Untitled Texas Attorney General Opinion ( 2008 )

ATTORNEY GENERAL OF TEXAS
GREG ABBOTT
March 19, 2008
Mr. Robert Scott Opinion No. GA-0609
Commissioner of Education
Texas Education Agency Re: Whether the Schoolchildren's Religious Liberties
1701 North Congress Avenue Act, subchapter E, chapter 25 of the Education Code,
Austin, Texas 78701-1494 is circumscribed in the Houston Independent School
District by a 1970 permanent injunction issued by a
federal district court (RQ-0622-GA)
Dear Mr. Scott:
You ask whether the Schoolchildren's Religious Liberties Act (the "SRLA"), subchapter E,
chapter 25 of the Education Code, is circumscribed in the Houston Independent School District
("HISD") by a permanent injunction issued in 1970 by a federal district court. 1
The SRLA2 , enacted in 2007 by the Eightieth Legislature, requires a school district to "treat
a student's voluntary expression ofa religious viewpoint, ifany, on an otherwise permissible subject
in the same manner the district treats a student's voluntary expression ofa secular or other viewpoint
on an otherwise permissible subject and may not discriminate against the student based on a religious
viewpoint expressed by the student on an otherwise permissible subject." TEX. EDUC. CODE ANN.
§ 25.151 (Vernon Supp. 2007); see Act of May 26,2007, 80th Leg., R.S., ch. 261,2007 Tex. Gen.
Laws 403,403-07. The SRLA provides for freedom of religious expression in class assignments
and freedom to organize religious groups and activities. The statute also prescribes a model policy
governing voluntary religious expression in public schools. See TEx. EDUC. CODE ANN. §§ 25.153-
.154, .156 (Vernon Supp. 2007).
For purposes of the present inquiry, section 25.152 of the Education Code is particularly
relevant:
lLetter from Robert Scott, Commissioner ofEducation, to Honorable Greg Abbott, Attorney General of Texas
(Sept. 11, 2007) (on file with the Opinion Committee, also available at http://www.oag.state.tx.us) [hereinafter Request
Letter; see also Letter from David Thompson, Bracewell & Giuliani, filed on behalf of Houston Independent School
District, to Robert Scott, Acting Commissioner of Education (Aug. 24, 2007) (attachment to Request Letter with copy
of court order, Guild v. Houston Indep. Sch. Dist.) [hereinafter HISD Letter].
2The Act also may be cited as the "Religious Viewpoints Antidiscrimination Act." See Act of May 26, 2007,
80th Leg., R.S., ch. 261, § 1,2007 Tex. Gen. Laws 403,403.
Mr. Robert Scott - Page 2 (GA-0609)
(a) To ensure that the school district does not discriminate against
a student's publicly stated voluntary expression of a religious
viewpoint, ifany, and to eliminate any actual or perceived affirmative
school sponsorship or attribution to the district of a student's
expression of a religious viewpoint, if any, a school district shall
adopt a policy, which must include the establishment of a limited
public forum for student speakers at all school events at which a
student is to publicly speak. The policy regarding the limited public
forum must also require the school district to:
(1) provide the forum in a manner that does not discriminate
against a student's voluntary expression of a religious viewpoint, if
any, on an otherwise pefl!lissible subject;
(2) provide a method, based on neutral criteria, for the
selection of student speakers at school events and graduation
ceremonIes;
(3) ensure that a student speaker does not engage in obscene,
vulgar, offensively lewd, or indecent speech; and
(4) state, in writing, orally, or both, that the student's speech
does not reflect the endorsement, sponsorship, position, or expression
of the district.
(b) The school district disclaimer required by Subsection (a)(4) must
be provided at all graduation ceremonies. The school district must
also continue to provide the disclaimer at any other event in which a
student speaks publicly for as long as a need exists to dispel
confusion over the district's nonsponsorship ofthe student's speech.
(c) Student expression on an otherwise permissible subject may not
be excluded from the limited public forum because the subject is
expressed from a religious viewpoint.
Id. § 25.152.
HISD is subject to a permanent injunction, entered by a federal district court on December
28, 1970, in the case of Guild v. Houston Independent School District. The permanent injunction
addresses some ofthe same issues for which the Legislature has established requirements in section
25.152 of the Education Code. The Guild order provides, in relevant part:
Now, therefore, it is ORDERED, ADJUDGED, and
DECREED that the Houston Independent School District, its
Mr. Robert Scott - Page 3 (GA-0609)
Trustees, agents, servants, and employees, be permanently enjoined
as follows:
1. From reading from the Holy Bible or any other religious
work or book in conjunction with or as part of any school practice,
ceremony, observance, exercise or routine, and from causing or
permitting anyone to read from the Holy Bible or any other religious
work or book in connection with any school practice, ceremony,
observance, exercise or routine within the Houston Independent
School District.
2. From allowing, permitting, or requiring students of the
Houston Independent School District to participate in the recitation
of any prayer in connection with or as part of any school practice,
ceremony, observance, exercise or routine.
Guildv. Houston Indep. Sch. Dist., No. 70-H-II02 (S.D. Tex. Dec. 28, 1970) (Guild order atpp.3-4,
attached to HISD Letter, supra note 1) (emphasis added).
You ask whether "the terms and requirements of the Guild permanent injunction issued by
a United States District Court control to the extent of any conflict over the terms and requirements
of House Bill 3678 [the SRLA]," or, in the alternative, the SRLA "supersede[s] or otherwise
control[s] to the extent of any conflict with the permanent injunction." HISD Letter, supra note 1,
at 4. You also ask:
If the terms and requirements of the Guild permanent
injunction control to the extent of any conflict over the terms and
requirements of House· Bill 3678 [the SRLA], is the [HISD]
authorized to adopt a policy that complies with the terms and
requirements ofthe permanent injunction, but which may not comply
with all terms and requirements of House Bill 3678 [the SRLA].
Id.
Although there are no relevant Texas cases, the highest court of Maryland has consistently
held that "[a] permanent injunction is, as its name indicates, 'an injunction final or permanent in its
nature granted after a determination ofthe merits of the action.' But a permanent injunction is not
'permanent' in the sense that it must invariably last indefinitely." State Comm 'n on Human
Relations v. Talbot County Detention Center, 803 A.2d 527, 539 (Md. 2002), citing El Bey v.
Moorish Temple ofAm., Inc., 765 A.2d 132, 135 (Md. 2001). If it does not expire by its own terms,
the trial court that issued the injunction retains authority to modify or dissolve the injunction based
upon a change in the law or circumstances. See FED. R. CIV. P. 60(b) (specifying grounds for relief
from a final judgment, order, or proceeding in federal court); United States v. Snepp, 897 F.2d 138,
141 (4th Cir. 1990), citing United States v. Swift Co., 286 U.S. 106 (1932) ("A modification may be
Mr. Robert Scott - Page 4 (GA-0609)
granted where warranted by a change in the law or the circumstances."); see also City ofSan Antonio
v. Singleton, 858 S.W.2d 411, 412 (Tex. 1993); cfDavenport v. City ofDallas, No. 05-05-00211-
CV, 2006 WL 762844, at *2 (Tex. App.-Dallas Mar. 27, 2006, no pet.) (mem. op.) (indicating that
a permanent injunction that expired of its own terms is no longer in existence).
Here, the Guild order does not specify a date of termination, and, according to your letter,
the injunction has not been modified or vacated by the trial court having jurisdiction over the matter.
See generally Guildv. Houston Indep. Sch. Dist., No. 70-H-1102 (S.D. Tex. Dec. 28,1970) (Guild
order attached to HISD Letter, supra note 1). Hence, the matter remains subject to the jurisdiction
and review of the Guild court. This office generally does not address matters that are the subject of
pending litigation. See Tex. Att'y Gen. Ope Nos. GA-0498 (2007) at 8, GA-0399 (2006) at 3 n.5.
In the present instance, the matter, while not in active litigation, is one that is subject to the
continuing jurisdiction of a court. It is for that court to determine whether the SRLA poses any
conflict with the court's order. Thus, we do not address your questions at this time.
Mr. Robert Scott - Page 5 (GA-0609)
SUMMARY
The Houston Independent School District is under a
permanent injunction issued by a federal district court in December,
1970. Because the matter is thus subject to the continuing
jurisdiction ofthe federal court, this office will not determine whether
certain terms of the injunction conflict with or prevail over certain
provisions of the Schoolchildren's Religious Liberties Act,
subchapter E, chapter 25 of the Texas Education Code.
Very truly yours,
KENT C. SULLIVAN
First Assistant Attorney General
ANDREW WEBER
Deputy Attorney General for Legal Counsel
NANCY S. FULLER
Chair, Opinion Committee
Rick Gilpin
Assistant Attorney General, Opinion Committee