking opportunities.

14.  Any school board meeting set to consider the issue of a student speaker policy will likely draw those who wish to speak for or against "prayer" rather than secular reasons for adopting or rejecting a student speaker policy.  The district should therefore take affirmative steps to protect itself 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 should read a prepared disclaimer (and enter it into the official record) that makes clear that the school district is not legally allowed to act with a religious or anti-religious purpose:

As citizens who address the board, you are free to express your views on religious subjects, the existence or non-existence of a Supreme Being, 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 of Discussion and Consideration for School Board Members:

1.      As a policy matter, should the school district allow student speakers at any of its school events (including graduations)?

a.      Discuss: What are the educational and other secular reasons for prohibiting student speakers at school events?  List them:

                                                               i.      _____________________________________________

                                                             ii.      _____________________________________________

b.      Discuss: What are the educational and other secular reasons for permitting student speakers at school events?  List them:

                                                               i.      The opportunity presents educational opportunities for students in the areas of speech, English, grammar, and civics; [i]

                                                             ii.      The opportunity gives students experience with speaking in public, organizing their thoughts, and making a concise oral presentation before an audience;

                                                            iii.      The opportunity gives students a greater sense of ownership in their school's activities/events through student involvement;

                                                           iv.      The opportunity promotes a continuation of student maturity, growth, and education by placing additional responsibilities upon students;

                                                             v.      Introductions of various school events by students provide a method for marking the opening of school events that provide student participation and involvement; [ii]

                                                           vi.      Introductions of various school events by students provide a method of bringing the audience to order;

                                                          vii.      Introductions of various school events by students focus the audience on the purpose of the event;

                                                        viii.      In the case of graduations, there are certain students who have earned the right to speak. 


i Rather than merely learning about speech, English, grammar, and civics, public speaking involves students in the actual practice and application of these subjects.  Students involved in speaking at events have to organize their thoughts, author, prepare, practice, and deliver a concise oral presentation before a live audience, providing these students with 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 any 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 after high school. 

ii In public schools, students participate in numerous recurring activities having natural beginnings and endings, such as sporting events, graduations, assemblies, and the school day itself.  Just prior to the start of each activity, there is usually noise, walking around, and talking.  Attaining attention, silence, and focus normally requires some act to mark the beginning of each occasion.               ŠKC06-07