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Great anticipation accompanies the decisions of the Court involving the First Amendment, the now almost perennial hope that the justices will make a landmark statement in a muddled area. Because there are many such areas in First Amendment doctrine, each decision is understandably scrutinized for signs of any tinkering. The 1999-2000 term did not disappoint, as the justices agreed to hear a case involving prayer in public schools in Santa Fe Independent School District v. Doe. The Court also rendered a decision in Boy Scouts of America v. Dale on the future of anti-discrimination laws when they collide with private associational conduct. As it turns out, neither case lives up to expectations of a landmark decision or a restatement of doctrine. B oy Scouts of America is not a homosexual rights case. Moreover, the Santa Fe School District decision is not a school prayer case as much as it is a reminder about proper management of a public forum. But both decisions are related to common themes and allow the Court to remind state and local government that the regulation of expression does not always make good public policy. The practical difficulties that are encountered when policymakers attempt to regulate any corner of the marketplace of ideas is clearly apparent in both cases. It is likely, because of the subject matter involved in both cases, that some may misunderstand the modest quality of the decisions. Neither case is squarely dependent on the factual element that made its arrival on the Court’s docket newsworthy and provocative. In Santa Fe School District, the Court held that the school district could not allow student-initiated, student-led prayer as part of its tradition of invocations at football games. An observer of this announcement would be understandably confused reconciling this holding with media reports characterizing the nature of the conflict in the case. This is particularly so because it is generally understood that the act of praying in public school without government coercion or mandate is precisely what the Court had led educators to believe was permissible. The justices spend most of their effort making a proper distinction between the Santa Fe School District’s traditional approach and one that might, in the future, pass constitutional muster. VIEWPOINT DISCRIMINATION The Santa Fe School District case is less about prayer in public school than it is a primer on viewpoint discrimination and the nuts and bolts of the proper management of a public forum. The essence of the majority’s reasoning is that the process or structure of the policy that allowed student-initiated, student-led prayer before football games was flawed and did not transform the public address system into the type of public forum that maintains the private character of student prayer. Understanding this aspect of the case should influence, over the short term, widespread tinkering by educators, if only out of curiosity, with open-forum policies that may satisfy the concerns of the Court. As for the Santa Fe School District, it is easy to see how the educators fell into difficulty with the Court’s open-forum rules. The school district was in the process of moving away from a direct violation of the establishment clause, having had at one time a student council chaplain who offered a traditional prayer at football games. The corrective policy, which was invalidated by the Santa Fe School District decision, was an attempt to adjust the policy to conform to the law without affecting the outcome and the tradition too much. The idea of student elections — the first to determine whether invocations should be delivered at games and the second to select the student who would deliver them — seemed in keeping with the letter, if not the spirit, of the public-forum rules. This tradition was a part of the fabric of the homogeneous community, and that is where the new policy ran into difficulty. The majority held that a forum for student-initiated, student-led prayer in public schools must be in fact, rather than theory, one that is open to indiscriminate use by the student body generally. The apparent flaw in the school district’s approach was that its process was rigged to foster a climate in which invocations would always be approved, and only prayers consistent with the beliefs of the majority of students who voted would be offered by those most favored by the voters to deliver them. As the majority observed, the school district “sham forum” did not convert its public address system into a public forum because nontraditional students and their views or statements would never gain access to the system. It is this notion that will be probed and discussed by court experts — the possibility that democratic processes may be less reliable or attract less good will when, because of relative homogeneity, outcomes are predictable and real diversity of views less likely as a practical matter. Generally, in a homogeneous community, the improbability that something nontraditional will occur in a properly maintained open forum is not remarkable. Until now, there was never any serious argument that the public-forum doctrine requires actual diversity in the views offered, just the absence of restraints in the event a nontraditional speaker came forward. The reply of the Court majority on this matter was that the educational policy created a climate making the expression of nontraditional views in the “invocation slot” improbable and unlikely. This, of course, has all the makings of a home-court advantage for members in a community who all favor a particular view, but that is not necessarily unconstitutional. The additional factor of the immediate past practice of restricting access to the public address system to the designated student chaplain influenced the Court to resolve doubts about the structure of the forum against the school district. At this point, the case does become, for a moment, an establishment clause case, to distinguish among forms of religious expression that may be officially sponsored by educators. When viewpoint discrimination is taking place, the character of the viewpoint endorsed by the government policy is usually irrelevant. That viewpoint could be one in favor of traditional family values or against teenage smoking, or one endorsing of the virtues of “Harry Potter and the Goblet of Fire.” A sham forum, one that shuts out disfavored viewpoints, should not pass constitutional muster. However, educators are allowed a wide range of discretion to manage the education forum, to preserve the climate for its intended purpose, and to further the school’s educational mission. Speech restrictions and content favoritism not permitted in other settings are allowed on public school campuses. Religious content may be present as well; there remain a variety of valid contexts in which the discussion of religious concepts and the examination of religious data are consistent with the secular education mission. The Santa Fe School District decision serves to remind educators that official support, endorsement, or coercion in favor of a religious ceremony is beyond the reach of these curricular exceptions to the establishment clause. It would be most unfortunate if the Santa Fe School District decision were read as one that repudiates student-led, student-initiated prayer at school-sponsored events. A future case may reach this matter, but Santa Fe School District is not the case. After Santa Fe School District, student-led, student-initiated prayer at a school-sponsored event will become more difficult, but only as a matter of forum management by educators. The majority underscored its reminder that public-forum law does not supersede the fundamental limitations imposed by the establishment clause. More to the point, public-forum law does not permit school officials to manipulate the forum in favor of a particular viewpoint. THE ‘BOY SCOUTS’ RULING The Boy Scouts of America case also involves an attempt to control expression, but through means less direct than in Santa Fe School District. The Boy Scouts case presents a modern conflict between the right of groups to associate for an expressive purpose and the interest of government to discourage discrimination in public life. This conflict involves laws of relatively recent vintage that, when enforced, prevent discrimination by nongovernmental entities and organizations, provided these groups reach out to the public. The Court held that the Boy Scouts of America is sufficiently private in nature and expressive in purpose that its membership practices and rules need not yield to the New Jersey anti-discrimination law. All of this would have been routine enough, but for a provocative fact pattern involving the revocation of James Dale’s membership because of his homosexual status and desire to be a gay role model as a scoutmaster. The state anti-discrimination law included protection for homosexuals in places of public accommodation, thus setting the context for the Court’s decision. Despite the factual packaging, the Boy Scouts of America case is less a case about homosexual rights than it is about the values of the Boy Scouts of America and the right to control messages about those values without government interference. In a surprisingly close ruling, the five-member majority held that the values of a private group such as the Boy Scouts of America are embodied in what the group says and through its associational activities. In an opinion by Chief Justice William H. Rehnquist, the Court ruled that New Jersey could not force the Boy Scouts of America to keep Dale on as a scoutmaster because to do so would affect the organization’s ability to advocate its viewpoints. The right of private groups to control membership as a defining associational element prevails as an essential element of expressive freedom. The standard that emerges in Boy Scouts of America is tailored to diminish the role of the courts to determine which associations are worthy of First Amendment protection. The Court held that an association qualifies for this protection when it engages in some expressive activity that could be impaired. The holding in Boy Scouts of America is not intended to be a doctrinal statement disfavoring bias protection for gay citizens, although it may be misunderstood on this point. The Boy Scouts of America case does not diminish the compelling government interest states have in eliminating discrimination. One should not expect that state anti-discrimination laws, which have recently expanded to cover a variety of people who experience discrimination, will abate beyond the pause necessary to adjust to the notion of how “privacy” in an associational context should be regarded. Boy Scouts of America should join the family of cases on associational freedom that began to emerge in 1958 to protect the activities and values of a variety of groups joining forces to promote civil rights. The irony in the foregoing statement was not lost on the dissenters in Boy Scouts of America, who argued for piercing the veil of private groups such as the Boy Scouts when assertions about rules and values are not properly documented. For their effort, the dissenters will likely be responsible for prompting a review of organizational documents for a wide variety of expressive groups that understand the implications of a 5-4 decision in an election year. Of the two cases, Santa Fe School District should generate more litigation in the lower courts, as varying recipes for preserving the private character of student-initiated, student-led religious expression in public schools are offered for examination. The challenge for the public educator who desires a more prominent role for religious expression is clear: to structure the school-sponsored forum for religious speech in a way that also encourages intermittent nonreligious expression, effectively keeping the forum sufficiently neutral to preserve the private character of all comments. This egalitarian component may be severe enough to ward off all but the seriously committed, but the developments will be worth watching. Both cases are pedagogically written, providing a “how to” for the next set of policymakers who will attempt to balance public policy against individual rights. Bernard James is professor of constitutional law at Pepperdine University School of Law and is an occasional contributor to The National Law Journal.

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