AT THE SCHOOLHOUSE GATE

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1 i AT THE SCHOOLHOUSE GATE STUDENT RIGHTS CASES Edited by TONI McCLORY August 2007

2 ii 2007 Toni McClory

3 iii CONTENTS Preface v 1 Religion: The Establishment Clause 1 Lee v. Weisman 2 Santa Fe Independent School District v. Doe 6 Other establishment clause cases 11 2 Religion: The Free Exercise Clause 13 Free exercise cases 14 3 Freedom of Expression: The Free Speech Clause 15 Tinker v. Des Moines Independent Community School District 16 Bethel Independent School District No. 403 v. Fraser 19 Hazelwood School District v. Kuhlmeier 23 Good News Club v. Milford Central District 27 Morse v. Frederick 31 Other free speech cases 36 4 Searches and seizures: The Fourth Amendment 38 New Jersey v. T. L. O. 39 Board of Education of Independent School District No. 92 v. Earles 42 Other Fourth Amendment cases 46 5 Discipline: The Eighth Amendment 47 Eighth Amendment cases 47 6 Procedural Fairness: The Due Process Clauses 48 Goss v. Lopez 48 Other due process cases 52 7 Discrimination: The Equal Protection Clause 53 Brown v. Board of Education 54 United States v. Virginia 57 Other equal protection cases 62 Appendex: Current Supreme Court Justices 66 Glossary 67 Index of cases 70

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5 v PREFACE The nation s schools and college campuses have become constitutional battlefields as students increasingly take grievances to court. Some trace this phenomenon back to the landmark Tinker case where the Supreme Court upheld the student s right to wear a black armband to school as a war protest. The Court famously declared, It can hardly be argued that students or teachers shed their rights to freedom of speech or expression at the schoolhouse gate. Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969). Since then students have been suing over dress codes, school discipline, drug testing, admission policies, school prayer, censorship, the pledge of allegiance, discriminatory policies, and much more. However, as the decisions in this casebook indicate, they haven t always won. This text presents edited versions of the major student rights cases. Admittedly, legal opinions are an acquired taste. Nonetheless, working through these decisions offers multiple benefits. First, the cases provide an excellent introduction to judicial decision making a political process that is poorly understood. Second, the disputes themselves are meaty and interesting. There are at least two sides to almost every controversy in this text, and the close votes attest to their weightiness. (Only Brown v. Board of Education is a unanimous decision.) Finally, there are obvious practical reasons why educators and students should be acquainted with these rulings. A few caveats are in order regarding the scope of this casebook. First, only cases involving the rights of public school students are included. (This means that disputes involving private schools or the rights of faculty and staff are excluded.) Second, only U. S. Supreme Court decisions are featured. These rulings are binding on the entire nation. However, for every Supreme Court case there are hundreds of state and lower federal court decisions. These lower court decisions are fully binding within their respective jurisdictions. Accordingly, a definitive answer to most rights issues would require research beyond the cases in this text. Third, the featured opinions have been edited. Footnotes, lengthy legal citations, and some concurring and dissenting opinions have been omitted. Other textual omissions are indicated by ellipses ( ). However, complete versions of all the cases are readily available online. Three good online sources for Supreme Court opinions are: U.S. Supreme Court opinions.html Legal Information Institute FindLaw Finally, readers should also be cautioned that this is a highly dynamic and unsettled area of the law. Many of the key decisions in this casebook turn on a single vote. With new appointees to the Supreme Court there is the possibility that these rights rulings could be significantly qualified or even overruled. In short, it is perhaps fitting that the jurisprudence in this area is as young and robust as the plaintiffs in these cases.

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7 1 PART 1 RELIGION: THE ESTABLISHMENT CLAUSE Congress shall make no law respecting an establishment of religion. The First Amendment to the U.S. Constitution opens with the establishment clause the ten words quoted above. Americans have been disputing the meaning of these words for more than two hundred years. Most agree that it prohibits the government 1 from creating an official church, from preferring one faith over another, and from discriminating against nonbelievers. But people disagree as to whether the establishment clause also prohibits the government from encouraging religious behavior in nondiscriminatory ways. Those who advocate the separationist view assert that any mingling of church and state is unconstitutional. They contend that religion belongs in the private sphere. When the wall of separation is breached, they argue, conflicts result, the rights of nonbelievers are violated, and the autonomy of religious organizations is threatened. Accommodationists counter that religion plays a vital role in American life and provides the moral underpinnings for the country s democratic institutions. They contend that public support of religion is warranted because government needs religion i.e., moral leaders and moral citizenry. Accordingly, accommodationists argue that government encouragement of religion is permissible as long as it is neither discriminatory nor coercive. 1. By its express terms, the Bill of Rights (first ten amendments) restricts only Congress, i.e. the federal government. However, the Supreme Court has expansively interpreted the 14th Amendment to extend most of the prohibitions of the Bill of Rights to state and local governments as well. (This interpretative process is known as incorporation and it has occurred on a case-by-case basis over the past century.) Since public schools are part of state and local government, they are therefore subject to the incorporated provisions of the Bill of Rights. America s founders were divided on this issue. To some degree George Washington, John Adams, and Benjamin Franklin subscribed to the accommodationist view. All endorsed prayer in their public roles. Adams influential Massachusetts state constitution, adopted in 1780, required public support of religion. However, while Adams was creating delicate connections between religion and government, Thomas Jefferson was actively working to sever them. Jefferson s Virginia Act for Establishing Religious Freedom sweepingly prohibited all governmental support of religion by his home state. In fact it was Jefferson who coined the expression wall of separation to describe the proper relationship between church and state. James Madison, the father of the Bill of Rights, shared Jefferson s separationist views. He successfully defeated Virginia s attempt to publicly fund religious education in 1785, and won passage of Jefferson s religious freedom statute a year later. Although the Founders were philosophically divided, in actual practice America has been in the accommodationist camp for most of its history. In God we Trust which began appearing on coins in 1864 is emblematic of this commingling of religion and government. The commingling also extended to the nation s public schools. A major justification for the establishment of the first public schools in New England was to teach the middle class to read the Bible. Accordingly, religious works often served as textbooks and daily prayer exercises were the norm. These practices spread and went largely unchallenged until lawsuits began reaching the Supreme Court in the 1940s. (It should be noted that the plaintiffs in these cases were typically deeply religious individuals who didn t want the schools indoctrinating their children with religious beliefs contrary to their own.) Initially, and for nearly three decades, the Court sided with the objecting separationists. For example,

8 2 LEE v. WEISMAN Engel v. Vitale (1962) put a stop to daily school prayer. Subsequent decisions barred the posting of the Ten Commandments on classroom walls, voided bans on the teaching of evolution, and struck down a moment of silence law that was intended to encourage school prayer. These rulings generated intense public controversy and accommodationist presidents Reagan, Bush (41) and Bush (43) appointed new justices to the Supreme Court. As a result, the Court is now almost evenly split between accommodationists and separationists. To date, its rulings continue to bar all religious endorsement by public school personnel. However, accommodationist influence is reflected in recent decisions that have permitted some student-initiated religious expression on campus. Establishment Clause cases continue to be filed in the lower courts, and it is evident that the church/state debate is far from settled. LEE v. WEISMAN 505 U.S. 577 (1992) Over the objections of middle school student Deborah Weisman and her father, Principal Robert E. Lee invited a rabbi to deliver an invocation and benediction at the school s graduation ceremony. The principal instructed the clergyman to make the prayers nonsectarian and gave him written guidelines for composing the prayers with inclusiveness and sensitivity. No student was required to attend the ceremony nor participate in the prayers. By a vote of 5 to 4, the Supreme Court ruled that having the clergyman deliver prayers at the school ceremony violated the establishment clause. Majority: Kennedy, Blackmun, Stevens, O Connor and Souter. Dissent: Scalia, Rehnquist, White and Thomas. Justice KENNEDY for the Court: School principals in the public school system of the city of Providence, Rhode Island, are permitted to invite members of the clergy to offer invocation and benediction prayers as part of the formal graduation ceremonies for middle schools and for high schools. The question before us is whether including clerical members who offer prayers as part of the official school graduation ceremony is consistent with the Religion Clauses of the First Amendment, provi sions the Fourteenth Amendment makes applicable with full force to the States and their school districts. Deborah Weisman graduated from Nathan Bishop Middle School, a public school in Providence, at a formal ceremony in June The school principal, petitioner Robert E. Lee, invited a rabbi to deliver prayers at the graduation exercises for Deborah s class. It has been the custom of Providence school officials to provide invited clergy with a pamphlet entitled Guidelines for Civic Occasions, prepared by the National Conference of Christians and Jews. The Guidelines recommend that public prayers at nonsectarian civic ceremonies be composed with inclusiveness and sensitivity, though they acknowledge that [p]rayer of any kind may be inappropriate on some civic occasions. The principal gave Rabbi Gutterman the pamphlet before the graduation and advised him the invocation and benediction should be nonsectarian. Rubbi Gutterman s [invocation] was as follows: God of the Free, Hope of the Brave: For the legacy of America where diversity is celebrated and the rights of minorities are protected, we thank You. May these young men and women grow up to enrich it. For the liberty of American, we thank You. May these new graduates grow up to guard it. For the political process of America in which all its citizens may participate, for its court system where all may seek justice we thank You. May those we honor this morning always turn to it in trust.

9 RELIGION: THE ESTABLISHMENT CLAUSE 3 For the destiny of America we thank You. May the graduates of Nathan Bishop Middle School so live that they might help to share it. May our aspirations for our country and for these young people, who are our hope for the future, be richly fulfilled. Amen. These dominant facts mark and control the confines of our decision: State officials direct the performance of a formal religious exercise at promotional and graduation ceremonies for secondary schools. Even for those students who object to the religious exercise, their atten dance and participation in the state-sponsored religious activity are in a fair and real sense obligatory, though the school district does not require attendance as a condition for receipt of the diploma. The principle that government may accommodate the free exercise of religion does not supersede the fundamental limitations imposed by the Establishment Clause. It is beyond dispute that, at a minimum, the Constitution guarantees that government may not coerce anyone to support or participate in religion or its exercise, or other wise act in a way which establishes a [state] religion or religious faith, or tends to do so. Lynch [v. Donnelly (1984)]. The State s involvement in the school prayers chal lenged today violates these central principles. That involvement is as troubling as it is undenied. A school official, the principal, decided that an invocation and a benediction should be given; this is a choice attributable to the State, and from a constitutional per spective it is as if a state statute decreed that the prayers must occur. The principal chose the religious participant, here a rabbi, and that choice is also attributable to the State. The State s role did not end with the decision to include a prayer and with the choice of clergyman. Princi pal Lee provid ed Rabbi Gutterman with a copy of the Guide lines for Civic Occasions, and advised him that his prayers should be nonsectarian. Through these means the principal directed and controlled the content of the prayer. It is a cornerstone principle of our Establishment Clause jurisprudence that it is no part of the business of government to compose official prayers for any group of the American people to recite as a part of a religious program carried on by government, Engel v. Vitale (1962), and that is what the school officials attempted to do. The First Amend ment s Religion Clauses mean that religious beliefs and religious expression are too precious to be either proscribed or prescribed by the State. The design of the Constitution is that preservation and transmission of religious beliefs and worship is a res ponsibility and a choice committed to the private sphere, which itself is promised freedom to pursue that mission. It must not be forgotten then, that while concern must be given to define the protection granted to an objector or a dissenting nonbeliever, these same Clauses exist to protect religion from government interference. James Madison, the principal author of the Bill of Rights, did not rest his opposition to a religious establishment on the sole ground of its effect on the minority. A principal ground for his view was: [E]x perience witness eth that ecclesiastical establish ments, instead of maintain ing the purity and efficacy of Religion, have had a contrary operation. Memorial and Remon strance Against Religious Assessments (1785). As we have ob served before, there are heightened concerns with protecting freedom of conscience from subtle coercive pressure in the elementary and secondary public schools. Our decisions in Engel v. Vitale (1962), and Abing ton School District [v. Schempp (1963)] recog nize, among other things, that prayer exercises in public schools carry a particular risk of indirect coercion. The concern may not be limited to the context of schools, but it is most pronounced there. What to most believers may seem nothing more than a reasonable request that the non be liever respect their religious practices, in a school context may appear to the nonbeliever or dissenter to be an attempt to employ the machinery of the State to enforce a religious orthodoxy. We need not look beyond the circumstances of this case to see the phenomenon at work. The undeni able fact is that the school district s supervision and control of a high school gradua tion ceremony places public pres sure, as well as peer pressure, on attending students to stand as a group or, at least, maintain respectful silence during the Invoca tion

10 4 LEE v. WEISMAN and Benediction. This pressure, though subtle and indirect, can be as real as any overt compulsion. Of course, in our culture standing or remaining silent can signify adherence to a view or simple respect for the views of others. And no doubt some persons who have no desire to join a prayer have little objection to standing as a sign of respect for those who do. But for the dissenter of high school age, who has a reasonable perception that she is being forced by the State to pray in a manner her con science will not allow, the injury is no less real. There can be no doubt that for many, if not most, of the students at the gradua tion, the act of standing or remaining silent was an expression of participation in the Rabbi s prayer. That was the very point of the religious exercise. It is of little comfort to a dissenter, then, to be told that for her the act of standing or remaining in silence signifies mere respect, rather than participation. What matters is that, given our social conventions, a reasonable dissenter in this milieu could believe that the group exercise signified her own participa tion or approval of it. The injury caused by the government s action is that the State, in a school setting, in effect required participation in a religious exercise. It is, we concede, a brief exercise during which the individual can concentrate on joining its message, meditate on her own religion, or let her mind wander. But the embarrassment and intrusion of the religious exercise cannot be refuted by arguing that these prayers, and similar ones to be said in the future, are of de minimis character. To do so would be an affront to the Rabbi who offered them and to all those for whom the prayers were an essential and profound recognition of divine authority. There was a stipulation in the District Court that atten dance at graduation and promotional ceremonies is volun tary. Petitioners made this a center point of the case, arguing that the option of not attending the graduation excuses any inducement or coercion in the ceremony itself. The argument lacks all persuasion. Law reaches past formalism. And to say a teenage student has a real choice not to attend her high school graduation is formalistic in the extreme. True, Deborah could elect not to attend com mencement without renouncing her diploma; but we shall not allow the case to turn on this point. Everyone knows that in our society and in our culture high school gradua tion is one of life s most significant occasions. A school rule which excuses attendance is beside the point. Attendance may not be required by official decree, yet it is apparent that a student is not free to absent herself from the graduation exercise in any real sense of the term volun tary, for absence would require forfeiture of those intangi ble benefits which have motivated the student through youth and all her high school years. Graduation is a time for family and those closest to the student to celebrate success and express mutual wishes of gratitude and respect, all to the end of impressing upon the young person the role that it is his or her right and duty to assume in the community and all of its diverse parts. While in some societies the wishes of the majority might prevail, the Establishment Clause of the First Amendment is addressed to this contingency and rejects the balance urged upon us. The Constitution forbids the State to exact religious conformity from a student as the price of attending her own high school graduation. This is the calculus the Constitu tion commands. The Government s argument gives insufficient recognition to the real conflict of conscience faced by the young student. The essence of the Government s position is that with regard to a civic, social occasion of this importance it is the objector, not the majority, who must take unilateral and private action to avoid compromising religious scruples, here by electing to miss the graduation exercise. This turns conventional First Amendment analysis on its head. It is a tenet of the First Amendment that the State cannot require one of its citizens to forfeit his or her rights and benefits as the price of resisting conformance to state-sponsored religious practice. We do not hold that every state action implicating religion is invalid if one or a few citizens find it offensive. People may take offense at all manner of religious as well as nonreligious messages, but offense alone does not in every case show a violation. The sole question presented is whether a religious exercise may be conducted at a graduation

11 RELIGION: THE ESTABLISHMENT CLAUSE 5 ceremo ny in circumstanc es where, as we have found, young graduates who object are induced to conform. No holding by this Court suggests that a school can per suade or compel a student to participate in a religious exer cise. That is being done here, and it is forbidden by the Establishment Clause of the First Amend ment. For the reasons we have stated, the judgment of the Court of Appeals is Affirmed. BLACKMUN concurring opinion [omitted] SOUTER concurring opinion [omitted] Justice SCALIA dissenting: In holding that the Establishment Clause prohibits invocations and benedictions at public-school graduation ceremonies, the Court with nary a mention that it is doing so lays waste a tradition that is as old as public-school graduation ceremonies themselves, and that is a component of an even more longstanding American tradition of nonsectarian prayer to God at public celebrations generally. As its instrument of destruction, the bulldozer of its social engineering, the Court invents a boundless, and boundlessly manipulable, test of psychological coercion. From our Nation s origin, prayer has been a prominent part of governmental ceremonies and proclamations. The Declaration of Independence, the document marking our birth as a separate people, appeal[ed] to the Supreme Judge of the world for the rectitude of our intentions and avowed a firm reliance on the protection of divine Providence. In his first inaugural address, after swearing his oath of office on a Bible, George Washington deliberately made a prayer a part of his first official act as President. Such supplications have been a characteristic feature of inaugural addresses ever since. Thomas Jefferson, for example, prayed in his first inaugural address. Similarly, James Madison, in his first inaugural address, placed his confidence in the guardianship and guidance of that Almighty Being whose power regulates the destiny of nations. The other two branches of the Federal Government also have a long-established practice of prayer at public events Congressional sessions have opened with a chaplain s prayer ever since the First Congress. And this Court s own sessions have opened with the invocation God save the United States and this Honorable Court since the days of Chief Justice Marshall. In addition to this general tradition of prayer at public ceremonies, there exists a more specific tradition of invocations and benedictions at publicschool graduation exercises. The Court declares that students attendance and participation in the [prayers] are in a fair and real sense obligatory. But what exactly is this fair and real sense? According to the Court, students at graduation who want to avoid the fact or appearance of participation, in the invocation and benediction are psychologically obligated by public pressure, as well as peer pressure, to stand as a group or, at least, maintain respectful silence during those prayers. This assertion the very linchpin of the Court s opinion is almost as intriguing for what it does not say as for what it says. It does not say, for example, that students are psychologically coerced to bow their heads, place their hands in a Dürer-like prayer position, pay attention to the prayers, utter Amen, or in fact pray. The opinion manifests that the Court itself has not given careful consideration to its test of psychological coercion. For if it had, how could it observe, with no hint of concern or disapproval, that students stood for the Pledge of Allegiance, which immediately preceded Rabbi Gutterman s invocation? Moreover, since the Pledge of Allegiance include[s] the phrase under God, recital of the Pledge would appear to raise the same Establishment Clause issue as the invocation and benediction. If students were psychologically coerced to remain standing during the invocation, they must also have been psychologically coerced, moments before, to stand for (and thereby, in the Court s view, take part in or appear to take part in) the Pledge. Must the Pledge therefore be barred from the public schools (both from graduation ceremonies and from the classroom)? In Barnette [West Virginia State Board of Education v.

12 6 SANTA FE INDEPENDENT SCHOOL DIST. v. DOE (1943)]we held that a public-school student could not be compelled to recite the Pledge; we did not even hint that she could not be compelled to observe respectful silence indeed, even to stand in respectful silence when those who wished to recite it did so. Logically, that ought to be the next project for the Court s bulldozer. I also find it odd that the Court concludes that high school graduates may not be subjected to this supposed psychological coercion, yet refrains from addressing whether mature adults may. I had thought that the reason graduation from high school is regarded as so significant an event is that it is generally associated with transition from adolescence to young adulthood. Many graduating seniors, of course, are old enough to vote. Why, then, does the Court treat them as though they were first-graders? Will we soon have a jurisprudence that distinguishes between mature and immature adults? The reader has been told much in this case about the personal interest of Mr. Weisman and his daughter, and very little about the personal interests on the other side. They are not inconsequential. Church and state would not be such a difficult subject if religion were, as the Court apparently thinks it to be, some purely personal avocation that can be indulged entirely in secret, like pornography, in the privacy of one s room. For most believers it is not that, and has never been. Religious men and women of almost all denominations have felt it necessary to acknowledge and beseech the blessing of God as a people, and not just as individuals, because they believe in the protection of divine Providence, as the Declaration of Independence put it, not just for individuals but for societies; because they believe God to be, as Washington s first Thanksgiving Proclamation put it, the Great Lord and Ruler of Nations. One can believe in the effectiveness of such public worship, or one can deprecate and deride it. But the longstanding American tradition of prayer at official ceremonies displays with unmistakable clarity that the Establishment Clause does not forbid the government to accommodate it. The narrow context of the present case involves a community s celebration of one of the milestones in its young citizens lives, and it is a bold step for this Court to seek to banish from that occasion, and from thousands of similar celebrations throughout this land, the expression of gratitude to God that a majority of the community wishes to make. The Baptist or Catholic who heard and joined in the simple and inspiring prayers of Rabbi Gutterman on this official and patriotic occasion was inoculated from religious bigotry and prejudice in a manner that can not be replicated. To deprive our society of that important unifying mechanism, in order to spare the nonbeliever what seems to me the minimal inconvenience of standing or even sitting in respectful nonparticipation, is as senseless in policy as it is unsupported in law. For the foregoing reasons, I dissent. SANTA FE INDEPENDENT SCHOOL DISTRICT v. DOE 530 U.S. 290 (2000) Two Texas high school students, a Mormon and Catholic, sued their school district over various religious practices, including prayers at football games. Under the district s original policy, an elected student chaplain would deliver prayers over the public address system at all home varsity games. While the lawsuit was pending, the school district modified its policy to require students to first vote whether they wanted an invocation at their football games. In a 6 to 3 decision, the Supreme Court ruled that the student-authorized,

13 RELIGION: THE ESTABLISHMENT CLAUSE 7 student-led prayers violated the establishment clause. Majority: Stevens, O Connor, Kennedy, Souter, Ginsburg, and Breyer. Dissent: Rehnquist, Scalia and Thomas. Justice STEVENS for the Court: Prior to 1995, the Santa Fe High School student who occupied the school s elective office of student council chaplain delivered a prayer over the public address system before each varsity football game for the entire season. This practice, along with others, was challenged in District Court as a violation of the Establishment Clause of the First Amendment. While these proceedings were pending the school district adopted a different policy that permits, but does not require, prayer initiated and led by student at all home games. Respondents are two sets of current or former students and their respective mothers. One family is Mormon and the other is Catholic. The District Court permitted respondents (Does) to litigate anonymously to protect them from intimidation or harassment. [T]he Does alleged that the District had engaged in several proselytizing practices, such as promoting attendance at a Baptist revival meeting, encouraging membership in religious clubs, chastising children who held minority religious beliefs, and distributing Gideon Bibles on school premises. They also alleged that the District allowed students to read Christian invocations and benedictions from the stage at graduation ceremonies, and to deliver overtly Christian prayers over the public address system at home football games. On May 10, 1995, the District Court entered an interim order. In response, the District adopted a series of policies over several months dealing with prayer at school functions. The August policy, which was titled Prayer at Football Games, authorized two student elections, the first to determine whether invocations should be delivered, and the second to select the spokesperson to deliver them. We [address] the following question: Whether petitioner s policy permitting student-led, studentinitiated prayer at football games violates the Establishment Clause. We conclude, as did the Court of Appeals, that it does. In this case the District first argues that the messages are private student speech, not public speech. It reminds us 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. Board of Ed. of Westside Community Schools (Dist. 66) v. Mergens, (1990) (opinion of O Connor, J.). We certainly agree with that distinction, but we are not persuaded that the pregame invocations should be regarded as private speech. These invocations are authorized by a government policy and take place on government property at government-sponsored school-related events. Of course, not every message delivered under such circumstances is the government s own. We have held, for example, that an individual s contribution to a government-created forum was not government speech. Santa Fe s student election system ensures that only messages deemed appropriate under the District s policy may be delivered. [T]his student election does nothing to protect minority views but rather places the students who hold such views at the mercy of the majority. Because fundamental rights may not be submitted to vote; they depend on the outcome of no elections, West Virginia Bd. of Ed. v. Barnette, (1943), the District s elections are insufficient safeguards of diverse student speech. [W]hile Santa Fe s majoritarian election might ensure that most of the students are represented, it does nothing to protect the minority; indeed, it likely serves to intensify their offense. Moreover, the District has failed to divorce itself from the religious content in the invocations. It has not succeeded in doing so, either by claiming that its policy is one of neutrality rather than endorsement or by characterizing the individual student as the circuit-breaker in the process. Contrary to the District s repeated assertions that it has adopted a hands-off approach to the pregame invocation, the realities of the situation plainly reveal that its policy involves both perceived and actual endorsement of

14 8 SANTA FE INDEPENDENT SCHOOL DIST. v. DOE religion. In this case, as we found in Lee [v. Weisman (1992)], the degree of school involvement makes it clear that the pregame prayers bear the imprint of the State and thus put school-age children who objected in an untenable position. The District has attempted to disentangle itself from the religious messages by developing the twostep student election process. [H]owever, [t]he elections take place at all only because the school board has chosen to permit students to deliver a brief invocation and/or message. In addition to involving the school in the selection of the speaker, the policy, by its terms, invites and encourages religious messages. The policy itself states that the purpose of the message is to solemnize the event. A religious message is the most obvious method of solemnizing an event. Moreover, the requirements that the message promote good citizenship and establish the appropriate environment for competition further narrow the types of message deemed appropriate, suggesting that a solemn, yet nonreligious, message, such as commentary on United States foreign policy, would be prohibited. Indeed, the only type of message that is expressly endorsed in the text is an invocation a term that primarily describes an appeal for divine assistance. In fact, as used in the past at Santa Fe High School, an invocation has always entailed a focused religious message. Thus, the expressed purposes of the policy encourage the selection of a religious message, and that is precisely how the students understand the policy. The results of the elections make it clear that the students understood that the central question before them was whether prayer should be a part of the pregame ceremony. We recognize the important role that public worship plays in many communities, as well as the sincere desire to include public prayer as a part of various occasions so as to mark those occasions significance. But such religious activity in public schools, as elsewhere, must comport with the First Amendment. The actual or perceived endorsement of the message, moreover, is established by factors beyond just the text of the policy. Once the student speaker is selected and the message composed, the invocation is then delivered to a large audience assembled as part of a regularly scheduled, school-sponsored function conducted on school property. The message is broadcast over the school s public address system, which remains subject to the control of school officials. It is fair to assume that the pregame ceremony is clothed in the traditional indicia of school sporting events, which generally include not just the team, but also cheerleaders and band members dressed in uniforms sporting the school name and mascot. The school s name is likely written in large print across the field and on banners and flags. The crowd will certainly include many who display the school colors and insignia on their school T-shirts, jackets, or hats and who may also be waving signs displaying the school name. In this context the members of the listening audience must perceive the pregame message as a public expression of the views of the majority of the student body delivered with the approval of the school administration. In cases involving state participation in a religious activity, one of the relevant questions is whether an objective observer, acquainted with the text, legislative history, and implementation of the statute, would perceive it as a state endorsement of prayer in public schools. Wallace [v. Jaffree (1985)] (O Connor, J., concurring in judgment). Regardless of the listener s support for, or objection to, the message, an objective Santa Fe High School student will unquestionably perceive the inevitable pregame prayer as stamped with her school s seal of approval. School sponsorship of a religious message is impermissible because it sends the ancillary message to members of the audience who are nonadherents that they are outsiders, not full members of the political community, and an accompanying message to adherents that they are insiders, favored members of the political community. Lynch v. Donnelly (1984) (O Connor, J., concurring). The delivery of such a message over the school s public address system, by a speaker representing the student body, under the supervision of school faculty, and pursuant to a school policy that explicitly and implicitly encourages public prayer is not properly characterized as private speech. The District next argues that its football policy

15 RELIGION: THE ESTABLISHMENT CLAUSE 9 is distinguishable from the graduation prayer in Lee because it does not coerce students to participate in religious observances. Its argument has two parts: first, that there is no impermissible government coercion because the pregame messages are the product of student choices; and second, that there is really no coercion at all because attendance at an extracurricular event, unlike a graduation ceremony, is voluntary. We explained in Lee that the preservation and transmission of religious beliefs and worship is a responsibility and a choice committed to the private sphere. The two student elections authorized by the policy, coupled with the debates that presumably must precede each, impermissibly invade that private sphere. The election mechanism encourages divisiveness along religious lines in a public school setting, a result at odds with the Establishment Clause. Although it is true that the ultimate choice of student speaker is attributable to the students, the District s decision to hold the constitutionally problematic election is clearly a choice attributable to the State. Lee. The District further argues that attendance at the commencement ceremonies at issue in Lee differs dramatically from attendance at high school football games, which it contends are of no more than passing interest to many students and are decidedly extracurricular, thus dissipating any coercion. Attendance at a high school football game, unlike showing up for class, is certainly not required in order to receive a diploma. Moreover, we may assume that the District is correct in arguing that the informal pressure to attend an athletic event is not as strong as a senior s desire to attend her own graduation ceremony. There are some students, however, such as cheerleaders, members of the band, and, of course, the team members themselves, for whom seasonal commitments mandate their attendance, sometimes for class credit. The District also minimizes the importance to many students of attending and participating in extracurricular activities as part of a complete educational experience. To assert that high school students do not feel immense social pressure, or have a truly genuine desire, to be involved in the extracurricular event that is American high school football is formalistic in the extreme. High school home football games are traditional gatherings of a school community; they bring together students and faculty as well as friends and family from years present and past to root for a common cause. Undoubtedly, the games are not important to some students, and they voluntarily choose not to attend. For many others, however, the choice between whether to attend these games or to risk facing a personally offensive religious ritual is in no practical sense an easy one. The Constitution, moreover, demands that the school may not force this difficult choice upon these students for [i]t is a tenet of the First Amendment that the State cannot require one of its citizens to forfeit his or her rights and benefits as the price of resisting conformance to state-sponsored religious practice. [Lee]. Even if we regard every high school student s decision to attend a home football game as purely voluntary, we are nevertheless persuaded that the delivery of a pregame prayer has the improper effect of coercing those present to participate in an act of religious worship. The constitutional command will not permit the District to exact religious conformity from a student as the price of joining her classmates at a varsity football game. The Religion Clauses of the First Amendment prevent the government from making any law respecting the establishment of religion or prohibiting the free exercise thereof. By no means do these commands impose a prohibition on all religious activity in our public schools. Indeed, the common purpose of the Religion Clauses is to secure religious liberty. Engel v. Vitale, (1962). Thus, 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. But the religious liberty protected by the Constitution is abridged when the State affirmatively sponsors the particular religious practice of prayer. The judgment of the Court of Appeals is, accordingly, affirmed. It is so ordered.

16 10 SANTA FE INDEPENDENT SCHOOL DIST. v. DOE Chief Justice REHNQUIST dissenting: The Court distorts existing precedent to conclude that the school district s student-message program is invalid on its face under the Establishment Clause. But even more disturbing than its holding is the tone of the Court s opinion; it bristles with hostility to all things religious in public life. Neither the holding nor the tone of the opinion is faithful to the meaning of the Establishment Clause, when it is recalled that George Washington himself, at the request of the very Congress which passed the Bill of Rights, proclaimed a day of public thanksgiving and prayer, to be observed by acknowledging with grateful hearts the many and signal favors of Almighty God. The Court holds that the policy is invalid on its face because it establishes an improper majoritarian election on religion, and unquestionably has the purpose and creates the perception of encouraging the delivery of prayer at a series of important school events. The Court s reliance on each of these conclusions misses the mark. First, the Court misconstrues the nature of the majoritarian election permitted by the policy as being an election on prayer and religion. To the contrary [i]t is conceivable that the election could become one in which student candidates campaign on platforms that focus on whether or not they will pray if elected. It is also conceivable that the election could lead to a Christian prayer before 90 percent of the football games. If, upon implementation, the policy operated in this fashion, we would have a record before us to review whether the policy, as applied, violated the Establishment Clause or unduly suppressed minority viewpoints. But it is possible that the students might vote not to have a pregame speaker, in which case there would be no threat of a constitutional violation. It is also possible that the election would not focus on prayer, but on public speaking ability or social popularity. And if student campaigning did begin to focus on prayer, the school might decide to implement reasonable campaign restrictions. Second, with respect to the policy s purpose, the Court holds that the simple enactment of this policy, with the purpose and perception of school endorsement of student prayer, was a constitutional violation. But the policy itself has plausible secular purposes: [T]o solemnize the event, to promote good sportsmanship and student safety, and to establish the appropriate environment for the competition. The Court grants no deference to and appears openly hostile toward the policy s stated purposes, and wastes no time in concluding that they are a sham. For example, the Court dismisses the secular purpose of solemnization by claiming that it invites and encourages religious messages. But it is easy to think of solemn messages that are not religious in nature, for example urging that a game be fought fairly. And sporting events often begin with a solemn rendition of our national anthem, with its concluding verse And this be our motto: In God is our trust. Under the Court s logic, a public school that sponsors the singing of the national anthem before football games violates the Establishment Clause. Although the Court apparently believes that solemnizing football games is an illegitimate purpose, the voters in the school district seem to disagree. Nothing in the Establishment Clause prevents them from making this choice. The Court also relies on our decision in Lee v. Weisman, (1992), to support its conclusion. In Lee, we concluded that the content of the speech at issue, a graduation prayer given by a rabbi, was directed and controlled by a school official. In other words, at issue in Lee was government speech. Here, by contrast, the potential speech at issue, if the policy had been allowed to proceed, would be a message or invocation selected or created by a student. That is, if there were speech at issue here, it would be private speech. The 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, applies with particular force to the question of endorsement. Board of Ed. of Westside Community Schools (Dist. 66) v. Mergens, (1990) (plurality opinion). I would reverse the judgment of the Court of Appeals.

17 RELIGION: THE ESTABLISHMENT CLAUSE 11 Other establishment clause cases 1.1 Illinois ex. rel McCollum v. Board of Education of School District No. 71, 333 U.S. 203 (1948): Public schools may not invite private religious instructors to conduct weekly religion classes on campus during regular school hours, even though students not wishing to participate were sent to other classrooms to study secular subjects: This is beyond all question a utilization of the tax-established and tax-supported public school system to aid religious groups to spread their faith. And it falls squarely under the ban of the First Amendment. [As we said in Everson v. Board of Education, 330 U.S. 1 (1947)]: Neither a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another. Neither can force or influence a person to go to or to remain away from church against his will or force him to profess a belief or disbelief in any religion. No person can be punished for entertaining or professing religious beliefs or disbeliefs, for church attendance or nonattendance. No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion. Neither a state nor Federal Government can, openly or secretly, participate in the affairs of any religious organizations or groups, and vice versa. In the words of Jefferson, the clause against establishment of religion by law was intended to erect a wall of separation between Church and State. [Justice Black for the Court]. 1.2 Zorach v. Clauson, 343 U.S. 306 (1952): It is constitutionally permissible for public schools to release students during the school day so that they can receive religious instruction from private teachers off campus: We are a religious people whose institutions presuppose a Supreme Being. We guarantee the freedom to worship as one chooses. We make room for as wide a variety of beliefs and creeds as the spiritual needs of man deem necessary. When the state encourages religious instruction or cooperates with religious authorities by adjusting the schedule of public events to sectarian needs, it follows the best of our traditions. For it then respects the religious nature of our people and accommodates the public service to their spiritual needs. To hold that it may not would be to find in the Constitution a requirement that the government show a callous indifference to religious groups. That would be preferring those who believe in no religion over those who do believe. Government may not finance religious groups nor undertake religious instruction nor blend secular and sectarian education nor use secular institutions to force one or some religion on any person. But we find no constitutional requirement which makes it necessary for government to be hostile to religion and to throw its weight against efforts to widen the effective scope of religious influence. [Justice Douglas for the Court]. 1.3 Engel v. Vitale, 370 U.S. 421 (1962): The state may not adopt a brief, nondenominational prayer for daily recital in the classroom even though students are permitted to remain silent. [I]t is no part of the business of government to compose official prayers for any group of the American people to recite as a part of a religious program carried on by the government. It has been argued that to apply the Constitution in such a way as to prohibit state laws respecting an establishment of religious services in public schools is to indicate a hostility toward religion or toward prayer. Nothing, of course, could be more wrong. It is neither sacrilegious nor antireligious to say that each separate government in this country should stay out of the business of writing or sanctioning official prayers and leave that purely religious function to the people themselves and to those the people choose to look to for religious guidance. [Justice Black for the Court]. 1.4 School District of Abington Township v. Schempp, 374 U.S. 203 (1963): Daily Bible readings read over the school intercom or by home room teachers violate the Establishment Clause: [I]t is no defense to urge that the religious practices here may be relatively minor encroachments on the First Amendment. The breach of neutrality that is today a trickling stream may all too soon become a raging torrent and, in the words of Madison, it is proper to take alarm at the first experiment on our liberties. It certainly may be said that the Bible is worthy of study for its literary and historic qualities. Nothing we have said here indicates that such study of the Bible or of religion, when presented objectively as part of a secular program of education, may not be effected consistently with the

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