Texas' New Controversial Bill Allows Chaplains in Schools

 Texas Senate Bill 763 (SB 763) was designed to assist Texas K-12 public and charter schools in staffing their counselor positions. SB 763 allows religious chaplains to provide counseling services and support programs in public and charter schools. A chaplain is a person who provides religiously oriented services for a particular group or organization. These chaplains do not need the same State Board of Educator Certification that school counselors are required to obtain; however they do need to pass background checks to enter the schools. Chaplains are paid via “School Safety Allotment” funds. These funds are intended to be used on things like security and school resource officers, and are now partially being used to pay chaplain salaries.  
There is also a unique aspect of SB 763 that mandates a vote. Schools boards in Texas were required by March 1, 2024, to hold a vote as to whether or not they would allow the chaplain policy in their school districts. The school boards are made up of locally elected officials. The 25 largest school districts, which represent about 1.8 million students, all voted against SB 763, while some of the rural districts did accept this policy. 
SB 763 threatens a violation of the establishment clause, which prohibits the state from establishing a religion. There is a clear case for a violation because the state is sponsoring religious chaplains that are not strictly prohibited from proselytizing to students. However, the argument can be made that this policy fulfills an important state interest, as many of these school districts are understaffed and are compelled to help struggling students. 
Those in favor of SB 763 may reference more recent Supreme Court cases like Kennedy v Bremerton (2022). A high school football coach, Joe Kennedy, was fired for praying with his team after games. This termination was overturned by the Supreme Court. The new standard in this case determined that the establishment clause needs to be understood in terms of  “reference to historical practices and understandings”. As a result, one could reasonably argue the validity of SB 763 due to the fact that chaplains have been a part of the American government for 250 years. Chaplains have been paid to open congressional sessions with prayer since the birth of the nation. 
Opponents of SB 763 argue that the bill creates an establishment of religion due to the allotment of state funds to religiously motivated chaplains. Secondly, the bill creates a lack of neutrality due to its preference for Christianity. The students also potentially do not have a choice as to whether or not they are seen by a chaplain or a school counselor as there is not a requirement to employ both chaplains and secular counselors. A free exercise argument can also be made as students may be coerced into practicing Christianity.
    There is also judicial precedent that can be used to strike down SB 763. In McCollum v. Board of Education the Supreme Court ruled it unconstitutional to allow the Council on Religious Education to offer religious classes in public schools. Since the Supreme Court ruled that religious instruction is unconstitutional even with parental consent, SB 763 is an even clearer violation of the Establishment Clause because it does not require parental permission at all.
I believe that SB 763 is unconstitutional due to its violation of the establishment clause. SB 763 does not restrict the chaplains in any way from proselytizing to students, making state coercion a genuine possibility. Another very important implication is that this bill results in religious discrimination in hiring practices. A school would be forced to choose between hiring a chaplain or a secular school counselor, resulting in potential religious discrimination if the school is motivated to establish or promote religion. Also, a lack of training requirements for these chaplains creates unequal treatment among hiring practices and hurts those who are qualified counselors. 
    Overall, SB 763 creates a very blurred line between the church and the state. Although chaplains have been paid by the state to read prayers to Congress for nearly 250 years, that is not proselytizing. This historical example is a true example of expression of a tradition, while this bill would be creating something entirely new.