Corey Bushle, Associate Member, University of Cincinnati Law Review
The Ohio House of Representatives recently passed House Bill 164, titled the Ohio Student Religious Liberties Act of 2019 (“HB 164”). The bill amends, adds, and revises language to several Ohio Revised Code provisions about student religious conduct at school, but one specific part of the bill has garnered media attention for its potential implications on how teachers are allowed to grade assignments. HB 164 proposes a new Ohio Revised Code Section 3320.03, which prohibits teachers from penalizing or rewarding a student’s assignment score based on the religious content of the student’s work. Critics of the bill, and numerous local media headlines, argue that this provision means that a teacher can’t mark a factually incorrect answer wrong, so long as the answer’s reasoning contains the student’s religious beliefs.
But is that a fair reading of the bill? An examination of the bill’s language and statements from the bill’s chief proponent, state Representative Timothy Ginter, reveals that the answer is “no.” This article will examine the true implications of HB 164 based on the bill’s text and legislative history, and explain why the proposed law doesn’t mean what its critics and the news media seem to think it means.
II. What Does the Bill Actually Say?
The text of HB 164 provides teachers much more discretion to grade a student’s work based on academic standards than the media headlines and the bill’s critics imply. Under proposed Revised Code Section 3320.03, “[a]ssignment grades and scores shall be calculated using ordinary academic standards of substance and relevance, including any legitimate pedagogical concerns, and shall not penalize or reward a student based on the religious content of a student’s work.”
The bill’s plain language reveals a potential framework for analyzing a case arising under Section 3320.03. First, the teacher—or a court, were a case to arise under the statute—must ask what the ordinary academic standards of substance and relevance are for the given assignment’s subject area. Second, the teacher must examine the student’s answer against those ordinary academic standards. The student is rewarded, or not rewarded, based on whether the answer contains the academically correct answer. In adding or subtracting points, the teacher must not deduct—or add—points based on religious content in a student’s work—effectively redacting solely religious content from the teacher’s analysis.
It is not a plausible reading of the proposed statute that a scientifically wrong answer must be marked correct if it contains religious content. In fact, the bill’s plain language prohibits such an outcome. The last clause of the statute forbids adding points based on the religious content of the work. Thus, while a court analyzing a case under this statute must have a keen eye to determine if a teacher marks a student wrong because of religious content, versus a lack of academic content. Presumptively, if a student’s answer contradicts clearly articulated academic standards, a court would not interpret such a grade as religious discrimination, but instead a routine application of ordinary academic standards. By requiring teachers to grade based on relevant and substantial academic standards, the bill requires a scientifically wrong answer to be marked wrong, not due to the presence of religious content in the answer, but, instead, due to the absence of scientific content. If the bill’s drafters wanted to allow a student to be awarded points for a scientifically wrong answer, they certainly could have drafted the law in a more restrictive, pro-religion manner.
HB 164’s drafters included another phrase which indicates their intent to reserve for teachers wide latitude in grading by permitting grades to be calculated for “any legitimate pedagogical concerns.” That phrase appears in the United States Supreme Court case Hazelwood School District v. Kuhlmeier, where the Court held that a school may censor student speech in school-sponsored expressive activities, like a school newspaper, so long as the school’s actions are reasonably related to legitimate pedagogical concerns. Under Hazelwood, only school actions that have no valid educational purpose at all violate the “legitimate pedagogical concern” standard. It seems clear that the drafters of HB 164 would not have used this language if they did not mean to similarly permit teachers to grade assignments on a broad range of legitimate educational values, so long as those values are not motivated by religious discrimination.
Comments from the bill’s sponsor, State Rep. Timothy Ginter, support the above analysis. When asked what would happen if a student, who does not believe in evolution, submits science homework espousing that view, Ginter admitted the student would receive a lower grade. “Even if the student doesn’t believe in evolutionary theory, the student must turn in work that accurately reflects what is taught. It will be graded using ordinary academic standards of using substance and relevance,” said Ginter, mirroring the bill’s language. When Ginter introduced the bill in April 2019, he indicated that its primary purpose was to “codify into law the rights granted to students under the United States Constitution” by removing prohibitions on student religious expression during instructional time at school.
Even at this early stage, Rep. Ginter assured the House that assignment grades and scores would still be calculated “using ordinary academic standards.” The final version of the bill reflects that Ginter’s chief concern was not the suppression of scientific teaching that conflicts with religion, but a more benign purpose—permitting students to engage in religious expression in school. For example, proposed Revised Code Section 3320.02 permits students to engage in religious expression during school “to the same extent that a student is permitted to engage in secular activities or expression” at school. While some critics argue that this provision may run afoul of the Establishment Clause of the First Amendment, the language of Section 3320.02, much like that of 3320.03, clearly does not show a desire to supplant secular activities in school for religious activities.
One might ask what problem Section 3320.03 solves in schools if it does not meaningfully change the way teachers grade assignments—after all, state-sponsored religious discrimination is already prohibited by the Fourteenth Amendment of the United States Constitution. Critics of the bill in the Ohio legislature have called the bill redundant in light of existing state and federal protections for religious expression. The best explanation is probably that the bill was intended to appeal to religious constituents for whom freedom of expression is a hot-button issue and not to drastically change the academic standards of Ohio. With ongoing battles in the legislature over recent controversial abortion laws and an election year for the State House of Representatives coming up in 2020, Ohio lawmakers are likely trying to pass laws that signal values supported by their voters. Regardless of the motivations behind HB 164, Ohio teachers can rest easy knowing that they probably don’t need to worry about marking incorrect answers as incorrect, so long as they grade based on the established academic standards in their subject areas.
See e.g. “Ohio House passes bill allowing student answers to be scientifically wrong due to religion,” ABC 6 On Your Side, https://abc6onyourside.com/news/local/ohio-house-passes-bill-allowing-student-answers-to-be-scientifically-wrong-due-to-religion (last visited Nov. 22, 2019).
H.B. 164, 133d Gen. Assemb., Reg. Sess. at 424-428 (Oh 2019).
Id. at 426.
484 U.S. 260, 273 (1988).
Laura Hancock, “Ohio Lawmakers clear bill critics say could expand religion in public schools,” Cleveland.com, https://www.cleveland.com/open/2019/11/ohio-lawmakers-clear-bill-allowing-students-to-turn-in-inaccurate-work-in-name-of-religion-second-anti-science-bill-in-a-week.html (last visited Nov. 22, 2019) [hereinafter Hancock].
H.B. 164, 133d Gen. Assemb., Reg. Sess. at 403-407 (Oh. 2019).