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Client Alert
August 6, 2007
One Lawyer's Opinion and Response to Kelly Coghlan's
"Important Message to Texas School Boards Immediate Action Needed" Editorial
by Dennis J. Eichelbaum
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.
Let's clarify several important misstatements in Mr. Coghlan's editorial. First, he is correct that districts have the option of adopting the RVAA's model policy, but he is incorrect in implying that adopting and following that policy will mean districts will be "safe" or that the Texas Attorney General is guaranteed to assist the district if sued; either way, the district will still be liable for damages and possibly attorneys' fees if it adopts the RVAA's Model Policy and it is declared unconstitutional.
As a person who sues schools, Mr. Coghlan's opinion that the statutory Model Policy is the "safest, least risky, and least expensive way to comply" with the RVAA may be true when determining whether or not he will sue the school district. However, the model policy goes far beyond what the RVAA requires, and ties a noose around schools giving them minimal latitude in determining how best to implement the RVAA in a particular school district. The statutory Model Policy significantly deviates and adds unnecessary restrictions beyond what is required in the RVAA. Districts should adopt a policy that best serves their needs, using self-determined procedures, and not a "Model Policy" created by someone that has never represented a school district. By way of example, the RVAA did not mandate that there be a student speaker to open football games and make announcements to open the school day, but the model policy does mandate it. School districts can and should decide this for themselves, not the Texas Legislature or Kelly Coghlan.
If Mr. Coghlan's interpretation of the RVAA is correct, then the Legislature intended districts to permit public statements (meaning public prayers or statements from any other social, political, or religious viewpoint) every time a student is to literally utter a syllable at a school function: school plays, concerts, sports (players bark signals), anytime students might cheer aloud, etc. Such an interpretation is overbroad and is not what the legislature contemplated.
Mr. Coghlan attacks TASB and claims it is trying to stop children from expressing their religious viewpoints; that is not what TASB's alternative policy suggests. Mr. Coghlan's rhetoric makes his message clear: adopt his policy, or you are wrong and very well may be sued. The Supreme Court did not accept his interpretation of the United States Constitution, and neither must any school district.
Finally, Mr. Coghlan offers a new opening statement for a school board's public comment or "open forum" portion of regular board meetings, one which apparently even the Legislature would not include in the RVAA. This author does not have the time or the inclination to address all the misleading or misguided statements found in Mr. Coghlan's editorial, as this editorial would probably then be longer than Mr. Coghlan's 33-point (thoughtfully including an outline and instructions for school board discussion of the topic), multi-page epistle. However, this author would implore you to speak with your district's counsel before taking any of Mr. Coghlan's suggestions; your attorney is the one that will be defending you in court.
Upcoming Events
Back by popular demand . . .
Navigating the Religious Viewpoints Antidiscrimination Act WEBINAR
Monday, August 13, 2007
10:00 am-11:00 am
House Bill 3678, also known as the Religious Viewpoints Antidiscrimination Act, requires the board of trustees to adopt a local policy addressing student expression of religious viewpoints for the 2007-08 school year. This Webinar will go through the RVAA with you, discuss the options for schools, the procedural steps for adopting your policy, and the potential pitfalls and legal exposure districts may have as a result of this controversial new law. The way districts comply with this new law could lead them straight to the courtroom, so understand its full implications!
For more information and to register online, visit www.edlaw.com.
www.edlaw.com :: 800.488.9045 :: information@edlaw.com |
