HARRISBURG, Pa. (EYT) — Letters to a pair of local school districts from a Harrisburg law firm have both districts taking steps to rectify a possible First Amendment issue as it pertains to their students talking about religion.

The Independence Law Firm (ILC), which describes itself as a public-interest law firm affiliated with the Pennsylvania Family Institute, an organization that works to “preserve religious liberty, promote marriage and family and protect human life,” sent letters to both Clarion Area and Oil City School Districts informing the districts that their school board policy manuals contain language that are violating students’ First Amendment rights.

In the letters — which both use the exact same language other than changing the name of the district — the ILC maintains that the districts have an unconstitutional speech policy that targets religious speech in the school board policy manuals.

“We have recently been informed that Clarion Area School District (Oil City School District) has a facially unconstitutional speech policy that targets religious speech,” the letter, which was obtained by EYT Media, said.

“In particular, the School Board Policy 220 prohibits certain student expression as ‘unprotected’ by the right of free expression. This is within the rights of the School Board. However, what can be legally deemed to constitute ‘unprotected expression’ is quite narrow. This district goes well beyond those limits and unconstitutionally targets certain religious speech as ‘unprotected expression.’ In Board Policy 220, we find the school district labels the following as unprotected student speech: [expression that] ‘Seek to establish the supremacy of a particular religious denomination, sect or point of view.’ This provision must be eliminated immediately.”

The ILC, which sent out similar letters to over 50 Pennsylvania School Districts, told the districts they had until February 21, 2020, to begin the process of removing the language or the ILC would take the districts to court.

That doesn’t appear like it will be necessary.

According to Jeremy Samek, senior counsel for the ILC, Oil City has already responded to the letter and has said it will change its language — a call to Oil City superintendent Lynda Weller on Monday, February 10, was not returned.

Meanwhile, Samek said Clarion Area had not responded to the letter as of February 10. However, Clarion Area Superintendent Joe Carrico told EYT Media that the district has already taken steps to amend its language.

“We have already put it on for the first reading,” Carrico said. “We are making changes on PSAB (Pennsylvania School Board Association) recommendations to meet their guidelines.”

Carrico said Clarion Area will be contacting the ILC soon to let it know the district is in the process of making the changes.

Samek said the issue like the one addressed in the letters has arisen a lot out of a misunderstanding of what separation of church and state really means.

“School boards and even solicitors sometimes have a misunderstanding when the word religion is used,” Samek said. “It (religion) isn’t completely separated from schools, but they are so afraid that organizations like the Freedom of Religion Foundation that they run headlong into the first part of the First Amendment, freedom of speech. This phenomenon is pretty common.”

While the First Amendment of the United State Constitution prohibits the establishment of a particular national religion, and the United State Supreme Court has ruled that mandatory prayer, and in certain cases moments of silence, in public schools would violate the First Amendment rights of students, students talking about religion is not prohibited by the First Amendment. In fact, students talking about religion is actually protected under the First Amendment’s freedom of speech clause.

In its letter to Clarion Area and Oil City, the ILC cites numerous Supreme Court cases on the matter, most importantly Tinker vs. Des Moines from 1969.

According to the ACLU, in Tinker vs. Des Moines, the Supreme Court ruled that students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”

The case involved Mary Beth Tinker, a 13-year old junior high student in December 1965, who, along with some fellow students, wore black armbands to protest the Vietnam War. The school board passed a ban in advance of the protest to ban the wearing of the black armbands, and Tinker was asked to remove the armband and was then suspended.

According to Samek and the letter from the ILC, the Tinker decision also protects the rights of students to discuss religion while at school.

“The ‘Tinker analysis’ — named after the Supreme Court case that set the general rule for regulating student speech in schools — declares that while in school, a student ‘may express his opinions, even on controversial subjects . . . if he does so without ‘materially and substantially interfer[ing] with the requirements of appropriate discipline in the operation of the school’ and without colliding with the rights of others,” the ILC letter said.

Samek said this means a student has the right to talk about any religion (not just Christianity) or atheism the same as they have the right to talk about any political issue.

“We all want them to do it in a peaceful, respectful way,” Samek said. “If they are harassing or bullying, schools already have policies in place that cover that. Bullying can happen with any discussion of content. It could happen (in a discussion) about an NFL team. The same can be said for political discussions or environmental discussions.”

Samek said the First Amendment gives students the right to talk about subjects that are even controversial, but schools can still prohibit some speech such as KKK or environmental terrorism. What they cannot do is ban discussion of race or environmentalism outright.

“Students have the right in a public school to express their viewpoints as long as they are not substantially disruptive,” Samek said. “During non-instructional time, they can talk about issues that are considered hot-button issues. Tinker, itself, was about a hot-button issue, the Vietnam War, where people had family members fighting and dying, was pretty controversial at the time. Students have the right to talk about and even protest within reason. It is their constitutional right.”

Samek said schools (nor the government in general) never has a reason to outright prohibit speech because it is unpopular.

“The KKK is a common question,” Samek said. “The answer is we don’t ban whole topics because someone abuses it. You deal with abusive situations but not the whole topic. We understand that about some things, but with religion, it is harder (for people to understand). Schools should treat it like any other topic, neutrally.”

According to a story in Pine Creek Journal, a subsidiary newspaper of TribLive.com, Duquesne University law professor Bruce Ledewitz, who the Pine Creek Journal said is an expert on constitutional issues, said school districts with policies prohibiting students from discussing religion but not other subjects should consider changing those policies.

“There’s no point in getting hauled into court,” Ledewitz told the Pine Creek Journal. “There have been a number of cases addressing this matter. You simply cannot single out discussions about religion. If students are allowed to speak about politics or other subjects, then they are allowed to talk about religion.”

Samek agrees, and adds that student secular speech and student religious speech must be treated equally.