Let’s Get Ready to RRRRRRRRRRRRRRRRRRRRRumble!

The RVAA: Religious Viewpoints Antidiscrimination Act

House Bill 3678 or the Religious Viewpoints Antidiscrimination Act (“RVAA”) may be the most controversial school legislation to arise out of this year’s legislative session.  Even if it is not the most controversial, it is easy to anticipate it will become the most litigated new statute.  Already sides are lining up, with the attorney who helped draft the bill ‘warning” that school districts that  pass TASB’s “alternative” policy will be sued.

The RVAA mandates that each Texas school district adopt and implement a local policy regarding a limited public forum and voluntary student expression of religious viewpoints. It is the policy itself, the fact that it is effective beginning with the 2007-08 school year—which is less than a month away—and the potential for challenges that have so many people concerned. The alleged purpose of the RVAA was to insure that districts did not discriminate against student speech based upon the viewpoint or content of the speech, in particular religious speech.  Of course, students have always had the right to speak about religion the same way that they have a right to discuss politics at school; so long as the speech is not obscene, vulgar, offensively lewd, or indecent. As we all know, therein may lie the first issue for a lawsuit; one person’s definition of the vague term “vulgar” may differ from the next person’s definition.

The statute requires every school district to create a limited public forum for every school event at which a student is to publicly speak.  While previously the district could decide for itself whether any particular event would be treated as a limited public forum, the statute has now eliminated that local option. The statute requires district to select school events at which students will publicly speak in any role or capacity.  The statute mandates that graduation be included in the list.  Although the model policy and TASB’s “alternative policy” lists other specific events, there is no requirement under the law to include additional events, and there is no requirement that the policy itself list the events. It is the local district’s choice which, if any, public events or activities in addition to graduation will be ones at which students have a public speaking role.   Possible events may include but are not limited to: pep rallies, assemblies, football games or other athletic events or school competitions, school announcements, daily opening activities, etc.

The RVAA also requires the district to use neutral criteria for selecting the students who will publicly speak at events on the district’s list including graduation.  Again, the district selects the neutral criteria.  The RVAA requires the district to read or distribute a written statement (or both)  that the student’s speech does not reflect the endorsement, sponsorship, position, or expression of the District. What a district selects as its “neutral criteria” could certainly lead to litigation if the criteria tends to silence minority religions, etc.

The RVAA also addresses “classroom assignments.” The RVAA states that students who submit work stating a religious viewpoint may not be penalized or rewarded based upon any religious content reflected in their assigned work (including artwork and speeches) and may be graded only on the academic standards of substance, relevance, and other legitimate pedagogical concerns.  Teachers, then, might want to be more specific with regard to their assignments.  One can already see the potential for class conflicts when a student as part of their speech says something controversial or offensive to some, then claims it was their “religious viewpoint.”

Finally, the RVAA addresses religious student groups and activities. Hopefully, this will not be a change in the district’s practices, since the Equal Access Act already required districts choosing to permit non-curriculum-related  groups to meet on campus to also permit religious non-curriculum-related student groups or organizations to meet before, after, or during school hours on school property.  That has not changed. 

The Texas Legislature took the unusual extra step of  providing a “Model Policy” that, if adopted by a school district, will be considered to be in compliance with the RVAA. The “Model Policy” goes well beyond the minimum requirements of the RVAA, including requiring students at all schools to participate in opening announcements or greetings, etc.  The “Model Policy” leaves minimal discretion for schools to implement the Act. Rather than giving the local district the option to determine its own neutral criteria for selecting students, it establishes a rigorous policy that may or may not withstand judicial scrutiny.

The main concern for judicial challenge is based on the United States Supreme Court’s decision regarding student-led prayers at football games, Doe v. Santa Fe Independent School District, 530 U.S. 290 (2000).  In that decision, the Supreme Court held that the student led prayers at football games under Santa Fe ISD’s policy promoted religion and were unconstitutional for the following reasons:

1.         The student speaker used the school’s equipment and was part of the football program, thereby creating a perception of endorsement by the school district.  Interestingly, the Supreme Court made this finding even though the school had a “non-endorsement statement” similar to the statutorily recommended language found in the RVAA.

2.         The student speaker was elected by other students.  The Supreme Court found that electing a student speaker would tend to result in the majority’s religion always being selected, thus squelching minority religion rights and opportunities. 

3.         Some students had to be present at the football games.  The Supreme Court reasoned that because football players, band members, and cheerleaders had to be present, they were essentially a captive audience, making the football games not optional but rather mandatory for purposes of grades.

Ironically, it was one of the attorneys involved in the Doe v. Santa Fe ISD litigation, Kelly Coghlan, who is now threatening that districts will be sued if they do not adopt the RVAA’s “Model Policy.” 

The following are our specific concerns with the RVAA’s “Model Policy” based upon Doe v. Santa Fe ISD:

Student speakers shall introduce: football games… opening announcements and greetings for the school day.  Schools may or may not want student speakers for these events.  Moreover, schools may want to limit student speakers to certain grade levels and might not want a K-2 campus having student speakers for opening announcements, etc.

Only those students in the highest two grade levels of the school and who hold one of the following honors based on neutral criteria are eligible to use the limited public forum: student council officers, class officers of the highest grade level in the school, captains of the football team, and other students holding positions of honor as the school district may designate. Schools may not want limitations such as the highest two grade levels or may want only the top grade level (these same requirements are found in the TASB alternative policy).  Limiting the speakers to student council officers and other elected offices runs the risk of challenge under Doe (#2).

An eligible student shall be notified of the student's eligibility, and a student who wishes to participate as an introducing speaker shall submit the student's name to the student council or other designated body during an announced period of not less than three days.  The announced period may be at the beginning of the school year, at the end of the preceding school year so student speakers are in place for the new year, or, if the selection process will be repeated each semester, at the beginning of each semester or at the end of the preceding semester so speakers are in place for the next semester.  The names of the volunteering student speakers shall be randomly drawn until all names have been selected, and the names shall be listed in the order drawn.  Each selected student will be matched chronologically to the event for which the student will be giving the introduction. Each student may speak for one week at a time for all introductions of events that week, or rotate after each speaking event, or otherwise as determined by the district.  The list of student speakers shall be chronologically repeated as needed, in the same order.  This is a very structured process and may not be the process a district prefers. Districts should create a process that best suits their particular needs.

The school district hereby creates a limited public forum consisting of an opportunity for a student to speak to begin graduation ceremonies and another student to speak to end graduation ceremonies… Only students who are graduating and who hold one of the following neutral criteria positions of honor shall be eligible to use the limited public forum:  student council officers, class officers of the graduating class, the top three academically ranked graduates, or a shorter or longer list of student leaders as the school district may designate.  A student who will otherwise have a speaking role in the graduation ceremonies is ineligible to give the opening and closing remarks.  The names of the eligible volunteering students will be randomly drawn.  The first name drawn will give the opening and the second name drawn will give the closing.  While the district is obligated to permit a student speaker at graduation, there is no requirement to go beyond valedictorian (the typical student speaker) unless the school chooses.  There is nothing in the RVAA or the selection process put forth in the “Model Policy” that mandates three student speakers.

Although school boards across the state will be pressured to adopt the statutory “Model Policy” and many may choose to adopt that policy, they should understand that they are not required to adopt that specific policy.  Boards need to carefully consider the options and legal issues involved to make a decision that is best for their students, school districts, and communities.