Education Elementary and Secondary Education: Authorize the Reading or Posting of Certain Writings, Documents, and Records Without Content-based Censorship Thereof; Provide for Notice to Local School Superintendents; and for Other Purposes

• Citation: Vol. 21 No. 1
• Publication year: 2010

Georgia State University Law Review

Volume 21 , , „

Article 7

Issue 1 Fall 2004

9-1-2004

EDUCATION Elementary and Secondary Education: Authorize the Reading or Posting of Certain Writings, Documents, and Records Without Content-Based Censorship Thereof; Provide for Notice to Local School Superintendents; and for Other Purposes

Joshua Brooker Laura Verduci

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Recommended Citation

Brooker, Joshua and Verduci, Laura (2004) "EDUCATION Elementary and Secondary Education: Authorize the Reading or Posting of Certain Writings, Documents, and Records Without Content-Based Censorship Thereof; Provide for Notice to Local School Superintendents; and for Other Purposes," Georgia State University Law Review: Vol. 21: Iss. 1, Article 7. Available at: http://digitalarchive.gsu.edu/gsulr/vol21/iss1/7

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EDUCATION

Elementary and Secondary Education: Authorize the Reading or Posting of Certain Writings, Documents, and Records Without Content-Based Censorship Thereof; Provide for Notice to Local School Superintendents; and for Other Purposes

Bill Number: SB 394

Summary: The bill would have permitted state

school boards to allow and encourage their teachers and administrators to read or post in their school building, classrooms, or at any event, documents or any portion of documents that relate to American heritage. The bill would have provided a list of documents, including the Constitution, the Declaration of Independence, the Mayflower Compact, and United States Supreme Court decisions. The bill would have prohibited content-based censorship of American history and heritage-based documents regarding any religious references.

History

The First Amendment's Establishment Clause provides, "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof."¹ The Constitution left courts with the power to interpret when a state action violates the Establishment Clause.² In Lemon v. Kurtzman, the Supreme Court established a three-prong analysis to determine the constitutionality of a statute under the Establishment Clause.³ A statute is

1. U.S. Const, amend. I.

2. See Interview with Bob Overstreet, History and Advanced Placement Government teacher at Walton High School, in Cobb County, Ga. (Apr. 22, 2004) [hereinafter Overstreet Interview].

3. Lemon v. Kurtzman, 403 U.S. 602, 612-13 (1971).

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constitutional under the Lemon test when it satisfies the following requirements: (1) the statute has a secular, legislative purpose; (2) the statute's principal effect neither advances nor inhibits religion; and (3) the statute does not foster an excessive government entanglement with religion.⁴ American citizens have challenged the constitutionality of statutes that required prayer, a moment of silence, and the posting of the Ten Commandments in public schools.⁵ The Supreme Court found that the statutes in these cases violated the Establishment Clause.⁶ Recently, the Ninth Circuit Court of Appeals in Newdow v. U.S. Congress struck down a 1954 Congressional Act that added "under God" to the nation's Pledge of Allegiance because it violated the Establishment Clause.⁷

SB 394, if passed, would have allowed and encouraged teachers to read and post in public schools certain historical documents and affirmations significant to American history. The list of documents and affirmations included, among others, the United States Constitution, the Declaration of Independence, the Mayflower Compact, the Pledge of Allegiance, and the National Motto: "In God We Trust."⁹ SB 394 stated, "There shall be no content based censorship of American history or heritage in this [S]tate based on religious or other references in these writings, documents, affirmations, or records."¹⁰ Senator Eric Johnson of the 1st district, the bill's sponsor, stated that the reason for introducing the bill was that "[s]ome teachers are afraid that if they refer to our Creator or if they refer to religion or God that they might somehow get in trouble."¹¹ He wanted teachers to understand that there is no censorship as to the documents' religious references and that the law permits the references if educators want to post them.¹² Perhaps he felt that because of the Supreme Court decisions discussed above and

4. Id.

5. See Wallace v. Jaffree, 472 U.S. 38, 60 (1985); Stone v. Graham, 449 U.S. 39, 43 (1980); School Dist. v. Schempp, 374 U.S. 203, 223 (1963); Engel v. Vitale, 370 U.S. 421, 430-32 (1962).

6. Wallace, All U.S. at 60; Stone, 449 U.S. at 43; Schempp, 374 U.S. at 223; Engel, 370 U.S. at 430-32.

7. Newdow v. U.S. Congress, 292 F.3d 597, 612 (9th Cir. 2002).

8. SB 394 (SCS), 2004 Ga. Gen. Assem.

9. Id.

10. Id.

11. Audio Recording of Senate Proceedings, Feb. 2, 2004 (remarks by Sen. Eric Johnson), at http://www.georgia.gov/00/channeLtitle/0,2094,4802_6107103,00.html [hereinafter Senate Audio].

12. Id.

2004] LEGISLATIVE REVIEW 77

because of the most recent case dealing with the Pledge of Allegiance, teachers were wary about using these documents simply because they contained religious references. Senator Johnson mentioned that the General Assembly had considered this issue in previous sessions.¹³ Senator Perry McGuire, formerly of the 30th district, originally proposed the bill in 1995.¹⁴

Bill Tracking

Consideration by the Senate

Senators Eric Johnson, Bill Stephens, Tommie Williams, and Don Balfour of the 1st, 51st, 19th, and 9th districts, respectively, sponsored SB 394.¹⁵ The Senate first read SB 394 on January 13, 2004.¹⁶ The Lieutenant Governor assigned the bill to the Senate Education Committee.¹⁷ The Senate Education Committee favorably reported on the bill, by substitute, on January 29, 2004.¹⁸ The Senate read the bill a second time on January 30, 2004 and a third time on February 2, 2004.¹⁹ The substitute added the published texts of the United States Congressional Record and "[o]rganic documents from the precolonial, colonial, revolutionary, federalist, and postfederalist eras" to the bill's list of documents and affirmations. The substitute also changed the date by which the State School Superintendent would have had to distribute copies of the proposed new Article to all the school districts from January 1, 2004 to no later than August 1, 2004.²¹

13. See id.

14. Id.; SB 324, as introduced, 1995 Ga. Gen. Assem.

15. SB 394, as introduced, 2004 Ga. Gen. Assem.

16. State of Georgia Final Composite Status Sheet, SB 394, Jan. 13, 2004 (May 19, 2004).

17. See id.

18. State of Georgia Final Composite Status Sheet, SB 394, Jan. 29, 2004 (May 19, 2004).

19. State of Georgia Final Composite Status Sheet, SB 394, Jan. 30, 2004 (May 19, 2004); State of Georgia Final Composite Status Sheet, SB 394, Feb. 2, 2004 (May 19, 2004).

20. Compare SB 394, as introduced, 2004 Ga. Gen. Assem., with SB 394 (SCS), 2004 Ga. Gen. Assem.

21. Compare SB 394, as introduced, 2004 Ga. Gen. Assem., with SB 394 (SCS), 2004 Ga. Gen. Assem.

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Passage by the Senate

The Senate adopted the Senate Committee substitute on February 2, 2004 by a vote of 47 to 5.²² On the day of the vote, Senators debated the bill for approximately 15 minutes. ²³ Senator Eric Johnson initiated the debate by speaking in favor of the bill.²⁴ He indicated that he proposed the subject matter of SB 394 prior to the 2004 session.²⁵

The bill states that "[l]ocal school boards may allow and encourage any teacher or administrator ... to read or post in a public school building . . . affirmations or documents of American heritage."²⁶ Senator Faye Smith of the 25th district expressed her concern over the term "encourage" during one of the Senate Education Committee meetings.²⁷ She argued that if school boards could encourage teachers to post documents, then a teacher may feel pressured and thus compelled to post or read the documents or affirmations listed in the bill²⁸

Senator Johnson, however, emphasized that SB 394 would not mandate the posting of...