My Uncle Frank and Aunt Eileen had one of those pictures.  I remember that whenever we went to visit at their house, Jesus was right there, on the wall right above the TV, with those disapproving eyes following my every move.  At least it seemed to me they were disapproving eyes. Guilty conscience maybe?  In any event, it was creepy.

So can you have one of these artistic renderings in a public school?  No. What about a public charter school?  The answer to that is also “no.”  What if the charter school is renting space from a church?  No.

That’s the main point in the TO THE CHARTER SCHOOL ADMINISTRATOR ADDRESSED letter dated December 9, 2015.  The letter is from Heather Mauze, Director of the Division of Charter School Administration.  It’s a short, to the point letter. Key Quotes:

As you are aware, charter schools are public schools that receive public tax dollars….

As such, it is not appropriate for any public schools to have religious iconography present in its classrooms or in any public spaces used by the school.

The state realizes that some of our charter schools have entered into lease agreements with churches and consequently are tasked with providing an assurance that all religious iconography has been removed or covered during the school day and during any after-hour school events.

So there you have it. No beating around the burning bush here.

DAWG BONE: RELIGIOUS ICONS: TAKE THEM DOWN OR COVER THEM UP.

Dear Sinkiller:  Calm down, my friend.   They love Jesus in Lubbock.  They just don’t like tattoos. What happened was a group called “Little Pencil, L.L.C.” (don’t ask) wanted to display an ad on the jumbotron at the football field. The ad featured Jesus, alright, but he was very extensively tattooed. We’re not sure that tattoo art was available in the early A.D. years, but regardless of its historical accuracy, Lubbock turned down the ad. But they did it because of the tattoos—not because of Jesus. So if they get questioned about this when the sheep and goats are being separated, I’m confident that the spokesperson for the district will be able to say: “It’s not that we don’t like Jesus.  We just don’t like tattoos.”

The district turned down the ad because tattoo parlors in Texas may not serve minors, and the district had a “no visible tattoos” policy. The court held that the district’s rationale was “reasonable.”  It was “content based” but “viewpoint neutral.”

It helped the district’s cause that it accepted other religious advertising.  This indicated to the court that the district was not hostile to religion, just the tattoos.  The court held that the jumbotron was not a place for wide open and free discussion.  Instead, it was a “limited public forum,” which meant that the district could impose reasonable restrictions on the ads it would accept.

The case is Little Pencil, L.L.C. v. Lubbock ISD, decided by the 5^th Circuit on September 23, 2015.  You can find the case at 2015 WL 5601316.

DAWG BONE: MAKE NO MISTAKE: LUBBOCK LOVES JESUS, BUT THEY ARE NOT TOO COOL WITH TATTOOS.

Here’s what happened in Rankin County, Mississippi that resulted in the district being held in contempt of court.

A student (identified in the case as M.B.) sued the district during her junior year of high school, alleging that the district had a practice of including Christian sermons and prayers in student assemblies.  The district admitted that it had been violating the Constitution, adopted a new Religion in Public Schools Policy and settled the lawsuit by entering into an Agreed Judgment, approved by the federal court.

Six months later, the district held an assembly to honor students who scored high on the ACT.  M.B. was one of the honorees.  The printed program for the event included an Invocation by a local Methodist preacher.  The Reverend asked the students to stand and bow their heads.  He delivered the invocation, concluding with: “in the name of the Father, and the Son and the Holy Spirit.”

M.B. filed a Motion, asking the court to find the district in contempt of court for violating the Agreed Judgment.  The district admitted that the prayer at the ceremony was a violation of the Establishment Clause of the U.S. Constitution.  However, the district argued that there were two reasons why it should not be held in contempt of court.

But Your Honor: She Didn’t Have to Be There!

First, the district pointed out that the ceremony was voluntary: M.B. did not have to be there.  The court said that this was “immaterial.”  The event was voluntary, but the inclusion of the prayer made it “coercive.” The court: “The event was still coercive as it unnecessarily required Plaintiff to make the difficult decision between being exposed to a religious ritual she found objectionable or not attend an event honoring her and other students for their academic excellence.”

But Your Honor: This Stuff is Complicated!

Second, the district argued that First Amendment law is so complicated that its administrators, who are not lawyers, should not be held in contempt for running afoul of its complexities.  The court described this, without irony, as “a Hail Mary pass.”  The court pointed out that the issue was not the ins and outs of the First Amendment: it was whether the district had violated an Agreed Judgment that it voluntarily entered into.  Indeed, in a previous court filing, the district had stated that its “Religion Policy” was “stated in terms which are clear and easily understood by teachers, administrators, other school officials, and any groups seeking to make use of the school facilities.”

But Your Honor: We Acted in Good Faith! The PR Director Didn’t Understand!

It did not help the district to assert that the PR Director who organized the ceremony acted in good faith and did not understand that the preacher’s prayer was a mistake.  The court pointed out that the district was responsible for making sure that all of its employees understood the Religion Policy.

And What About Those Gideon Bibles?

By filing the suit, the student uncovered other practices in the school.  In particular, the court addressed the principal of an elementary school directing all 5^th grade teachers to lead their classes to an area in the hallway where Gideons would be distributing Bibles.  This happened after the Agreed Judgment was entered into.  The court found this to be further evidence of the district’s “egregious” violation of the Agreed Judgment.

The court ordered the district to pay the Plaintiff $7,500.  The district will have to pay a fine of $10,000 for any future violation.  The district will have to pay M.B.’s attorneys’ fees and costs of court.  And the district is now permanently enjoined from including “prayer or religious sermons in any school-sponsored event including but not limited to assemblies, graduations awards ceremonies, athletic events and any other school event subject to the limitations set out in the Equal Access Act.”

The case is M.B. v. Rankin County School District, decided by the federal court for the Southern District of Mississippi on July 10, 2015.  It is cited at 2015 WL 5023115.

DAWG BONE: JUDGES DON’T LIKE IT WHEN YOU AGREE TO DO SOMETHING, AND THEN YOU DON’T.

Dear Dawg: A local preacher claims that the Texas Constitution requires all school board members to acknowledge the existence of a Supreme Being.  True?

Dawg: I got a letter from one of our local preachers last week that got my attention. This fella has been here for decades, is well respected and is informally known as The Sinkiller of West Texas.  Now, you don’t want to ignore a man like that. The Sinkiller is a good man, but he loves to rail about our “evil” public schools, where God is no longer welcome.  His latest claim is that every member of our school board is required to acknowledge, at a minimum, that there is at least some kind of Supreme Being out there.  What’s this about?  I DON’T SUPPOSE THE SUPERINTENDENT WOULD QUALIFY AS THE “SUPREME BEING”?

DEAR I DON’T SUPPOSE: We know where the Sinkiller got that.  He’s not making it up.  Let’s take a look at Article I, Section 4 of the Texas Constitution:

No religious test shall ever be required as a qualification to any office, or public trust, in this State; nor shall any one be excluded from holding office on account of his religious sentiments, provided he acknowledge the existence of a Supreme Being.  (Emphasis added).

That’s what it says.  Still.

We used to have a provision in the Education Code that said much the same thing, and applied it to all school employees.  Section 4.07 stated that schools could not inquire into the religious beliefs of anyone who sought employment with the school except to ask if the person acknowledged the existence of a Supreme Being.  A federal district court in Houston struck this statute down in 1982 in the unreported case of Roe v. Klein ISD.  We found a reference to this case in the first edition of The Educator’s Guide to Texas School Law, by Dr. Frank Kemerer (UT Press, 1986).  We’re not sure when it disappeared from the Education Code, but it did.

Statements in the Texas Constitution can remain there until repealed by the voters, but if they conflict with federal constitutional requirements, they hold no power.  We have a very recent example of this.  Article I, Section 32 of the Texas Constitution says that “Marriage in this state shall consist only of the union of one man and one woman.”

It still says that.  But county clerks are issuing marriage licenses to same-sex couples.

And no, the superintendent will not qualify as a “Supreme Being.”

DAWG BONE: BE CAREFUL WHEN READING THE TEXAS CONSTITUTION.

Our principal is demonstrating “Downward Facing Dog.” Is this OK in a public school? Isn’t yoga a religious practice?

You won’t be surprised to hear that it happened in California.  The Encinitas Union School District, which serves only K-6 students, implemented an Ashtanga Yoga program as a component of its P.E. offerings.  The program was funded in part by the KP Jois Foundation, whose mission is to “establish and teach Ashtanga yoga in the community.”

The district hired a yoga instructor who was certified by a yoga institute in India.  The classes taught children a series of poses, some Sanskrit words. The teacher also read “Myth of the Asanas” which contains numerous references to Hindu deities.  However, being in a public school, she omitted the parts about the deities.  She did, however, instruct the children to use the word “Namaste,” which she interpreted to mean “respect.”

After using yoga at one school in 2011-12, the district expanded the program to all nine of its schools the following year.  This was again funded, in part, by a grant from the Jois Foundation. The proposal called for a “partnership” between the Foundation and the school district “to deliver a world class mind/body wellness program” and to provide “students, staff and families access to Ashtanga Yoga on a regular basis throughout the year.”

Not everyone in the community greeted this by chanting “Om” while in the lotus position.   Stephen and Jennifer Sedlock sued the district, its superintendent and all five school board members. The suit alleged that the district was promoting the Hindu religion, in violation of the U.S. and California constitutions.

The California Court of Appeals ruled in favor of the school district.  In its critical ruling, the court observed that “it is clear that while yoga may be practiced for religious reasons, it cannot be said to be inherently religious or overtly sectarian.”

Here are some of the factors that persuaded the court to rule for the school district:

1. Although the Foundation provided some money, the district maintained complete control over the curriculum, and made sure that it was stripped of anything that even hinted at, or sounded religious. For example, the “lotus position” was renamed “criss-cross applesauce.” The district even dropped the Sanskrit.
2. Yoga may have religious roots, but that does not mean that its current practice in the district is religious.
3. The court noted evidence in the record showing that “contemporary yoga is commonly practiced in the United States for reasons that are entirely distinct from religious ideology.” Surveys showed that people practiced yoga primarily for 1) increased flexibility; 2) stress relief; and 3) improvement in physical health.

Yoga is very popular.  It makes sense that some schools might want to teach this to kids, as it is a physical activity that can be practiced for a lifetime.  So we are wondering: is anyone in Texas doing this?  Let me know at jwalsh@wabsa.com.

The case is Sedlock v. Baird, decided by the Court of Appeals, 4^th Appellate District, in California on April 3, 2015.

DAWG BONE: IF YOU OFFER YOGA, TAKE OUT ANY RELIGIOUS CONTENT.  THEN ASSUME “CRISS-CROSS APPLESAUCE!”