Protecting Religious Freedom
Religious Viewpoints Antidiscrimination Act (RVAA)
In 2007, the Texas Legislature updated state law dealing with student religious expression by passing H.B. 3678, known as the "Religious Viewpoints Antidiscrimination Act" (RVAA). This law applies to all elementary and secondary public schools and its stated purpose is to ensure that schools treat "a student's voluntary expression of a religious viewpoint, if any, on an otherwise permissible subject in the same manner" that the school treats similar student expression of a secular or other viewpoint. Among other provisions, the RVAA requires every school district to establish a "limited public forum" for student speakers at all events where students are called on to speak. It also requires districts to adopt a policy to implement the provisions of the statute and sets out an optional model policy to accomplish this.
The impact of this novel -- and problematic -- approach to student religious expression extends beyond Texas. Several other states are considering similar measures, and religious right pressure groups have publicly sworn to push this policy into every other state in the country.
Constitutional scholars and civil liberties groups, however, have warned that this policy is a risky approach that jeopardizes the religous freedom of students and places schools at risk for litigation. Noted First Amendment scholar Melissa Rogers of Wake Forest University Divinity School has authored the first in-depth consideration of the new law -- "The Texas Religious Viewpoints Antidiscrimination Act and the Establishment Clause" (UC Davis Law Review; Vol. 42, No. 3, Feb. 2009). Rogers concludes:
"The RVAA raises Establishment Clause issues and creates large litigation risks for Texas public schools. Texas legislators should address these problems, and policymakers from other states should reject overtures to adopt legislation similar to the RVAA."
Even the Texas Association of School Boards (TASB) has expressed concerns about the challenges RVAA is likely to create in the public school environment, prompting the group to create an alternative policy for local districts that differs in several important ways from the model policy laid out in the law itself. According to TASB:
"School attorneys have expressed concern that the adoption and implementation of student speaker policies, including potentially the state model policy, could expose school districts to legal challenges based on these factors.
Moreover, if the validity of the RVAA is challenged, the Attorney General’s office may choose to defend the constitutionality of the statute, but the AG would not defend school district decisions surrounding adoption and implementation of local policy.
For these reasons, TASB has strongly encouraged school districts to consult their school attorneys before adopting local policy pursuant to the RVAA."