Wednesday, March 22, 2017

God in the Schools. Again.

The Indiana General Assembly is, yet again, debating a bill to legislate the interplay between religion and the public schools. In this case, the bill in question is House Bill 1024 (HB1024) authored by Rep. John Bartlett (D-Indianapolis). Unlike many of the bills I’ve written about in previous years (such as the bill to require public school students to recite The Lord’s Prayer), HB1024 actually seems designed to be inclusive rather than exclusive and to solve perceived problems. Moreover, the bill does not (generally) try to elevate any singular religious viewpoint over others. Nevertheless, despite seemingly good intentions, HB1024 has significant flaws, many of which exemplify the real difficulty of crafting legislation on such complicated and emotional subjects.

So let’s take a look at HB1024 and discuss some of the problems that I see. (Note that HB1024 is divided into two parts; the first adds a new Section 22 to the end of Indiana Code § 20-30-5 while the second part adds new Chapter 20-33-12 to the Indiana Code.) I’ll work through the language of each provision of HB1024 followed by my comments on each provision. Note that throughout this post, I’ve tried to use different religions and ideas as examples, often in an intentionally provocative way. It is not my intention to denigrate any religion or belief or to suggest that ideas espoused by any religion are right or wrong; rather, it is my intention to provoke thought and often being a bit over-the-top or offensive is the way to accomplish that goal.

Sec. 22.

(a) Each school corporation shall include as an elective in the school corporation’s high school curriculum a course surveying religions of the world. The course must include as part of the course’s curriculum:

   (1) the historical study of religion;

   (2) the cultural study of religion; and

   (3) a literary study of writings, documents, or records relating to various religions.

(b) The curriculum described in subsection (a) must be neutral, objective, and balanced. It may not encourage or promote acceptance of any particular religion.

Consider Section 22(a)’s requirement for a “course surveying religions of the world”. Note that what this means is largely left up to the school corporation. Yes, the course must include a historical study, cultural study, and literary study, all of which must be neutral, objective, and balanced. That is good; after all, religion is extremely important to many people and has been a driving factor in much of human history, both for good and for ill. But what is really required of a “survey” of “religions of the world”? For example, would the course meet the statutory requirements if it examined the Catholic, Lutheran, Baptist, Episcopalian, Greek Orthodox, and Amish faiths but did not include Native American faiths, Judaism, Islam, Mormonism, Buddhism, or Hinduism? Could the course include only monotheistic faiths? Only faiths with adherents at that particular school or within that particular community? Who would determine which faiths to include or exclude (i.e., do we include Baha'i, Santeria [voodoo], Scientology, Hari Krishna, Church of the Flying Spaghetti Monster)? And should a course surveying religions of the world also include cultural manifestations that do not include theistic belief (I’m being careful here not to confuse atheism with a religion, but atheist “beliefs” as well as things like secular humanism and the like are, in many respects, similar to religion with regard to historical and cultural studies of the sort contemplated by HB1024).

I also wonder whether the survey course could satisfy the statutory requirements by studying Biblical passages from the Old Testament (I’m using the phrase “Old Testament” here although I don’t believe that it is an accurate or appropriate term, but it is more commonly accepted and its use means that I don’t need to spend time discussing biblical historicity or terminology) and New Testament or perhaps comparing different versions or translations of the Bible but without readings from the Koran or the foundational works of other religions? HB1024 requires that the course not “encourage or promote” any particular religion, but won’t the choice of versions of writings associated with a religion implicitly serve just such a cause?

Finally, look at that last prohibition again: The course “may not encourage or promote acceptance of any particular religion.” Notice anything missing? Two things actually jumped out at me. First, the course can’t “encourage or promote acceptance of any particular religion” but what about encouraging or promoting religion generally? Can the course teach students that some form of theistic belief is necessary to lead a good or moral life or to be a full participant in what it means to be an American? It doesn’t appear that would be prohibited by HB1024 so long as the promotion of religion was general (“You should believe in a deity”) rather than specific (“You should be Catholic”). The other concern is that HB1024 prohibits encouragement or promotion of a particular religion, but says nothing about discouragement or disapproval of religion generally or any religion in particular. Thus, while HB1024 may prohibit a teacher from saying, “You should be Lutheran” it doesn’t appear to prohibit the teacher from saying, “The Pope is the Whore of Babylon and Catholics aren’t patriotic Americans”. Query further how the right-wing meme claiming that “Islam is an ideology and not a religion” would factor into HB1024’s requirements and prohibitions.

In other words, while the idea of a survey course on religions of the world is probably a good one, I’m concerned about the possible ramifications or unintended consequences of statutory language that does not precisely delineate the boundaries, requirements, and prohibitions. Sadly, we can’t presume that all teachers in all school districts throughout the state (not to mention all school boards and school administrations) are completely neutral when it comes to discussion, promotion, or denigration of religion and religions.

Moving on to the second part of HB1024… I’ll break this up into digestible chunks for the purpose of analysis and discussion.

Chapter 12. Indiana Student Religious Civil Liberties

Sec. 1. This chapter applies to all public schools, including charter schools.

OK, I know the answer already, but think about this one for a minute. Why shouldn’t parochial schools that receive state funds also have to comply with the sort of “religious liberties” that this chapter requires? Sure, I understand that a Catholic School is going to want to instill Catholic principles and teach Catholic lessons, but if it elects to receive money from the State of Indiana, then shouldn’t it be forced to adhere to certain protections for its non-Catholic students (or even Catholic students who elect to express non-traditional views)? What about wholly secular private schools? Should they be able to engage in the sort of religious discrimination that HB1024 would otherwise prohibit in public schools? Why?

Sec. 2. A public school shall not discriminate against a student or a student’s parent on the basis of a religious viewpoint or religious expression. A public school shall treat a student’s voluntary expression of a religious viewpoint, if any, on an otherwise permissible subject in the same manner the public school treats a student’s voluntary expression of a secular or other viewpoint on an otherwise permissible subject and may not discriminate against the student based on a religious viewpoint expressed by the student on an otherwise permissible subject.

First, as I mentioned above, it is probably incorrect to classify atheism or similar non-theistic worldviews as being religions, but it nevertheless seems that students who express either an atheistic or anti-theistic viewpoint should be entitled to the same protections as a student who expresses a religious viewpoint. I’m not sure that “if any” really covers those sorts of viewpoint expressions. This concern extends to many of the provisions of HB1024 but I’ll (mostly) refrain from making this same observation over and over and over; just keep in mind as you read HB1024 and my analysis, how an atheist viewpoint would be treated by the bill’s requirements and prohibitions.

This provision also made me wonder under what circumstances a school is or should be allowed to discriminate “against a student or a student’s parents”. HB1024 would ban such discrimination on the basis of religious viewpoints or religious expression. But what about political viewpoints or political expression? Could a school discriminate against a student because his parent ran for elected office as a Democrat? What about commercial viewpoints or expressions? Could a school discriminate against a student because her parent’s business chose not to sponsor the school’s choir? Or what if a student’s parent stood up at the school board meeting to criticize a decision by a principal or teacher? I know that this is moving a bit afield from the core issues of HB1024, but it seems that the real answer is that schools shouldn’t discriminate against students or parents. Why do we need to create statutory guidelines for which specific types of discrimination are prohibited leaving some types, at least by implication or inference, as permissible?

Also, while I understand that the private schools are … well, private … I’m concerned that we would statutorily exclude those schools from prohibitions on discrimination against students or parents on the basis of religious viewpoints or expressions, especially if those private schools are receiving money from the government (or on behalf of the government).

Sec. 3. Students may express their beliefs about religion in homework, artwork, and other written and oral assignments free from discrimination based on the religious content of their submissions. Homework and classroom assignments must be judged by ordinary academic standards of substance and relevance and against other legitimate pedagogical concerns identified by the public school. Students may not be penalized or rewarded on account of the religious content of their work. If an assignment requires a student’s viewpoint to be expressed in course work, artwork, or other written or oral assignments, a public school shall not penalize or reward a student on the basis of religious content or a religious viewpoint. In such an assignment, a student’s academic work that expresses a religious viewpoint shall be evaluated based on ordinary academic standards of substance and relevance to the course curriculum or requirements of the course work or assignment.

I think that the principal goal of this section to provide that students are permitted to talk about religion in their school work and won’t be graded on the basis of what they say or don’t say vis-à-vis religion. I think. But query whether this section protects a student who writes an essay in a science class that says that evolution is wrong and that divine creation is the correct explanation? I’m really not sure if this section says that a teacher can give the student a poor grade for not addressing science or if the student is protected from receiving a poor grade because of the religious viewpoint that was expressed. And what if the “legitimate pedagogical concerns identified by the public school” include creation science or “intelligent design” (just to pick a single example)? I guess what I’m asking, in part, is whether the requirements or prohibitions set forth in a religious foundational document can be qualified as a legitimate pedagogical concern upon which grading of religious expression can be based? And, just for yucks and giggles, query whether the work of a student who bases an argument on his or her religious belief must be analyzed for grading purposes on appropriate formulation, understanding, and citation to the religious dogma upon which the argument is based? If a student writes that abortion is wrong because Jesus was against abortion, should a teacher be able to grade that student’s work upon whether the student adequately supported the position that Jesus did, indeed, oppose abortion? Or is that student’s schoolwork essentially un-gradable because it is premised upon religious belief (even if wrong)?

Now consider that survey course of world religions described above. Can a student who writes an essay in that course that denigrates another religion point to this section to protect his/her expression of religious viewpoint? Or imagine a student who, during the portion of the history curriculum that focuses on the Holocaust, writes that Jews deserved to be exterminated because they are responsible for killing Jesus. What about a student who argues that civil rights laws are wrong because the foundational documents of her religions claim that her religion’s deity chose to separate the races (a basis for the trial court’s ruling upholding miscegenation laws in Loving v. Virginia)? It seems to me that we ought not be creating an environment in which children are emboldened to express bigoted or hateful views and cite their religion as a defense. Sadly, I fear that the language of HB1024 could do just that.

Sec. 4.

(a) Public school students may pray or engage in religious activities or religious expressions before, during, and after the school day in the same manner and to the same extent that students may engage in nonreligious activities or expression. Students may organize prayer groups, religious clubs, or other religious gatherings before, during, and after school to the same extent that students are permitted to organize other noncurricular student activities and groups. A public school may indicate, in writing, orally, or both, that the religious activity does not reflect the endorsement, sponsorship, position, or expression of the public school.

While this may come as a surprise to some, I have no real concerns about students praying in school. They do it all the time before a test or before asking a girl to prom; they do it before eating lunch and before taking the field for the big game. The issue is not whether students can pray in school but rather what sort of accommodation the school must provide for prayer and whether the students can engage in prayer activities organized by the school or faculty.

The first sentence of this provision seems innocuous enough in allowing students to pray or engage in religious activities before, during, or after the school day. But what many may not realize is that the sort of prayer or religious observance contemplated by this provision does not, in fact, apply to all religions or permit the sort of prayer or religious activity that are part of some faiths. And this provision is somewhat duplicative of the current law. Indiana law presently requires schools to give students a moment of silence to “meditate, pray, or engage in any other silent activity” provided that the students must “remain seated or standing and silent and make no distracting display”. Indiana Code S 20-30-4-4.5(b). However, while many Christian students can easily sit at their desk and offer a silent prayer, that is not how many other religions approach prayer. Some religions require prayer to be done from a kneeling posture or even prostrate; some require gestures or movement; some require prayer to be aloud, often in the form of chant or song; and some require physical actions (such as ritual sweeping for Jains, the burning of incense, or the wearing of special garb or talismans). Some religions also require that prayer be done in groups rather than individually. So now, with those sorts of religious requirements in mind, go back and read the bill’s language again and try to understand how adherents to certain minority religions will be able to engage in prayer or religious activities within the school environment.

Moreover, tying the ability to students to pray to the types of activities permitted for non-religious activities doesn’t solve the problem; rather that just creates a two-tiered system where those whose religious activities fall within a certain range of activity will be permitted but those that fall outside that arbitrary range may not be. For example, if groups are generally not allowed to have lighted fires as a part of their permitted non-religious activities, what do we tell a religious group that requires the lightning of candles or incense for their religious practices? What about groups that require animals to be a part of the religious activity?

Then note the language regarding the school’s ability to say that the religious activity is not an endorsement. But the language doesn’t seem to prohibit the school from advocating participation in a particular group or club (“This afternoon, the Lutheran Club will be meeting in Room 222; we encourage all students to attend and listen to what the Lutherans have to say…”). And query the extent to which school faculty can be involved in religious clubs or groups. If the chess club, robotics club, or Young Libertarians club have faculty advisors, can the Catholic Club or Muslim Club include school faculty? What if faculty involvement is paid or not wholly voluntary? And what if the school’s rule is that a club or group must have a faculty advisor but the Islamic club or the Pastafarians can’t find a faculty member willing to become involved? Would that simply mean that some groups would be unable to engage in religious activity the same way others might be?

(b) Religious groups must be given the same access to school facilities for assembling as is given to other noncurricular groups without discrimination based on the religious content of the students’ expression. If student groups that meet for nonreligious activities are permitted to advertise or announce meetings of the groups, the public school may not discriminate against groups that meet for prayer or other religious speech.

I know that I said I wouldn’t keep repeating the point, but again consider whether an atheist group or a group hostile to religion would (or must) be permitted access to school facilities pursuant to this provision.

Next think about the signs in school hallways that certain nonreligious clubs might use to advertise or announce meetings: “Join the cool kids in theater club” or “Help stop hunger” or “Rally for ____ [insert your favorite cause]”. How do we make sure (or do we make sure) that religious groups don’t cover the school’s halls with overtly religious messages: “Join the Christian club or go to Hell!” or “Join Islam, the world’s fastest growing religion!” or the like? Thus, I guess the question is whether schools are or should be able to require that messages not denigrate other groups or use offensive rhetoric (and whether adding those sort of content restrictions is constitutionally permissible). But I can see the outcry now if the Jewish students club put up a sign that said, “Jesus Was Jewish and You Should Be Too!” or if the Church of Cannabis put up a sign promoting marijuana usage.

One other point to question is the extent to which clubs that use school facilities must be open to all. While I doubt that the robotics club would turn away anybody, query whether it would be appropriate for the school to host and permit advertisements by any group that limited its membership to adherents of a particular faith (“Hindus only!”), prohibited membership by those who might be disfavored by the particular faith (“No gays allowed at the Evangelical Christian group!”), or had any other sort of discriminatory or exclusionary policy (recall my posts a few years ago about a school being open for use by the Boy Scouts notwithstanding the anti-homosexual policy the group then followed).

(c) A public school may disclaim school sponsorship of noncurricular groups and events in a manner that neither favors nor disfavors groups that meet to engage in prayer or religious speech.

What struck me as odd about this section was the use of the word “may” instead of “shall”. So a school may disclaim sponsorship but doesn’t have to disclaim sponsorship? Which, of course, leads to the next question: Does a school have the right to sponsor groups in a manner that favors or disfavors certain religious speech? And wouldn’t a school’s disclaimer of sponsorship of one religious group but silence about another group be perceived as an implicit sponsorship or endorsement of the group for which no disclaimer was issued?

(d) Students in public schools may wear clothing, accessories, and jewelry that display religious messages or religious symbols in the same manner and to the same extent that other types of clothing, accessories, and jewelry that display messages or symbols are permitted. Nothing in this subsection shall be construed to prohibit a school corporation or charter school from establishing a policy requiring students to wear a school uniform or establishing a student dress code.

This is another one of those provisions that seem innocuous at first blush, but which becomes more troubling with more detailed consideration. For example, what happens if a school has a “no hats” rule? In that case, aren’t observant Jewish men who wear kippas, observant Muslim women who wear hijabs, or observant Mennonite women who wear caps, being treated differently than other students who may also have garb required by their religion (Mormon undergarments, for example) but which is permitted? What if the rule was even more narrowly tailored to prohibit only scarves that cover all of a woman’s hair? Or consider a rule that only prohibits t-shirts with messages that advertise alcohol or illegal conduct; does that mean that a student could wear a “God Hates Fags” t-shirt or a shirt proclaiming “Jews Killed Jesus”? Is that really what the hallways of our schools should look like? Query a rule that says “no messages”. Would a cross on a chain around a student’s neck be an impermissible message? What about a WWJD bracelet? The problem with this provision of HB1024 is that it may, perhaps unintentionally, permit disparate treatment of students on the basis of the religious garb or viewpoints. It may also lead to students who want to be provocative to look for loopholes in school dress code rules in order to make religious viewpoint statements or use the idea of religious expression to be provocative from a fashion sense.

Sec. 5.

(a) To ensure that a school corporation does not discriminate against a student’s publicly stated voluntary expression of a religious viewpoint, if any, and to eliminate any actual or perceived affirmative school sponsorship or attribution to the school corporation of a student’s expression of a religious viewpoint, if any, a school corporation or charter school shall adopt a policy, which must include the establishment of a limited public forum for student speakers at all school events at which a student is to publicly speak. The policy regarding the limited public forum must also require the school corporation to:

   (1) provide the forum in a manner that does not discriminate against a student’s voluntary expression of a religious viewpoint, if any, on an otherwise permissible subject;

   (2) provide a method, based on neutral criteria, for the selection of student speakers at school events and graduation ceremonies;

   (3) ensure that a student speaker does not engage in obscene, vulgar, offensively lewd, or indecent speech; and

   (4) state, in writing, orally, or both, that the student’s speech does not reflect the endorsement, sponsorship, position, or expression of the public school.

Presuming, for the sake of argument, that the initial provisions of HB1024 were acceptable, here is where the bill goes off the proverbial rails and into the “danger Will Robinson” realm.

In order to do any justice (pun intended) to the discussion of this issue, I need to dive into (briefly, I promise) the legal issues regarding use of public spaces. Generally, and consistent with the First Amendment, the government cannot prohibit speech in public spaces (subject to what are often referred to as “reasonable time, place, and manner restrictions”). Thus, the government can’t stop you from standing on a street corner or a public park and giving a speech about whatever issue motivates you and you can be as offensive as you want. That being said, the government could impose reasonable restrictions such as use of a loudspeaker or speeches in the middle of the night that might disturb nearby residents provided that those restrictions are content neutral. The government could close the park during the night, but the government could not close the park at night only for those who wan tto speak about a particular issue or offer a particular viewpoint. Thus, the government could not ban loudspeakers for those who want to express a religious viewpoint but permit them for political speeches and the government couldn’t allow pro-choice groups to gather in a park at night but not allow similar access to an anti-immigrant group.

But not all “public” spaces are open forums like a street corner or park. For example, there are some government owned spaces that are generally always off limits to the public. You don’t have a right to walk into the Oval Office or the BMV to give a speech; you certainly don’t have the right to walk onto a military base or into an FBI office to express your political views. Those spaces are “public” in the sense that they are owned by the government, but they are not public forums available for use by the general public.

And then there is the middle ground: Government owned property that is sometimes open or open to some. And this is where things begin to get a bit more tricky. So think of a stadium or concert hall owned by a city. Or think of the auditorium or even cafeteria in a public school. These sorts of venues are owned by the government, but aren’t generally available to the public for use. Or, for an even more simple example, think of a bulletin board in town hall on which flyers might be posted. The question becomes what sort of control can the government exert over speech in these environments.

Generally speaking, when the government permits some access to these sorts of environments, it has created what is often referred to as a “limited public forum” (as opposed to the nearly unlimited public forum of the public street corner or park). The government can limit access to and use of the public space, but that use cannot be discriminatory and cannot favor or disfavor any particular viewpoint or expression. Thus, the government could restrict access to the auditorium to groups that pay for insurance, groups that are from that local community, or groups that do not discriminate in membership, but the government could not prohibit use of the auditorium by Muslims, anti-abortion activists, the Green Party, or those who want to complain about the job elected officials are doing. That sort of viewpoint or content limitation is impermissible under the First Amendment.

Got all that? Now let’s review part of the HB1024: “[A] school corporation or charter school shall adopt a policy, which must include the establishment of a limited public forum for student speakers at all school events at which a student is to publicly speak”. Whoa! The school must establish a limited public forum at all school events at which a student is to publicly speak? Thus, if the valedictorian is to give a public speech at graduation, the school must establish a limited public forum at graduation! In other words, after the valedictorian sits down, other students would have the right to stand at the microphone and offer their own views and the government would not have the right to limit the content of the views expressed in that forum. Once the government opens the door to some speech, it must, in essence, keep that door open for other speech. It will be interesting to see how parents and families will respond to speeches from the gay rights group, the men’s rights group, the marijuana legalization group, the school’s Satan worshippers, the anti-immigration group, or non-traditional or less mainstream groups or individuals. Should be fun. And this wouldn’t apply only to graduations, either. Recall that the bill’s language speaks about “all school events at which a student is to publicly speak.” I can think of a whole lot of school events at which a student speaks (query whether a choir performance or play includes “speech” by a student such that the performance would become a limited public forum; query whether a school convocation at which the student body president will give a speech would require a limited public forum). If HB1024 passes, all of those events would need to include a limited public forum.

I was also struck by one particular element of phrasing in this section: “a student’s publicly stated voluntary expression of a religious viewpoint”. Why should the non-discrimination standard focus on a “publicly stated voluntary expression”? And what does that even mean? Must students stand on the stage of the school’s auditorium and express their religious viewpoint in order to be safe from discrimination? So, if no student stands up and says “I’m a Muslim” or “I’m Skyclad Wiccan”, then those religions can be discriminated against? And I can just see someone from a particular religious persuasion (i.e., those who might argue that Islam is not a religion) making the argument that a Muslim student who does publicly state a religious viewpoint did so under duress from the student’s parents rather than voluntarily (ignoring, of course, that the same argument could be made about minors who profess any other religious viewpoint).

Last time I checked, schools didn’t ask students to make public expressions of religious affiliation. And, last time I checked, the purpose of schools was to educate all children, regardless of religious affiliation (or lack thereof) and not to denigrate any particular faith or student or to put a student on the proverbial “spot” to declare his or her religious views.

Now, to be fair, the language of the bill does include some limiting language to try to make this whole situation more … well, I suppose “fair” is the goal. But I’m not sure how workable any of those limitations really are. For example, the language speaks about not discriminating against a religious viewpoint on an “otherwise permissible subject”. And what, precisely, is an “otherwise permissible subject” especially in the context of a limited public forum in which content-based limitations are generally impermissible? I suppose that the goal here might be to prohibit a student from discussing abortion if topics like sexuality were deemed impermissible, but the problem quickly becomes an analysis of which viewpoints or subject matter are being restricted by the government in the limited public forum. Just because an issue is sensitive, controversial, or unpopular is not grounds for it to be excluded from the limited public forum.

Or consider the requirement that student speakers be selected based on “neutral criteria”. What neutral criteria will be used and how will the designation of such neutral criteria impact a diversity of views, especially religious views? For example, if “neutral criteria” means GPA or some form of school participation metric , then certain racial, religious, or cultural groups may be both over- and under-represented; furthermore, students for whom English is not their first language and certain non-traditional or non-conforming students may also be left out of due consideration. I presume that “neutral criteria” excludes a student vote. And do the “neutral criteria” need to be structured in such a way that ensures a balance or proportional cross-section of viewpoints (whether religious or otherwise) will be presented? Moreover, I’m not sure that the notion of the government establishing criteria for who can speak in a limited public forum passes Constitutional scrutiny, but I’ll leave that to someone more versed in complex First Amendment issues. In essence, though, my worry is that “neutral criteria” could be used as a means, a justification, or both, to deny minority religious views (or minority views on any of a host of other subjects) from being expressed in the limited public forum created by the school.

Next HB1024 speaks about ensuring that student speakers do not use the limited public forum for speech that is “obscene, vulgar, offensively lewd, or indecent”. Anybody care to define precisely what that means? Would a student be in violation if she took the podium to express her religious view that Jews killed Jesus and deserve eternal, collective punishment? Would a student be in violation if she took the podium to express his religious views that a woman who has an abortion has committed murder and should go to jail? Would a student be in violation if she took the podium to express her view that there are no deities and that those who believe in a deity are delusional and should seek mental health treatment? What if the student wanted to describe, in detail, how a late term abortion is performed in order to make an anti-abortion argument? What if a student wanted to describe, in detail, how female genital mutilation is performed and its effects on women? And what if a student wanted to describe, in detail, what death by crucifixion would entail and the pain that would be suffered? I could go on and on, but I suspect that you get the idea. HB1024 would tell schools to establish limited public forums to allow different religious viewpoints to be expressed but then micromanage which aspects of religious views are acceptable. Oh, and how confident are you that all religious viewpoints will be given the same degree of scrutiny and leeway when being judged for appropriateness in the setting of the limited public forum? Will a tiny, all-white, all-Christian school in rural Indiana have the same understanding of what is “obscene, vulgar, offensively lewd, or indecent” as a highly diverse school? Remember that some communities still view things like dancing, let alone, homosexuality, as indecent or lewd.

(b) The policy established under subsection (a) shall require the disclaimer described in subsection (a)(4) to be provided at all graduation ceremonies. The school corporation or charter school must also continue to provide the disclaimer at any other event in which a student speaks publicly for as long as a need exists to dispel confusion over the school corporation’s or charter school’s nonsponsorship of the student’s speech.

I can just imagine the principal standing up at graduation, just before the valedictorian speaks, to say that the speech “does not reflect the endorsement, sponsorship, position, or expression of the public school” but that the school has merely “selected the speaker on the basis of neutral criteria.” Will anyone in attendance understand that disclaimer or believe it?

(c) The policy established under subsection (a) must ensure that student expression on an otherwise permissible subject may not be excluded from the limited public forum because the subject is expressed from a religious viewpoint.

Again, the applicable question is what is an “otherwise permissible subject”? Moreover, wouldn’t this permit a student to denigrate or attack others so long as the general subject matter is permissible and the student’s expression is of a religious viewpoint? Thus, for example, wouldn’t this mean that a student could talk about a subject like immigration or the value of diversity (which, I presume, would be permissible subjects) but then use a “religious viewpoint” to express the belief that Islam is not a real religion and that Muslims should be excluded from immigration?

(d) The policy established under subsection (a) must include measures to make reasonable accommodations for individuals who wish to be excused from a student’s speech that includes religious content because of the individual’s own religious belief or lack of religious belief. Such accommodations may include requirements that students who wish to express religious content in a limited public forum speak at the beginning or end of the particular event to allow individuals who desire not to be exposed to the religious content the opportunity to be excused.

This provision could be entitled “How to Divide Your Student Body Into Discrete Faith-Based Groups” because that is essentially what it would likely entail. And I can think of few better ideas for a school environment than being forced to segregate students or forcing some students to self-identify as “different”. </sarcasm> First, think of how the school is supposed to know whether a student speaker intends to express a religious viewpoint (and what happens if a student improvises to add religious content…)? And how exactly is the school to determine if the viewpoint being expressed is religious or secular? For example, if a student wants to speak about her opposition to abortion, is that a religious expression? Is it only a religious expression if she mentions the Bible or Jesus? What if she speaks about morals rather than religious directives? What if the student is an atheist who wants to discuss the harm that religion can cause or the wars that have been started in the name of G-d?

As the law currently stands, schools cannot compel students to recite the Pledge of Allegiance. Moreover, schools aren’t supposed to ostracize students who elect not to participate in the Pledge. But do we honestly think that, especially in less diverse schools, that sort of ostracizing doesn’t happen? Think how much worse that might be if the topic is religion rather than patriotism (note, that I don’t really equate the Pledge of Allegiance with patriotism…). Consider further the sort of reverse stigmatism that could be put into play as well. For example, when students who express a religious viewpoint hostile to homosexuality ask to be excused from having to listen to the presentation from an openly gay student or when the only Muslim student in a particular class finds himself speaking to an empty classroom because other students exercised their right not to be exposed to the religious views or expressions of that student. Wait, I know! Maybe we should have some schools just for Christians, others just for Jews and others just for Muslims. Equal, but separate. Oh, wait. Never mind.

So let’s think about how this might work in actual application. Does this new law permit a school to give the microphone to a student (chosen on the basis of neutral criteria!) before each football game to offer some words of encouragement to the team and fans? And, if the chosen student indicates an intent to offer a prayer or other religious expression, does the school have to make some sort of announcement that “all godless heathens or who profess a faith that won’t say ‘amen’ to a prayer given in the name of Jesus Christ should leave the stadium for a few minutes”? Or maybe a somewhat more subtle announcement, like “Will all students who don’t believe in the divinity of Jesus and who don’t want to hear a prayer in his name, please leave now? Hopefully, we’ll remember to let you know when we’re ready for kickoff.” Is that what we want?

Sec. 6.

(a) The department, in collaboration with organizations with expertise in religious civil liberties, shall establish a model policy addressing the requirements established by this chapter. The model policy shall be made available for school corporations and charter schools to assist a school corporation or charter school in meeting the requirements established by this chapter.

(b) The department shall publish the model policy established under subsection (a) on the department’s Internet web site.

Anybody have an idea which organization “with expertise in religious civil liberties” will help the Indiana Department of Education establish a model policy? What if that organization has an avowed religious affiliation or viewpoint itself? Perhaps I’m wrong, but I suspect that Republican Indiana would be loathe to have organizations like the American Civil Liberties Union or Americans United for Separation of Church and State help craft the model policy. I suspect that Indiana would be more likely to turn to an organization like the American Family Association or Liberty Council to help craft the model policy, but I have little faith (pun intended; sorry, couldn’t resist) that those organizations (or others like them) would have much interest in creating policies that would really treat all religious viewpoints equally or that would have a sympathetic view of those who might want to express minority or nontraditional views.

Sec. 7. This chapter shall not be construed to authorize the state or any political subdivision to do either of the following:

   (1) Require any person to participate in prayer or in any other religious activity.

   (2) Violate the constitutional rights of any person.

It seems almost — almost, mind you — amazing that we would even need to include language in a statute that reminds us that the state can’t require people to participate in prayer or religious activity or violate constitutional rights. More importantly, a statute can’t authorize the state to violate constitutional rights (and forced religious participation would violate rights guaranteed by both the state and federal Constitutions). But that’s where we are… Of course given that Indiana legislators have, in recent years, proposed legislation requiring all student’s to engage in Christian prayer, then perhaps this language is intended more for their benefit than for the schools.

Sec. 8. The provisions of this chapter are severable as provided in IC 1-1-1-8(b).

This last little bit of legalese is actually important. In essence, what this says is that if a court were to find one part of HB1024 to be unconstitutional, only that part of the law would be unenforceable while the rest would remain in place as opposed to having the entire statute become unenforceable. Often, as in bills like this one, the statutory framework is designed to work as a whole and if pieces are found to be unenforceable, then the intent or the protections, for example, may not be reflected in the way that the law winds up being enforced when only parts are struck down by a court. Adding this severability clause means that parts of the law could be enforceable even if other parts were not.

As I mentioned at the outset, I think that HB1024 was based on good intentions and a desire to try to avoid conflicts within schools over religious expression. However, I believe HB1024 is fatally flawed. Much of the conduct that it endeavors to address is already permitted within schools or the subject of detailed (and often complex) court rulings. More importantly, because of the complexity of the issues and the raw emotions often involved with issues involving religion, HB1024 is likely, as I I’ve tried to address, to lead to even more controversy, litigation, claims of discrimination, hurt feelings, and segregation along religious lines.

Please call your Indiana legislators and ask them to vote against HB1024.

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