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RESPONSE TO CRITICS
BY Kelly Coghlan

I.
Response to Representative Scott Hochberg’s Article

REPRESENTATIVE HOCHBERG HAS ALWAYS BEEN AGAINST RVAA

Throughout the legislative process, Representative Scott Hochberg led the charge to kill the Schoolchildren’s Religious Liberties/Religious Viewpoints Antidiscrimination Act (“RVAA”).  Not only did he argue and vote against RVAA at every turn, he went so far at to introduce a series of poison pill amendments that would have instantly rendered RVAA unconstitutional.  For instance, Mr. Hochberg first moved to amend RVAA to require that prayer be expressly highlighted in the law for student speakers.  While non-governmental folks are free to encourage students to prayerfully honor God publicly, legislation and governmental officials may not do so.  This amendment would have instantly made RVAA unconstitutional under the Supreme Court’s Wallace v. Jaffrey.  When that failed, he immediately moved to amend RVAA to prohibit any and all prayers from ever being uttered by a student. This amendment would have made RVAA unconstitutional under the Supreme Court’s Good News Club v. Milford.  Mr. Hochberg took two diametrically opposed positions simultaneously—demonstrating that his real intent was to defeat the law by cleverly rendering RVAA unconstitutional.  Mr. Hochberg apparently has nothing against students’ expressions of a religious viewpoint, but only so long as the students are kept in a broom closet so that no one can hear them.  Mr. Hochberg doesn’t like this law and has no interest in seeing this law successfully implemented by any school district or upheld by any court. 

Mr. Hochberg cites parts of the legislative record to make the point that a district is not absolutely required to adopt only the Model Policy.  No one disagrees.  But adoption of and following the Model Policy is the only way to assure a district that it is in compliance with RVAA—one less litigation problem for the district to worry about.  All districts are required to adopt a local policy that must comply with every aspect of RVAA.  The Model Policy of RVAA was field-tested for up to six years in public schools from Texas to Illinois and found to work seamlessly and underwent the scrutiny of numerous constitutional attorneys across the country.  RVAA is a codification of Supreme Court precedent.  The Model Policy was included in the legislation to make it easy for schools to implement and follow the new law.

However, given enough time and putting enough constitutional attorneys on the task, it would, no doubt, be possible to draft a local policy (other than the Model Policy) that would comply with RVAA.  But the TASB policy is not it—according to the legislative authors of RVAA.  Perhaps TASB just did not have enough time.  Perhaps TASB does not have constitutional attorneys on its staff.  But for all the reasons outlined in the TEA letter from the legislative joint-authors, “adoption of the TASB Policy, and similar policies following the TASB model, will put school districts in violation of RVAA.”   According to the same letter, adopting the Model Policy will put the Texas Attorney General on the district’s side of the table.  Does a school district really want to gamble on having to legally defend TASB’s experimentations against the weight of the express legislative intent of RVAA’s joint-authors who have concluded--and put every school district on notice--that any school board that votes to adopt the TASB policy, or one based on the TASB model, is knowingly and willingly breaking the law? 

II.
Response to Dennis Eichelbaum’s Article

Dennis Eichelbaum recently wrote an article taking me to task, personally, concerning my involvement with RVAA as the attorney who drafted the Act.  The missive was so off base, I felt I should respond since RVAA is so vitally important to the 4.5 million school children who will be starting school in a few weeks. 

Over my career I have been privileged to have provided legal services to school board members, teachers, principals, and superintendents seeking legal advice for their school districts, as well as to students. I have been a speaker at school board training seminars, school-law and school administrator conferences, and have written editorials and articles, including a major law review article entitled Those Dangerous Student Prayers, to assist school districts in this area of the law.  At the request of the General Counsel of the U.S. Department of Education I assisted the Department in drafting the “Guidance on Constitutionally Protected Prayer in Public Elementary and Secondary Schools.”  My curriculum vitae is posted under “Attorney Profile” at www.kellycoghlan.com.  I have only had to file one lawsuit against a school, and I did everything I could to avoid it.  The case was Ward v. Santa Fe, resulting in the student being granted the first injunction ever issued by a U.S. federal court preventing censorship of a student’s voluntary public prayer, culminating in a final judgment for the student.  I did not charge the student for representation. 

Assertions to the contrary, I was not an attorney for any of the named parties in Santa Fe ISD v. Doe.  I did file an amici curiae brief, at no charge, for students who wanted to make sure that students’ voluntary expressions of religious viewpoints (including prayerful ones)--whether stated publicly or silently--would be protected under the Court’s ruling.  Although the school district lost because the Court essentially held that students were being coerced to pray, the students I represented won when the Supreme Court held that “nothing in the Constitution as interpreted by this Court prohibits any public school student from voluntarily praying at any time before, during, or after the schoolday.”  Notice the breadth of the Court’s language.  We have posted a “Summary of the Law” at www.kellycoghlan.com.  Once one understands the law in this area, it becomes clear that RVVA is an adoption and codification of Doe v. Santa Fe and subsequent Supreme Court cases, not an attempt to avoid them. 

I love public schools.  My mother was a school teacher in public schools for much of my life.  She was the first woman to obtain a doctorate in education from Texas A&M, and was then Vice-President of Kilgore College.  But in recent times some Texas public schools had begun forbidding children from using the words “Merry Christmas” in December, “Jesus” at Easter, “St. Valentine’s Day” in February, or bringing Bibles to school, or handing out candy-canes due to their religious message.  Public schools were never intended to be religion free zones.  RVAA doesn’t require or even suggest that students express a religious viewpoint, it just protects them if they do.  RVAA is an antidiscrimination law that protects religious viewpoints to the same degree—no more and no less—as secular viewpoints on the same subjects.  It is an equal-opportunity law, providing a level playing field for faith-based expression.  RVAA doesn’t give religious viewpoints special protection, just equal protection.  Religious students don’t get extra rights, just equal rights.  They don’t get preferential treatment, just equal treatment.  If  school students are not allowed to stand up and shout something of secular content, neither can they shout something of religious content.  RVAA was co-sponsored by Democratic Senators Mario Gallegos and Royce West and received overwhelming bipartisan support of 108-28 in the House and 27-3 in the Senate.

Mr. Eichelbaum’s hyperbole seems to be targeted toward scaring schools away from a proven and vetted policy toward something else.  I see where Mr. Eichelbaum is selling on his website (for $60 a copy) his own version of a policy to compete with the State’s recommended Model Policy.  RVAA was not intended to become the financial relief act for school-law attorneys.  It was not intended to become a platform for lawyer turf wars.  It was intended to make it easy and inexpensive for schools to comply with the law.

To understand why the Model Policy does not need to be changed one must first have a good grasp of the Constitutional differences between a “topic/subject” on the one hand and a “viewpoint” on the other.  Unfortunately, most school-law attorneys do not focus their practices on constitutional law.  Before RVAA (including the Model Policy section of RVAA) was introduced as legislation it underwent the scrutiny of numerous constitutional attorneys across the country.  It then underwent extensive legislative hearings and debate.  After the ACLU came to the first hearing, read the bill, heard the testimony, heard the constitutional discussions, and understood what the law was about, they did not show up to speak in opposition to RVAA at any subsequent hearings or anytime thereafter. 

The Attorney General is in the business of defending legislation, and the Model Policy is a part of the RVAA legislation (which is now part of the Education Code).  TASB’s alternative policy is not a part of any legislation (nor is Mr. Eichelbaum’s).  If a school is challenged for adopting and following RVAA’s Model Policy it is an attack on the legislation itself, and a school should clearly enjoy the assistance of the Attorney General in any such suit.  While a school may adopt a different policy, that district will have no assurance of being in compliance with RVAA and will be on its own to defend that policy against legal challenges to its lawyer’s experimentations—wasted taxpayer dollars. 

Before a school adopts one of the competing policies, the school should insist that the drafter of the policy--whether TASB or a private law firm--guarantee the district free legal representation and indemnification of the district against all damages, court costs, and attorney’s fees in the event the policy is found to violate RVAA.  This is the only way to put the matter on a level playing field.  Otherwise, the district is gambling with taxpayer’s money.  Will Mr. Eichelbaum agree to do this?  Will TASB agree to do this? 

The only way a school district can be assured of being in compliance with all provisions of RVAA is for the district to adopt RVAA’s Model Policy.  If a school district adopts and follows the Model Policy, that district is deemed to be in compliance with RVAA.   Why would a school district take the unnecessary risk when a viable, tested, and State approved Model Policy is already included as part of the Texas Education Code.

III.
Response to Megan Hadley’s Article

It is ironic that Megan Hadley would attack the very attorneys who are trying to keep schools out of the courthouse.  If the foundation of Ms. Headley’s logic were correct, then all attorneys who have ever represented a child against a school should be encouraging schools to adopt the TASB alternative policy, as well as those policies following the TASB model, so that more litigation might ensue.  But this is not the case.  The opposite is true. 

Those who would most benefit financially from litigation over schools adopting a policy deviating from RVAA are those representing school districts.  First, the attorneys can benefit by selling school districts their own version of their alternative policy to compete with the State’s recommended Model Policy.  The school-law firm of Schwartz & Eichelbaum, for instance, has a website selling their version for $60 a copy.   Other school-law attorneys are coming up with their own versions and charging schools by the hour.  And, if these schools get entangled in litigation for adopting a deviant policy, the attorneys drafting those policies can then charge by the hour to represent their districts in court.  RVAA was not intended to become the financial relief act for school-law attorneys.  Nor was it intended to become a turf war for TASB to compete with the Texas Legislature.  It was intended to make it easy and inexpensive for schools to comply with the law.   

During the legislative process it is normal for amendments to be suggested, discussed and then either adopted or deleted.  That was the case here.  RVAA was originally written with no civil-suit clause, and it passed the House without such a clause. Although a provision was briefly added by legislators for discussion at the Senate Committee level, school superintendents convinced legislators that no such clause was necessary since schools would want to follow RVAA and would welcome the guidance that has been lacking in this area which RVAA would provide.  The language was then promptly and voluntarily removed at the Committee level and never came up for a vote there or at any other stage in the legislative process.  It is a non-issue.

Here is a suggestion: Before a district adopts one of the competing policies, the school should insist that the drafter of the policy—whether TASB or a private law firm— guarantee the district, in writing, free legal representation and indemnification of the district against all damages, court costs, and attorney’s fees in the event their policy is found to violate RVAA.  This is the only way to put the matter on a level playing field.  Otherwise, the district is gambling with taxpayer’s money.   

The only way a school district can be assured of being in compliance with all provisions of RVAA is to adopt and follow RVAA’s Model Policy.  Why would a school district take the unnecessary risk to do otherwise when a viable, tested, and State approved Model Policy is already included as part of the Texas Education Code.

[Kelly Coghlan is a Houston constitutional trial attorney, Life Fellow of the Texas Bar Foundation, Life Fellow of the Houston Bar Foundation, 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 culminating in a final judgment for the student, and is the legal author of the Texas Schoolchildren’s Religious Liberties/Religious Viewpoints Antidiscrimination Act.  Website www.kellycoghlan.com.  This document’s contents are the personal opinions of the author and are not legal advice, warranties, or representations.  Please consult your attorney]    ŠKC94-07

  

     
   
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