Implementation Of Relivious Viewpoint Policies By Local Districts A Sample Of A Coming Storm

The implementation of the Religious Viewpoints Antidiscrimination Act has become a nettlesome thorn in the side of many Texas school districts in the past few weeks as they struggle to implement policies to make the controversial legislation passed by the 80th Legislature a reality at the local level.

At the center of the storm are the legislators who wrote that act, the Texas Association of School Boards, and right-wing attorneys—all setting a stage that could result in costly litigation for hundreds of school districts across the state.

In order to understand the issue, a little background is necessary.

The 80th Texas Legislature passed House Bill 3678, the Religious Viewpoints Antidiscrimination Act (RVAA) this spring. The bill was not without controversy and, in fact, through the Texas House of Representatives into chaos and has the effect of turning Texas schools into temples of religious prostylization.

The bill’s advocates claim that it is designed to protect students’ ability to express themselves religiously at school events while its detractors claim it is a legislative endorsement of religion in public schools and further erodes the separation of church and state within the confines of schools.

Fast forwarding a few months later, and you find many of the state’s more than 1,000 school districts grappling with how to implement the policy and avoid litigation.

Enter the Texas Association of School Boards (TASB). TASB’s Policy Service, (to which 1,036 Texas school districts subscribe) drafts sample policies for its member school districts to aide them in implementing various and sundry state regulations. In many cases, TASB policy subscriber districts’ boards of trustees adopt the TASB Policy Service’s “sample policies” with minimal changes, since most districts have no in-house counsel to devise the policies for them and don’t have the funds to pay outside counsel to draft a policy each and every time state law changes.

Since TASB’s goal is, essentially, to devise policies for districts which comply with state law but also protect the district’s interests–including keeping ISDs out of court–its sample policies from time to time can spark the ire of the Legislature, which actually wrote the laws TASB seeks to help districts interpret.

TASB’s sample policy for implementation of the RVAA (issued July 27) has sparked quite a controversy, thanks in part to right-wing Houston attorney Kelly Coghlan, who has carried gallons of water for the Religious Right defending prayer in school cases. Coghlan’s firm’s website, in fact, boldly states on its front page, “We practice law by the book,” adjacent to an image of the Holy Bible.

Last Monday, Coghlan issued a missive highly critical of the TASB sample policy. In announcing the publication of the document, Coghlan noted:

Adopting the Act’s recommended model policy is the safest route for school districts and assures the school district of help from the Texas Attorney General in the event of a facial challenge since the model policy is part of the Act. While a school is free to have TASB or others draft a policy, a school will be on its own to legally defend that policy against any legal challenges.

Why would any district take the unnecessary risk when a viable, tested, and approved policy is already part of the new law? As a part of the new Act, the model policy has the imprimatur of the Texas legislature, and thus of the citizens of Texas who elected such officials.

Here are some of Coghlan’s criticisms of the policy:

8. On July 27, TASB emailed all of its Texas school districts a package of documents entitled “Student Expression—Urgent Starting Points” addressing the new Act. Bewilderingly, in addition to the Act’s Model Policy, TASB has submitted to districts what it calls its “Alternative Sample Policy” to compete with the Legislature’s Model Policy. TASB’s Alternative Sample Policy significantly deviates from the Act’s Model Policy and from the Act itself. As part of its Alternative Sample Policy, TASB has added its own definitions to key phrases of the Act, which, in the author’s opinion, find no basis in the Act or in law (and, in fact, are contradictory to the clear words, meaning, and legislative history of the Act). The definitions added by TASB have the effect of severely narrowing and restricting the application of the Act and thwarting the clear language, spirit, and legislative intent.

9. As an example, TASB’s newly added definition of “to publicly speak” is as follows:

For purposes of this policy, “to publicly speak” means to address an audience at a school event using the student’s own words. A student is not using his or her own words when the student is reading or performing from an approved script, is delivering a message that has been approved in advance or otherwise supervised by school officials, or is making brief introductions or announcements.”

Still more:

10. This flies in the face of the language of the Act itself. At Section 25.152 of the Act, the section begins with, “To insure that the school district does not discriminate against a student’s publicly stated…expression…a school district shall adopt a policy, which must include the establishment of a limited public forum for student speakers at all school events at which a student is to publicly speak.” “Publicly speak” is defined in the first part of the sentence as any time something is “publicly stated” by a student. The requirements added by TASB to the meaning of “publicly speak” (per its new definition) fly in the face of the broad language of the Act. Had the Legislature intended to include all of these additional hurdles, provisions, and restrictions before a student could express a religious viewpoint without discrimination, the Legislature would have written it into the Act. The Act speaks in the broadest terms, with no such restrictions. Adding this aberrant definition violates the clear language of the Act itself.

Following the issuance of Coghlan’s missive, State Reps. Charlie Howard (R-Sugar Land) and Warren Chisum (R-Pampa) borrowed a page from the Houston attorney and drafted an open letter [.doc] to Texas superintendents and school board trustees late last week which is being distributed by the Texas Education Agency. In the letter, Chisum and Howard were highly critical of the TASB sample policy:

Furthermore, since the Attorney General defends legislation, and the Model Policy is a part of this legislation, adoption of the Model Policy should assure a district the assistance of the Attorney General in the event of a facial challenge to the district’s adopted Model Policy. While a district is free to have an outside group or person draft a different policy, that district will have no assurance that it is in compliance with RVAA and will be on its own to defend that policy against legal challenges to its lawyer’s experimentations.

If you read the Coghlan missive, that language probably sounds eerily familiar, as it is nearly identical to what Coghlan wrote:

The Attorney General is in the business of defending legislation, and the Model Policy is a part of the Act (which is now part of the Education Code). TASB’s alternative policy and similar policies following the TASB model are not a part of this or any other legislation. If a school is challenged for adopting and following the Act’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 the Act and will be on its own to defend that policy against legal challenges to its lawyer’s experimentations—wasted taxpayer dollars.

This closeness between the Howard-Chisum letter and the Coghlan encyclical is particularly interesting given that a prominent law firm that actually represents school districts discounts Coghlan’s ramblings as a bunch of bunk:

Mr. Coghlan’s article is nothing more than a plea (and a not-so-veiled threat) to schools to adopt HIS model policy. It is important to understand his perspective and motive when determining whether or not to consider his “legal advice.” It is this school attorney’s opinion that districts would be wiser to take their own district counsel’s advice, in light of the Supreme Court’s decision in Doe v. Santa Fe Independent School District.

Mr. Coghlan does not represent school districts. In fact, his experience is that he has represented persons that sued schools. A search of Westlaw shows that he has a total of two cases involving school districts, both being against the Santa Fe Independent School District, and both involving prayer. Mr. Coghlan’s team was on the losing end in the Doe v. Santa Fe Independent School District decision. Mr. Coghlan proclaims himself the “legal author” of the Religious Viewpoints Antidiscrimination Act (”RVAA”); it is now clearer that the RVAA was nothing more than his effort to circumvent the United States Supreme Court decision in Doe v. Santa Fe Independent School District.

Could it be, however, because Coghlan was actually the “author” of the legislation put forth by Howard and Chisum? Coghlan certainly claims he was, in the footnote of his missive:

Kelly Coghlan is a Houston constitutional trial attorney….and is the legal author of the Texas Schoolchildren’s Religious Liberties Act/Religious Viewpoints Antidiscrimination Act. [Emphasis added]

Further, those who read between the lines of the Chisum-Howard letter probably notice that the legislators essentially assure school districts that, if they adopt the TASB model policy, they’ll get sued:

The Legislature has not granted any person or organization rule making authority to, inter alia, add definitions outside of or contrary to the clear language, intent, and legislative history of RVAA or to narrow or change its applicability or efficacy in any manner. Some schools have inquired about the TASB “alternative sample policy” (“TASB Policy”) and similar alternative policies. The TASB Policy significantly deviates from RVAA’s Model Policy. TASB adds definitions outside of RVAA, which are not in the text of RVAA, and which conflict with the clear words, meaning, and legislative history of RVAA. The definitions added by TASB have the effect of narrowing and restricting the applicability of RVAA.

As one example, TASB’s newly added definition of “to publicly speak” is as follows: “For purposes of this policy, ‘to publicly speak’ means to address an audience at a school event using the student’s own words. A student is not using his or her own words when the student is reading or performing from an approved script, is delivering a message that has been approved in advance or otherwise supervised by school officials, or is making brief introductions or announcements.” This narrow definition invites schools to avoid application of RVAA by simply requiring that everything spoken by a student over a microphone (or otherwise) first be “approved in advance” and/or be “supervised by school officials” and/or be deemed as “brief introductions or announcements.” Since all student introductions and speeches are “supervised by school officials” and since a school could begin requiring that all student introductions and speeches be reviewed and “approved in advance,” application of RVAA could be entirely avoided. The text of RVAA (Section 25.152) demonstrates that “publicly speak” finds broad definition via the first part of the sentence as whenever something is “publicly stated” by a student. Had the Legislature intended to include these additional restrictions before a student could voluntarily express a religious viewpoint without discrimination, the Legislature would have written them into RVAA. Similarly, TASB adds a narrowing definition to “school event” although “opening announcements and greetings for the school day,” “football games,” “other athletic events,” “assemblies,” “pep rallies,” and the like, are, at a minimum, “school event[s]” under RVAA. These deviations from RVAA seem to be driven by a basic misunderstanding of the distinction between “topic/subject” (which schools retain authority to set) and “viewpoint.” There are additional parts of the TASB policy and information provided by TASB regarding RVAA which we believe to be inaccurate and incomplete. For these and other reasons, it is our opinion that adoption of the TASB Policy, and similar policies following the TASB model, will put school districts in violation of RVAA. [Emphasis added]

While it is certainly within the bounds of a Legislator’s duties to discuss legislative intent concerning laws passed by the legislator, the Howard-Chisum letter is an encyclical with a reach and degree heretofore unknown relating to such controversial legislation. Normally, when a court addresses a question of “legislative intent,” their primary references are testimony before legislative committees, and floor debate, particularly information included in the House and Senate Journals for the purposes of defining legislative intent—not a letter from two right-wing lawmakers.

Implementation of RVAA policies is already causing difficulties for school districts. The Fort Bend Independent School District created a stir when it violated the state’s Open Meetings Act by discussing the implementation of the policy in a closed session, citing the Act’s provision that items relating to “pending or contemplated litigation” may be discussed in closed session. Though a policy would actually have to be adopted for litigation to even be contemplated against an individual district, FBISD evidently decided to put the cart before the horse, evidently assuming litigation would follow their adoption of the policy.

Other districts, however, have adopted the TASB sample policy—with the consent of their own legal counsel—saying it offers the best protection from litigation, such as Jasper ISD in East Texas.

Too, TASB is defending its actions, in part through canned op-eds published in newspapers around the state.

Of course, thanks to the Religious Right making sure this got pushed through the legislature, the real victims here are children and the fact that all this takes away from instructional issues:

…many school districts support letting students exercise their freedoms of religion and speech. What has them concerned is the time and money that would be spent to fight off lawsuits stemming from students speaking their minds on faith.

“The problem is it comes at the cost of kids’ education,” [National School Board Association senior staff attorney Tom] Hutton said.

[Ed. Note: Capitol Annex has been unable to obtain a copy of the TASB sample policy. However, via Fort Bend Now, we do have a copy of the Fort Bend ISD policy, which we believe is very similar to the TASB sample policy.]

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