New Law Creates Opportunities for Student Free Speech
The following article is reprinted with permission from the Education Reporter, a publication of the Texas Association of School Boards.
The topic of religion in public schools received a great deal of attention during the recent Texas legislative session. Whenever that emotional topic is part of a public debate, we are likely to hear some people claim that courts have “kicked religion out of school.”
In fact, the expression of religious viewpoints is still very much permitted in
public schools.
Constitutional Principles
The United States Constitution protects the right of individual students to express personal religious viewpoints. School districts, however, cannot endorse religious views or establish a preference for or against religion. In the words of the United States Supreme Court, “There is a crucial difference between government speech endorsing religion, which the Establishment Clause forbids, and private speech endorsing religion, which the Free Speech and Free Exercise Clauses protect.”
Both the constitutionally protected freedom of individuals to express their own private religious views and the prohibition on government endorsed messages for or against religion work together to offer Americans the greatest possible religious liberty. Nowhere is that powerful balance more dynamic than in our public schools, where the interests of students, parents, religious and community leaders, and school officials intersect.
The freedom of individual students to express their own religious views in private conversations and to pray alone or in groups is well established. Questions remain, however, about students’ rights to express their individual views or pray when they are speaking publicly at school-sponsored events.
New Texas Law
Hoping to clarify this point, the Texas Legislature has passed a new law about student religious expression. House Bill 3678, also called the Religious Viewpoints Anti-discrimination Act (RVAA), addresses four general areas:
freedom of religious expression, student speakers, religious expression in class assignments, and freedom of association. The RVAA takes effect with the 2007–2008 school year.
No viewpoint discrimination:
The law requires districts to treat a student’s voluntary expression of a religious
viewpoint on an otherwise permissible subject in the same manner the district treats a student’s voluntary expression of a secular or other viewpoint on the same topic. This section prohibits discrimination against a student based on the student’s religious viewpoint.
Student speakers:
The law also requires districts to adopt a policy that establishes a limited public
forum for student speakers at all school events at which a student is to publicly speak. The policy must also:
Expression in class assignments:
The law states that students may express their beliefs about religion in homework, artwork, and other written and oral assignments. Homework and other assignments must be judged by
ordinary academic standards of substance and relevance and against other legitimate pedagogical concerns identified by the district. Districts may not penalize or reward students based on the religious content of their work.
Freedom of association:
The law states that students may organize prayer groups, religious clubs, “see you at the pole” gatherings, and 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. Districts must give religious groups the same access to facilities as given to other non-curricular groups, without discrimination based on the religious content of the group.
Similarly, groups that meet for prayer or religious speech must be permitted to advertise or announce their meetings to the same extent as nonreligious groups. A district may disclaim sponsorship of non-curricular groups in a manner that neither favors nor disfavors groups that meet to engage in prayer or religious speech.
Required Local Policy
The law specifically requires districts to adopt a local policy establishing a limited public forum and protecting voluntary student expression of religious viewpoints. The law includes a model policy, and a district that adopts and follows this policy is deemed to be in compliance with the
other provisions of the RVAA.
The model policy provides for student speakers at football games; any other athletic events designed by the district; opening announcements and greeting for the school day; and any additional event designated by the district, such as assemblies and pep rallies.
For each of these events, the district must select a student speaker from the highest two grade levels at the school who holds one of the following positions of honor: student council officers, class officers of the highest grade level of the school, captains of the football team, and other positions of honor designated by the district. Students from these groups may volunteer for selection and are then selected randomly by drawing names. Each student selected speaks for a week, or on another schedule designated by the district.
The model policy states that the subject of the student introductions must be related to the purpose 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. The student must stay on the subject and may not engage in obscene, vulgar, offensively lewd, or indecent speech.
The model policy prohibits discrimination based on a secular or religious viewpoint and provides for a disclaimer of school sponsorship of the speech. The model policy contains similar provisions for speeches by sports team captains, homecoming kings and queens, and the like, and provisions relating to graduation speeches.
From the Law Books to the Campus Loudspeaker
For many, the implementation of this new law will create more, often welcome opportunities for students to express their personal views on a variety of topics, including religion. But school officials also will face challenges in implementing this new law. During the legislative session,
TASB did not oppose this bill but did express concerns about the challenges it would create in the public school environment.
What Are the Possible Challenges?
Discipline: The constitutional foundation of this new state law is that students, not the school district, will decide what to say within a limited public forum. Students may say whatever they wish, including expressing religious views and praying. If, however, the student speaker expresses a minority religious viewpoint, that speech may provoke controversy. Moreover, students are not limited to expressing religious views; they may express any viewpoint on the designated topic without fearing disciplinary consequences. The law says the district must prohibit speech that is obscene or offensively lewd, which are concepts defined in Supreme Court cases. Short of this high standard, however, student speech must be tolerated.
Discrimination: In light of this open opportunity for free speech, even offensive speech, opponents of the new law express concern that hate speech and other discriminatory speech will now have a forum in public schools.
Dollars: Finally, no matter how school officials feel about the opportunities and challenges created by this new law, trustees will not be able to ignore the bottom line. Introducing
controversial speech into the public school setting raises the possibility of legal challenges from all sides: minority-view families who feel student speeches are too one-sided; majority-view families offended by hearing a minority view; citizens who object to the law itself; and citizens
who claim the district has not gone far enough in implementing the law.
The legal and financial risks generated in this emotional environment will naturally be of concern to all school officials as they seek to fulfill their fiduciary responsibility to their school districts
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