HB 1024: Mandating Creation of Limited Public Forum Permitting Students to Engage in Religious Expression during School Events

Rep. Bartlett (800-382-9842) has introduced HB 1024 which has a number of provisions concerning treatment of religion in public schools. The provision I’m concerned about mandates creation of a limited public forum at school events where students speak. I’ll get to that in a second. Some of the stuff that I like or am indifferent to are:

1. It requires high schools to offer comparative religion as an elective. Subject to my caveat that I pretty much universally dislike the General Assembly dictating school curriculum, this is a class that I enthusiastically support. Students should understand the wide range of religious beliefs, how they differ, how they are similar, how religion shapes history, and how history shapes religion. Such knowledge is vital to understanding the world.
2. It says that students can’t be discriminated against for offering a religious viewpoint. Among other things, “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.” As I read this, you can mark the student wrong if they claim the earth is 6,000 years old in science class. But, if they proclaim love of the messages of Jesus or Muhammad or the Buddha as part of their work in their Spanish journal, the religious content can’t be a basis for marking them up or down. I think there is probably a feeling in certain circles that kids are being persecuted for their religious expression. I am skeptical of whether this is true — my guess is that it’s either mostly not happening or the reports are disingenuous about the real reason for whatever penalty was received by the student. In any event, if there are schools penalizing or rewarding kids for religious viewpoints (outside of ordinary academic standards), they should stop.
3. Allows kids to pray on their own — before, during, and after school — to the same extent they can engage in nonreligious expression on their own. Generally, I’m o.k. with this. Though I can see it being a source of litigation. If little Jimmy gets disciplined for telling his classmate her family is going to hell for being an unbeliever in the same way little Johnny gets disciplined for telling his classmate her family is going to jail for being criminals,  that seems like it should be legal under this bill. But, of course, little Jimmy might forget a few details on his way home, and little Jimmy’s family lawyer may massage a few details before the matter gets to court. That sort of problem isn’t unique to this legislation. Again, I’m not sure how much this is an actual problem in the real world. I usually hear about how prayer isn’t allowed in school from people whose real complaint is that schools themselves, as an arm of the government, aren’t allowed to encourage or facilitate prayer. They either can’t understand or don’t understand the difference between government speech and private speech.
4. Similar to item #3, religious groups are to be able to access school facilities on the same basis as other noncurricular groups and shouldn’t be denied facilities simply based on their religious viewpoints. Again, I’m generally supportive of this. Things get a little tricky when you’re talking about their ability to promote their meetings using school communications. In theory, that’s fine, but it’s not tough to imagine a situation where captive students get the message, which they perceive to be endorsed by an authority figure, that it would really be in their best interest if they voluntarily went to this religious group’s event. That’s not a great dynamic no matter the event, but given my historical knowledge from my comparative religion class (see item #1), I know that the interaction between government & religion can be particularly problematic.

But, then we have this business about mandating limited public forums. It requires a school to 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:  “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; and  provide a method, based on neutral criteria, for the selection of student speakers at school events and graduation ceremonies.” It directs the Department of Education to consult with religious liberty advocates to develop a model policy.

So, what’s this business about a “limited public forum?” The Supreme Court has, primarily in the last 50 years or so, developed a “forum” framework to try to ascertain whether — when allowing or disallowing speech on public property —  the government is violating the Free Expression Clause of private individuals. Because government speech is also potentially involved, the Establishment Clause is also implicated. When the government owns property, it has the right to control that property; but the Court has given the government more leeway in some places than others. You can probably picket at the park. You probably aren’t allowed to burst into the mayor’s office to picket around his desk. So, the Supreme Court has reasoned that there are “traditional public forums.” These are parks, streets, and sidewalks. The government can regulate expressive activity with reasonable time, place, and manner restrictions, but it has to have great reasons to restrict your expressive activity and the restrictions have to be viewpoint neutral. There are “designated public forums” which are not “traditional,” but which the government has opened up to public expression (maybe a plaza of some sort). Unlike “traditional public forums,” a government can “undesignate” them so to speak, but until that happens, the same broad protections in favor of expressive activity apply.

There are also “nonpublic forums” — these are places the government has not opened up to expressive activity. The mayor’s office or a military installation, for example. Government has broad discretion to restrict expressive activity in these situations; simply limiting activity to the government function the space was meant to serve.  Mixed in with these three broad categories, the courts have dabbled with others — one of which is the “limited public forum” which is where the government has opened up the forum for certain groups or for the discussion of certain topics. For example, if the government rents out a theater it owns, it can exclude picketers, but it can’t exclude a play from performing there simply because it dislikes the play’s viewpoint.

Things get trickier when the question of government speech is involved. Government itself is allowed to have a viewpoint and advance that viewpoint. Furthermore, when the government is a speaker, the Establishment Clause gets involved. A minister preaching the gospel in a public park doesn’t run afoul of the Establishment Clause. A teacher preaching the gospel to students in school does. The question of when the government switches from mere forum provider to speaker isn’t always so easy. If a private organization puts up a cross in a public space where other organizations are free to put up their own religious or secular displays probably isn’t an Establishment Clause Problem. If a private organization puts up a cross on a prominent tree in the town square that the town never opens up to other religions or speakers, then the religious expression is probably imputed to the government. The government is more likely to be viewed as the speaker when the forum is not public.

And, so, we come back to HB 1024. The goal is, I assume, to open up functions like graduation speeches to religious expression and maybe even proselytization by student speakers. Where the forum is not public, the school controls access to the podium, and attendance is in some sense coerced, there is a significant risk that the courts are going to impute that religious speech to the school. This bill is trying to turn the government from speaker into mere forum provider by requiring schools to have a policy of some sort that declares the existence of a limited public forum. The legislation urges that accommodations be made for people who don’t want to hear the religious speech — put it at the beginning or end or excuse those who don’t like it. It also urges that selection of speakers be based on “neutral criteria.” But, it doesn’t say “neutral” as to what. “Neutral criteria” is an oxymoron.

I don’t think this is going to work. During a government function, some incidental praise for the higher power revered by the speaker isn’t going to hurt anyone. But this seems like an effort to allow religion to be more central to a public function, and the benefits of these legal contortions don’t seem to justify the likely expense. If the forum isn’t generally open to the public like a traditional or designated public forum and the government is controlling access to the podium, it seems highly likely that speech is going to be imputed to the government, regardless of what you call it.