For God and Profit

Religious expression bill blesses the lawyers who wrote it


Some folks worship God. Others favor mammon. Those who try to combine the two are usually worth keeping an eye on.

A case in point this session was House Bill 3678, on its face an effort by Sugar Land Republican Charlie Howard to get prayer and religious viewpoints back into public schools without running afoul of the U.S. Constitution.

Howard’s “Religious Viewpoints Antidiscrimination Act” passed both chambers, and Gov. Rick Perry seemed more than willing to sign it. The bill requires schools to set up limited public forums during football games and morning announcements; selected student leaders can speak, whether religiously or secularly. Supporters say this merely codifies constitutional law and helps school officials understand students’ rights to religious expression. That, supposedly, would cut down on messy lawsuits over school prayer, which inevitably leave taxpayers footing hefty legal bills.

One part of the proposed law that didn’t make it into the final draft speaks more eloquently to the bill’s true intent. The bill, it turns out, was drafted by private lawyers with a penchant for suing school districts, and may not only make lawsuits more likely, but stick taxpayers with even more legal fees.

In its first version on the Senate side, the bill contained language making it easier for schools to be sued by students claiming districts violated the law. School districts would have been required to pay the students’ attorney fees if the lawsuits were successful.

Even the bill’s Senate sponsor, Sen. Tommy Williams, a Republican from The Woodlands, was uncomfortable with the enforcement language and removed it. Why was it there in the first place?

Williams says it was written by Kelly Coghlan, chief counsel at Coghlan and Associates. Both Coghlan and ally Kelly Shackelford, president of the Free Market Foundation and chief counsel at Liberty Legal Institute, have worked on lawsuits against schools for allegedly stifling religious expression.

Shackelford said in an interview that Coghlan had written the enforcement element of the bill, and that both had supported it.

“I don’t think [the enforcement provision] would increase litigation,” Shackelford said. “By allowing enforcement, the districts would train teachers. They would say, ‘Let’s make sure we understand this,’ and there would be less lawsuits.”

When the Observer asked Coghlan who had written the provision, he repeatedly said, “It’s irrelevant who wrote that,” because the language had been stripped. He then abruptly hung up the phone.

Perhaps Coghlan’s reticence stems from a recognition that it might appear unseemly that lawyers who sue school districts wrote complicated legislation that could leave schools vulnerable to more lawsuits.

Even with that language stripped, the measure still puts school districts at greater risk of lawsuits, says Doug Laycock, professor of constitutional law at the University of Michigan. “It’s a very cleverly drafted attempt to get prayer at the beginning of the school day and at the beginning of school events within the confines of Supreme Court existing law,” he says.

Without the enforcement provision, students can’t sue for compensatory damages, but they still can sue to force schools to comply with the law, Laycock says. Students can, however, have attorney fees paid by school boards at the discretion of the judge, under the Texas Declaratory Judgment Act, he says. Students can sue schools for damages for violating their First Amendment rights.

“They obviously went to great lengths to set this up,” Laycock says. “Schools will get sued.”

Megan Headley is an Observer legislative intern.