To: Public School Administrators, Teachers, Students and Legal Counsel
From: Carl H. Esbeck, Director of the Center for Law and Religious Freedom
Date: 09/05/2000
Re: Student Religious Expression in Public Schools after the U.S. Supreme Court decision in Santa Fe Independent School District v. Doe (June 19, 2000)

This memorandum has been prepared in the interest of advancing an understanding of current law in light of the United States Supreme Court's recent decision in Santa Fe Independent School District v. Doe, 120 S. Ct. 2266 (June 19, 2000). It is our aim to provide an easily accessible document that clarifies the law, so that public school officials might know their duties and that public school students might know the bounds of their religious rights.

STATEMENT OF FACTS

In October of 1995, the board of education of the public school district in Santa Fe, Texas, adopted a policy permitting a high school student to deliver a short "message and/or invocation" as part of the ceremonies preceding home varsity football games. The policy provided for two student elections by secret ballot. The first election determined whether students wanted a "message and/or invocation" before the game. If the vote was in the affirmative, the second election selected a speaker from among those students volunteering to be on the ballot.

The October policy did not arise in a vacuum. Prior to 1995, the student elected as chaplain on the student council delivered a pre-game prayer. In August of 1995, the school board adopted a policy entitled "Prayer at Football Games." It also authorized two student elections, but referred only to an "invocation" rather than a "message and/or invocation." Implementation of the August policy during the fall'95 football season did result in the elected student reciting a prayer before each home game. The October policy was never put into actual practice, perhaps because the fall '95 home football season had largely concluded by the time that policy was adopted.

The U.S. Supreme Court, by a vote of 6-3, struck down the October 1995 policy as violative of the Establishment Clause of the First Amendment ("Congress shall make no law respecting an establishment of religion . . . . ").

CAUSE FOR CONCERN

The Supreme Court's Santa Fe opinion is not worrisome if it is properly kept within the bounds of its facts and holding. However, the case should not be misunderstood (or read over expansively) and thereby wrongly cited as a reason to censor student religious expression protected by the Free Speech and Free Exercise Clauses. This concern has been heightened because individuals and organizations on both sides of the issue, liberal and conservative, secularist and religious, have been posturing and threatening to sue over the scope of the Supreme Court's ruling in Santa Fe since it was handed down in mid-June of 2000.

FIRST PRINCIPLES

To avoid misreading or distorting Santa Fe, a brief overview of First Amendment principles is in order. Indeed, the Court in Santa Fe expressly reaffirmed many of these principles.

It is fundamental that the Establishment Clause restrains only government. Accordingly, a crucial first step to proper analysis is distinguishing between government speech and private speech. By "private speech" is meant the expression of those who are not acting on behalf of the government. Teachers, administrators, and other school staff, when acting in those capacities, are representatives of the government and thus their communication is "government speech." The expression of students is normally "private speech," but that will not always be the case, as Santa Fe itself demonstrates.

The Establishment Clause does not restrain private speech; indeed, the Free Speech Clause affirmatively protects such speech. And when the private speech has religious content, the Free Exercise Clause likewise safeguards the expression from discrimination at the hands of government.

Government may neither confess inherently religious beliefs, nor advocate that individuals profess religious beliefs or observe such practices. As an example of the latter, teachers and other school staff may not promote religious doctrine or urge religious activity by students, nor may school employees organize or actively encourage prayer by students. Moreover, the Establishment Clause is violated when the government's actions place its imprimatur ("seal of approval") on the inherently religious practices or speech of private persons. When the latter happens it is as if the government has adopted the private speech for its own. This the government may not do without crossing the line between church and state.

The foregoing principles were central to the Santa Fe decision. The school board, through the "message and/or invocation" policy, was found to have encouraged prayer by students and others in attendance at the football games. Under the policy the elected student volunteer was the speaker. Normally a student, even while at school, is a "private speaker" with free speech rights. But in Santa Fe the Court majority found that the school had placed its imprimatur on the student's speech. Hence, when the student chose to use the pre-game ceremony to recite a prayer, the inherently religious expression had the approval and sponsorship of the school and thus the Establishment Clause was violated.

As should be apparent, understanding the Santa Fe decision requires knowing what school officials did such that the Court deemed the school to have actively encouraged the student-initiated prayer and adopted the private speech of the student for that of the government.

OFFICIAL SCHOOL EVENTS

School officials are more likely to be found to have organized and actively encouraged religious expression by private persons when the speech takes place as part of an official school event. This makes sense because the active role and control by the school is greater at these events. On the other hand, not all expression by "private speakers" at official school events is fairly attributable to the government. For example, Justice Souter, a member of the Santa Fe majority, has observed that when an outside speaker is invited to give the graduation commencement address, the school's imprimatur does not normally fall upon what the speaker has to say to the assembled graduates and their families. Lee v. Weisman, 505 U.S. 577, 630 n.8 (1992) (Souter, J., concurring).

When trying to determine whether student religious expression at an official school event is "private" or "government-adopted" speech, the relevant criteria are whether: (a) the student speakers are numerous; (b) the student speakers are selected on a religion-neutral basis; (c) the student speakers have substantial control over the content of their speech; and (d) the assembled audience is voluntarily present as opposed to being in a practical sense "captive." These four factors are not necessarily of equal weight, nor are these factors exhaustive of what the courts may consider.

In Santa Fe, the Count noted that the speaker class was just one student. Moreover, she gave the pre-game message at each home varsity football game for the entire fall '95 season. 120 S. Ct. at 2276. The student was not selected on a religion-neutral basis. The majority of those voting control the outcome of the student election. When a school-conducted election is the means of choosing a student speaker, the process insures a voice only for the views of the majority. Id. at 2276, 2283 n.23. Additionally, when school-conducted elections become referenda on religious practices, then schools may cause division along religious lines. Id. at 2279-80.

In Santa Fe, the student speaker did have considerable control over the content of her speech. Nevertheless, the Court majority noted that the policy said the student could offer an "invocation," which is normally an appeal for divine assistance. Id. at 2277. Additionally, the school policy required that the content of the student message be "to solemnize the event, to promote good sportsmanship and student safety, and to establish the appropriate environment for the competition." Id. at 2276, 2277.

In Santa Fe, the Court majority noted that part of the audience was "captive" in a practical sense. The football players, coaches and other school staff, band members, and cheerleaders were required to be present. While others in the football stands attend voluntarily, for students not required to be present a high "social cost" would nevertheless be paid should they absent themselves from their school's varsity games just to avoid the prayer.

The Court majority in Santa Fe weighed the foregoing factors cumulatively and held the policy violative of the Establishment Clause. Thus, it is difficult to say whether one or more of the factors present in the case were more important than others. Instructive are three quotes from the majority opinion which string together the salient facts as the majority saw them:

[W]e 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. Id. at 2275.

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. Id. at 2279.

The Court majority in Santa Fe refused to adopt hard-and-fast rules or single-out any one factor as determinative. For example, granting access to only one student speaker does not necessarily preclude a finding that the speech was "private," nor are we to conclude all student elections yield speakers that are the government's own. Id. at 2276, 2283 n.23. Moreover, use of school property, or equipment such as a public address system, cannot alone be fatal to student religious speech, for the Court's own equal access cases often require neutrality by schools in making public property available for student use as a matter of free speech. Finally, repeatedly the majority referred to the special evolution of the pre-game policy at the Santa Fe school district and a long history of persistent attempts by school authorities to interject prayer into public events. If your school has no such "baggage" in it past, it is indeed hard to know how this will play out in the lower courts.

Athletic Events: After the Santa Fe decision, public school districts had best not adopt (or enforce existing) pre-game message policies. If a policy allows for the possibility of a student choosing a religious message, it is likely to be challenged as an attempt to "get around" Santa Fe.

A student athlete may, on his or her own, or along with clusters of other willing students, pray before a school athletic event. Coaches, however, should not initiate such prayers or participate in them. Members of the band, cheerleaders, and other students may voluntarily gather to pray same as the athletes.

In protest of the Supreme Court's decision in Santa Fe, in some communities spectators attending high school football games are engaging in self-initiated mass prayer during pre-game festivities. So long as school officials are not involved, this is an act of free speech protected by the First Amendment. Because the audience's mass prayer is not fairly attributed to the government, the Establishment Clause is not implicated. Indeed, government should be neutral toward religion, thus school authorities should not try to affirmatively suppress the prayer. However, while lawful, those contemplating such activity may also want to consider whether prayer as a form of public protest is spiritually appropriate and a good witness to our students and neighbors.

Graduation Ceremonies: It is common for a student graduate (or a few student graduates) to be given time to address the audience assembled for graduation ceremonies. If a student should include religious content in his or her remarks, this does not normally violate the Establishment Clause-indeed, the speech is "private" and protected by the Free Speech and Free Exercise Clauses.

Selection should be by religion-neutral criteria, generally high academic achievement or demonstrated student leadership. Schools had best avoid student elections, at least until we learn more how Santa Fe will be applied. If two or three students are asked to speak, the policy is even more defensible. Within reasonable parameters (e.g., no scandalous or vulgar content) the student should control the content of the speech. It is prudent to instruct students to not lead the audience in a joint recital, whether prayer, a familiar school cheer, or poem. This will prevent some in the audience from feeling peer pressure to actively participate. While most of the audience will understand that the student does not "speak" for the school, programs printed by the school can easily disclaim association with the student's remarks. Such a disclaimer will help ameliorate any "captive audience" nature to the assembly. What the Court found objectionable in Santa Fe was for the school to promote participation in the majority's religion, not for the school to ask that the audience remain respectful while one of its distinguished graduates chooses his or her own final message.

To the extent any in the audience should feel "uncomfortable" or "offended" by a student's religious remark, that is the small price we all pay to live in a nation of diverse people which values freedom of speech. What a wonderful opportunity for the school to teach one last civic lesson! As the Court said in Westside Bd. of Educ. v. Mergens, "The proposition that schools do not endorse everything they fail to censor is not complicated." 496 U.S. 226, 250 (1990).

Other Official School Events: Other examples of official school events are Talent Shows, Oratorical Competitions, Club Fairs, Pep Rallies, and required student assemblies. Each case has to be examined individually. In some instances the Establishment Clause clearly does not bar student expression of a religious nature. Where the student speakers are numerous, selected on a religion neutral basis, and each student has substantial control over the content of his or her speech, then the "private speech" of the student is not properly imputed to the government. For example, schools can hold "club fairs" where student clubs are each given a table or booth to show what they do and how to join. Religious clubs may not only be part of such a fair, but it would be unconstitutional to exclude them on account of religion. Likewise, a student talent show that includes a religious piece played on the piano, or a student's extemporaneous speech with a religious thesis offered as part of an oratorical competition, are additional examples of student religious expression permitted during official school events. On the other hand, a required student assembly at which the Senior Class President is asked by the high school principal to speak against drug abuse is a different matter. The student best avoid inherently religious appeals in his or her presentation before what is essentially a "captive audience."

STUDENT EXPRESSION IS GENERALLY PRIVATE SPEECH

It is paramount that public school officials understand that Santa Fe leaves much of the settled law undisturbed. For convenience, a brief review of the law concerning student religious expression is set forth below. The recitation of rights is in substantial part paraphrased from a restatement of legal principles adopted by the U.S. Department of Education in August 1995, and most recently revised May 30, 1998. See RELIGIOUS EXPRESSION IN PUBLIC SCHOOLS: A STATEMENT OF PRINCIPLES (printed September 1999) (with forward by Richard W. Riley, U.S. Secretary of Education) (a copy can be found on the internet at www.ed.gov).

Public school students have the same right to engage in individual or group prayer and religious discussion during the school day as they do to engage in other comparable activity. For example, students may read their Bibles or other scriptures, say grace before meals, and pray before tests to the same extent they may engage in comparable nondisruptive activities. School authorities possess substantial discretion to impose rules of order and other pedagogical restrictions on student activities, but they may not structure or administer such rules to discriminate against religious activity or speech.

Subject to the rules that normally pertain in like settings, students may pray in a nondisruptive manner when not engaged in school activities or instruction. Specifically, students in informal settings, such as cafeterias and hallways, may pray and discuss their religious views with one another subject to the same rules of order as apply to other student activities and speech. Students may also speak to, and attempt to persuade, their peers about religious topics just as they do with regard to, say, sports, music or political topics. However, the right to engage in voluntary prayer or religious discussion does not generally include the right to compel others to listen. School authorities should intercede to stop student speech that has so crossed the line as to constitute verbal harassment aimed at a student or students of a particular religion.

Students may participate in before and after school events that are of religious content. When held on school grounds, students may participate in religious events on the same terms as they may participate in other noncurricular activities on school premises. An example of such an event is "See You At The Flag Pole" held each September.

STUDENT GARB AND JEWELRY

Students may display religious messages on items of clothing, jewelry, backpacks, or book jackets to the same extent that they are permitted to display other comparable messages. While schools have substantial discretion in adopting policies relating to appropriate student dress and appearance, religious messages may not be singled out for suppression or other unfavorable treatment.

LITERATURE DISTRIBUTION AND NOTICES

Students have a right to distribute religious literature to their schoolmates on the same terms as they are permitted to distribute other literature that is unrelated to school curriculum or official activities. Schools may impose the same reasonable time, place, and manner restrictions on the distribution of religious literature as they do on nonschool literature generally, but the school may not single out religious literature for suppression or other unfavorable treatment.

Schools often have bulletin boards, newspapers, video monitors, public address systems, or other media, which students are permitted to use for posting notices of upcoming club meetings or other events unrelated to school curriculum or official events. Students have a right to utilize these media to give notice of religious activities to the same degree they do noncurricular events generally.

EQUAL ACCESS FOR STUDENT CLUBS

The Court in Santa Fe expressly reaffirmed its long line of cases holding that religious speech has the same right of access to public fora, as does other high value speech such as political, educational, or literary expression. 120 S. Ct. at 2275, 2275 n.12, 2281. As a general principle, student religious clubs have the same right of access to meet and otherwise use school facilities during noninstructional hours in the school day, as do other noncurricular clubs. If other clubs may meet before or after school, or during the lunch period, religious clubs must be given equal treatment. A meeting of a religious club may include prayer, Bible reading, religious song, or worship. Faculty or other school staff may be present for supervisory reasons, but should not lead or actively participate in a student religious club.

One of the Supreme Court cases that received favorable mention in Santa Fe was Westside Bd. of Educ. v. Mergens, 496 U.S. 226 (1990). Mergens upheld the constitutionality of the federal Equal Access Act, 20 U.S.C. §§ 4071-74. The EAA requires, as a matter of federal statutory law, that all secondary public schools afford student religious clubs the same access to facilities that is enjoyed by other noncurricular clubs.

STUDENT ASSIGNMENTS

Students may express their beliefs about religion in the form of homework, artwork, and other written and oral assignments, free of discrimination based on the religious content of the submissions. Such homework should be judged by ordinary academic standards of substance and relevance to the assignment, and against other legitimate pedagogical concerns identified by the teacher. School authorities may not single out student work of religious content for suppression or other unfavorable treatment.

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If you have questions about the Supreme Court's decision in Santa Fe or this Memorandum, please contact the Center for Law and Religious Freedom, Christian Legal Society, by calling 703-642-1070, or sending an e-mail to clrf@clsnet.org.