New Ohio law allows more religious expression within schools

COLUMBUS - Students are granted guaranteed rights to express religious expression at public schools under a new Ohio law, but critics and experts question its necessity.

“It’s a First Amendment thing," said 97th Ohio House District Rep. Adam Holmes, who co-sponsored House Bill 164. "There's also that sense of fairness, you wouldn’t want to prosecute any religion.

"(HB 164) was generated because of several instances in Ohio schools where religious expression was being restricted to specific times and places in ways not required of other expressions," he said. "We just want it to be neutral."  

Holmes (R-Nashport), who represents Guernsey County and portions of Muskingum County, highlighted his interest in two parts of the legislation, which was introduced last year and became fully effective in September. 

The law gives absolute guarantee that a student could voluntarily write about religious subject matter for classes and that they could start a religiously-based club, no questions asked.

“It doesn’t require schools to support religion at all, just to treat it equally, just like any other club," Holmes said, adding the key is that it would be required of schools to allow these practices to happen on school grounds, during school hours.

But there's another aspect to the bill that has left critics and law experts with questions, however. It allows schools to "provide for a moment of silence each school day for prayer, reflection, or meditation upon a moral, philosophical or patriotic theme." Schools aren't required to provide that, and students aren't required to participate, however.

But with some districts — including some in Muskingum County — already doing what the bill is designed to achieve, law experts and critics question the necessity of its passage, saying existing protection under the First Amendment may already be enough to achieve some of its goals. They also question the constitutionality of a "moment of silence" provided during the school day based on previous high court rulings.

Holmes cited an example of a student's schoolwork content. If a class was tasked with writing a term paper about a historical figure and a child chose to write about Moses, the teacher could not tell them no because of its religious subject matter.

"But in a class about theory of evolution, you can’t just say you won’t answer because your religion is against it, you’d get an F," he said.

Much of what the bill is trying to achieve has already been happening due to what the First Amendment has already granted. And offering a voluntary moment to pray or meditate is particularly troublesome, said Brian King, adviser for pre-law undergrad students at Muskingum University.

“There’s this fine line that the Supreme Court has tried to walk over the years between state action and private action. Anything that the school might sponsor, fund or report, it’s considered state action promoting religion, which is a First Amendment (violation)," he said.

Maysville Local Schools has already revised policies regarding religion in response to the bill.

But long before the bill even existed students have been provided a moment of silence after the morning announcements that "isn't religiously based" and serves as "a moment to reflect before the start of the school day for anyone chooses to do so," said Ruth Zitnik, Maysville Local Schools superintendent.

"There’s still that responsibility to make sure, you don’t have a captive audience where no one is forced to participate in anything, but it’s more around the notion that we should not prohibit kids from being able to express their views," Zitnik said of creating clubs and students voluntarily using religious subject matter in class.

Zanesville High School Principal Chad Grandstaff said a Fellowship of Christian Athletes club has been meeting during the school's designated club days also prior to the legislation.

"They have prayer, religious discussions, and they also do fundraisers to provide community service for groups in need," he said. He noted students, not staff, would have to initiate the formation of a faith-based club.

The Supreme Court in 1985 took up Wallace v. Jaffree, a civil lawsuit brought against the state of Alabama disputing similarly written statutes to that of HB 164.

According to case documents, the statutes in question authorized "a one-minute period of silence in all public schools for meditation or voluntary prayer." Another subsequent statute allowed teachers to lead "willing students" in a prayer directed toward the "Almighty God ... the Creator and Supreme Judge of the World."

The high court ruled the statutes unconstitutional as they served no secular purpose.

Holmes agrees that the constitution requires government institutions to remain neutral toward religion, but said the difference between the Ohio law and the Alabama laws is that HB 164's language clearly states no student would be required to participate at all. 

King said providing these moments of silence may put students, who are offered this opportunity by someone in a position of authority, in a position where they participate even if they're uncomfortable with it.

"That’s the debate. Are they promoting it, or are they facilitating it if students want it? What’s the effect going to be?" King said. "It’s vague, that’s the problem. There’s a lot of room for interpretation."

Groups like the American Civil Liberties Union opposed the bill, saying it would result in "proselytization and unwanted coercion of students of different religious beliefs and those with none" at school.

The bill passed 61-31 in the House after the first reading and unanimously in the Senate after its education committee added more than a dozen provisions regarding education during the pandemic, including some related to additional state pandemic relief funding and authorizing the implementation of remote learning plans.It was passed again with only three opposed in the House before the governor signed it into law in June.