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8/1/2013 - August 2013 SLI Educational Update - The Alabama Student Religious Liberties Act of 2013

AN EDUCATIONAL UPDATE FROM

THE SOUTHEAST LAW INSTITUTE™, INC.

 To:                  SLI Supporters                                  

Date:               August 2013  

 From:              A. Eric Johnston

 Re:                  The Alabama Student Religious Liberties Act of 2013

            The Alabama Student Religious Liberties Act of 2013 (HB588) was an attempt to codify aspects of religious freedom into a statute to be observed by Alabama’s public schools.  It recognized the free exercise rights of student initiated religious speech in public schools.  It set out a “limited public forum” standard for allowing free student speech in certain organized school activities, viz., football games, graduation, etcetera.

             While HB588 did not pass, there is a lesson to be learned from it.  The purpose of this Update is to comment on whether the bill is necessary or advisable at this time.

             In the1960’s, Establishment Clause jurisprudence worked to remove most religious speech out of the public school context.  The cases that followed were generally strengthening Establishment Clause jurisprudence to the point that virtually any religious activity in a public school context violated the Establishment Clause and would not be permitted.  This worked to the detriment of and weakened the Free Exercise Clause of the First Amendment.

            From the 1970’s into the 1990’s, many efforts were made to return what has been referred to the equal tension between the religion clauses.  This meant efforts to strengthen free exercise rights of individuals in the public square.  A number of important Federal Circuit Court and U.S. Supreme Court cases were decided, including the Chandler v. James, 180 F. 3d 1254 (11 CA 1999) (Chandler I)and Chandler v. Siegelman, 230 F.3d 1313 (11 CA 2000) (Chandler II), cases in the Eleventh Circuit, arising in DeKalb County, Alabama.  A statute passed in 1993, Section 16-1-20.3, 1975 Code of Alabama, acted as a catalyst for these decisions.  The result of these decisions was the excellent July 21, 2000 Memorandum by Attorney General Bill Pryor setting guidelines for students’ religious speech in public schools.

            The precipitating action of the 1993 statute was necessary to bring into focus and clearly define students’ rights.  At that point in time, it was an important step.  At this point in time, another statute basically doing the same thing is not necessary.

             If a statute were passed, it is likely to be challenged in court.  Whatever the outcome of a constitutional challenge, the result would be the same as currently exists under Alabama and federal religious freedom laws.  The First Amendment Free Exercise Clause to the United States Constitution and the Alabama Religious Freedom Amendment already guarantee these freedoms.  The 2000 Pryor Memorandum spells out those rights which are constitutionally protected.  Having a statute rehearse these rights does not accomplish anything more.

            The better course of action would be to encourage Alabama’s public school officials to educate themselves on these students’ religious rights and to permit students to exercise them.  It has likely been several years since information as uniformly disseminated to public school officials on this issue.  Rather than attempt a new statute, why not organize a distribution of information through the Alabama State Department of Education to all public school officials, to whatever level may be recommended, to educate them.

            This may be done in a number of ways, but at least two come to mind.  First, the Alabama State Department of Education could publish a restatement of Pryor’s 2000 Memorandum.  If there is concern the Department may not properly carry through with that, then a House, Senate or joint resolution could be passed, containing the appropriate language, in effect restating Pryor’s Memorandum, directing it be distributed to all of Alabama’s public school superintendants and principals for every public school district.  Include the information each year in Student Handbook and post it on school websites.  By restating existing law in this effective manner, it is highly unlikely that any lawsuit would be filed and even more unlikely that the action would be held unconstitutional.

            What is more likely is that specific activities taking place in public schools could be attacked.  The Freedom From Religion Foundation, a Wisconsin based organization, has been active across the country, including in Alabama, with threats against public school officials for what they call unconstitutional religious activities.  The larger educational effort may therefore be to provide good legal guidance to Alabama’s public school officials so they will follow the guidelines and be free of the fear of a lawsuit.  Whether a bill like HB588 becomes law would not have anything to do with the need for public school officials to recognize students’ rights.  They may already do that and should do that.

            This Update should not be construed in any way as resisting free exercise of religion.  The Southeast Law Institute was involved in all of the efforts outlined above and will continue to provide free legal assistance to those whose religious liberty is threatened.  Religious liberty is always under attack.  We must always be alert to any threats to it.  We must always be wise in our strategies to protect it.

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