Using Texas’ model, more states mull ‘religious viewpoints’ in schools law

Two years ago, a group of high school cheerleaders in East Texas sued their public school district after the superintendent barred them from carrying banners at football games that read, “I can do all things through CHRIST which strengthens me” and “thanks be to God, which gives victory through our Lord Jesus Christ.”

In their lawsuit against Kountze Independent School District, which garnered national press coverage, the cheerleaders found a very high-profile supporter: Texas Attorney General Greg Abbott.

When Abbott, who is now the Republican gubernatorial nominee, intervened on the cheerleaders’ behalf, he said he did so “to defend the cheerleaders’ right to exercise their personal religious beliefs and to defend the constitutionality of a state law that protects religious liberties for all Texans.”

Abbott was referring to a little-known Texas law enacted in 2007, the Religious Viewpoints Antidiscrimination Act (RVAA), also known as the Schoolchildren’s Religious Liberty Act. The law requires school districts to treat student religious expression equally with nonreligious expression in classroom assignments and in the organization of school clubs.

The RVAA is “part of a larger effort to erode existing Establishment Clause protections in public schools,” said Daniel Mach, director of the American Civil Liberties Union Program on Freedom of Religion and Belief. The Texas RVAA and copycat bills in other states “are plainly intended to encourage public schools to promote prayer and other religious expression.”

Most controversially, the RVAA requires schools to permit student speakers to engage in religious speech throughout the school day and at school-sponsored activities, which critics say could include anything from morning announcements to pep rallies to football games to graduation ceremonies.

Advocates of church-state separation say the RVAA is unconstitutional, as it effectively opens the door to school-sponsored prayer, and invites favoring majority religions in the selection of students to deliver religious messages.

Tennessee has become the first state to follow Texas’ lead. Since Texas enacted the RVAA, other states’ efforts to enact RVAAs failed to advance through their legislatures until both Tennessee and Virginia passed their own versions this year.

Gov. Terry McAuliffe, a Democrat, vetoed the Virginia bill, saying it could result in “coercive prayer” and “religious messaging” in public schools. But Tennessee Gov. Bill Haslam, a Republican, signed his state’s version into law on April 10. Other states to consider RVAAs this year include Oklahoma, Kentucky, West Virginia, Mississippi, Alabama and Georgia.

In Tennessee, lawmakers say they introduced the bill in response to a complaint by the parents of a 10-year-old girl who said her teacher rejected her choice of God as a topic for an essay assignment about the person the student admired most. But critics say the First Amendment already adequately protects student rights in such a scenario.

The girl’s story became the rallying cry for supporters of the RVAA.

Mach said the bills are both “unnecessary and constitutionally problematic.” They are unnecessary, he said, “because the fundamental right of students to voluntarily express their faith is alive and well in the public schools.” These RVAAs, he went on, “go further, pushing schools to create opportunities for religious indoctrination from the school’s official podium.”

Opponents of these laws are raising alarm bells about their possible consequences. After the Tennessee bill passed, Charles Haynes, director of the Religious Freedom Center of the Newseum Institute in Washington, D.C., expressed concern for the “potential for abuse” of these laws, because “in communities where one religion dominates, school officials may view these laws as a doorway to promote the majority faith — doing through students what the school may not do itself.”

The ACLU of Tennessee had urged Haslam to veto the bill, saying it is “unnecessary and confusing” and “actually invites schools to violate students’ right to be free from coerced participation in religious activity.”

In addition, critics charge that the Tennessee RVAA could be exploited to teach creationism in public schools, and LGBT rights activists in Tennessee contend that the statute could open the door for anti-gay bullying, under the guise of religious freedom.

In response to these criticisms, the Family Action Council of Tennessee, a conservative Christian advocacy group that supported the bill, criticized “advocates for the homosexual agenda,” saying in a statement that “Christians need to understand that their ability to proclaim the truth of Christ is being eroded under the guise of just wanting people to be nice.”

David Fowler, president of the Family Action Council, did not respond to a request for comment.

When the Texas law passed in 2007, “we were certain it would lead to lawsuits rather than prevent them, costing taxpayers more and more money as their local schools get dragged into court,” said Dan Quinn, communications director for the Texas Freedom Network, which supports church-state separation. But the bill’s supporters “were determined to make public schools an even bigger battleground in the culture wars,” he added.

The Texas RVAA was part of conservative reaction to the 2000 Supreme Court decision in Santa Fe Independent School District v. Doe, which struck down a Texas school district’s requirement that schools hold elections to decide whether students would deliver an invocation or other message at football games.

The court, in a challenge brought by the parents of Catholic and Mormon students, struck down the policy as a violation of the Establishment Clause, because it “establishes an improper majoritarian election on religion, and unquestionably has the purpose and creates the perception of encouraging the delivery of prayer at a series of important school events.” The courts permitted the plaintiffs to remain anonymous in the litigation, owing to hostility and threats to the unknown students who had challenged the school’s practice.

The Texas RVAA, said Maggie Garrett, legislative director of Americans United for the Separation of Church and State, caused confusion and “creates an impression that they can have prayer at all these events because it’s free speech,” when it in fact is “inviting violations of the Establishment Clause.”

In the settlement of a 2007 lawsuit challenging the Round Rock school district’s policy, under the RVAA, of holding elections to decide whether prayer would be included in graduation ceremonies, Federal District Judge Sam Sparks wrote that he expected the new law “will be quite effective at keeping attorneys in fees for the foreseeable future.” 

The law has proved controversial in other Texas school districts. Last year, the Joshua Independent School District cut the microphone of valedictorian Remington Reimer when his speech diverged from the preapproved version, which omitted religious references.

In the section that was muted, Reimer thanked “God for giving up His only son for us to an excruciating death on a cross so His blood would cover all our shortcomings and provide for us a way to heaven in accepting His grace.”

Reimer’s defenders said the school’s silencing of the microphone violated the RVAA.

The school district later apologized — not for cutting the microphone, but for the principal’s suggestion that he might sabotage Reimer’s appointment to the United States Naval Academy over the incident.

In a federal case over prayer in the Medina Valley Independent School District in 2012, which the parties settled, Judge Fred Biery chronicled community hostility, including death threats to him.

“To those Christians who have venomously and vomitously [sic] cursed the court family and threatened bodily harm and assassination: In His name, I forgive you,” he wrote in an unusual order entered in the case.

In Kountze, the cheerleaders’ case is ongoing, as the school district has appealed after a trial court’s ruling in the cheerleaders’ favor.

Kelly Coghlan, a Houston attorney who was one of the architects of the RVAA, endorsed the cheerleaders’ position, writing that the incident was proof the law was needed because the cheerleaders “never imagined how far God-phobic groups would go to discriminate against them.”

These laws, said the ACLU’s Mach, “may simply be a way for legislators to score cheap political points.” But, he added, “the danger is that it encourages public schools to violate the Constitution.”