Hochberg On RVAA

[Thanks to a nice email tipster for letting us know about this! ]

Rep. Scott Hochberg (D-Houston) has issued a response to a letter by State Reps. Warren Chisum and Charlie Howard on the implementation of House Bill 3678, the Religious Viewpoints Antidiscrimination Act, which we discussed last week.

Hochberg’s letter, in its entirety, is below the jump and very much worth a read:

I have been contacted by various school district officials regarding the implementation of HB 3678 and, in particular, regarding the correspondence discussing that bill from Mr. Howard and Mr. Chisum which is posted on the TEA site. As you know, I participated in the debate on that bill on the House floor, and much of that debate was transcribed and published in the House Journal for purposes of intent.

I have long been an ardent advocate for religious freedom. I was the primary House sponsor of the Religious Freedom Restoration Act and have passed numerous other bills to protect the right of each Texan to practice one’s religion as one chooses.

Inherent in that right is the right of parents to control the religious training and influences of their children, and this right should not be abrogated by attendance in public schools.

There are several important points concerning the adoption of a policy under the bill which I believe should be emphasized to your membership, as

follows:

1.) This bill clearly allows a district to adopt a policy other than the bill’s model policy. That point was emphasized repeatedly by Mr. Howard, the author of the bill, in floor debate. Here’s one example, from the debate on final passage of the bill as amended by the Senate:

C. Howard: The model policy is optional, if you’ll recall.

Hochberg: I’m sorry?

C. Howard: The model policy that’s in the bill, that is an optional policy, and the school does not have to adopt that policy. They can adopt any policy they want to.

later…

C. Howard: The whole idea is to try to provide a safe harbor for them, but they can develop their own.

Mr. Howard made similar statements in earlier debate on the bill.

Had the Legislature wished to make the model policy the only acceptable policy, it could have easily done so, as it has in other areas of law. But the author, and the attorney who wrote the bill, chose not to present the bill that way, and so the model remains only an example, not a mandate.

2.) Under the bill, districts absolutely can determine when students have the right to express their viewpoints, as long as they do not discriminate against viewpoints based on those viewpoints being religious in nature.

Again, from Mr. Howard’s words during debate on final passage:

C. Howard: … there was some confusion about whether students had the right to speak at all events and not - it said they did - and this clarifies that. It says no, they do not. It’s only when the school specifies the event, and that the school is in control of that.

Again, during the same debate:

C. Howard: the third [amendment] clarifies, and I think I used that word, that the school districts have the ability to determine when the students have the right to speak their viewpoint.

3.) A district does NOT protect itself from lawsuits by adopting the model policy. A district that adopts the model policy at most protects itself only from a lawsuit claiming that the district failed to follow this new law.

But, according to recognized experts in Constitutional law, adopting the model policy in the bill opens districts up to a range of potential Constitutional litigation. Douglas Laycock (Alice McKean Young Regents Chair in Law Emeritus, The University of Texas at Austin), who has argued similar issues before the U. S. Supreme Court, analyzed the model policy as follows:

“…it imposes enormous litigation risk on every school district in Texas. Schools will be sued; schools will chew up money on lawyers; and at least some schools will lose, get enjoined, and have to pay the plaintiff’s lawyers. Even if some schools win and the bill is upheld in some applications, it will be invalidated in others and those schools will lose.

And the schools will have almost no control over whether they win or lose, because so much may depend on the choices of students and who the student leaders turn out to be.”

4.) Contrary to Mr. Howard’s correspondence, the Attorney General of the State of Texas is under no obligation to defend or assist in the defense of a school district in any potential legal action brought because of the adoption of the model policy.

In addition to Mr. Howard’s letter, I understand there is also correspondence circulating from Mr. Kelly Coghlan, the attorney who drafted Mr. Howard’s bill. A letter posted on Mr. Coghlan’s web site encourages students to use the speaking opportunites provided by the bill to lead prayers. The letter asserts that prayer is an “expression of a religious viewpoint” as described by the bill and is therefore protected by the bill.

That assertion, however, is one the legislature explicitly rejected, by rejecting an amendment I offered which said that the religious expression to which the bill referred would include prayer. Mr. Howard successfully argued that the House should defeat that amendment. (The House also defeated a subsequent amendment that said that prayer was not an expression of religious viewpoint in the context of the bill, after those opposing the amendment argued that it was unnecessary.)

Regardless of what Mr. Coghlan argues, this bill does not, and cannot, change Constitutional case law regarding school prayer. The Texas Education Code expressly permits a student to pray silently on his or her own account [Education Code, Section 25.901], and the courts have upheld the right to establish voluntary reglious clubs at school. But the U.S. Supreme Court has NEVER endorsed preaching to a student audience in a public school or at a public school event, by a student or anyone else, and has rejected such schemes repeatedly.

Districts should exercise care when attempting to implement this new law.

They should recongize all of the Constitutional issues at play, not merely whether the policy they adopt meets the new law.

I have forwarded a similar letter to Acting Commissioner Robert Scott.

You may post or distribute this correspondence as you wish.

Sincerely,
Scott Hochberg
State Representative
Member, House Committee on Public Education

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