Dear Superintendent:

Many of you are struggling with how to implement the required policy under the Religious Viewpoints Anti-Discrimination Act. I have received calls and emails from many of you requesting assistance with drafting your policy. Earlier this summer at a legal seminar for lawyers, TASB indicated that it would not be drafting this local policy for school districts. TASB recently changed its position and is now providing policy guidance. In early July, I advised you about my concerns regarding potential liability for school districts that adopt and enforce this policy. Because of my concerns, many of you have been asking how to limit your potential exposure.

If you adopt the TASB policy or the State Model policy, you could be sued for violating the Establishment Clause of the First Amendment, which trumps state law. In fact, I believe the ACLU and other similar organizations will begin filing lawsuits in federal court as soon as school districts begin adopting their policy. Since the lawsuit would be resulting from a school policy, the school district will not have immunity. Additionally, employees may be individually liable because they may be violating students’ clearly established constitutional rights.

School districts around the state are in a precarious position. Do you adopt a policy that may be a violation of the United States Constitution or do you not adopt a policy and be in violation of state law? I have spoken with many of you in detail about the possibility of not adopting this policy. Along with some risks, there are several benefits to delaying the adoption of this policy. If your district would like to explore this possibility, please feel free to give me a call to discuss.

As always, you may review this and other school law updates on this website.