Local schools often struggle to comply with the ever-increasing number of new mandates. Educators are frequently left scrambling to implement and synthesize new policy requirements from local, state, and federal entities. Unfortunately, these intersecting policy changes can sometimes place educators in a legal conundrum.
Due to a recent lawsuit against a POE member, our legal team has become aware of such a conundrum.
The conundrum centers on how an inadequate school board policy can leave an individual educator vulnerable to liability. To fully understand the issue and our recommended solution, it is helpful to explore two intersecting policies: a state law and a U.S. Supreme Court ruling.
I. Two Intersecting Policies, A Brief History
In 2014, the Oklahoma Legislature passed the Parents’ Bill of Rights.
Under the Parents’ Bill of Rights, local school boards must adopt policies that promote the involvement of parents. The statute mandates that all public school students “have a right to be excused from school attendance for religious purposes.” Moreover, the statute requires school boards to adopt protocols to inform parents of this right.
The Parents’ Bill of Rights also specifies that “the right to direct the moral or religious training of the minor child” is reserved for the parents; this right must be free from obstruction or interference from the state, any political subdivision of the state, any other governmental entity, or any other institution.
In 1952, the U.S. Supreme Court addressed this precise issue in Zorach v. Clauson.
The Court ruled that the act of permitting a public school student—with written parental consent—to be excused for a religious commitment is cooperative and neutral and protected under the First Amendment. Alternatively, the Court noted, a public school prohibiting or compelling such things would be acting coercively and in violation of the First Amendment.
U.S. Supreme Court Justice William O. Douglas, in his majority opinion, expanded on this notion, explaining that under the First Amendment, it makes no difference whether a student is excused occasionally for religious purposes or several students are excused regularly to attend a systematized program designed to further their religious needs—it is all protected.
This ruling affirmed the practice of what is typically called released time religious instruction or released time moral instruction. This practice—protected by the First Amendment—allows public school students to be excused from school for an hour or two per week to pursue their faith or moral beliefs academically. The released time course functions as an elective; school administrators set a regular schedule, and students attend the off-campus course.
The U.S. Supreme Court specified that for a released time religious instruction to be constitutional, it must comply with at least three requirements:
- Student attendance must be voluntary and contingent upon written parental consent.
- Religious instruction must be provided by an independent sponsoring group off-campus.
- No state resources shall be expended to support, promote, or advertise the program.
The Parents’ Bill of Rights and the Zorach v. Clauson opinion have far-reaching implications for public school families and school boards across the state. They also, however, can have far-reaching consequences for individual educators as well.
II. The Legal Conundrum
The conundrum is that a bad policy can leave individual educators liable.
The nuanced details of the Supreme Court’s Zorach v. Clauson opinion, the Oklahoma Parents’ Bill of Rights, and how they intersect are challenging to understand, even for trained educators. A careful consideration of both is necessary to draft a compliant policy.
Unfortunately, there are no policy guidelines for school districts to follow, leading to an inconsistent mosaic of released time policies: some policies are compliant, while others are illegal. Some school districts fail to adopt a policy altogether, likely violating the Parents’ Bill of Rights.
The consequences of a bad policy leave not only a school district vulnerable to expensive litigation but individual educators too; this is precisely what happened to a POE member responsible for overseeing an existing program. The policy guiding the program was flawed, which allowed a flawed program to exist, which inevitably led to a lawsuit.
The lawsuit named both the school district and our POE member.
A compliant policy protects not only schools but teachers, too.
III. A Legislative Solution—PASSED
To avoid litigation against Oklahoma educators, our government affairs team has collaborated on legislation to ensure every public school district in Oklahoma has a released time religious instruction policy that adheres to both the Constitution and Oklahoma state law.
The legislation—HB 1425—does two main things: (1) it guarantees every school district has a constitutional policy, and (2) it sufficiently informs parents of their rights, thus ensuring compliance with Oklahoma’s Parental Bill of Rights. However, the bill does not overstep: it ensures only constitutional and legal compliance; it leaves the particulars of any policy to the local school board, local educators, and community.
Released time religious and moral instruction courses are increasing in popularity in Oklahoma. However, without strict adherence to constitutional requirements and state statutes, a program can easily run afoul of the constitution or state law; if this happens, individual educators may be held liable.
It is important for school districts to protect educators by supplying a sound policy; without one, educators are exposed to unnecessary risks. HB 1425 eliminates the risk by providing a compliant policy in state statute.
HB 1425 was signed into law by Governor Kevin Stitt on May 30, 2024.