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In Santa Fe Independent School District v. Doe, the U.S. Supreme Court declared unconstitutional a school district’s policy that facilitated student-delivered prayers at school football games. What happens now when a student delivers a prayer at a school event? Does the majority truly display a “hostility to all things religious in public life?” Professor Erwin Chemerinksy and a distinguished panel debate Santa Fe in an ongoing law.com online seminar. FROM: PROFESSOR ERWIN CHEMERINSKY, UNIVERSITY OF SOUTHERN CALIFORNIA SCHOOL OF LAW The issue in Santa Fe Independent School District v. Doe is the constitutionality of student-delivered prayers at high school football games. A school district in Texas has had a long-standing policy of facilitating student prayers before football games. The school’s policy has taken many forms. Most recently, the school held two elections: one for the students to elect a student chaplain and one to decide whether there should be an invocational message. The result has been prayers before football games. They were supposed to be non-sectarian, but often were expressly Christian. In a 6-3 decision, the Court declared this unconstitutional. Justice Stevens wrote for the Court. Justice Stevens emphasized the school’s role in encouraging the prayer. Justice Stevens stressed that some students must be at the games (i.e., cheerleaders, the players, band members) and other students undoubtedly feel pressure to attend. Justice Stevens stressed the school’s role in encouraging the prayer. The Court rejected the schools’ argument that the exclusion of prayer was impermissible content-based restrictions of speech. The Court said that the football games were not a public forum and limiting the subject matter of speech was constitutional. Chief Justice Rehnquist wrote a dissenting opinion, joined by Justices Scalia and Thomas. Rehnquist began by arguing that the exclusion of prayer is undue hostility to religion. A few questions to consider and perhaps discuss: 1. After Doe, what seems left for the Court to decide is the student-delivered prayer where the school plays no role in encouraging or reviewing it. Imagine a high school always lets its valedictorian deliver a speech at graduation, with no administrative review of the speech. The student chooses to deliver a prayer. I read Doe as not speaking to this issue. Would this violate the establishment clause? 2. In Mitchell v. Helms, the Court continued its recent trend of relaxing the establishment clause’s limits on aid to parochial schools. In Doe, the Court did not relax the establishment clause’s limits on prayer at official school activities. What explains this? Three Justices — Rehnquist, Scalia, and Thomas — would relax in both areas. Three Justices — Stevens, Souter, and Ginsburg — would relax in neither. But the remaining three — O’Connor, Kennedy, and Breyer — would allow more aid to religion, but not more prayer. Is there a meaningful distinction to explain this? FROM PROFESSOR DOUGLAS LAYCOCK, UNIVERSITY OF TEXAS AT AUSTIN SCHOOL OF LAW Santa Fe seemed to me to be an easy case. With or without the history of school support for religious exercises, the facts were that the football game was an official school event, the school wholly controlled the pre-game ceremonies, one student got exclusive and preferential access to the microphone, that student was selected by majority vote, she led the whole crowd in prayer, and the entire process, from the elections to the prayer, was exercising authority delegated by the school board. Situations in which a significant number of students express a genuine diversity of views tend to be equally easy. The school should not discriminate on the basis of viewpoint, and religious views can be included. Even there, I think there is a difference between a student saying “This is what I believe,” and saying to the audience, “Join me in prayer.” I agree with Erwin that the unresolved case is the valedictorian or other speaker selected on wholly neutral criteria, but where there is only one speaker and no diversity of views. FROM PROFESSOR DOUGLAS LAYCOCK, UNIVERSITY OF TEXAS AT AUSTIN SCHOOL OF LAW Erwin asks how to reconcile Santa Fe and the other cases on government-sponsored religious observance with Mitchell and the other cases on government money to religiously affiliated education. The obvious difference is that in the education cases, the government gets full secular value for its money; the computers and other equipment in Mitchell are used to teach students secular subjects in a program that satisfies the state’s compulsory education requirement. In the religious observance cases, there is no secular value or secular component; those are the pure case of the government sponsoring religion. A second difference is that financial support can be made equally available to all. The money flows to public schools and private, to secular and religious, and to religious of all denominations. No child is excluded. And of course government spends much more on public schools than on religious schools. But it is impossible for government-sponsored religious observances to maintain such equality. Government cannot observe all religions, or even all variations of the dominant religion, and it is not even clear what the equivalent secular observances would be. Government inevitably sponsors some highly particular religious observance if it sponsors religious observances at all. And all who would worship in some other way, or not at all, are effectively excluded. FROM JANET M. LARUE, ESQ., SENIOR DIRECTOR OF LEGAL STUDIES FAMILY RESEARCH COUNCIL “As to the Court’s invocation of the Lemon test: Like some ghoul in a late-night horror movie that repeatedly sits up in its grave and shuffles abroad, after being repeatedly killed and buried, Lemon stalks our Establishment Clause jurisprudence once again, frightening the little children and school attorneys of Center Moriches Union Free School District. Its most recent burial, only last Term, was, to be sure, not fully six feet under: Our decision in Lee v. Weisman, [citation omitted], conspicuously avoided using the supposed “test” but also declined the invitation to repudiate it. Over the years, however, no fewer than five of the currently sitting Justices have, in their own opinions, personally driven pencils through the creature’s heart (the author of today’s opinion repeatedly), and a sixth has joined an opinion to do so�.The secret of the Lemon test’s survival, I think, is that it is so easy to kill. It is there to scare us (and our audience) when we wish it do so, but we can command it to return to the tomb at will�.When we wish to strike down a practice it forbids, we invoke, it, � when we wish to uphold a practice it forbids, we ignore it entirely�.Sometimes, we take a middle course, calling its three prongs “no more than helpful signposts,” � Such a docile and useful monster is worth keeping around, at least in a somnolent state; one never knows when one might need him.” – U.S. Supreme Court Justice Antonin Scalia, Lamb’s Chapel v. Center Moriches Union Free School District, 508 U.S. 384, 398, 99 (1993). In 1791, the Bill of Rights was ratified, creating the Establishment Clause, which the Framers intended to apply only to the federal government. In 1947, the U.S. Supreme Court applied the Clause to the states through the Fourteenth Amendment (which would probably shock the creators of the Amendment, which was ratified in 1868; but, nonetheless, it is now a generally accepted theory of Constitutional law). In 2000, the Supreme Court chose to expand the reach of the Establishment Clause to an area the creators of both amendments could hardly have conceived — the actions of private individuals. At issue in this case was a Santa Fe, Texas, high school policy that allowed students to vote on whether to have a student speaker before football games, and secondly, who would speak. The speaker then chose whether to make a statement, give a message or invocation about good sportsmanship and student safety to solemnize the occasion. The policy was never implemented because it was enjoined by a federal district court judge and affirmed by the 5th U.S. Circuit Court of Appeals. The Supreme Court upheld that ruling, stating that even though the policy had never been put into practice, it is unconstitutional on its face because the school made the policy with the purpose of preserving prayer before football games. The 6-3 majority held in that the school’s policy amounted to government speech because it occurs on government property, the elections are overseen by the school, the speech takes place at a school event, the school “permits” students to speak about religion if they choose, and the message to be delivered is limited by the school to a message about safety and sportsmanship. Santa Fe Indep. Sch. Dist. v. Doe, 120 S. Ct. 2266, 2270 (2000). Justice John Paul Stevens, writing for the majority, said “[A]n objective Santa Fe High School student will unquestionably perceive the inevitable pregame prayer as stamped with her school’s seal of approval.” Id. at 2278. This reasoning set up a catch-22 through which the Court eliminated a public school student’s religious speech: If the school “permits” a student to speak on religion, it is government speech, so the school must censor all religious speech to show that it is neutral toward religion. In effect, private persons are subjected to the Establishment Clause, and the school is made responsible for policing the speech of individuals along lines that would normally be considered to violate the First Amendment. The majority’s makes an odd objection to the school’s policy because it limits the message to safety and sportsmanship and excludes any other topic. Stevens objected that “comment on United States foreign policy, would be prohibited.” Id. at 2277. As Chief Justice William Rehnquist notes in his dissent, this is a content-based objection, and content-neutrality has never been a factor in Establishment Clause jurisprudence. More perplexing is the fact that the Court would allow the school to open a forum for students to speak on safety and sportsmanship and then deny student expression of religious thought on the subject, a clear example of viewpoint discrimination. Once the Court concluded that the message chosen by the student was in fact government speech, the Court analyzed the policy under Lemon v. Kurtzman. 403 U.S. 602 (1972). Lemon requires the policy to have a secular purpose, not to advance or inhibit religion, and not to foster excessive entanglement with religion. Stevens called the school’s stated secular purpose, to “solemnize the event, promote good sportsmanship, student safety and establish an appropriate environment for competition,” a “sham.” Santa Fe, 120 S. Ct. at 2270, 2273. Justice Stevens gave no deference to the school’s assertions, stating that he could think of no message that would solemnize the event that was not religious. Apparently Justice Stevens never sang the national anthem or said the Pledge of Allegiance, both exercises in solemnizing an occasion. Stevens placed great emphasis on the fact that the school had a previous policy specifically directing students to elect a student to serve as chaplain and pray. “This history indicates that the [school] intended to preserve the practice of prayer before football games.” Id. at 2279. But this conclusion is not the only reasonable view of the situation, and Justice Stevens’ immediate leap to that conclusion infers a prejudice against public religious expression. The school’s previous policy was unconstitutional, and they were sued because of it. And yet, when the school attempted to correct the policy, it is taken as evidence of their guilt. Again, Justice Stevens creates a catch-22 designed to eliminate public expressions of faith: In order to prove that the school does not want to preserve the policy of permitting prayer before the game, the school must create a new policy that does not allow students the option of praying before the game. In order to remain neutral to religion, the school must insure that religious speech never occurs. So much for benevolent neutrality and not inhibiting religion. The majority also held that the Santa Fe policy impermissibly advances religion because it coerces students into participating in a religious event. Once the Court transformed individual speech into government speech, it easily applied its holding in Lee v. Weisman, 505 U.S. 577 (1992). which held that government organized prayer by clergy at graduation and other mandatory school functions is coercive. The Court also held that the Santa Fe policy violates the Establishment Clause because it makes religious belief a source of debate at school, as part of the policy’s election process. The Court, however, only reaches that conclusion because it assumes that a prayer is the only type of message that could be delivered under the policy and, therefore, all debate would center around prayer. In his fervent dissent, in which Justices Clarence Thomas and Antonin Scalia joined, Chief Justice William H. Rehnquist criticizes the majority opinion as “bristl[ing] with hostility toward all things religious in public life.” Santa Fe, 120 S. Ct. 2283 He notes that the Court makes an unfounded leap in concluding that all messages given under the policy would be religious, and that the Court’s reasoning would extend to any office for which the school allows students to hold elections. “A newly elected student body president, or even a newly elected prom king or queen, could use opportunities for public speaking to say prayers. Under the Court’s view, the mere grant of power to the students to vote for such offices, in light of the fear that those elected might publicly pray, violates the Establishment Clause.” Id. at 2285-6. The Chief Justice also criticized the majority’s unfounded assumption that the school’s attempt to change the policy was evidence that the school wanted to preserve the old policy. Rehnquist noted that the school complied with an order by the federal district court to change it’s previous policy, which permitted only prayer. The Chief Justice summed up the error in the majority opinion this way: “That a policy tolerates religion does not mean it improperly endorses it.” Id. at 2286. It is little wonder that the 5th Circuit started its opinion in Helms v. Picard 151 F.3d 347 (1998) with these words: “This case requires us to find our way in the vast, perplexing desert of Establishment Clause jurisprudence�bound by the High Court’s commandments we must proceed in fear and trembling.” Id. at 350, 356. Would the Framers of the Constitution have guessed that the Supreme Court would, in the name of the Amendment meant to protect individual religious expression, order state officials to go around silencing private persons who might choose to speak about religion in public? The “ghoul,” to which Justice Scalia referred in Lamb’s Chapel, is an Establishment Clause monster the Court has let loose to consume the Free Exercise and free speech rights of private individuals. This contents of this posting will appear in the Family Research council’s soon-to-be-released publication, The “Republic Endures: Supreme Court Year in Review 1999-2000″. Ms. Miriam Moore contributed to this posting. FROM PROFESSOR LAYCOCK Santa Fe does NOT hold that schools must suppress religious speech to show their neutrality, and it does NOT hold that the establishment clause applies to private speakers. Rather it holds that Santa Fe had aggressively promoted religious speech, and that the elected student speakers were speaking for the school. People I respect and have worked with, including Jan LaRue, disagree with those holdings. But it badly misdescribes the case to assume that the Court agreed with the school board that the prayers were really private, and that therefore the Court must have held that schools are required to censor private religious speech. The Court did not see the issue that way, and if anyone tries to extend the case in that way, Melissa Rogers, Jan LaRue, and I will all be on the same side, protecting private speech. The disagreement here is about the boundary between private and governmental speech, and for reasons I stated in my first post, I think this was clearly governmental. FROM PROFESSOR LAYCOCK I would begin to answer Professor Chemerinsky’s first question by noting his breakdown of the Court in his second question: “Three Justices — Rehnquist, Scalia, and Thomas — would relax in both areas. Three Justices — Stevens, Souter, and Ginsburg — would relax in neither. But the remaining three — O’Connor, Kennedy, and Breyer — would allow more aid to religion, but not more prayer.” We would expect the first threesome to approve the valedictorian’s prayer and to insist that the school officials could not censor it out of regard for free exercise and free speech. (But note the tension in their records and votes on student speech cases.) We would expect the second threesome to disapprove of the valedictorian’s prayer in order to maintain the high wall of separation. We would expect the third threesome to break up in the valedictorian prayer case. Justice Breyer is enough of a fan of the administrative state that he is comfortable with payments of funds in a way that he would not be comfortable with an actual prayer. Justices O’Connor and Kennedy, as always, are more difficult to predict. I would guess, however, that Justice O’Connor would lean to rule against the valedictorian prayer because of her oft stated concern over people being made to feel excluded as outsiders. That adds up to 5 votes: Stevens, O’Connor, Souter, Ginsburg and Breyer. If I were a betting person — I am not when it comes to the Supremes — I would bet that the valedictorian’s prayer is struck down either 5 to 4 or 6 to 3. FROM MELISSA ROGERS OF THE BAPTIST JOINT COMMITTEE, WASHINGTON, D.C. The Baptist Joint Committee filed an amicus brief in the Santa Fe case arguing that the school district’s policy produced government speech endorsing religion instead of private speech endorsing religion. Our brief also noted that the school’s policy denigrated and trivialized the sacred act of prayer by portraying an act of religious devotion as a quasi-secular ceremonial practice to be administered by the government. We believe that religion is best served when the government neither advances nor inhibits religion, but leaves it free to promote and pursue its own mission. In response to Erwin’s questions, I also read the Santa Fe case as not commenting on the case of the valedictorian delivering a speech at graduation without administrative review. If a student chooses to make religious statements during such an address, I believe that would be protected private speech. As Doug Laycock notes, however, a student saying to the audience, “Please join me in prayer . . .” is a more difficult case. I also read the Santa Fe decision as not prohibiting prayers offered individually or by groups of fans and students before, during and after football games as long as the government isn’t involved in the prayers. As to the Helms case, while Erwin is correct that Justices O’Connor and Breyer allowed more governmental aid to religion, I would just observe that they may not allow much more aid than the relatively discrete type at issue in Helms. As you know, O’Connor’s opinion concurring in the judgment, which Breyer joined, specifically criticized “the expansive scope” of the plurality’s rule. Justice O’Connor based her conclusions on a number of safeguards inherent in the Chapter 2 program and continued to express serious concerns about direct monetary aid to religious institutions. So it seems that only four justices are ready to open the gates wide to governmental aid to religious institutions. FROM PROFESSOR JAMES WEINSTEIN, ARIZONA STATE UNIVERSITY SCHOOL OF LAW I agree with Doug Laycock that this is a very easy case. However, I think that it is so easy precisely because of the “history of school support for religious exercise.” This history left no doubt that the new policy, which was calculated to lead to precisely the same student-lead prayer mandated as under the old policy, was, as the Court easily recognized, a sham. The school district’s chicanery in this case is all too redolent of ploys used by Southern officials to disenfranchise African Americans or avoid desegregation decrees. In light of the school district’s uncouth attempts to circumvent the Supreme Court’s school prayer decisions in this case (with which it may legitimately disagree but not legitimately disregard or disobey) Jan La Rue’s complaint of a “Catch 22″ rings hallow. On the other hand, a truly neutral policy, such as Erwin Chemerinsky’s hypothetical valedictorian policy, really would present a conflict between student free speech rights and Establishment Clause concerns. (A similar situation would be presented if a school district had a long standing policy of having the student body presidents of both schools say a few words about sportsmanship and safety before football games, and a particular speaker wanted to end her address with a prayer). The answer to these hypotheticals may well depend on whether Justice Kennedy’s “coercion” rationale continues to command a majority of the Court, as it did in Lee v. Weisman, and in this case (although here arguably only as an alternative rather than the primary rationale). In my view, it was a mistake for the Court in Lee to rely so heavily on the coercion rationale rather than to flatly state that the Establishment Clause forbids the state from being involved with the composition, sponsorship or delivery of prayers. Perhaps it was the long history of legislative chaplain’s and Presidential prayer proclamations that kept the Court from going this route. Still, as Justice Scalia’s dissent in Lee aptly demonstrates, the claim that middle school students sitting with their parents at a school graduation are “coerced” by a benediction is hard to sustain. In the peculiar facts of Doe, perhaps a better coercion claim could be made in light of the intense hostility towards those opposing school prayer, as witnessed by the attempts to discover the identity of the plaintiffs. Nonetheless, I believe that it is a mistake for the Court to maintain coercion as a lynch pin of its Establishment Clause jurisprudence. If, however, coercion does remain a central feature of school prayer cases, then it is quite possible that the Court will find the valedictorian led prayer unconstitutional. For it is difficult to see why the coercion would be any less just because delivered under a truly neutral policy. On the other hand, under Justice O’Connor’s endorsement rationale (and notice its ascendancy in Doe) the prayer would probably be found not to violate the Establishment Clause. As a predictive matter, I’m not certain what the Court would do. My guess is that, despite the tension it would cause with Lee’s coercion rationale, the Court might well uphold a valedictorian prayer if the policy by which the speaker was chosen and by which the content of the speech was determined was truly neutral with respect to religion. As to what the Court should do, this I am also uncertain in this point of my thinking. My tentative view is that if the policy is truly neutral, then it is not a state sponsored prayer and therefore there is no Establishment Clause violation. An even tougher question is, assuming no Establishment Clause violation, whether a valedictorian (or any other graduation speaker) would have a First Amendment free speech right to ask the audience to join her in prayer. In other words, assuming that the prayer would not violate the Establishment Clause, could the school board consistent with the Free Speech Clause, prevent graduation speakers from asking the audience to join her in prayer. The technical answer, of course, depends on whether the graduation is a limited public forum and whether such a policy would be considered viewpoint- based. I’m interested in what others have to say on the free speech side of this problem. FROM JAN LARUE Prof. Weinstein said: “I agree with Doug Laycock that this is a very easy case. However, I think that it is so easy precisely because of the “history of school support for religious exercise.” This history left no doubt that the new policy, which was calculated to lead to precisely the same student-lead prayer mandated as under the old policy, was, as the Court easily recognized, a sham. The school district’s chicanery in this case is all too redolent of ploys used by Southern officials to disenfranchise African Americans or avoid desegregation decrees. In light of the school district’s uncouth attempts to circumvent the Supreme Court’s school prayer decisions in this case (with which it may legitimately disagree but not legitimately disregard or disobey) Jan La Rue’s complaint of a “Catch 22″ rings hallow.” Unless Prof. Weinstein has access to evidence found in documents not quoted in the Supreme Court’s opinion, the statement that the school’s actions are a sham conclusatory. The record cited by the Court indicates that the school had an unconstitutional policy, which was changed by the school to the policy at issue in Santa Fe. The policy let the students decide if there would be any message at all, and then who would speak. The speaker would choose the viewpoint of the message, the only restriction from the school being that the message must be about good sportsmanship and fair play. The school did not preclude any viewpoints on this message, even a religious one, in keeping with Court rulings that public entities may not practice viewpoint based discrimination. Apart from the fact that the school had a previously unconstitutional policy (which most American schools used to have before the 1964 or 1992 decisions), what is the evidence that their stated secular interests were a sham? Justice Stevens leaps to another conclusion – that solemnizing an event necessarily involves religion, something not indicated by the dictionary definition, or by cultural practice (we often solemnize events through speeches and reciting the Pledge or singing the National Anthem. The professor continues: “On the other hand, a truly neutral policy, such as Erwin Chemerinsky’s hypothetical valedictorian policy, really would present a conflict between student free speech rights and Establishment Clause concerns. (A similar situation would be presented if a school district had a long standing policy of having the student body presidents of both schools say a few words about sportsmanship and safety before football games, and a particular speaker wanted to end her address with a prayer).” The federal courts precluded this possibility by jumping the gun on declaring Santa Fe’s policy unconstitutional. This puts me in mind of a recent decision by the 9th Circuit, which struck down Arizona’s parental notification law. It said that if the state could show a record of constitutional enforcement of the policy, it would be constitutional. The state was never given a chance to make this showing because a district court enjoined the law before it ever took effect. In this case, no speaker was ever chosen under the new policy (the girl who did speak at games this year was chosen under the previous policy). It definitely seems to be a catch-22 to ask for evidence the school is never given the chance to obtain. Prof Weinstien: “In my view, it was a mistake for the Court in Lee to rely so heavily on the coercion rationale rather than to flatly state that the Establishment Clause forbids the state from being involved with the composition, sponsorship or delivery of prayers.” Under the standard of Santa Fe, where merely permitting students to elect a speaker who might choose a religious perspective on a nonreligious topic constitutes “sponsorship” all student government and club leaders (elected by “permission” of the school) may not pray or speak about religion. This includes your valedictorian, or even the president of the school’s bible club. (leaving us with the interesting situation where one SC decision says schools must permit religious clubs, but another says they have to make sure none of club officers pray). None of this addresses a larger issue – whether a student speaker, at a football game, graduation, or the school-sanctioned elected officer of any club, truly violates the Establishment Clause (as opposed the Lemon test). Does permitting these students to choose to speak religiously establish a national religion (I suppose we all forget the actual PURPOSE of the clause, lost in the minutia of precedents and tests)? The fact that the Lemon test and court precedents drag us away from the fundamental question at issue effectively illustrates how convoluted and defective the Court’s current analysis is. Ms. Miriam Moore contributed to this posting. FROM JAY SEKULOW, CHIEF COUNSEL OF THE AMERICAN CENTER FOR LAW AND JUSTICE I have been asked frequently about the impact of the Santa Fe decision. The fact is that there is probably more prayer now — after Santa Fe — than there was before the Court’s decision. It is interesting to see the reaction to the decision from parents and students who live in communities across America. Clearly, no one expected what has happened this fall as the new school year gets underway. Clearly, students want to pray – want to express their faith – openly and honestly. And, I believe they want to do so in a manner that is both legal and constitutional. The American Center for Law and Justice has received numerous phone calls from teachers, administrators, parents, and students concerning the post- Santa Fe activity. We have prepared an educational letter outlining the issue. It has been sent to more than 15,000 public school superintendents across the country – all with the intent to help educate and clear up any confusion regarding this issue. When I get asked the question, can students pray at school football games, this is my response. Yes, students can pray. The recent case of Santa Fe did not question the protected status of genuinely private student religious speech at school events. Its holding is narrowly limited to the Court’s factual determination that the school district had taken affirmative steps to create a vehicle for prayer to be delivered at the school assembly. The Court struck the policy at issue because it determined that it did not involve private religious speech, but rather government sponsored prayer. The Santa Fe Court reiterated the distinction that “there is a crucial difference between government speech endorsing religion, which the Establishment Clause forbids, and private speech endorsing religion, which the Free Speech and Free Exercise Clauses protect.” Id. at 2275 quoting Mergens, 496 U.S. at 250 (emphasis in original). Therefore, private student prayer before sporting events is permissible provided that the prayer is not sponsored or endorsed by the school and does not utilize the school’s public address system. Students are free to pray individually or in groups on the same terms and conditions as they may engage in any other private speech. Consequently, the Santa Fe decision does not affect the right of students to engage in religious expression where students are otherwise already free to select the content and viewpoint of their expression (e.g., talent shows, class assignments, show-and-tell, oratorical competitions, message-bearing clothing or jewelry). Nor does Santa Fe affect the right of students to engage in religious expression through Bible clubs, one-on-one discussions, literature distribution, student-initiated activities such as See You at the Pole, and a myriad of other channels of communication, including private prayers. School officials may not prevent students from gathering together for prayer or religious discussion on school grounds, provided that students do so in a non-disruptive manner, during non-instructional time, either before or after school, at lunchtime, or any other “free” time when students are permitted to talk and mingle with peers on campus. The recent Santa Fe case has no bearing on such private speech. Rather, it reaffirms the constitutional protection afforded such speech. The questions continue as we approach the annual event, See You at the Pole, a student-led, student-initiated national student prayer rally that occurs before the school day begins. This year, students across the country will participate on September 20th at the See You at the Pole event in their local communities. The right to gather for such an event is supported by Supreme Court precedent holding that a student’s free speech rights apply “when he is in the cafeteria, or on the playing field, or on the campus during the authorized hours. . . .” Tinker v. Des Moines Independent School District, 393 U.S. 503, 506 (1969). As the Santa Fe Court confirmed, “nothing in the Constitution as interpreted by this Court prohibits any public school student from voluntarily praying at any time before, during, or after the schoolday.” Id. at 2281. The Education Guidelines also recognize the legality of See You at the Pole, “Students may also participate in before or after school events with religious content, such as “see you at the flag pole” gatherings, on the same terms as they may participate in other noncurriculum activities on school premises. School officials may neither discourage nor encourage participation in such an event.” There also have been questions about the “spontaneous” prayer events cropping up at high school football games around the country. Are they sincere? Are they a form of protest or do they spring out of a legitimate desire to express one’s religious faith? Only time will tell. While the Santa Fe decision is troubling, there is still one thing that remains clear in the post- Santa Fe analysis: students do have the constitutional right to express their religious beliefs at school and school events. At the same time, though, they must exercise caution to make sure it is done properly — within the confines and parameters set forth by the Supreme Court. FROM JAN LARUE Prof Laycock said: “ Santa Fe does NOT hold that schools must suppress religious speech to show their neutrality, and it does NOT hold that the establishment clause applies to private speakers.” The Court may not have intended to hold this, but what is the practical effect of the decision? In this case, the speech at issue would have been chosen by a private individual (the student) not the school. The only involvement of the school was insuring that the speech was on the content chosen for the forum (fair play and good sportsmanship). That’s an acceptable action under the limited open forum doctrine – the policy insured viewpoint neutrality. But the Court called it government speech, thus making individual speech subject to government speech rules. They called it government speech, but the practical effect was to apply the Clause to viewpoint chosen by a student, not the school. The Court can call an apple an orange all day long. It doesn’t make it an orange. In this case, the Court banned apples but included “round orange-colored fruits” in the definition of apples. Prof. Laycock continues: “People I respect and have worked with, including Jan LaRue, disagree with those holdings. But it badly misdescribes the case to assume that the Court agreed with the school board that the prayers were really private,” I believe my original post clearly states that the decision depends on the Court converting student speech into government speech, and thus becomes a simple case after the conversion is made. The post does not state that the Court agreed that the student prayers were private. Ms. Miriam Moore contributed to this posting From Jan LaRue Prof. Chemerinsky writes: “1. After Doe, what seems left for the Court to decide is the student-delivered prayer where the school plays no role in encouraging or reviewing it. Imagine a high school always lets its valedictorian deliver a speech at graduation, with no administrative review of the speech. The student chooses to deliver a prayer. I read Doe as not speaking to this issue. Would this violate the establishment clause?” Steven’s opinion in this case rests on several grounds — the ownership of the mic by the school, the perceived defects in the school’s motives, the fact that the game is a school-organized event, the social pressure to attend such an event (thus exposing students to a prayer said by someone else, which they were forced to listen to by attending), the school’s role in permitting an election. After the Lee decision, schools were left with a similar laundry list of factors, for which the Court gave no indication as to which were the determinative factors. The Court was not clear as to which of the “offending” aspects of the Santa Fe policy was the straw that broke the camel’s back. If the Court means to say that all of these factors (alone or in any combination) make a policy unconstitutional, then the hypothetical situation would violate the Establishment Clause. The Court has made a point in these decisions to mention the “coercion” aspect of being exposed to someone else’s religious speech at a government event, which leads me to wonder how far the court is willing to go with this. Any one of the decisions could have been made without relying on this aspect, yet the Court bothers to add it to the list. The valedictorian’s speech would violate this, if it were the test. Even if the Court was not willing to put the mantle of government speech on this speech chosen by the student, the student would be exposing others to his religion. It would become unconstitutional to expose others to your religion at a government organized event. This is, by the way, the only case in which someone’s offensive opinion (as to the Almighty or lack thereof) suddenly causes you constitutional injury – if the student were wearing an f— the draft jacket, the audience would be told to turn their heads and grow up, as the woman at the courthouse attending her government-required function in Cohen v. California was told. If the Court, in this hypothetical situation, chooses to rely only on the “coercion” factor, the Court will be in effect endorsing the “heckler’s veto”, and more offensively, will only endorse this veto against religious speech. (Has anyone ever seen (or dreamed) of the Court telling someone they couldn’t expound on their potentially offensive opinions about abortion or affirmative action at a government function? I’ve never seen the Court use the “coercion” factor in any case other than religion). Ms. Miriam Moore contributed to this posting FROM PROFESSOR JAMES WEINSTEIN I find it curious that Jan La Rue wants to read Santa Fe as holding that “all student government and club leaders (elected by ‘permission’ of the school) may not pray or speak about religion [including] your valedictorian, or even the president of the school’s bible club.” A much more accurate reading, and one much more protective of the right to engage in truly student-initiated prayer or religious speech is provided in Jay Sekulow’s post. Thus Sekulow graciously accepts defeat in this case, recognizes that the scheme he defended has been conclusively placed on the “government sponsored” side of the line, but continues the battle of protecting truly private prayer and religious speech from government suppression. While I’d have to consider the details of the examples noted by Sekulow in more detail before coming to a definitive conclusion, I tend to agree with him that most if not all of the speech he mentions in his post is both consistent with the Establishment Clause and protected by the Free Speech Clause. For instance, while I think that it would be insensitive and divisive for a group of students in a religiously diverse community to loudly recite the Lord’s prayer before a high school football game, I would defend their right to do so, so long as this activity truly was devoid of state prompting or imprimatur. Jan La Rue raises an interesting point in asking why the public use of vulgar words is protected despite the offense they cause to listeners, but public prayer is deemed unconstitutional because of the offense that it causes to people of other religious faiths or to nonbelievers. The answer is that the constitutional violation lies not in that others may be offended by the prayer but in the state involvement with the prayer. This is why students have the right to engage in prayer in the example I gave above despite the offense it might cause to others, and why the Court was plainly right in striking down the district’s policy in Santa Fe. Admittedly, the Court’s coercion test, and some of Justice Steven’s language in Santa Fe about offense, is inconsistent with my answer to La Rue’s query. (E.g., “the choice between whether to attend these games or to risk facing a personally offensive ritual… ” 120 S.Ct. at 2280). But properly understood, the Establishment Clause leaves room for individuals to engage even in public prayer, so long as the impetus for the prayer is truly private and voluntary. And contrary to Justice Steven’s loose talk quoted above, the Establishment Clause is just as surely violated by state sponsored prayer even if no one in attendance found the ritual offensive. Finally, the quoted language does give some credence to the Chief Justice’s complaint about the majority opinion’s “ hostility to all things religious in public life.” (If I could do so, I would italicize or underscore, to “in public life.”) FROM SUSAN HARRELSON, 3L, UNLV LAW SCHOOL The Court “bristle[d] with hostility” at the District’s disingenuous attempt to sneak its official prayer policy past the Constitution, disguised as student speech. The opinion resonates with Footnote Four of Carolene Products, and is really about equal protection for religious minorities against the tyranny of the majority. The passages about the impermissibility of subjecting personal religious belief to a majority vote are particularly striking in this regard. The recent school prayer cases have been trending this way for some time — Lee v. Weisman almost gets there — and Santa Fe is just the best expression of the equal protection value so far. If you look at the Establishment Clause as an Equal Protection guarantee, there is nothing to reconcile between Santa Fe & Mitchell v. Helms. Denying generally-available aid solely to religious schools is a denial of equal protection to the students of those schools on account of their religion, & is awfully close to “separate but equal.” Supporting a particular religious group by an official policy that ensures that the favored religious group will always have things its way denies the equal protection of the laws to those students who profess minority religions, or no religion. Neither is permissible under the 14th Amendment. The two cases are consistent, and together they neither eviscerate the Establishment Clause nor disparage religion. FROM DUNCAN STEVENS, RECENT GRADUATE, NORTHWESTERN UNIVERSITY SCHOOL OF LAW With all due respect, the Establishment Clause has never been construed as a component of equal protection. If it were, in the sense you’re suggesting, it would be unconstitutional for the state to _fail_ to fund parochial schools as amply as they fund public schools–which would surely be absurd. Moreover, in practical terms, it would mean the end of parochial schools, since the state would have to be intimately involved in their management. I wrote a dissent in Mitchell this last semester as Justice Stevens (in a class similar to yours, it seems), in which I argued that abandoning the divertability doctrine means either serious, and intrusive, policing of aid or an abandonment of the prohibition on aiding the religious function of the schools. (I distinguished Zobrest and Witters on grounds that the aid was going to the individual rather than the school and wasn’t relieving the school of costs it otherwise would have borne.) Six Justices agreed to overrule Meek and Wolman on the real Court, so the divertability doctrine is clearly dead, but I’m not sure that the no-aid-to-the-religious-function-of-the-schools principle that the divertability doctrine was created to serve is entirely dead, since Justice O’Connor criticizes the majority’s approval of the “actual diversion of government aid to religious indoctrination.” What’s left, it seems to me, is a distinction between blanket subsidies (without the state inquiring about what happens to the money), which haven’t (yet) gained favor, and broad subsidies of material that’s ostensibly nonsectarian. I don’t think it’s much of a distinction — at least, I think Justice O’Connor is drawing a pretty fine line between “actual diversion” and divertability — but I suppose that sillier distinctions, particularly in this area, have been made. Still, I agree with the poster who said that the Court is one vote away (an O’Connor retirement and replacement with someone who goes along with the Mitchell plurality) from a very troubling result, and I simply can’t see how Justice Kennedy could both vote with the Mitchell plurality and the Santa Fe majority. Surely, if it’s okay for the government to hand over money to sectarian schools without bothering to look at what’s done with it (as long as the same money is available to nonsectarian schools), letting a government-owned microphone be used for sectarian purposes seems like no big deal. (You could even say that the divertability of the microphone shouldn’t be a bar.) The difference for Justice Kennedy may lie in the excluded-outsider aspect, but there’s more to the school prayer line of decisions than that. FROM PROFESSOR ERWIN CHEMERINSKY I want to thank all of the participants for the incredibly rich and thoughtful discussion about Santa Fe. As I read it, I had a few thoughts: 1. There, of course, is no consensus as to the appropriate theory of the establishment clause. One interesting aspect of Stevens’ majority opinion was his implicit (and at times explicit) use of several different establishment clause theories to justify the result. To a large degree, the disagreement among the panelists seems to be a disagreement about the theory to be used. 2. Among the panelists, there is an underlying issue that also has been present in establishment clause cases for decades: is the constitutional exclusion of religion because of the establishment clause to be seen as hostility to religion or the appropriate preservation of a secular government. Chief Justice Rehnquist, in his dissent in Doe, seems exclusion of prayer as hostility to religion. The majority seems it as constitutionally mandated limits on government encouraged prayer. Quite different perspectives. 3. Most of the panelists seem to agree that the open question is a student-delivered prayer with no school encouragement. This seems different than Lee v. Weisman or Doe. Whether the Court will find that this difference matters is unclear. FROM PROFESSOR JAMES WEINSTEIN Chief Justice Rehnquist does NOT accuse the majority of being “hostile to religion” as Erwin Chemerinsky has now twice inaccurately claimed. Rather, Rehnquist accuses the majority of “hostility to all things religious IN PUBLIC LIFE,” a somewhat more modest claim, and one that, as I explained, is supported by some language in the majority opinion, although not, in my view, by the result.

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