School Chaplain Law – Decisions to be Made

Time is running out for public school boards to make decisions related to Senate Bill No. 763, enacted by the Texas Legislature during its regular session in 2023. The new law, which is codified at Texas Education Code Chapter 23, allows a public school district or charter school to employ or accept as a volunteer a chaplain who will provide support, services, and programs for students as assigned by the board of trustees of the district or the governing body of the charter school. However, school boards must, before March 1, 2024, take a record vote on whether or not to adopt such a policy.

There is no definition of “chaplain” in SB 763 and no licensing requirement in Texas. Further, a chaplain employed or volunteering under the new law is not required to be certified by the State Board for Educator Certification. In fact, the only requirements under the law are that the chaplain undergo a satisfactory criminal history record check and not be convicted of or placed on deferred adjudication community supervision for an offense for which the person is required to register as a sex offender. Texas Education Code Section 23.001. Therefore, any other qualifications imposed on the chaplains are the responsibility of the school board to establish and should be included in the policy adopted by the board when voting to accept chaplains as volunteers or to employ chaplains.

According to SB 763, chaplains may be used in the following school safety and security ways: providing restorative discipline and restorative justice practices; providing mental health support; providing behavioral health support; providing restorative justice support, culturally relevant instruction, and mental health support; and providing suicide prevention, intervention, and postvention programs. There is no mention of proselytizing, attempting to convert someone to a religious faith, either as a duty or a prohibited activity. Instead, under the law, it appears that the chaplain would be expected to provide support and services more akin to the role of a school counselor, or other safety or mental-health employee, rather than a pastor or religious advisor. If the chaplain is paid, rather than a volunteer, then funds can be drawn from funds designated to improve school safety and security. 

It is also important to note that, for the majority of school districts, it is likely that chaplains are already allowed on school campuses through the Board’s school volunteer programs (Board Policy GKG), public visitors policies (Board Policy GKC), and through religious clubs in accordance with the Equal Access Act (Board Policy FNAB).

As was expected, the law brought out proponents and detractors. It was touted as a means of filling counselor and other safety-oriented vacancies, and of bringing God back into public schools. In June of 2023, a number of civil rights organizations sent an open letter to school boards and superintendents expressing concerns about creating an environment ripe for religious coercion and indoctrination of students.[1] In August of 2023, a group of mostly parish and healthcare chaplains wrote to Texas school board members, expressing their concerns with the law and urging school boards to reject implementing such a policy. They noted that chaplains are not a replacement for school counselors and safety measures, and that chaplains are not qualified for the duties contemplated. They also noted that the law could be harmful to students and their families, as there is no prohibition on proselytizing or a requirement that they serve students of all religious backgrounds.[2]

Over twenty years ago, a Clergy in Schools program at a Texas public school district was ruled to be unconstitutional. The purposes of that program included: to address civic values and morality; to create a safe school atmosphere; and to increase volunteer opportunities. Clergy were specifically directed to not discuss religious topics or wear religious garb. Applying the Lemon v. Kurtzman test developed by the U.S. Supreme Court in 1971, the program was ruled unconstitutional by a Texas federal court.[1] The Lemon test has since been overruled by the U.S. Supreme Court in Kennedy v. Bremerton School District, 597 U.S. __ (2022). Instead of Lemon’s “purpose, effect, and entanglement” test, we now have coercion and historical reference tests.[2] So, it is unclear how such a chaplain program would now be viewed by courts.

For boards that decide to implement policies allowing chaplains as volunteers or employing chaplains for safety issues, it will be important to establish definitions, standards, qualifications, training, job duties, limitations on actions, extent of access to confidential student records, extent of access to students, and oversight and supervision.

Feel free to contact Brackett & Ellis’s school law attorneys as you navigate the implications of this new law. You can contact a school lawyer directly, or call the main number at 817.338.1700.

[1] See June 26, 2023 letter from Americans Civil Liberties Union of Texas, Americans United for Separation of Church and State, Americans Civil Liberties Union, and Freedom from Religion Foundation, available at https://www.aclu.org/documents/letter-to-texas-school-boards-re-unconstitutional-proposals-to-allow-chaplains-in-public-schools.

[2] See August 22, 2023 letter to Texas School Board members from Texas chaplains, available at https://bjconline.org/wp-content/uploads/2023/08/LETTER_-Texas-Chaplains-Say-No-to-Public-School-Chaplain-Programs.pdf.

[1] Oxford v. Beaumont ISD, 224 F. Supp. 2d 1099 (E.D. Tex. 2002); Lemon v. Kurtzman, 403 U.S. 602 (1971).

[1] Kennedy v. Bremerton School District, 597 U.S. (2022).