What right should students have to talk about God in homework, assemblies, club meetings, and graduation speeches? This is the question at stake in a new law in Tennessee and other states across the country. Governor Bill Haslam signed the Religious Viewpoints Anti-Discrimination Act, which affirms that religious students should have the same free-speech rights as secular ones. At first, this might seem uncontroversial; religious expression has always been protected by the First Amendment. So why did two Republican state legislators feel the need to write the bill?
"Christian conservative groups have for many years been frustrated by what they see as a hostile environment for religion in public schools," said Charles Haynes, the Director of the Religious Freedom Education Project at the Newseum. "They are convinced—with some justification—that there's a lot more that public schools can be doing to protect religious expression."
In Tennessee, legislators pointed to one case in particular as the motivation for creating the bill. In October, a teacher told a Memphis fifth grader that she couldn't write about God in an essay about "her idol." In defiance, ten-year-old Erin Shead wrote two essays—both about the Almighty, although only one was about Michael Jackson—and her mom sought legal help. The elementary schooler was later allowed to turn in her God essay (and earned a score of 100%, as local news organizations dutifully reported at the time).
Although Haynes says lawmakers had this kind of situation in mind when drafting the legislation, others have a very different interpretation. "Despite its name, this legislation crosses the line from protecting religious freedom into creating systematic imposition of some students’ personal religious views on other students," said Hedy Weinberg, the director of the American Civil Liberties Union of Tennessee, in a press release. Bloggers at "The Gaily Grind" and "The New Civil Rights Movement" have claimed the law would protect anti-gay bullies.
"I think that criticism is in bad faith and absurd," said David French, a senior counselor at the American Center for Law and Justice. "I have not seen any evidence whatsoever that there is a desire to use religion as a thinly-veiled pretext to bully anybody." Representative Courtney Rogers, one of the bill's co-sponsors, disagrees—one of the staffers in her office called the claim "slanderous."
How did people come to have such different views on a bill about "religious viewpoints"? One side claims to champion persecuted, God-loving fifth-graders, while the other portends schools filled with gay-bashing bullies.
"Anger has been building up on both sides," said Haynes. "On the conservative Christian side, they see this as being used to inappropriately hush up kids. But the reality is that this speech does trigger a lot of emotion, and for some people on [the other] side, we’ve come to a place where kids talking about homosexuality being sinful [is considered] unacceptable in public schools."
One of the big questions is how to define bullying in the first place. "To say that homosexuality is a sin is not bullying," said Mathew Staver, the founder and Chairman of Liberty Counsel, which helped craft similar legislation in Texas. "You can’t make a litmus test that certain words or viewpoints aren’t protected by the Constitution." Haynes agreed that it can be difficult to establish the difference between harassment and free speech. "In the name of stopping what all of us are against—bullying—some groups want to censor religious convictions," he said.
With this particular bill, it seems like LGBT bullying is a bit of a distraction. Of all the religious discrimination claims he's represented, very few have had to do with homosexuality, French said. "I have been on the receiving end of complaint after complaint: Teachers telling students, don’t bring your Bible to recess, you can’t discuss your faith or invite someone to church at school, you can’t form a club, you can’t pray. In all of that time, I can probably count on the fingers of one hand the times that involved any conflict with LGBT students."
But it's also important to remember where this specific debate is taking place. "We are Tennessee," said the ACLU's Weinberg. "It wasn’t that long ago—in 1925—that the Scopes trial took place in Tennessee, and to this day there are efforts to bring religion back into the classroom."
She said the ACLU often gets complaints about schools favoring religious activities. "It shouldn’t be tit for tat, like I have more complaints than you do," she said. "But based on our experience in understanding what’s happening across state, the protections of the Establishment Clause are not adhered to the way they should be. This legislation will create more confusion for schools and families."
This gets at the one thing that everyone seems to agree on: There's a lot of confusion among administrators about how to handle religious issues in their schools.
Many school districts ... are very alert to potential violations of the Establishment Clause, particularly because of potential lawsuits," Haynes said. "The courts have said that public school officials can't take side on religious issues, but at the same time, students have rights."
Staver said the Tennessee bill was designed for this exact reason: to clarify what's already legal. "I think it’s a good law because it sets forth clearly what the law is without having someone having to go research all the cases," he said.
That's somewhat true. Particularly after the Supreme Court's ruling in favor of free speech in public schools in Tinker v. Des Moines in 1969, students have been legally allowed to express their beliefs. But the Tennessee law blurs the line between Tinker and another case, Santa Fe Independent School District v. Des Moines, in which the Supreme Court ruled that praying at school-sponsored football games is unconstitutional. The new law says student speakers at school events can talk about God as long as school administrators don't have any influence over what they say.
"On this issue, it’s not clear what the court would say," Haynes said. "The nuance here is … if the student is allowed to get up and speak if the school has not edited the speech. In that circumstance, is it really school-sponsored speech? Some would argue, well, it’s still a school event, and here’s a kid offering a prayer or talking about their faith, but the other side would say no—that’s free speech."
A more state legislators take on this issue, it's possible that courts will have to provide clarification. Tennessee is just the latest state to pass this kind of legislation—Texas created a similar law in 2007, South Carolina voted for its version in 2012, and Oklahoma approved its "Religious Viewpoints Anti-Discrimination Act" in February of 2014. "There's no doubt that we’ll be doing more of this," Staver said. "This has been a success in several states, and it’s time to start with more of a national campaign."