Kentucky State Capitol | Photo via Wikimedia Commons

The Kentucky General Assembly grows closer to passing a bill to protect religious expression by students in public schools. Senate Bill 17 would amend an existing law to “permit students to voluntarily express religious or political viewpoints in school assignments free from discrimination,” along with a number of other changes.

This new bill is almost entirely redundant. KRS 158.183 already protects religious expression in public schools. Since 1998 this law has, in no uncertain terms, reaffirmed the First Amendment rights of students to “pray in public school,” “express religious viewpoints in a public school,” “distribute religious literature in a public school,” and be absent without punishment from school due to religious holidays and related practices.

The existing law is not in any way vague or unclear. And it only limits student religious expression to the extent that it disrupts the educational process, interferes with order and discipline, or infringes on the right of the school to “determine educational curriculum and assignments.” Fair enough.

SB17 is mostly superficial in its changes, but it does go a bit farther in that it would ensure access of student religious organizations “to public secondary school facilities during noninstructional time.” Since a 2001 ruling by the U.S. Supreme Court, students have already been entitled to such access. In Good News Club v. Milford Central School, the Court ruled 6-3 that schools that allow after-school access to secular organizations must also allow after-school access to religious organizations. Again, fair enough (and already the law).

For the most part, SB17 simply re-codifies existing religious protections. There is the curious inclusion of “political” expression in the new bill as well, but political expression by students also is protected by the First Amendment, and can be limited only to the extent that it disrupts class, causes disorder in the school, or interferes with assignments and the larger curriculum – just like religious expression.

Like pointless bills designed to stymie the imminent imposition of Sharia Law in Islamic fundamentalist hotbeds like Kentucky (that’s sarcasm), SB17 is a solution in search of a problem. Not only is the First Amendment alive and well, but so is KRS 158. The religious expression of Kentucky students (especially Christian students) faces no significant threats.

But you wouldn’t know that if you relied only on certain local media outlets, such as WDRB. On Feb. 11, they posted a five-sentence story from some sort of alternate universe. The story was headlined “Kentucky Senate passes bill to allow religion in schools,” and read, in its entirety:

Literally all of the things listed above are already allowed by state law and the First Amendment. Students may already express religious beliefs on school property. Teachers may also use the Bible to teach about the history of religion. And schools may already host plays to promote learning cultural and religious heritage.

Professor Sam Marcosson, who teaches constitutional law at the University of Louisville Brandeis School of Law, agrees. “In fact,” he told me, “the First Amendment encourages all of these things as part of a vibrant marketplace of ideas in which public schools are a vital part.”

WDRB has a responsibility to help its readers and viewers understand basic reality. Bad reporting fuels persistent misconceptions that public schools are religion-free zones. That good Christian children must drop their Bibles and abandon Jesus upon entering the school building each morning. That is simply false.

Schools may not require students to express certain religious beliefs. In 1962, the Supreme Court ruled in Engel v. Vitale that public school officials can’t recite government-written prayers to their captive student audiences. And in 1963, the Court ruled in Abington School District v. Schempp that school-sponsored Bible reading for religious purposes violates the Establishment Clause of the First Amendment.

These cases limit the power of schools to impose religious beliefs on students. They do nothing to limit students, who remain free to believe anything they want, to pray whenever they want to pray, to express any religious viewpoint they want to express, and to hold religious meetings outside of normal instructional time. The only limitation is that they can’t disrupt class or other students when doing so — not exactly an unreasonable request.

The First Amendment and existing Kentucky law already affirm all of these principles, and SB17 would add little more than clarification and superfluous affirmations. Professor Marcosson notes that “Jefferson and Madison got to these protections a couple of centuries before the Kentucky General Assembly. Otherwise, we’d have been waiting until 2017 to have religious freedom in schools in Kentucky instead of having it all this time.”

The only risk is that overzealous school administrators or students may attempt to use the new bill to impose on others their particular religious doctrines. Luckily, the Establishment Clause still stands in their way no matter what kind of “religious freedom” law is passed by the Kentucky General Assembly, whether it is SB17 or something more radical.

These are all facts that WDRB readers could have used to assess the merits of SB17. Unfortunately, those readers got instead the thinnest, most misleading report possible. Misleading reports fuel misconceptions and misconceptions fuel resentment, something we don’t need more of in these politically tumultuous times. 

Joe Dunman

Joe Dunman

    Joe Dunman is a Louisville, Kentucky attorney whose practice focuses on civil rights and employment law. He tweets @JoeDunman and blogs at www.joedunmanlaw.com.