Column: Inside the First Amendment, by Charles C. Haynes

Remember the hue and cry last fall when a Tennessee teacher told a fifth-grader that she couldn’t write about God as the person she admired most?

Well, members of the state Legislature didn’t forget. Even though school officials quickly corrected the teacher and apologized to the family, lawmakers seized on the incident to push for a bill designed to protect student religious expression in public schools.

Last week, the Religious Viewpoints Anti-discrimination Act passed both houses of the Tenn. Legislature by huge margins and now awaits the governor’s signature.

Sometimes all it takes is one bad story.

Tennessee’s new legislation is the latest of a series of almost identical laws pushed nationwide by conservative Christian groups in recent years. Texas, Mississippi and South Carolina have already enacted this legislation and bills are pending in Oklahoma, Georgia, Alabama and other states.

The ostensible aim of all these laws is to protect the right of public school students to express their religious views in class, assemblies and graduation ceremonies. As the Tenn. bill puts it, schools “may not discriminate against the student based on a religious viewpoint expressed by the student on an otherwise permissible subject.”

Actually, this is nothing new. The U.S. Department of Education issued guidelines in 2003 outlining the religious rights of students — guidelines that are quoted verbatim in these state laws. Much of what is in the Department of Education guidance tracks what is allowed under current law, according to most legal experts.

It is widely accepted, for example, that students have the right to express their religious views in homework, artwork, and class discussions — as long, of course, as they fulfill the requirements of the assignment and their comments are relevant to the subject under consideration. No new law is needed to make this clear.

What is disputed, however, is where to draw the line on student religious expression before a captive audience at school-sponsored events. We know from various Supreme Court decisions that public schools may not promote religious beliefs at school events — even if they select a student to deliver the religious message.

But the Department of Education and the state “religious viewpoint” laws assert that when students are given the opportunity to speak without school officials controlling the content of the speech, then such expression is not school sponsored and may not be restricted because of its religious content. Call it a “free speech” moment during which a student can talk about faith or even offer a prayer.

Critics contend that the Department of Education guidance (and the state laws that echo it) go too far because lower courts are divided about where school officials may draw the line on student religious speech before a captive audience. Moreover, they argue, speech at school-sponsored events remains school-sponsored even when school officials don’t review the content of student speeches.

Turning the podium over to students, of course, can be a risky business. Though the “religious viewpoint” laws would not require school officials to allow speech that was profane, sexually explicit, defamatory or disruptive, the student speech could include political or religious views offensive to many.

Conservative Christian groups promoting these laws appear willing to take that risk, gambling that religious speech they like will be heard far more often than religious (or anti-religious) speech they don’t like.

In fact, lawmakers in Tenn. and other states are hedging their bets by requiring schools to create a pool of student leaders — student council officers, football team captains and the like — from which the school-event speakers will be chosen. Even if limiting the selection process in this way is constitutional (and that remains an open question), it surely signals that the “open forum” isn’t so open after all.

The bigger problem with these laws, however, is not so much the content but the potential for abuse. 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.

If public schools would actually let all students (not just the designated leaders) speak freely at school events, then free speech, religious and non-religious, might be well served.

But as written, these laws appear aimed at encouraging student religious expression that will be popular in states like Tenn. and Texas. After all, in most of these school districts people aren’t too worried about what the football captain will say (or pray).

 

Charles C. Haynes is director of the Religious Freedom Center of the Newseum Institute, 555 Pennsylvania Ave., N.W., Washington, DC 20001. Web: religiousfreedomeducation.org Email: chaynes@newseum.org.