Want to Thank God in Public School? A Kentucky Bill Would Make Free-Expression Laws Clear
A bill advanced by a Kentucky senator would codify students’ rights to religious and political speech at public schools, but the state ACLU opposes the move.
FRANKFORT, Ky. — Protections for students’ religious and political speech in Kentucky’s public schools could be strengthened if lawmakers in the Kentucky State Capitol advance a bill that is supported by the state’s Catholic bishops’ conference.
“We think, by codifying mostly constitutional principles that have been articulated by the courts, it gives a very clear black-and-white picture of what you can and cannot do when it comes to students’ religious and political expression,” said Jason Hall, executive director of the Catholic Conference of Kentucky.
The conference has endorsed the bill, S.B. 71, authored by Sen. Albert Robinson, R-London, which passed the Senate on Feb. 19 in a bipartisan 30-4 vote. The bill now goes to the House, where its fate depends on the chamber’s Democratic leadership taking it up.
Robinson told the Register that his bill “simply codifies” in Kentucky law various federal court rulings that have already defined the First Amendment rights of students in public schools.
“The bill does not expand any rights, but simply collects them together, so they can be easily referenced by those who have questions: the teachers, administrators, parents and students alike or anyone,” he said. “The goal is clarity, and clarity is what schools and administrators need and what students and parents need.”
According to S.B. 71, students are permitted “to voluntarily express religious or political viewpoints in school assignments free from discrimination,” and local boards of education have to make sure that student speakers are selected in “a viewpoint neutral manner” and that “the students’ prepared remarks are not reviewed, altered or censured before delivery.” The proposed law does, however, allow students to have their remarks reviewed prior to delivery “at the student’s request.”
The bill also states that boards of education must guarantee religious and political organization “equal access to public forums,” as they would to nonreligious and non-political groups, and not permit interference in these groups’ internal affairs.
The proposed law states that these stipulations apply to “public postsecondary education institution governing boards” as well.
Quick Reference Tool
Hall said the law was “valuable” by providing a quick reference for school administrators who are threatened with legal action for allowing public expressions of religion on a school’s campus.
“So if a valedictorian gives a speech, and he is going to talk about something and someone threatens to sue, it might be just a couple of days before graduation, and there is no time to really have a full legal analysis done; there is confusion about the law, and administrations are understandably scared about what could happen,” he said. “So that’s what the bill is designed to prevent, so school administrators can look at this and say, ‘No, the student has the right to go this far, so we’re not going to step in.’”
The American Civil Liberties Union of Kentucky has objected to Robinson’s bill, calling it “well-intentioned” but “unnecessary.”
“By adding more government regulation into the area of students’ free-speech rights, the bill will result in needless and costly litigation, particularly over students’ ability to interject religious or political views into school assignments that have nothing to do with either,” Kentucky ACLU program director Derek Selznick said in a statement.
The state ACLU also opposes the bill on the grounds that it would prohibit Kentucky’s boards of education and public universities from denying funds to student organizations that would limit membership based on sexual orientation or religion.
Robinson, however, said that his bill would not have been necessary if groups like the ACLU and Freedom From Religion Foundation (FFRF) “had honored the First Amendment in the first place.”
“They’ve threatened enough people that it needs to be clarified,” he said, adding that these rights should be assembled and codified together, “so you don’t have to go find a piece here and a piece there to prove your point.”
Bell County’s Experience
The senator referenced one particular case in Kentucky, where the FFRF had sent a letter in 2011 to the Bell County School District threatening legal action if it did not cease public prayer before Bell County High School’s football games. It stopped a decades-long tradition of a local minister leading prayers over the loudspeaker before kickoff, a decision supported at the time by the state’s Department of Education.
Yvonne Gilliam, who has 11 years of experience as a superintendent, including the past three years as superintendent of the Bell County School District, said she has “frequently” heard from FFRF over the years.
“It is not uncommon for me to get some kind of threat of retaliatory action if I don’t retract a statement I’ve made or if I don’t stop something that is going on in our county.”
Under her tenure as superintendent, Gilliam said, Bell County students have had the protections clearly defined in S.B. 71 “for some time now,” but she said the bill might be helpful for elsewhere in the state, for school districts finding themselves under similar pressures.
“I would certainly like other school districts and students in the state of Kentucky to have that same privilege if they don’t.”
The problem of school districts and schools facing litigation over religious speech is widespread enough that legislative responses are a “sensible approach,” according to Tim Schultz, president of the Washington-based 1st Amendment Partnership and an expert in state religious-freedom legislation. He said there are hundreds of these cases every year, despite U.S. Supreme Court precedent, but most of the cases are settled out of court.
Schultz added that it would be better for lawmakers to draw the lines for school districts on what the Supreme Court has already defined as protected student speech, rather than leave them and their legal counsel to navigate the issue on their own.
“The Supreme Court’s lines are not always as visible, because they are not a statute: They are not as visible or intelligible as the lines drawn by legislators are,” he said. “When a legislature passes a law like this, it draws pretty bright lines for school administrators that make these violations of First Amendment rights a lot less likely.”
Depends on Democrats
Robinson believes the bill would have overwhelming bipartisan support in the state’s House of Representatives, but the bill’s future largely depends on the House’s Democratic leadership bringing it up for a vote.
“I’m hoping they will consider this on the merits,” he said.
He hoped that lawmakers in other states might consider using the legislation as a model to codify students’ religious and political-speech protections in their own laws.
“Maybe it’s something we can get started here, so that other states will catch on.”
Peter Jesserer Smith is the Register’s Washington correspondent.
- school prayer
- religuous liberty
- public schools
- peter jesserer smith
- bell county high school
- albert robinson