Rights of Conscience and Religious Belief

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What is HB 348 Participation Waiver Amendments?

HB 348 Participation Waiver Amendments is a bill that was sponsored in the 2023 Utah State Legislative session by Representative Cheryl Acton and floor sponsored in the Senate by Senator Michael Kennedy.

The bill was intended to align education code under 53G-10-205 Waivers of Participation with the Utah State Constitution, which in Article 1, Section 4, Religious Liberty, states, “The rights of conscience shall never be infringed.“

HB 348’s most significant changes to 53G-10-205 include:

Prohibiting a school from denying a student or a student’s parent the right to waive a student’s participation in any aspect of school that violates a student’s or a student’s parent’s religious belief or right of conscience.
Prohibiting a school from penalizing or discriminating against a student should the student refrain from participating in any aspect of school due to a religious belief or right of conscience.
Allowing, but not requiring, a school to provide an alternative that does not violate a student or student’s parent’s religious belief or right of conscience.

Why was HB 348 necessary?

The original language for 53G-10-205 allowed a school to deny a student a waiver from participating in curriculum or activities that violated his or her conscience, and only allowed a student to ask for a waiver from curriculum or activities, not other aspects. The original language made the schools the final arbiter of a student’s conscience, which is unconstitutional.

HB348 made it so that the code finally aligned with the state Constitution, strengthening the protections of a student’s or a student’s parent’s conscience.

Thoughts on Religious Belief & Rights of Conscience

Conscience is Sacred

Conscience is the most sacred of all property.
James Madison, essay on Property, March 29, 1792

A Precious Civil Right

The civil rights of none, shall be abridged on account of religious belief or worship, nor shall any national religion be established, nor shall the full and equal rights of conscience be in any manner, or on any pretext infringed.

James Madison, proposed amendment to the Constitution, given in a speech in the House of Representatives, 1789

Education Is No Exception

Individuals and organizations do not give up their religious-liberty protections by providing or receiving social services, education, or healthcare; by seeking to earn or earning a living; by employing others to do the same; by receiving government grants or contracts; or by otherwise interacting with federal, state, or local governments.
Federal Register / Vol. 82, No. 206

The Divine Judgment Seat

Conscience is the representative within us of the divine judgment seat: it weighs our dispositions and actions in the scales of law which is holy and pure; we cannot deceive it, and lastly, we cannot escape it because, like the divine omnipresence, it is always with us.

Immanuel Kant

The "New Civil Religion"

The establishment and free exercise clauses should be read together to harmonize the importance of religious liberty with freedom from government regulation. Rather, today in our nation, the establishment clause is being used to restrict religious institutions from playing a role in civic issues, and the free exercise clause denies to individuals their religious liberty. It does not accord the equivalent to what the Constitution accords to secularism—the new civil religion.

James E. Faust, October 1992

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What is the USBE's authority on Constitutional Issues In Schools?

In 1993, the original language for 53G-10-205 was proposed in the Utah State Legislative session as 53A-13-101.2 Maintaining Constitutional Freedom in the Public Schools, and took effect in 1994.

In that same year, the Utah State Board of Education enacted an administrative rule (which has the effect of law) on 53A-13-101.2, titled R277-105 Recognizing Constitutional Freedoms in the Schools.

In 2019, the state board staff secured support for repealing R277-105 in a meeting of the Law and Licensing standing committee, which then forwarded their recommendation for repeal to the full board, which passed the repeal unanimously.
The rationale given by the board for repealing the R277-105 rule it issued on 53G-10-205 was that:

T]he "rule contains restatements of constitutional protections to students established in federal and state case law...[and] was originally drafted to provide guidance to LEAs who may not have sufficient familiarity with the principles...[however] administrative rules are not designed to provide legal guidance, but to establish requirements within an agency's authority and expertise. Therefore, this rule is repealed in its entirety."

Utah State Board of Education, 2019

In other words, UPON COUNSEL FROM THE ATTORNEY GENERAL’S OFFICE in 2019, the Utah State Board of Education asserted that it did not have the “authority and expertise” to provide legal guidance in the form of administrative rules on constitutional issues—and so could not issue rules concerning the constitutional rights of students. This means the USBE shouldn’t be writing administrative rules on constitutional issues, but rather defer back to statute and the state and U.S. Constitutions as the final authorities on conscience and religious belief.

WATCH THE VIDEO HERE [3 MINS]

So if the USBE has no expertise or authority to write rules that provide legal guidance on Constitutional matters in the classroom, why, in June 2023, did the USBE attempt to pass a rule, R277-631, on the new provisions of 53G-10-205? And why did the USBE approve an amendment to a rule, R277-700-7(4), when they already stated they don’t have the authority or expertise to write rules that interpret constitutional issues?

Keep reading to learn how the Utah State Board of Education is acting unconstitutionally to restrict student conscience and religious belief.

How is the USBE undermining the law on Conscience & Religious Belief now?

1st Board Infringement on conscience

The USBE Attempts to pass R277-631
june 2023

As stated above, in June of 2023, the Utah State Board of Education staff, in cooperation with local educators, districts, and some board members, attempted to write a rule to regulate parents’ and students’ exercise of the rights of conscience further protected by 53G-10-205. In its proposed form, the rule, R277-631, clearly encouraged infringement after infringement upon the rights of conscience of students and their parents. The rule was inconsistent with both the language and intent of HB348, which directed the USBE to make “rules consistent” with the provisions of HB348.

Considering R277-631’s many infringements upon constitutionally protected rights of students and parents, the rule understandably attracted the attention of multiple First Amendment legal institutions, including Liberty Counsel and Child and Parental Rights Campaign. These law firms warned the Law & Licensing committee about the USBE overstepping its authority by trying to write a rule, and cautioned unequivocally against any state regulations infringing upon Utah State Constitution, Article I, Section IV, which reads, “The rights of conscience shall never be infringed.”

2nd Board Infringement on conscience

The USBE votes 10-4 for LeAnn Wood's amendment to R277-700
August & September 2023

The changes to 53G-10-205 created by HB348 meant that a few existing board rules had to be amended so they would be consistent with the new code language. One of those board rules was R277-700-7(4). The USBE staff proposed the following amendment (Draft 1) to R277-700 in the August Law & Licensing committee meeting: “A student or parent may refrain from participation consistent with Section 53G-10-205.” This language defers back to the code, and is consistent with the code’s provisions.

But the Law & Licensing committee rejected this Draft 1 language for Member Hart’s amendment (Draft 3), which was amended by Member LeAnn Wood in the full meeting of the board on September 7, to read:

If a student refrains from a portion of a course or to a course in its entirety under Section 53G-10-205, the parent and school may work together to establish a reasonable academic accommodation, which allows the student to demonstrate mastery of Core Standards, consistent with 53G-6-803 and 53G-10-205(2)(b) before the student's promotion to the next course or grade level.

mEMBER lEANN WOOD'S final AMENDMENT TO R277-700, APPROVED 10-4 BY THE STATE BOARD, SEPTEMBER 2023

Member LeAnn Wood’s amendment to R277-700 is bad, and disadvantages parents whose children exercise a right of conscience. How? In the event of a student refraining to participate due to a right of conscience, 53G-10-205 sets three clear standards for any alternative the school offers the student.

ANY ALTERNATIVE A SCHOOL OFFERS MAY NOT…

…violate a student’s or a student’s parent’s conscience or religious belief

53G-10-205(3)(B)

…punish a student for refraining due to conscience or religious belief

53G-10-205(2)(b)(iii)

…discriminate against a student for refraining due to conscience or religious belief

53G-10-205(2)(B)(III)

But Member LeAnn Wood’s amendment creates a new, highly subjective standard not listed in 53g-10-205—that a parent is expected to work with a school on a “reasonable” alternative that allows the student to “demonstrate mastery of Core standards”—but reasonable according to who?

What if the school thinks it is reasonable to require a student to advocate that climate change is manmade and the student’s parent thinks that’s unreasonable? What if the Core standard the school regards as “reasonable” is the very thing that violates a student’s conscience? Wouldn’t forcing a student to meet a standard that violates his or her conscience as a condition to graduate constitute a punishment?

Wood’s amendment doesn’t even mention that 53G-10-205 says that an alternative offered by the school may not violate a student’s or a student’s parent’s right of conscience or religious belief, which is an indispensable part of the law.

State Board Member Natalie Cline explains in the following video why Wood’s Draft 4 amendment is inconsistent with 53G-10-205 and with the Utah State Constitution, as well, and should be rejected by the Board:

Despite these facts, the board voted 10-4, with members Cline, Green, Davis, and Boggess opposed, to LeAnn Wood’s Draft 4 amendment of R277-700-7(4). See video below for the vote.

Higher Ground calls for a public hearing to challenge the Board's R277-700-7(4)

Click image to view technical corrections to slide 7 (4:17 mark), submitted to the USBE for the public record

HIGHER GROUND REQUESTED A PUBLIC HEARING TO CHALLENGE the Utah State Board of Education’s approved Draft 4 amendment to rule R277-700-7(4), which infringed on student & parent conscience.

Higher Ground asserts that the USBE does not have the authority to make this rule as it is inconsistent with the law it modifies, 53G-10-205(5), which says that rules the State Board makes shall be consistent with the provisions of 53G-10-205:

In accordance with Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the state board shall make rules consistent with this section.

language of 53g-10-205(5)

Higher Ground maintains that the Board breaks the law by incorporating the following language into the rule that constitutes an infringement on the Constitutional rights of parents and students.

If a student refrains from a portion of a course or to a course in its entirety under Section 53G-10-205, the parent and school may work together to establish a reasonable academic accommodation, which allows the student to demonstrate mastery of Core standards, consistent with 53G-6-803 and 53G-10-205(2)(b) before the student's promotion to the next course or grade level.

Language of LeAnn Wood's Unconstitutional and unlawful amendment to r277-700

Watch Higher Ground’s presentation here. The full video of the Monday, October 23, 2023 public hearing, including comments from parent groups and the public, can be found here.

3rd Board Infringement on conscience

Board members combine efforts to ask the Legislature to amend 53G-10-205
September 2023

These next images show Utah State Board Members LeAnn Wood’s and Jennie Earl’s planned proposal to Representative Acton to undermine the protections of 53G-10-205: