Bill would require Ohio schools to adopt religious instruction policies (and previous reporting)

While schools and parents in Lorain County grapple with whether to allow LifeWise Academy's religious instruction into their districts, a bill in committee in the Ohio House of Representatives would take the choice out of their hands. LifeWise is a Hillard-based organization that seeks to introduce programs to public school districts that see students released from non-core curriculum classes for weekly religious instruction. Under current Ohio law, districts are allowed to establish religious release programs with private organizations as long as parents consent to their children participating, the program takes place outside the school and the program receives no public funds. Rep. Gary Click, R-Vickery, and Rep. Al Cutrona, R-Canfield, have co-sponsored a bill to require all schools to adopt a policy allowing religious release time when it is requested. One seemingly simple alteration to the Ohio Revised Code: changing one "may" to a "shall." In reality, the change would alter Ohio's ordinances to require all school districts to adopt a release time for religious instruction policy, rather than only allow them to do so. The bill, called HB 445, is currently before the House Primary and Secondary Education Committee and already dozens of proponents have spoken to the committee in support of it. In his initial testimony before the committee on April 23, Click argued that school districts that had not adopted a policy allowing religious release time were in violation of the rights of students and parents. "While many schools have taken advantage of the permissive language of the law, some school boards have been less accommodating," Click said in his testimony. "Regardless of their intentions, their failure to implement a sound policy in this matter results in a denial of both the students' and parents' constitutional right to the free exercise of religion." Click cites the U.S. Supreme Court case Zorach v. Clauson (1952) in his testimony, but that decision does not establish release time for religious instruction as a constitutional right, Case Western Reserve University Professor of Law Jessie Hill said. "It just says that the establishment clause, which requires government to be somewhat separate from religion, doesn't prevent these release time programs," said Hill, who specializes in reproductive rights and law and religion. "It doesn't say anything about individuals having a right to them or having a right to access them in the public schools." Zorach v. Clauson originated when parents sued the New York City Department of Education over a program in which students in the city were released from public school to attend religious instruction courses. The case eventually reached the Supreme Court, which voted 6-3 that the program did not violate the establishment clause of the First Amendment. What the case did not do, Hill said, was require districts to enact such programs, or entitle students to access them. Hill explained that the religious freedom provision of the First Amendment has two clauses: the establishment clause and the free exercise clause. The establishment clause prevents the country from establishing a state religion or pushing a specific religion and the free exercise clause prevents the government from punishing anyone for their religious beliefs. Hill said she was not aware of any case in state or Supreme Court history that would set a precedent that students or parents are constitutionally entitled to religious release time from a public school. Matt Krause, an attorney for The First Liberty Institute, spoke as a proponent for the proposed bill before the committee on June 4. Rep. Beryl Piccolantonio, D-Gahanna, asked Krause whether the holding in Zorach was permissive or mandatory. "In 1952 the Supreme Court said you can have these (programs)," Krause said. "It's perfectly constitutional, you can have these, you don't have to have them, there's not necessarily a constitutional right to have these programs." Click argued in his testimony that there was a "correlation" between religious instruction, public school and "good government" in the Ohio Constitution. He said that the fact that some districts allowed religious release while some did not constitutes a violation of the religious freedom of students and parents. "It is inappropriate to have a patchwork of religious freedom within Ohio based on the whims of our 611 school districts," Click said. "HB 445 creates a level playing field and equal opportunity for all parents and students throughout Ohio." Hill argued that as release time is not a right, schools not establishing programs could not be a violation of religious freedom. "I think an obvious response to the idea that this is some sort of patchwork of religious freedom (is) again, people are free to exercise their religion outside of the minimum required instructional minutes of public school education," she said. In his testimony, Click specifically names LifeWise Academy as an example organization that districts should not be allowed to keep out of their schools. LifeWise Executive Director Joel Penton also provided testimony to the committee which is currently hearing arguments on HB 445. "Despite the many benefits of programs like ours, some school districts have denied families access to released time programs," Penton said. "HB 445 will fix that problem. It has been noted that this bill will change one word of the existing law — from may to shall. In making that change thousands of parents, not school officials, will be given the ultimate say as to whether their children receive religious instruction." The Ohio Education Association, Ohio's largest educators union, is "strongly opposed" to HB 445 and has concerns about LifeWise more broadly, OEA President Scott DiMauro said. "It doesn't specifically mention LifeWise Academy, but it would essentially provide a mechanism for LifeWise to expand across the state, or programs similar to it," DiMauro said. "We have concerns about that bill on a number of levels, one being that, you know, this is the kind of thing that should be decided at the local level, and then shouldn't be a top-down state mandate." Rep. Gayle Manning, R-North Ridgeville, is the chair of the committee which the proposed bill is currently before. She said she would keep an open mind as the committee prepares to hear opponent testimony, but that she has concerns about the proposed bill as written. "One of the things I'm certainly concerned about is something we've been looking at quite a bit since the pandemic: absenteeism," she said. "We're having chronic absenteeism in all of our school systems, how much do we allow kids to miss school? This (religious release) is like 50 minutes a week." Manning also expressed concerns over the qualifications and vettings of those who would instruct kids specifically in LifeWise Academy. She specifically pointed to the recent firing of LifeWise Firelands Executive Director Renee Beck, who was fired after allegations resurfaced that she had been terminated and lost her teaching license for sending sexual messages to a student in 2018. Penton had told the committee in June that LifeWise carefully vetted all employees, Manning said. "Obviously they weren't vetting somebody that was going to be in control at Firelands Schools," she said. "To me, that bill has got to change to make sure that the kids are safe if they do decide to leave (school) and not just accept the fact this group has said 'Oh, we vet everybody.'" Despite naming LifeWise in his testimony, Click emphasizes that the current law and proposed change would allow any religious group to establish a release time program. Hill said that she believed the law applying to all religions equally made it more likely to be upheld in court, but that it was clearly geared toward Christian programs. "LifeWise is the big player it seems like right now in this, at least around here," she said. "They seem to be explicitly Christian. It's true that there could be other religious programs I mean, I guess the push will come to shove when the Satanic Temple wants to have a release time program. Who pushes back against that?" Hill said she felt that HB 445 was part of a larger trend seen across the United States in recent years, where legislators have increasingly tested the limits of the Establishment Clause. She pointed to the 2022 case of Joseph Kennedy, where the Supreme Court ruled in favor of Kennedy, who lost his job as a high school football coach in Washington state after praying with students after a game. The court voted 6-3 that Kennedy's actions were protected by the First Amendment. Earlier that same year, the court struck down — by the same margin — a Maine law that prevented the use of public funds for students to use at private, religious schools. "I think that there is an increased acceptance and a less clear wall of separation between religion and government that is being, um, adopted at the U.S. Supreme Court level," Hill said. "And I think a lot of that is starting to trickle down. Folks at the school district level are taking these cues and that's one thing that I think, you know, it may be encouraging some pushing of the envelope on." Hill spoke about the history of secular public schooling in the U.S., remarking that private Catholic schools actually gained popularity in part as a reaction to the more explicitly Protestant instruction that was common in most public American schools in the 18th and 19th centuries. "I see this as a long story, a long trajectory of how the public schools were made more truly nonsectarian over time," Hill said. "Now there is this a real — like everything else that is going on in society — like an attempt to undo all of the progress of the past 50 to 60 years." For now, House Bill 445 remains in committee, with the opponents of the bill preparing for their turn to provide written testimony. Manning said that opponents would likely appear before the committee in October or November. Reporter Richard Perrins also contributed to this report. Contact Owen MacMillan at (440) 329-7123 or omacmillan@chroniclet.com.