Dear Superintendent:
On June 8, 2007, Governor Perry signed H.B. 3678, which is also known as the Religious Viewpoints Anti-Discrimination Act. While this Act has not received a high level of public attention, it will affect your district in the next few months. A copy of H.B. 3678 has been posted on our website at www.dubnerlaw.com.
This Act is the legislature’s answer to recent court cases prohibiting prayer at school district events, such as football games and school board meetings. This Act permits student prayer during opening announcements and greetings for the school day, athletic events, board meetings, graduation and any other school-related events where students may publicly speak. More specifically, H.B. 3678 requires school districts by policy to create a limited public forum for student speakers at all school events at which a student is to publicly speak.
More specifically, the school district’s limited public forum policy must:
- Provide the forum in a manner that does not discriminate against a student’s voluntary expression of a religious viewpoint
- Provide a method, based on neutral criteria, for the selection of student speakers at school events and graduation ceremonies
- Ensure that a student speaker does not engage in obscene, vulgar, offensively lewd or indecent speech
- State, in writing, orally or both, that the student’s speech does not reflect the endorsement, sponsorship, position or expression of the district
The legislature has included a “model policy” in the Act. A school district that adopts the model policy is in compliance with the Act. Depending on your district’s circumstances, you may choose to either adopt the “model policy” or create your own.
This statute appears to be contradictory to recent federal cases including the United States Supreme Court decision in Santa Fe Independent School District v. Doe (no prayer at football games) and the 2006 Fifth Circuit decision in Doe v. Tangipahoa Parish Sch. Bd. (a school board may not open its meetings with a sectarian prayer). I believe there is a strong possibility that this Act may face a constitutional challenge. Nevertheless, the Act is currently law until a court says otherwise.
This Act places school districts in a precarious position. Requiring school districts to adopt the model or similar policy may result in school district being liable for violating the United States Constitution. Not adopting such a policy will result in school districts violating Chapter 25 of the Texas Education Code. For those of you who think you are protected because you followed state law, think again. There have been Fifth Circuit cases that have held school districts liable even when the district was complying with Texas law. Moreover, individual employees may not have immunity when they are sued for complying with this Act.
The threat of legal challenges requires school districts to use caution when drafting the local policy. I suspect there will be multiple legal challenges. We will need to work closely together in order to minimize potential legal challenges.
If you have specific concerns about how to implement this policy or would like a more detailed explanation regarding potential liability and how to minimize possible litigation, please feel free to give me a call. As always, you can view this and other school law updates on our website.