CHAPTER 251

FORMERLY

SENATE SUBSTITUTE NO. 1

FOR

SENATE BILL NO. 34

AS AMENDED BY

SENATE AMENDMENT NOS. 1 AND 2

AN ACT TO AMEND TITLE 14 OF THE DELAWARE CODE RELATING TO THE EXERCISE OF FIRST AMENDMENT RIGHTS BY PUBLIC SCHOOL STUDENTS.

WHEREAS, the Delaware State Senate and House of Representatives wish to ensure that students in Delaware's public schools are permitted to exercise all of the religious freedoms that they are guaranteed by the Constitutions of the United States and the State of Delaware; and

WHEREAS, the Senate and the House of Representatives also recognize that the Establishment Clause of the United States Constitution places limitations upon the ability of public schools to allow organized religious activities during school-related functions; and

WHEREAS, the Supreme Court of the United States has handed down several rulings which have helped to define the types of religious activities which the public schools can allow consistent with the Establishment Clause of the Constitution; and

WHEREAS, certain public school officials and administrators have sought in recent years to impose limitations on the religious and free-speech rights of public school students over and above those required by law in an apparent effort to avoid controversy; and

WHEREAS, the Supreme Court of the United States has identified the individual's freedom of conscience as the "central liberty that unifies the various clauses in the First Amendment" of the United States Constitution; and

WHEREAS, it is the intent and purpose of the Delaware General Assembly by means of this Act to guarantee opportunities to public school students in the State of Delaware to exercise First Amendment rights in an appropriate manner during graduation or commencement ceremonies according to the dictates of their individual consciences;

NOW, THEREFORE:

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF DELAWARE:

Section 1. Amend Title 14, §4101 of the Delaware Code by deleting the phrase";

daily student activity" where said phrase appears in the Title of §4101.

Section 2. Amend Title 14, §4101 of the Delaware Code by deleting §4101 (b) and

by deleting the subsection designation "a" from §4101 (a).

Section 3. Amend Title 14 of the Delaware Code by adding thereto a new section,

§4101A, to read as follows:

"4101A. Use of schools for First Amendment purposes.
(a) As used in this section:

(1) 'student-initiated' refers to any action that is taken only after

students have asked that such an action be taken;

(2) 'student-delivered' refers to any message spoken by a student of

the public school at which the message is delivered.

(b) During the initial period of study on each school day all students in the
public schools in Delaware may be granted a brief period of silence, not to exceed 2 minutes in duration, to be used according to the dictates of the individual conscience of each student. During that period of silence no other activities shall take place.

(b) Notwithstanding any other provision or provisions of the Delaware Code, on public school property, or other public property, student-delivered, voluntary messages may be permitted by schools during graduation or commencement ceremonies where appropriate in the context of the event. The content of any message authorized by this section shall be determined by the student delivering the message. No school district, school administrator, teacher or other school employee shall exclude, include, or otherwise discriminate for or against any student on the basis of the political, philosophical, religious, or other content of the message that the student intends to deliver or does deliver.

(c) A school shall be deemed to offer a fair opportunity to students who wish to deliver voluntary messages during graduation or commencement ceremonies under the provisions of this section if such school uniformly provides that the delivery of such messages occur in a manner which does not substantially interfere with the orderly conduct of the ceremony.

(d) Nothing in this section shall be construed to limit the authority of the school district, school administrators, teachers or other school employees to maintain order and discipline on school premises, to protect the well-being of students and school administrators, teachers and other school employees, and to assure that the content of student-delivered voluntary messages is consistent with federal and state law.

(e) Each school district shall establish rules and regulations for the implementation of this section within the district. The Department of Justice shall provide each school district an annual set of model rules and regulations on or before January 1 of each year commencing in 1996 which, if adopted by a school district, will ensure that this section is implemented consistently with federal and state law. Any school district which complies with the model rules and regulations provided pursuant to this subsection shall be entitled to representation by the Department of Justice, upon request, in the event that the school district is sued as a result of activity related to this section. The State shall, if the school district complies with the rules and regulations provided pursuant to this subsection, reimburse the school district for any monetary award related to compliance with this section."

Section 4. If any provisions of this Act or the application thereof to any person or

circumstance is held invalid, such invalidity shall not affect other provisions or applications of the Act which can be given effect without the invalid provision or application, and to that end the provisions of this Act are declared to be severable.

Approved July 19, 1995