One of the more controversial bills from this year’s state legislative session got introduced on the first day of the legislative session, and passed on the last day. House Bill 1032 lays out new requirements for what school districts must include — and also cannot include – if they choose to have sexuality education in their curriculums.
Teaching the curriculum must include information about things such as consent and different sexual orientations and gender identities. Notably, the bill doesn’t prohibit discussion of religion, morals and ethics as part of teaching sexuality ed. But language that is shame-based or invokes gender stereotypes can’t be used, and the bill also says school districts can’t take an abstinence-only approach to teaching sexuality education.
Now ready for the governor’s desk, the bill is a high-profile policy win for Democratic lawmakers. But for school districts that have sexuality ed curriculums, what if teachers ask for exemptions from teaching them on religious or free speech grounds? A few attorneys with expertise in First Amendment law discussed the complexities of how those challenges might play out.
It appears school employees could have two main legal avenues for requesting religious exemptions from teaching a sexuality ed curriculum: A free exercise claim, and under Title VII for a reasonable accommodation.
Steven Collis, who leads Holland & Hart’s First Amendment practice, explained the Supreme Court has defined what constitutes a burdensome accommodation on an employer differently for religious beliefs than for disabilities, governed by the Americans with Disabilities Act. In Trans World Airlines, Inc. v. Hardison, the Supreme Court defined an undue hardship as anything more than a “de minimis” cost.
There have been more cases interpreting accommodations by employers for disabilities. In one case, U.S. Airways, Inc. v. Barnett, the Supreme Court adopted a framework used by lower courts to distinguish between a reasonable accommodation and an undue hardship so they don’t mean essentially the same thing. To overcome an employer’s summary judgment motion, an employee just has to show an accommodation seems reasonable on its face. Once an employee does that, an employer has to prove undue hardship caused by the reasonable accommodation in some circumstances.
Paul Maxon, a Boulder-based solo attorney, said he believes an employee would probably lose a Title VII claim under the de minimis standard. In an instance of an employee refusing to teach all or part of a school district’s curriculum, the district would have to reassign the teacher or hire someone else.
“Those are real, not simply pretextual burdens, and I think the court would likely rule in favor of the district under that situation,” he said.
“But it’s not at all clear what’s going to happen when a public employee challenges this under the free exercise clause,” he said. Maxon said there have been instances in which therapists refused to treat patients based on religious objections, and appellate courts have limited their rulings to the cases’ facts.
Collis said the Colorado bill’s implications for the Establishment Clause could get thorny. Under the bill educators can’t teach beliefs about what is or isn’t considered moral based on religion. But there’s the possible argument that teaching all sexual behavior, orientations and gender identities as moral is just an opposite religious belief, even if it’s presented as agnostic.
“I think there’s going to be an ongoing discussion about that,” Collis said.
A broader objection to a curriculum based on free speech is also complicated because it runs into the question of how much latitude public employers have to control their employees’ speech when they act in their official roles. A high school teacher in Virginia ran afoul of his district’s nondiscrimination policies, which include protection for transgender students, in 2018 when he refused to use a transgender male student’s new pronouns. The district fired the teacher for insubordination. In conversations with district officials, the teacher said using male pronouns for the student violated his Christian religious beliefs. But the superintendent said the teacher’s refusal created a hostile learning environment.
First Amendment objections related to Colorado’s law would be distinctive from the Virginia teacher’s situation because they involve curriculums themselves. While a teacher could raise a free speech objection to a school’s sexuality education curriculum that isn’t based on their religious beliefs, Maxon said compelled speech could be unstable ground for a court to decide a challenge to Colorado’s law. Theoretically it could open the door to an arguments that any part of a school curriculum is compelled speech, he said.
“I think it’s hard to make that argument about compelled speech without invoking religion, because in establishing curriculum standards, there’s all sorts of compelled speech that the government engages in” when deciding what must be included for educators to meet state standards, said Maxon.
—Julia Cardi