Kentucky legislators, ACLU butt heads on freedom of expression bill





KENTUCKY— During his 40 years as a legislator, Kentucky Senator Albert Robinson has kept a consistent platform: God, gun, country and family, a commitment which prompted his latest legislation: a bill aimed at reinforcing students’ religious and political freedom of speech.

But free expression advocates, like the American Civil Liberties Union of Kentucky, worry the bill could do the opposite.

The Student Expression Bill, which the Senate approved 30-4 on Feb. 19, would uphold high school and college students’ right to express their religious and political views in the classroom, including on written assignments, and would prevent teachers from censoring students’ speech in public forums.

Rather than creating new free speech rights, the bill clarifies existing, but often infringed, religious and political freedoms, Robinson said, adding that it “simply collects them together so that they are easily referenced by those who have questions: teachers, parents, administrators.”

“This is a right we’ve always had, it’s just rendered under threat,” he said. “It’s time to speak out and say here’s my right.”

The bill doesn’t specifically mention student media, but would protect its right to express religious or political opinions the same as any other group, he said.

The bill would prohibit administrators from interfering with student religious or political groups’ internal affairs, including the selection of members and leadership. Although Robinson said he couldn’t recall any situations where this happened, he sees the measure as preventative.

“If you have to have that, you end up with people that are contrary to what your organization stands for,” he said. “If you’re Muslim, then they would not want a Christian to be the president of their organization.”

Bill could ‘overregulate’ free speech

The bill has found an unlikely opponent in the American Civil Liberties Union of Kentucky, who argue that it would “overregulate” free speech in the state.

The ACLU released a statement condemning the bill, claiming that it would not only result in unnecessary litigation, but “would prohibit Kentucky’s local boards of education and public universities from denying funding to student organizations that discriminate against members based on sexual orientation or religion.”

If state law allowed these groups to be recognized as official campus organizations, they would be eligible to apply for state grants, said Amber Duke, ACLU of Kentucky’s communications manager.

Several legislators, including Robinson, have cited a Kentucky high school football game in 2011 to illustrate why the bill is important. After members of the school community expressed concern to the Freedom from Religion Foundation, the school was forced to end its tradition of pre-game prayer, lead by a local minister.

Banning prayer before sporting events is a direct violation of the community’s First Amendment rights, Robinson said.

“When people talk about separation of church and state, which is a lie to start with, that’s never part of the Constitution or any founding document at all,” he said. “It isn’t freedom from religion, it’s freedom of religion.”

But Duke says situations like this one are exactly why the ACLU feels the legislation is unnecessary and could even be used to infringe on minority religions’ constitutional rights.

“Our concern is that minority religious faiths and nonbelievers may be required to accept religious messages or participate in religious exercises that conflict with their own religious belief or lack thereof,” Duke said.

If the bill passes, Kentucky will follow states like Tennessee, Virginia, Arizona and Idaho, who have implemented similar laws in the wake of the 2010 Christian Legal Society Chapter v. Martinez U.S. Supreme Court ruling, Duke said.

The Christian Legal Society Chapter at Hastings College of Law in California filed suit against the institution, claiming it refused to recognize the group as a registered student organization, violating the CLS’s First Amendment rights.

Hastings College argued that state law requires that registered student organizations open membership to all students, regardless of “status or beliefs,” criteria that didn’t apply to CLS, which requires written confirmation of students’ Christian beliefs before allowing them to join.

The court upheld that the school’s policy did not violate the First Amendment, as it was “viewpoint neutral and reasonable.”

“In the years following this decision, we’ve seen legislation popping up that has this sort of language in it,” Duke said.

Another problem, she said, is that students’ rights to express and practice their faith in public schools is already protected. Layering new pieces of state law on top of what exists at the federal level can cause confusion for schools who try to follow both, causing them to seek legal counsel.

“These things are challenges for us because the short name for the bill is The Student Expression Bill, which is something that the ACLU definitely supports,” Duke said. “We get painted with the anti-Christian brush which is not the case.”

Law could affect student media

If The Student Expression Bill passes, it could affect student journalists, depending on how administrators and courts interpret it, said James Miller, journalism department chair and student media adviser at duPont Manual High School in Louisville.

The bill’s language is general enough that it could be applied to student journalists, although Miller said he doesn’t believe the authors had them in mind when drafting the language.

“I think it’s strange that it doesn’t address student journalism,” he said. “That’s one of the biggest battlegrounds for student rights in this country.”

Miller said state legislation specifically addressing student journalists’ rights would be helpful, as long as the bill outlines when prior review is appropriate, something he says his district’s Student Bill of Rights’ Freedom of Expression Clause lacks.

Although the clause prohibits censorship and prior restraint, its broad language allows school officials to “establish guidelines for school newspapers and other publications, including the restriction of libelous or obscene material or materials that would incite others, " which Miller said creates a built-in escape hatch for administrators.

Miller said many high school student journalists tend to shy away from reporting on controversial topics, fearing retaliation from the school, and he believes clearly written state legislation would empower student journalists to do more straightforward reporting.

“I think statewide legislation would be very helpful, and it would be very clarifying as long as you have very clear, specific, built-in exceptions,” he said.

Contact SPLC staff writer Katherine Schaeffer by email or at (202) 974-6318.


Albert Robinson, American Civil Liberties Union of Kentucky, Christian Legal Society Chapter v. Martinez, duPont Manual High School, Kentucky, news, recent-news, Student Expression Bill