Sunday, August 12, 2007

School boards in legal limbo over expression law

By Martha Deller and Jessamy Brown - Star-Telegram Staff Writers - Fri, Aug. 10, 2007
A new law meant to create more opportunities for students to express religious viewpoints in public schools has left Texas school districts in a quandary.

The Religious Viewpoints Antidiscrimination Act, which passed during the spring legislative session, gives districts until Sept. 1 to adopt a policy designating school events where a public forum will be provided for students who want to speak.

The bill, sponsored by state Rep. Charlie Howard, R-Sugar Land, took the unusual step of including a model policy for school districts to adopt.

"We thought it would be very, very simple for them," said Houston attorney Kelly Coghlan, who drafted the law and the model policy. "They could look at the legislation, adopt the policy, and by adopting the policy they would be in complete compliance with the law."

But school district attorneys aren't so sure.

Some are certain that the law conflicts with a U.S. Supreme Court ruling and will lead schools straight to the courthouse.

"Both sides are going to sue," said Dennis Eichelbaum, an Austin attorney whose firm represents about 100 Texas school districts, including Castleberry in River Oaks.

"You may have the ACLU on one side saying this promotes prayer, and you may have Liberty Legal Institute on the other side saying you can't discriminate against this person based on their religious viewpoint."

Districts are getting conflicting advice on adopting a policy to comply with the law.

The Texas Association of School boards has written a sample policy for districts that differs from the model policy, prompting Coghlan to warn school districts that adopting the TASB policy could open them up to lawsuits.

What districts are doing

This week, the Carroll school district's attorney and administrators backed off their original recommendation that the school board adopt the TASB policy.

On Monday, the district's attorneys advised using the model policy, so administrators changed their recommendation and canceled a school board discussion that night.

"We are between the proverbial rock and a hard place. We feel like our best position is to go with the state version," said Derek Citty, Carroll's assistant superintendent for administrative services. "We are trying to the do the right thing by our kids and do something we can defend legally."

Cleburne school officials followed a similar path before deciding to adopt the model policy.

"We were considering the model one, then we looked at the alternative one, then we went back to the model one," Assistant Superintendent Carolyn Cody said.

The Castleberry school district will not adopt the model policy, Superintendent Gary Jones said.

The district plans to adopt either the TASB policy or a version written by Eichelbaum's law firm.

The Grapevine-Colleyville, Mansfield and Arlington school districts, like most others, have not made a decision. The Fort Worth school board will discuss the law at its meeting Tuesday.

Many districts won't have a policy in place by the deadline because "there has not been enough time to make an informed decision," said Joy Baskin, TASB's director of legal services.

Howard, the state representative, said he was surprised by the controversy when he recently returned after nearly a month out of state.

"I understand that the Texas Association of School Boards wants to rewrite the law, which is not their prerogative," Howard said.

Districts do not have to adopt the model policy, so long as they adopt a policy that follows the law.

But in hindsight, Howard said, it might have been better for the Legislature to mandate the model policy because some "renegade administrators may think they don't have to follow the law."

"That's why we have lawsuits," he said.

Religious Viewpoints Antidiscrimination Act

Questions and answers about the new law, the model policy and the TASB policy.

What does the Religious Viewpoints Antidiscrimination Act require?

A school district must adopt a policy that designates school events where students can speak publicly in any capacity. Graduation is the only event that must be included in that list. Districts may designate other events.

The policy must include "neutral criteria" for selecting students who will speak publicly at the event(s).

Districts can adopt the model policy that accompanies the law, the policy drafted by the Texas Association of School Boards or a policy drafted by their own attorneys.

What are some provisions in the model policy that accompanies the law?

Student speakers will introduce football games, and make opening announcements during the school day and other events to be designated by the district.

Students who are eligible to speak include those in the top two grades of the school who are student council officers, class officers in the school's highest grade, football team captains and students in other positions of honor designated by the district.

Students who meet those criteria and volunteer to speak publicly will have their names drawn randomly and assigned to speak at one of the events.

A student must stay on the subject of the event and may not engage in obscene, vulgar, offensively lewd or indecent speech.

The district will state orally or in writing that the district does not endorse the student's speech.

How does the alternative policy drafted by the Texas Association of School Boards differ from the model policy?

Student speakers will be given a forum once a week. They will introduce student pledges and the required daily moment of silence, and they will be given a 30-second forum after the pledges and moment of silence. There is no mention of football games in the TASB policy.

Students who are eligible to speak include those in the highest two grades of the school who are not in a disciplinary placement at the time of the event.

A student must stay on the subject of the event and may not engage in speech that is obscene, vulgar, offensively lewd or indecent; that promotes illegal drug use; that creates cause to believe it will interfere with school activities or others' rights; that violates intellectual property, privacy or personal rights; that defames another person; or that advocates or is likely to incite lawless action.

The TASB policy defines the phrase "to publicly speak" as addressing an audience at a school event using the student's own words in a message that has not been approved in advance. It also states that a public forum for student speech will not be created at events where other students are merely making brief introductions or announcements.

Reactions from two attorneys:

Kelly Coghlan, the Houston attorney who wrote the state's model policy, says the TASB's definition of "to publicly speak" would let school districts avoid the required public forum altogether by simply requiring all student introductions and speeches to be approved in advance. "The act is entirely thwarted and turned on its head via the TASB definitions," Coghlan wrote on his Web site.

Dennis Eichelbaum, an Austin attorney whose law firm represents Texas school districts, says the model policy is an attempt to circumvent the U.S. Supreme Court's ruling in Doe vs. Santa Fe ISD, in which the court held that the Santa Fe, Texas, district's policy of broadcasting student-led prayers at football games was unconstitutional.

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