Florida Religion in School Legislation SB 436 Passes

Religion in public schools may become law thanks to Kim Daniels and Dennis Baxley - SB 436

Late on Friday, the Florida legislature passed SB 436 (also known as the “Florida Student and School Personnel Religious Liberties Act”) as a part of a compromise to pass changes to the state’s “Stand Your Ground” law. Upon becoming law, SB 436 will prohibit Florida public school districts “from discriminating against students, parents, & school personnel on basis of religious viewpoints or expression.”

At the crux of SB 436 is the belief that students, staff and parents in Florida public schools don’t have adequate religious protections. The bill will further strengthen existing law protecting students’ right to pray and form religious themed extracurricular organizations. It also protects students’ rights to use personal religious beliefs in academic school work and to wear religious iconography in classes.

Prior to the passage of SB 436, the majority of this was already protected by existing law.

What wasn’t already protected – and what will now cost the state of Florida thousands in lawsuits to defend the law – are the protections if offers staff and parents and the public ‘forum’ it offers religious beliefs.

Constitutionally Suspect

In previous reporting we noted three sections of SB 436 that are constitutionally problematic:

A school district may not prevent school personnel from participating in religious activities on school grounds that are initiated by students at reasonable times before or after the school day if such activities are voluntary and do not conflict with the responsibilities or assignments of such personnel.

A school district shall give a religious group access to the same school facilities for assembling as given to secular groups without discrimination based on the religious content of the group’s expression. A group that meets for prayer or other religious speech may advertise or announce its meetings in the same manner and to the same extent that a secular group may advertise or announce its meetings.

The Department of Education shall develop a model policy regarding a limited public forum and voluntary expression of religious viewpoints by students and school personnel in public schools pursuant to this section. The department shall publish the model policy on its website. Each district school board shall adopt and implement the department’s model policy.

In breaking down how each of these sections pose constitutional problems, we noted:

The first section is pretty straight-forward as it attempts to confer to taxpayer-funded employees the right to engage in religious expression while they are acting on behalf of the school (which, legally, is acting on behalf of the state).

Even when students start a religious activity, anyone employed by the school may not at any time participate with or or in sight of students. The U.S. Supreme Court has repeatedly held this creates a religious establishment that violates the Constitution.

Suffice to say, arguing an activity is ‘voluntary’ does not pass constitutional muster with school religious establishment cases because much of the time, coercion is the mitigating factor. Moreover, so long as school employees are on school grounds charged with overseeing the welfare of students, they are acting in an official capacity whether they are standing at a flagpole before school or on a football field after school.

Several Supreme Court precedents back this including the well-known Santa Fe Independent School District v. Doe and Doe v. Duncanville Independent School District.

Looking at the second section, we noted:

Secular organizations are distinct from religious organizations as they are not federally regulated the same way (at least from an educational standpoint).  Whereas a speaker about civics or public safety would pose no constitutional issue when interacting with students during the school day, religious organizations do not and cannot legally have that same access as it has the effect of endorsing one religious belief system above others (which violates the First Amendment’s Establishment Clause).

Just as religious organizations may not be given the same access to students as non-religious organizations because of the Establishment Clause, the same holds true for utilizing school announcement systems for the purposes of advertising religious messages. Whether inviting students to attend a religious event or encouraging them to believe a certain way, use of school announcements for religious purposes has repeatedly been deemed unconstitutional by the Supreme Court.

While students are permitted to use school PA systems to announce their own organizational meetings (religious, secular or otherwise),outside organizations are banned from such practices based on this precedent (which should sound familiar): Santa Fe Independent School District v. Doe.

The Anti-Defamation League (ADL) additionally assembled a succinct FAQ on this for schools requiring additional guidance on when and how religious organizations may either interact with students or use public school grounds for organizational purposes. We included it in our coverage but it’s worth revisiting in light of SB 436’s passage.

That leaves the third problematic section we offered analysis on:

The third section relates closely to the first as it directs the school to create a policy not only to protect student, but staff religious expression on campus. While the former is already protected, the latter is heavily regulated with exceptions carved out (i.e.: private prayer spaces for teachers who must pray during the day as a component of their beliefs, for instance).

While teachers and staff do not leave their religious beliefs at the door when they enter a school, they are simultaneously bound by the First Amendment (and its countless subsequent legal precedents) from using their taxpayer-funded position to proselytize those beliefs in any fashion in view of students – and, in many cases, around their peers.

This began with two landmark cases: Engel v. Vitale (1962) and Abington School District v. Schempp (1963).

While Engel affirmed that state educational employees (read: taxpayer-funded) could not constitutionally endorse religion or recite prayer in classrooms as a part of their official duties, Abington dealt explicitly with religious proselytizing in schools – that is, it banned it.

Those aren’t the only Supreme Court cases dealing explicitly with this section’s legal issues – we outlined six others in previous reporting that offer constitutional clarity on why the third section can’t withstand scrutiny.

It’s worth noting that the bill’s sponsors – State Representative Kimberly Daniels (D-Jacksonville) (a newly elected official in her district after serving as a councilwoman and Christian pastor at Spoken Word Ministries) and State Senator Dennis Baxley (R-Ocala) (the former executive director of the Florida Christian Coalition) – both admitted when proposing the legislation that they could think of no examples that would lend a need for SB 436.

Church & State

Perhaps more egregious than offering a solution to a non-existent problem is compounding that with admission of intent to violate the law.

Speaking with press after she proposed the House version of SB 436, Rep. Daniels said, “How can a state fund and have chaplains in prisons and not have chaplains in schools? A child should not have to wait to go to prison to meet a chaplain. And I think that says it all.”

Public schools are not churches and cannot be the source of spirituality for impressionable children.

Though the House attempted to clean up the more controversial sections of SB 436 (including the sections outlined above), the Senate refused to accept the amendments and the bill was passed as is.

Americans United for the Separation of Church and State (AU) – already placed the Florida legislature on notice before they passed SB 436. In a letter to the legislature, AU stated in part:

Although students have the right to engage in voluntary, student-initiated prayer that is not coercive and does not disrupt the school’s educational mission and activities, they may not utilize the classroom to proselytize their fellow students. This bill, however, does not clearly differentiate between student expression that relates to personal observance of religion and student expression that constitutes “outward promotion” of religion or “proselytizes a particular view.” The Constitution, at a minimum, guarantees that the government may not coerce anyone to support or participate in religion or its exercise, but this bill glosses over that important limitation. As courts have noted, “[f]amilies entrust public schools with the education of their children, but condition their trust on the understanding that the classroom will not purposely be used to advance religious views that may conflict with the private beliefs of the student and his or her family.”  That is why courts are “particularly vigilant in monitoring” whether religious beliefs are taught in public schools. This bill would open the door to students using class time to proselytize and advance their own religious view on fellow classmates who may not share the same religious beliefs.

They added:

SB 436 also fails to provide guidance to teachers and administrators about the requirements to curtail certain constitutionally prohibited student religious expression opening up school districts to liability. The bill states that religious expression would have to be treated the same as secular expression in all instances. For example, even if a student’s work satisfies responds to the assignment, however, there is a constitutionally significant difference between one student making a persuasive speech about why tomatoes should be classified as a fruit rather than a vegetable and another student making a persuasive speech arguing that all students must accept Jesus Christ in order to achieve salvation. Despite the obvious difference, SB 436 would treat both situations the same. When prayers, evangelism, or anti-religious speech takes place within classrooms students are a captive audience and thus are coerced to participate in religious exercise. HB 303 creates similar problems for school districts.

Touching on the unconstitutional allowance for public school employees to engage in religious practices side-by-side with their students, AU said:

SB 436 requires school districts to allow school personnel to participate in student-initiated religious activities on school grounds, even though that would violate the Establishment Clause. The federal courts have consistently held that public-school employees are forbidden to lead, initiate, or participate in religious activities involving students, even when those activities occur before or after school. When there are student-led religious activities on campus—such as “See You at the Pole” events—school employees may attend to supervise and monitor students but not to participate in the students’ prayer. This bill would inevitably lead to constitutional violations and costly litigation. HB 303 has the same fatal flaw.

Finally, AU reminded the legislature that prayer and religious exercise are not “voluntary” if an audience is captive – such as a mandatory school event. They argued:

When prayers take place at mandatory school events, the students who are required to attend are a captive audience and thus are coerced to participate in religious exercise. Coercing students to participate in prayers could violate their own faith or make them feel like outsiders in their own school. This rule equally applies to voluntary school-sponsored events because, otherwise, it could limit the ability of students to participate in extracurricular activities.

This bill attempts to skirt this well-established law by allowing students to deliver prayer at school events as long as the school provides a disclaimer, either in orally, in writing or both, and uses a neutral method to select the student speaker. Simply reading a rote disclaimer or publishing it in an event program cannot cure the constitutional violation.

The U.S. Supreme Court has ruled that “the actual or perceived endorsement” of prayers at school-sponsored activities “is established by factors beyond just the text of the policy.”

AU isn’t the only organization mobilizing to monitor for constitutional violations across the state of Florida in the wake of last week’s vote.

Moving Forward

Civil Rights, secular and church/state separation groups in Florida and around the nation have already announced plans to work with students and their families to combat the potential negative effects SB 436 enshrines into law.

David Williamson, founder of Central Florida Freethought Community (a chapter of the Freedom From Religion Foundation and an affiliate of the American Humanist Association), told us “This is not about discrimination nor about equality for religious students. These protections already exist. This is about imposing the majority religion on students and allowing teacher to take part in the oppression of unpopular opinions.”

He added:

Emboldening teachers and empowering them to participate in religious clubs and engage with students in prayer is a sure way to create in groups and out groups which would involve teachers. Our organization and our parent organization, the Freedom From Religion Foundation, see this over and over again. This bill would actually remove some of the protections that exist for students making it more and more likely that school districts will end up in court.

Religious clubs are often already illegally assisted by religious teachers and coaches for the purpose of evangelizing proselytizing to children. This bill would make that practice legal. When public school officials, whether paid or voluntary, act in ways that affect religious freedoms or endorse religion, their conduct is subject to scrutiny by the courts.

Teachers and administrators violate student’s rights to free expression as well as the Establishment Clause when they practice their religion around students. This simply cannot be avoided and the courts have consistently agreed.

Williamson concluded, “The only effects in law this bill will have are of serious concern to religious minorities and anyone who cares to keep our teachers out of the business of proselytizing to other people’s children or permitting kids to use the machinery of the state to proselytize to one another.”

For the moment these organizations – including the Freedom From Religion Foundation – are monitoring the bill as it travels to the governor’s desk for signature. Should it be signed into law (and Governor Rick Scott is expected to sign it), SB 436 will inevitably be challenged.

 

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Tim Peacock is the Managing Editor and founder of Peacock Panache and has worked as a civil rights advocate for over twenty years. During that time he's worn several hats including leading on campus LGBT advocacy in the University of Missouri campus system, interning with the Colorado Civil Rights Division, and volunteering at advocacy organizations. You can learn more about him at his personal website.

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