HB359'S COMPELLED SPEECH MANDATE VIOLATES THE CONSTITUTION

Virginia HB359 is a direct assault on the fundamental rights of private schools, religious institutions, and educators. Under the guise of funding conditions, this bill subjects private education to sweeping public school-style regulations. The most alarming and unconstitutional provision is the proposed Section 101.6(B), which mandates that any school receiving funds must pledge to "affirm the identities of all students". This mandate crosses a dangerous line. It is a textbook example of "compelled speech," forcing individuals and institutions to express a government-approved message, even if it violates their core convictions. A robust body of state and federal law, backed by clear legal precedent, demonstrates why this provision is unconstitutional and doomed to fail in court. ### The Constitutional Case Against HB359 **1. The Virginia Constitution explicitly forbids compelled speech.** Article I, Section 12 of the Virginia Constitution guarantees the right of every citizen to freely speak, write, or publish their sentiments on all subjects. The government cannot abridge this right, and critically, it cannot force someone to speak a message they disagree with. Furthermore, Article I, Section 16 protects the free exercise of religion, declaring that religion "can be directed only by reason and conviction." It expressly forbids the government from placing any restraint, burden, or civil disadvantage on individuals because of their religious beliefs. By demanding schools "affirm" specific identities—which may contradict their religious tenets—HB359 places a direct civil disadvantage on religious exercise. **2. The Virginia Religious Freedom Restoration Act (VRFRA) protects against government burdens.** Virginia Code § 57-2.02 (VRFRA) establishes a high bar for government interference in religion. Subsections B through D state in everyday terms: * The government cannot substantially burden a person’s free exercise of religion, even with a generally applicable law, unless it proves the burden is essential to a compelling government interest and is the least restrictive means possible. * If a claimant proves the government unlawfully burdened their religion, they can seek relief in court, and if they win, they are entitled to recover reasonable costs and attorney fees from the government. HB359 undeniably burdens the religious exercise of faith-based schools by forcing them to adopt ideological stances contrary to their teachings or lose the ability to serve students relying on public assistance. **3. The Virginia Human Rights Act contains explicit religious exemptions.** The Virginia Human Rights Act (Va. Code § 2.2-3904(A)-(C)) outlines nondiscrimination policies in public accommodations. However, it explicitly exempts places of accommodation owned or operated by a religious corporation, association, or society that are not in fact open to the general public. HB359 attempts an end-run around this established protection by using funding as a lever to force compliance with mandates that religious institutions are otherwise legally exempt from. ### Established Court Precedent Rejects Compelled Speech The courts have consistently struck down government attempts to compel speech and violate religious conscience: * **Vlaming v. West Point School Board (2023):** The Virginia Supreme Court delivered a landmark ruling protecting a teacher fired for refusing to use a transgender student's preferred pronouns due to his religious beliefs. The Court confirmed that the Virginia Constitution provides robust protection against compelled speech, stating that the government faces a very high burden to justify forcing someone to say something they believe to be untrue. * **Elliott v. Commonwealth (2004):** While dealing with cross-burning, the Virginia Supreme Court reinforced the principle that statutes must not create an unacceptable risk of suppressing ideas, emphasizing the broad protections afforded to speech under the Constitution. * **West Virginia State Board of Education v. Barnette (1943):** The United States Supreme Court ruled that the government cannot force students to salute the flag or recite the Pledge of Allegiance. Justice Robert Jackson famously wrote: *"If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein"*. ### The Bottom Line HB359’s requirement to “affirm the identities of all students” is a clear violation of the First Amendment and the Virginia Constitution. It is void of any precedent that would allow it to survive a legal challenge. Christian Liberty Alliance will be addressing these critical constitutional flaws with Delegate Dan Helmer prior to the session. If the necessary changes to protect religious freedom and free speech are not made, we will aggressively address these issues with the entire education committee. We must stand together to ensure that the government does not force orthodoxy or compel speech upon Virginia's schools and citizens. ---