Does Texas's school religious-expression law override a federal court injunction against a school district?

TX AG Opinion GA-0609: Does the Schoolchildren's Religious Liberties Act override a 1970 injunction on Houston ISD?

Plain-English summary

In 2007 the Legislature passed the Schoolchildren's Religious Liberties Act (also called the Religious Viewpoints Antidiscrimination Act), which requires a school district to treat a student's voluntary religious expression the same as secular expression on a permissible subject, and to adopt a policy creating a limited public forum for student speakers at school events and graduations. Separately, Houston Independent School District has been under a federal permanent injunction since 1970, the Guild order, which bars the district from reading the Bible or other religious works as part of school activities and from allowing students to recite prayers in connection with school activities. The Commissioner of Education asked the Attorney General which one controls when they conflict, and whether Houston ISD could adopt a policy that follows the injunction even if it does not satisfy every requirement of the new Act.

The Attorney General declined to answer. The opinion explained that a permanent injunction is not necessarily permanent forever; the issuing court can modify or dissolve it based on a change in law or circumstances under Federal Rule of Civil Procedure 60(b). But the Guild order had not been modified or vacated, set no termination date, and so remained subject to the continuing jurisdiction of the federal court that issued it. Because the question of any conflict between the Act and the injunction is for that court to resolve, and because the Attorney General generally does not address matters subject to a court's continuing jurisdiction, the opinion did not decide the questions presented.

Currency note

This opinion was issued in 2008. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

The Schoolchildren's Religious Liberties Act (Education Code subchapter E, chapter 25) may have been amended since 2008, and the status of the 1970 Guild injunction may have changed through later court action. Confirm the current state of both before relying on this analysis.

Who this opinion affected (as of 2008)

The Commissioner of Education and Houston ISD: The opinion gave them no ruling on whether the Act or the injunction controls. It told them the issue belonged to the federal court with continuing jurisdiction over the Guild order, not to the Attorney General.

Other Texas school districts: The opinion did not address how the Act applies to districts that are not under a comparable federal injunction. It was confined to the specific conflict question raised about Houston ISD, which it declined to resolve.

Anyone tracking the Act's reach: The takeaway was procedural. Where a district remains bound by an unmodified federal injunction, the opinion treated any conflict with the new statute as a matter for the issuing court, leaving the substantive question open.

Common questions

Did the Attorney General decide which law wins, the Act or the injunction?
No. The opinion expressly declined to decide whether the injunction's terms conflict with or prevail over the Act, because the matter is subject to the continuing jurisdiction of the federal court that issued the Guild order.

Why wouldn't the Attorney General answer?
This office generally does not address matters that are subject to a court's continuing jurisdiction. The opinion treated the unmodified 1970 injunction as keeping Houston ISD under the issuing court's authority, so the conflict question was for that court.

Is the 1970 injunction still binding just because it is old?
The opinion noted a permanent injunction can be modified or dissolved by the issuing court if the law or circumstances change (Federal Rule of Civil Procedure 60(b)). But it observed the Guild order had not been modified or vacated and set no expiration, so it remained in force pending any action by that court.

Background and statutory framework

The Schoolchildren's Religious Liberties Act, subchapter E of chapter 25 of the Education Code, was enacted in 2007 (Act of May 26, 2007, 80th Leg., R.S., ch. 261, 2007 Tex. Gen. Laws 403). It bars discrimination against a student's voluntary religious viewpoint on a permissible subject (Tex. Educ. Code Ann. § 25.151), requires districts to adopt a policy establishing a limited public forum for student speakers with neutral speaker-selection criteria and a nonendorsement disclaimer (id. § 25.152), and prescribes a model policy (id. §§ 25.153-.154, .156). The Guild v. Houston Independent School District order, entered December 28, 1970 (No. 70-H-1102 (S.D. Tex.)), permanently enjoins the district from Bible or religious-text reading and from allowing student prayer recitation in connection with school activities.

The opinion drew on authority that a permanent injunction is not necessarily indefinite and can be modified or dissolved by the issuing court (State Comm'n on Human Relations v. Talbot County Detention Center, 803 A.2d 527, 539 (Md. 2002); El Bey v. Moorish Temple of Am., Inc., 765 A.2d 132, 135 (Md. 2001); Fed. R. Civ. P. 60(b); United States v. Snepp, 897 F.2d 138, 141 (4th Cir. 1990), citing United States v. Swift Co., 286 U.S. 106 (1932); City of San Antonio v. Singleton, 858 S.W.2d 411, 412 (Tex. 1993)). Because the Guild order remained unmodified and subject to its court's continuing jurisdiction, and consistent with the practice of not opining on matters before a court (Tex. Att'y Gen. Op. Nos. GA-0498 (2007), GA-0399 (2006)), the opinion declined to resolve the conflict question.

Citations

Statutes:

• Tex. Educ. Code Ann. §§ 25.151, 25.152, 25.153-.154, 25.156 (Vernon Supp. 2007)
• Act of May 26, 2007, 80th Leg., R.S., ch. 261, 2007 Tex. Gen. Laws 403
• Fed. R. Civ. P. 60(b)

Cases:

• Guild v. Houston Indep. Sch. Dist., No. 70-H-1102 (S.D. Tex. Dec. 28, 1970)
• State Comm'n on Human Relations v. Talbot County Detention Center, 803 A.2d 527, 539 (Md. 2002)
• El Bey v. Moorish Temple of Am., Inc., 765 A.2d 132, 135 (Md. 2001)
• United States v. Snepp, 897 F.2d 138, 141 (4th Cir. 1990)
• United States v. Swift Co., 286 U.S. 106 (1932)
• City of San Antonio v. Singleton, 858 S.W.2d 411, 412 (Tex. 1993)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/greg-abbott/ga-0609
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2008/ga0609.pdf

Original opinion text

Best-effort transcription from the official PDF. Minor extraction artifacts may remain - the linked PDF is authoritative.

ATTORNEY GENERAL OF TEXAS

GREG ABBOTT

March 19, 2008

Mr. Robert Scott
Commissioner of Education
Texas Education Agency
1701 North Congress Avenue
Austin, Texas 78701-1494

Opinion No. GA-0609

Re: Whether the Schoolchildren's Religious Liberties Act, subchapter E, chapter 25 of the Education Code, 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 SRLA,[2] enacted in 2007 by the Eightieth Legislature, requires a school district to "treat a student's voluntary expression of a religious viewpoint, if any, on an otherwise permissible subject in the same manner the district treats a student's voluntary expression of a 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:

(a) To ensure that the school district does not discriminate against a student's publicly stated voluntary expression of a religious viewpoint, if any, 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 permissible 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 of the 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 of the 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 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.

Guild v. Houston Indep. Sch. Dist., No. 70-H-1102 (S.D. Tex. Dec. 28, 1970) (Guild order at pp. 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 of the 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 of the 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 of Am., 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 granted where warranted by a change in the law or the circumstances."); see also City of San Antonio v. Singleton, 858 S.W.2d 411, 412 (Tex. 1993); cf. Davenport v. City of Dallas, 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 Guild v. 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. Op. 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.

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 of the 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

Footnotes

[1] Letter from Robert Scott, Commissioner of Education, 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].

[2] The 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.