Kathryn Thomason
Edited by Bettina Devadoss, Roohie Sheikh, and Vedanth Ramabhadran
The debate regarding the presence of faith in public schools has reignited over a Texas law that allows schools to hire chaplains as school counselors. Senate Bill 763 (SB 763) was signed into law in 2023 and allows public school districts to employ chaplains to fulfill the duties of a school counselor [1]. Mental health concerns for Texas students have continued to rise, yet, many school districts do not have sufficient mental health staffing [2]. Supporters of SB 763 argue that this law aids underfunded or understaffed school districts that may be struggling to fill counselor positions. Further, this bill follows a nationwide trend as legislation of similar nature has been introduced in other states such as Florida, Oklahoma, and Kansas [3]. However, opponents of Senate Bill 763 argue this legislation violates the First Amendment Establishment Clause and the longstanding precedent of separation of church and state. Concerns over this legislation largely surround the constitutionality of religion in public schools and potential undermining of efforts from trained school professionals. In a contentious political atmosphere, many fear that SB 763 is reflective of a growing trend of legal and political implications that act in contrast to constitutional values.
Throughout the voting process, amendments were proposed to SB 763 such as the requirement of parent consent for a chaplain to meet with a child, the restriction that a chaplain couldn’t proselytize, or the need for chaplain accreditation. However, these amendments were defeated. Upon SB 763’s passage in the Senate, the bill’s author Senator Mays Middleton tweeted that the bill would “allow the important role chaplains serve for pastoral care and representing God’s presence within our public schools” [4]. Now, Texas school boards must each decide by March 1st, 2024 if they will allow chaplains. As of February 24th, 2024, school districts across the state including Dallas ISD, Austin ISD, and Kerrville ISD have already voted against implementing the new policy. Yet, Round Rock ISD, Mineola ISD, and Georgetown ISD have voted in favor [5]. Some school districts have opted to only allow chaplains in a volunteer capacity or to place limitations upon their presence. Still, this created an open door for lawmakers to push the boundaries on the Establishment Clause and test the allowance of religion in Texas public schools.
Among the bill’s largest supporters is Rocky Malloy, head of the National School Chaplain Association (NSCA). Malloy argues that “chaplains operate within an individual’s belief and convictions — they are not working to convert people to religion” [6]. However, Malloy also heads the NSCA’s parent organization, Mission Generation. Mission Generation’s website was redacted during debates SB 763, yet, an archived version from 2021 states that Mission Generation seeks to “influence those in education until the saving grace of Jesus becomes well-known, and students develop a personal relationship with Him” [7]. Lawmakers in opposition to the bill, such as Representative James Talarico have argued that this legislation is “a Trojan horse to allow unqualified religious fanatics to enter our school and indoctrinate our kids” [8]. Opponents of the bill also argue that chaplains are not a proper substitute for counselors due to their lack of mental health training, and will not provide an adequate replacement to address student needs.
At the forefront of this debate lies the constitutionality of SB 763, particularly in relation to the First Amendment. The Establishment Clause of the First Amendment prohibits the government from establishing a national religion and public entities promoting a specific religion [9]. Still, the idea of religious expression, specifically in public schools, is an ever-changing landscape. The 1969 Supreme Court decision in Tinker v Des Moines Independent School District established a precedent of protecting free speech in schools. Still, the tension between the Free Speech Clause and the Establishment Clause in the First Amendment creates a precarious legal situation. Due to the Establishment Clause, courts differ in their constitutional interpretations of religious expression under the First Amendment; particularly if the expression of a religion could evoke malevolence towards other religions. The Establishment Clause has historically played a large role in safeguarding religious expression in public schools and establishing a balance between individual expression and religious presence in public schools. The clause has been invoked to halt attempts by school officials to restrict or prohibit religious expression. The Establishment Clause is often cited in numerous court decisions regarding the protection of religious speech in public spaces. Still, it is important to note that the role and application of this clause are constantly changing [10].
Upon implementation of SB 763, it is entirely possible that lawsuits could arise surrounding the constitutionality of the law. However, as the capacity for religion in school has changed and the long-standing American precedent of church-state separation has become increasingly murky, it is difficult to predict a potential ruling. In the 2022 decision of Kennedy v. Bremerton School District, the Supreme Court ruled that the government, following the Establishment Clause, cannot restrict an individual from participating in personal religious matters in an effort to uphold the Free Speech and Free Exercise Clauses of the First Amendment [11]. This case reflected the growing presence of religion in schools and mirrors the current Supreme Court’s majority of Catholic judges. However, the religious beliefs of the judges are not reflective of the religious demographic of the United States [12].
The rise of Christian-based legislation like SB 763 in Texas and across other states reflects a growing trend that may act in opposition with Constitutionality, specifically in the separation of church and state. The presence of religious figureheads such as chaplains in public schools may violate the precedent of government and public entities advocating for a specific religion. Although some school districts have voted against adopting this policy, the notion that this bill was passed in both Texas houses reflects lawmaker’s attempts to potentially encroach on the Establishment Clause. As religion, specifically Christianity, begins to take a larger presence in public education it is important to contextualize legislation within the initial Constitutional framing our political and judicial systems were built upon.
[1] 88(R) SB 763 - Introduced version - Bill Text, https://capitol.texas.gov/tlodocs/88R/billtext/html/SB00763I.htm
[2] Bill Zeeble, Texas Will Soon Allow Unlicensed Chaplains to Act as School Counselors, NPR, Aug. 31, 2023, https://www.npr.org/2023/08/31/1197084278/texas-will-soon-allow-unlicensed-chaplains-to-act-as-school-counselors
[3] Andrew Atterbury, Florida Moves to Join Other States Opening Schools to Chaplains, POLITICO (2024), https://www.politico.com/news/2024/02/20/florida-school-chaplains-mental-health-00142266
[4] https://twitter.com/mayes_middleton/status/1651966102224752644, X (formerly Twitter), https://twitter.com/mayes_middleton/status/1651966102224752644
[5]Rebecca Noel, Katy ISD Considers Hiring Chaplains at Schools as Part of New State Law, Houston Public Media(2023), https://www.houstonpublicmedia.org/articles/news/education-news/2023/12/05/471452/katy-isd-considers-hiring-chaplains-at-schools-as-part-of-new-state-law/
[6]Jack Jenkins, Texas Legislature Passes Bill Allowing Chaplains in Public Schools, Religion News Service (2023), https://religionnews.com/2023/05/10/texas-legislature-passes-bill-allowing-chaplains-in-public-schools/
[7] Homepage—Mission generation. (2021, October 25). https://web.archive.org/web/20211025042005/https://missiongeneration.org/
[8] Robert Downen and Brian Lopez, Key Supporter of Texas School Chaplain Bill Has Pushed for Evangelism in Schools, The Texas Tribune (2023), https://www.texastribune.org/2023/05/19/legislature-chaplain-bill-rocky-malloy/
[9] First Amendment and Religion | United States Courts, https://www.uscourts.gov/educational-resources/educational-activities/first-amendment-and-religion
[10] Ralph D. Mawdsley, Rise and Decline of Constitutionally Protected Religious Speech in the United States, 14 INT'l J. L. & EDUC. 71 (2009).https://heinonline.org/HOL/Page?collection=journals&handle=hein.journals/anzled14&id=62&men_tab=srchresults
[11]KENNEDY v. BREMERTON SCHOOL DISTRICT 597 (U.S. Supreme Court 2021) https://www.supremecourt.gov/opinions/21pdf/21-418_i425.pdf
[12] Gallup Inc, The Religion of the Supreme Court Justices, Gallup.com (2022), https://news.gallup.com/opinion/polling-matters/391649/religion-supreme-court-justices.aspx