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Living with the Supreme Court's mess By Jay Sekulow FindLaw Contributor Special to CNN Interactive

June 22, 2000
Web posted at: 11:18 a.m. EST (1518 GMT)

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(FindLaw) -- The decision of the U.S. Supreme Court in the Santa Fe, Texas, "football prayer" case is a school administrator's nightmare. The court's opinion tells school districts at length what they cannot do but gives few clues as to how to comply with the Constitution when allowing student speakers at school events.

Straightening out the legal mess unfortunately is going to take years of expensive litigation.

The dilemma is simple to state: If a school censors a student speaker's message to prevent any religious speech, the school violates the student speaker's constitutional rights of free speech and religious freedom. If the school does not censor student religious speech, it faces intimidation from ACLU lawyers claiming an unconstitutional violation of "separation of church and state."

The Santa Fe Independent School District, enmeshed in litigation over precisely this issue, tried the obvious solution: a hands-off approach. Let students decide whether to have a speaker, let students pick the speaker and let the speaker decide what to say. (This, of course, is exactly how representative democracy works.) Santa Fe implemented this approach by adopting a policy which allowed a student speaker to give a pregame message or invocation at high school football games.

In Santa Fe Independent School District v. Doe, a 6-3 majority of the Supreme Court struck down the student pregame speaker policy as unconstitutional. Justice John Paul Stevens, writing for the majority, opined that because the elected student speaker might say something religious, the policy violated the Establishment Clause of the First Amendment.

Chief Justice William Rehnquist, in dissent, charged that the majority opinion "bristles with hostility to all things religious in public life."

Indeed, Stevens went so far as to rule that allowing student elections under the Santa Fe policy was unconstitutional because religious issues might become a subject of debate. (Stevens did not explain why student debate is healthy on every other topic, but not on religious issues.)

The Santa Fe decision left intact the rights of students to meet in Bible clubs, engage in one-on-one religious discussion, distribute religious literature on the same terms as secular literature, pray over meals, and express in a variety of other ways their religious beliefs.

In the wake of Santa Fe, however, school districts across the nation will need to reexamine their policies regarding student speakers at school-sponsored assemblies such as graduation and sporting events. In their efforts to reach a workable solution to the twin problems of forbidden censorship and forbidden establishment of religion, school districts face a daunting task. The very extreme nature of Stevens's opinion makes the challenge that much greater.

Stevens called into question even scrupulously neutral policy wording. "Even if the plain language of the [football] policy were facially neutral," he wrote, "the Establishment Clause forbids a State to hide behind the application of formally neutral criteria and remain studiously oblivious to the effects of its actions."

In the Santa Fe case, as a matter of fact, there were no untoward "effects" -- the policy was challenged before it ever became operational. But this did not matter to Stevens either: "even if no Santa Fe High School student were ever to offer a religious message, the [football] policy fails a facial challenge because [of] the attempt by the District to encourage prayer," Stevens declared.

Further, Stevens dismissed the fact that the audience was free to ignore or disagree with the student speaker: "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," Stevens declaimed. Under this distorted reasoning, everyone attending the halftime concert becomes a musician.

So the dilemma remains: How can a school district simultaneously avoid forbidden content censorship of student speakers and forbidden sponsorship of potential student prayers?

There is, of course, one safe option -- simply ban all student speakers at school events. This would satisfy Stevens' concern that no religious words be uttered. This would also neutrally stifle secular as well as religious messages, eliminating any claim of content censorship. But clearly, that is not what the First Amendment requires. The Supreme Court has repeatedly recognized that students do not "shed their constitutional rights to freedom of speech or expression at the schoolhouse gate." The challenge for school districts will be to make that promise of student free speech a reality for every student -- including students who have a religious message.

Jay Sekulow,chief counsel for the American Center for Law and Justice, presented oral argument before the Supreme Court on behalf of the Santa Fe Independent School District. Jay Sekulow is also a FindLaw contributor.

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