FortBendNow.com

Fort Bend Independent School District Board Trustee Stan Magee said the board deliberated about a posted agenda item during a closed session Monday night in what he believes was a violation of the Texas Open Meetings Act.

FBISD Board President Cynthia Knox disagreed, and said the board acted appropriately in receiving and discussing privileged information from the board’s outside legal counsel.

The agenda item in question involved a new policy on how the district would comply with provisions of the newly passed “Religious Viewpoints Antidiscrimination Act” designed to “treat student expression of religious viewpoints in the same manner as the district treats student expression of secular or other viewpoints, without discrimination.”

Ironically, the FBISD Board voted after the closed session to adopt a policy that appears to more strictly limit students’ ability to express themselves during public events than they could before creation of either the new policy or the newly passed legislation – which Texas Gov. Rick Perry was scheduled to ceremoniously sign today at FBISD’s Clements High School.

Also, State Rep. Charlie Howard, R-Sugar Land, who co-sponsored House Bill 3678 and was scheduled to appear with Gov. Perry today at Clements, said in an open letter to superintendents and school district board trustees that a proposed “model policy” designed by the Texas Association of School boards to comply with provisions of the bill in fact “will put school districts in violation” of the bill’s provisions. The policy adopted by the FBISD Board Monday night was a “tweaked” version of the TASB proposed model policy, Knox said.

Trustee Stan Magee said Tuesday the district’s legal counsel, Carolyn Hanahan, cleared the agenda item about House Bill 3678 for discussion in an executive session before the board’s regular meeting, citing a section of the Open Meetings Act pertaining to government consultation with a board attorney for advice about “pending or contemplated litigation.”

But, “there is no lawsuit, and there is no pending litigation,” Magee said. “I think we slipped up and violated the Texas Open Meetings Act once again.”

Hanahan declined to answer a phone call seeking comment on Magee’s contentions, instead referring a reporter to Fort Bend ISD’s communications office. District spokeswoman Mary Ann Simpson said the school district “certainly believes that it was within its legal rights just to provide clarification of the legal aspects of the new law.”

Board President Knox agreed. She said she has been told that depending on how school districts interpret provisions of Howard’s bill, litigation against those districts can be expected – due to the historically sensitive nature of religious expression in public schools.

Knox said the board had been provided a “review” of the Religious Viewpoints Antidiscrimination Act by outside legal counsel Bracewell & Giuliani LLP. She said the item was handled in an executive session so that Hanahan could provide “further interpretation of privileged information…which is appropriate.”

Magee said the review consisted of a four-page letter by Bracewell & Giuliani attorney Chris Gilbert, each page of which was labeled as privileged attorney-client communication.

“I see nothing privileged about the letter,” Magee said, adding that he has called the Texas Attorney General’s office for clarification over whether the board may have violated the open meetings act and whether the letter indeed could be construed as an attorney-client privileged document.

He would not discuss the letter’s contents, but asked “Why are we afraid to tell our public exactly the contents of the letter from Bracewell Giuliani?”

“Maybe Stan wanted a big debate about the policy. I really don’t know what his dismay might be,” Knox said. “Bottom line – this was handled appropriately, with our lawyer giving us additional information from outside counsel, which was privileged.”

The board voted 5-1 to adopt the new policy, with MaGee voting against it. Trustee Bob Broxson was absent and thus did not cast a vote.

As for the Religious Viewpoints Antidiscrimination Act itself, among other things it calls on Texas school districts to provide “limited public forums in a manner that do not discriminate against a student’s voluntary expression of a religious viewpoint (if any) on otherwise permissible subjects/topics.”

But TASB’s proposed policy for complying with Howard’s bill “significantly deviates” from a proposed model policy contained within the bill itself, Howard and bill co-sponsor Rep. Warren Chisum say in the open letter to school district board trustees and superintendents.

TASB’s definition of public speaking, relating to the new law, “means to address an audience at a school event using the student’s own words. A student is not using his or her own words when the student is reading or performing from an approved script, is delivering a message that has been approved in advance or otherwise supervised by school officials, or is making brief introductions or announcements.” Howard and Chisum said in the letter.

“This narrow definition invites schools to avoid application of RVAA by simply requiring that everything spoken by a student over a microphone (or otherwise) first be ‘approved in advance’ and/or be ’supervised by school officials’ and/or be deemed as ‘brief introductions or announcements’,” the two legislators said in the letter.

The FBISD policy appears to have begun with the TASB clause regarding public speaking that Howard decried. Then, it goes further. A student is not using his or her own “thoughts and words,” the FBISD policy states, when that student “is reading or performing from an approved script, book, or performance piece; is reading or performing under a prescribed set of rules in a competition, curriculum-related school event, non-curriculum-related school event, or classroom discussion; is delivering a message that has been written or scripted by school officials; or is making brief introductions or announcements written by school officials.”

In those instances in which the district allows students to speak at a “non-graduation” public forum using their own words, such speeches will be limited to no more than one minute, according to FBISD’s new policy. And, “The subject of the student introductions shall relate to the purpose of introducing the designated event.”

Howard and Chisum appear to include a warning that potential litigation could befall districts that fail to adopt the Religious Viewpoints Antidiscrimination Act’s self-contained model policy.

Any district that does adopt the bill’s “suggested” policy “is deemed to be in compliance with RVAA,” Howard and Chisum say in the letter.

“Furthermore, since the Attorney General defends legislation, and the Model Policy is a part of this legislation, adoption of the Model Policy should assure a district the assistance of the Attorney General in the event of a facial challenge to the district’s adopted Model Policy,” the letter states.

“While a district is free to have an outside group or person draft a different policy, that district will have no assurance that it is in compliance with RVAA and will be on its own to defend that policy against legal challenges to its lawyer’s experimentations.”

Knox took issue with Howard and Chisum’s assessment.

“What’s the responsibility of the Legislature?” she asked rhetorically. “To create law.”

Policy, Knox said, may be proposed by organizations such as TASB, and is created and adopted by district school boards.

“In essence, the responsibility” of policy making “does not ultimately fall with the Legislature,” she added.

FBISD Board President Cynthia Knox disagreed, and said the board acted appropriately in receiving and discussing privileged information from the board’s outside legal counsel.

The agenda item in question involved a new policy on how the district would comply with provisions of the newly passed “Religious Viewpoints Antidiscrimination Act”.