Amicus Curiae Brief — Santa Fe Independent School Dist. v. Doe

Supreme Cauxk, HEEL

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\F AUS 6 1999.

No. 99-62 OFFICE OF IHR BLEAM

In the

Supreme Court of the

United States

SANTA FE INDEPENDENT SCHOOL DISTRICT,

. Petitioner.

JANE DOE, ET AL..

Respondents.

On Petition for Writ of Certiorari to the

United States Court of Appeals for the Fifth Circuit

BRIEF OF AMICI CURIAE STATE OF TEXAS, ATTORNEY

GENERAL OF TEXAS JOHN CORNYN, GOVERNOR OF

TEXAS GEORGE W. BUSH, STATES OF ALABAMA,

COLORADO, KANSAS, LOUISIANA, MISSISSIPPI,

NEBRASKA, SOUTH CAROLINA, AND TENNESSEE IN

SUPPORT OF PETITIONER

JOHN CORNYN

Attorney General of Texas

ANDY TAYLOR

First Assistant Atty General

LINDA S. EADS

Deputy Attorney General

for Litigation

GREGORY S. COLEMAN

Solicitor General

JULIE CARUTHERS PARSLEY

Deputy Solicitor General

Counsel of Record

MEREDITH B. PARENTI

Assistant Solicitor General

P.O. Box 12548

Austin, Texas 78711-2548

(512) 936-1896

COUNSEL FOR AMICI

JOHN CORNYN

Attorney General of Texas

P.O. Box 12548

Austin, TX 78711

GEORGE W. BUSH

Governor of Texas

P.O. Box 12428

Austin, TX 78711

BILL PRYOR

Attorney General of Alabama

Alabama State House

11 South Union Street

Montgomery, AL 36130

KEN SALAZAR

Attorney General of Colorado

Department of Law

1525 Sherman Street

Denver, CO 80203

CARLA J. STOVALL

Attorney General of Kansas

301 S.W. 10th Avenue

Topeka, KS 66612-1597

RICHARD P. IEYOUB

Attorney General of Louisiana

P.O. Box 94005

Baton Rouge, LA 70804

MIKE MOORE

Attorney General of Mississippi

P.O. Box 220

Jackson, MS 39205

DON STENBERG

Attorney General of Nebraska

Department of Justice

2115 State Capitol

Lincoln, NE 68509

CHARLES M. CONDON

Attorney General of South Carolina

P.O. Box 11549

Columbia, SC 29201

PAUL G. SUMMERS

Attorney General and Reporter of

Tennessee

423 Fifth Avenue North

Nashville, TN 37243

STATEMENT OF AMICI] INTEREST

The State of Texas, Texas Attorney General John Cornyn,

Texas Governor George W. Bush, and the States of Alabama,

Colorado, Kansas, Louisiana, Mississippi, Nebraska, South

Carolina, and Tennessee, appear as amici curiae and urge the

Court to grant this petition. Amici curiae have an interest in

this case because the Fifth Circuit’s judgment will require

governmental officials to review and essentially censor

student-initiated and student-given speech even though there

is no state involvement in the decision that the speech occur or

in the selection of the speaker. Amici’s interest here is

substantial and direct, because the holding will emanate far

beyond public school sponsored events. Under this decision:

* Officials will be required to abandon their roles as

neutral observers of religious speech and instead take

up their pens as editors and censors.

* Officials must enforce and defend these unprecedented

requirements.

* Officials, in enforcing and defending the Santa Fe

1.S.D. requirements, will be compelled to endorse

certain types of religious speech resulting in deep state

entanglement with religion.

* Officials will be forced to discriminate against any

religious viewpoint that is not nonsectarian and

nonproselytizing.

This decision places states in an untenable, unacceptable,

and unconstitutional position, despite established precedent to

the contrary. In addition, since the petition was filed, the

Eleventh Circuit decided Chandler v. James, Nos. 97-6898,

97-6953, 1999 WL 493495 (CAI1 July 13, 1999), which

directly conflicts with the Fifth Circuit's decision in Santa Fe

LS.D. \na factually similar case involving student-initiated

speech at graduation and sporting events, the Eleventh Circuit

held that “genuinely student-initiated religious speech is

private speech endorsing religion” and is “fully protected by

both the Free Exercise and the Free Speech Clauses of the

Constitution.” Jd. at *6. The Court should grant certiorari to

address these important issues and resolve this split in the

circuit courts.

The parties have given their consent to the filing of this

brief, as shown in the letters of consent that accompany this

brief. Sup. CT. R. 37.2(a).

TABLE OF CONTENTS

THE FIFTH CIRCUIT’S OPINION PLACES

SCHOOLS IN AN UNTENABLE, UNACCEPTABLE.

AND UNCONSTITUTIONAL POSITION. ........... 2

A. The Establishment Clause Requires

Officials to Be Neutral Towards

66446886 46d bdennsuedsdécces

. The Santa Fe 1S.D. Test Requires

. The Fifth Circuit’s Decision Requires

School Officials to Become

Excessively Entangled in Private

SEINE 6.560 cdcccdudvcccccce

. The State Can Advance Other Secular

Purposes for a Student-Led Invocation

eee ee eeeeneeeeeeeeneeeeenee

ios @

Other than Solemnization. ............... 12

Il. THis CASE REQUIRES REVIEW TO RESOLVE A

SPLIT IN THE CIRCUITS ON THIS IMPORTANT

ISSUE.

iv

TABLE OF AUTHORITIES

Cases

Adler v. Duval County School Board, 174 F.3d 1236

DPE chtnnskevebecsaseaessonactecess 15

Board of Educ. v. Mergens, 496 U.S. 226 (1990) ....... 3

Chandler v. James, 985 F.Supp. 1062 (M.D. Ala. 1997),

aff'd in part and vacated in part, Nos. 97-6898,

97-6953, 1999 WL 493495 (CAI11 July 13, 1999) 5,14

Chandler v. James, Nos. 97-6898, 97-6953,

1999 WL 493495 (CAI1 July 13, 1999) .. ii, 1-2, 13-16

Cornelius v. NAACP Legal Defense & Educ. Fund, Inc.,

Ge ee PP ob cbdbccconssceccddcdeciees 7

‘ Doe v. Santa Fe 1.S.D., 168 F.3d 806

SPEED Cobevcwevsdoedeesvcscccccdesi passim

Engel v. Vitale, 370 U.S. 421 (1962) .......... 3-5, 10, 11

Everson v. Board of Educ., 330 U.S. 1 (1947).......... 2

Ingebretsen v. Jackson Pub. Sch. Dist., 88 F.3d 274

(CAS), cert. denied, 519 U.S. 965 (1996) ....... 4,14

Jones v. Clear Creek L.S.D., 977 F.2d 963

SET EEEY Clodeustddscediccdannesescs 7-9, 12, 13

Lamb's Chapel v. Center Moriches Union Free Sch. Dist.,

FOS Ds TOO GSTTED bv oc cecdonscecesisocoscoces 7

Lee v. Weisman, 505 U.S. 577 (1992) ............ 2-5, 11

Lemon v. Kurtzman, 403 U.S. 602 (1971) ........... 4,9

Rosenberger v. Rector & Visitors of Univ. of Va.,

FOP Gs SOP ONNEED oc ce ccccesccnscccccescss 4,10

School Dist. of Abington Township v. Schempp,

FOO Des SEP CINE cc co ecececscoseenccocecccce 3

Tinker v. Des Moines Indep. Community Sch. Dist.,

BOO Cs SEP cnn heccncancocescccccanes 14

Widmar v. Vincent, 454 U.S. 263 (1981) ......... 7, 8,10

Zorach v. Clauson, 343 U.S. 306 (1952) .............. 3

Other Authorities

Ecclesiastes 3:1 (King James) ............000000e0ee l

RG es PO nd wh ob adds eedencetadcaneeaness ii

Turn, Turn, Turn by The Byrds .................0005- l

Richard S. Vacca, et al., Commentary, Accommodation

of Religion Without Establishment of Religion,

115 Ed. Law Rep. 9 (West 1997) ...............4.. 2

WEBSTER’S NINTH NEW COLLEGIATE DICTIONARY

DN sacks ddadeedesdsbeacksnmaiedsueeeekanns 6

vi

SUMMARY OF THE ARGUMENT

To everything, turn, turn, turn,

There is a season, turn, turn, turn,

And a time to every purpose under heaven.

If a student speaker uses this quote in a graduation

invocation, would it be considered nonsectarian and

nonproselytizing because it is from a rock song,’ or would it be

considered sectarian and proselytizing because it is from the

Old Testament?” Would the fact that the quote refers to

“heaven” immediately make it off limits? Or maybe it could

pass muster because, in reality, the song protests the Vietnam

War instead of promoting religious values.

If the Fifth Circuit’s decision in Doe v. Santa Fe 1.S.D.’

stands, school officials will suffer the Promethean punishment

of being forced again and again to judge, and ultimately

censor, the content and message of student-initiated speech.

This result “achieves the jurisprudentially rare result of

offending not only one, but three provisions within the First

Amendment.” Santa Fe 1.S.D., 168 F.3d at 825 (Jolly, J.,

dissenting). The Fifth Circuit’s decision also directly conflicts

with the Eleventh Circuit’s recent decision in Chandler v.

James, Nos. 97-6898, 97-6953, 1999 WL 493495 (CAI1 July

13, 1999), which reversed a district court’s injunction

prohibiting vocal prayer or other devotional speech at school

' These are the opening lyrics from the song Turn, Turn, Turn by

The Byrds.

? Ecclesiastes 3:1, reads: “To everything there is a season, and a

time to every purpose under the heaven.” Ecclesiastes 3:1 (King James).

The song is taken from Ecclesiastes 3:1-8.

> Doe v. Santa Fe 1.S.D., 168 F.3d 806 (CAS 1999), petition for

cert. filed (U.S. July 6, 1999) (No. 99-62).

events. The Chandler court rejected the argument that the

state has a positive duty to censor student speech if it is

religious. /d. at *5. The Court should grant the petition to

resolve this split among the circuits and prevent the Fifth

Circuit’s constitutionally defective rule from becoming

precedent.

ARGUMENT

I. THE FiFTH CIRCUIT’S OPINION PLACES SCHOOLS IN AN

UNTENABLE, UNACCEPTABLE, AND UNCONSTITUTIONAL

POSITION.

A. The Establishment Clause Requires Officials to Be

Neutral Towards Religion.

Neutral accommodation of religion is a consistent thread

running throughout Establishment Clause jurisprudence.‘

From the 1947 decision in Everson v. Board of Education’ to

the recent case of Lee v. Weisman, the Court has instructed

that, in all things, the state must be neutral to religion, neither

advancing nor inhibiting it.

* “[{The Establishment Clause] requires the state to be a

neutral in its relations with groups of religious believers

and non-believers; it does not require the state to be their

adversary. State power is no more to be used so as to

handicap religions, than it is to favor them.” Everson, 330

US. at 18.

* See Richard S. Vacca, et al., Commentary, Accommodation of

Religion Without Establishment of Religion, 115 Ed. Law Rep. 9 (West

1997).

* Everson v. Board of Educ., 330 U.S. | (1947).

* Lee v. Weisman, 505 U.S. 577 (1992).

2

* “The government must be neutral when it comes to

competition between sects.” Zorach v. Clauson, 343 U.S.

306, 314 (1952).

* “The First Amendment leaves the Government in a

position not of hostility to religion but of neutrality.”

Engel v. Vitale, 370 U.S. 421, 443 (1962) (Douglas, J.,

concurring).

¢ “In the relationship between man and religion, the State is

firmly committed to a position of neutrality.” School Dist.

of Abington Township v. Schempp, 374 U.S. 203, 226

(1963).

¢« “[{T]}here 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. We think

that secondary school students are mature enough and are

likely to understand that a school does not endorse or

support student speech that it merely permits on a

nondiscriminatory basis. The proposition that schools do

not endorse everything they fail to censor is not

complicated.” Board of Educ. v. Mergens, 496 U.S. 226,

250 (1990) (citations omitted).

* “Nearly half a century of review and refinement of

Establishment Clause jurisprudence has distilled one clear

understanding: Government may neither promote nor

affiliate itself with any religious doctrine or organization,

nor may it obtrude itself in the internal affairs of any

religious institution.” Lee, 505 U.S. at 599 (Blackmun, J.,

concurring).

Despite the “clear understanding” that the Constitution

demands that the state neutrally accommodate all religious

(and nonreligious) speech, see id., the Fifth Circuit’s decision

3

in Santa Fe 1.S.D. plunges school districts into a quagmire of

minute and exacting decisions over whether potentially

religious’ speech meets the court’s nonsectarian,

nonproselytizing criteria.

By holding that the only way that the Santa Fe 1.S.D.

policies can be squared with the Constitution is to require that

student-initiated speech be nonsectarian and nonproselytizing,

the Fifth Circuit requires school officials to cast aside their

roles as neutral observers of student-initiated religious speech

and don the hat of editor/censor. The Fifth Circuit reaches this

conclusion despite this Court’s holdings that state review of

prayer results in excessive entanglement. Rosenberger v.

Rector & Visitors of Univ. of Va., 515 U.S. 819, 845-46

(1995); Lemon v. Kurtzman, 403 U.S. 602, 619 (1971); see

also Ingebretsen v. Jackson Pub. Sch. Dist.,88 F.3d 274, 278

(CAS), cert. denied, 519 U.S. 965 (1996).

Moreover, government-written or sponsored prayers, no

matter how bland or ecumenical,* unquestionably violate the

” The Santa Fe school district’s policies do not require the speech

to be religious, because, as Judge Jolly notes in his dissent, “[nJeither the

dictionary definitions cited by the majority nor our own precedents require

an interpretation of ‘invocation’ or ‘benediction’ grounded in religion.”

Santa Fe L.S.D., 168 F.3d at 831 (Jolly, J., dissenting).

* The Fifth Circuit’s insistence that school districts can be

entangled in religious speech as long as it is nonsectarian and

nonproselytizing is difficult to understand. It is not the content of the

religious speech that ran afoul of the Establishment Clause in Engel and

Lee, it was the government’s role in endorsing or proscribing the speech

that was unconstitutional.

Though the efforts of the school officials in this case to

find common ground appear to have been a good-faith

attempt to recognize the common aspects of religions

and not the divisive ones, our precedents do not permit

4

Establishment Clause. Engel, 370 U.S. at 425-34. But is there

any logical distinction between government-written prayers

and government-edited and censored prayers? Indeed, it is

difficult to conceive of a policy more inimical to neutrality

than one that requires school officials to review and edit

student-initiated religious speech to ensure that it meets state-

defined criteria.

And, as a practical matter, how will school districts enforce

these requirements?’ What if the graduation keynote speaker,

a non-student, without warning school administrators,

passionately advocates that Jesus Christ should take the central

role in a person’s life? Would the speech violate Santa Fe

LS.D.? Assuming that it would, does that mean that the school

officials must review every speaker’s remarks for religious

content and state censure? Or are officials only required to

review student-given invocations or benedictions? Not only

will this requirement excessively entangle school officials with

school officials to assist in composing prayers as an

incident to a formal exercise for their students. And

these same precedents caution us to measure the idea of

a civic religion against the central meaning of the

Religion Clauses of the First Amendment, which is that

all creeds must be tolerated and none favored.

Lee, 505 U.S. at 590 (citing Engel, 370 U.S. at 425)).

* In Chandler, the district court answered this question by

enjoining the students’ religious speech and ordering that, should any

student violate the injunction, school officials must “take appropriate

disciplinary action as they would for any violation of school disciplinary

rules, said disciplinary action being calculated to cause the cessation of the

violative conduct as it occurs and to deter similar conduct in the future.”

Chandler v. James, 985 F Supp. 1062, 1064 (M.D. Ala. 1997), aff'd in part

and vacated in part, Nos. 97-6898, 97-6953, 1999 WL 493495 (CAI1 July

13, 1999).

religion, but it will place an incredible burden on state

institutions and officials who know too well that an out-of-

place phrase with questionable content could result in

litigation. Rather than face this Herculean task, many schools

may prohibit all student speech having the potential for

religious content. This result, however, is no less

constitutionally infirm.

The Santa Fe 1.S.D. graduation policy’® and football

policy'' succeed in safeguarding governmental neutrality

toward student-initiated, potentially religious speech. Indeed,

the policies do not even require a prayer at all, but allow

students to determine what message, if any, to deliver without

official oversight.’ Requiring school officials to censor

'° See Santa Fe 1.S.D., 168 F.3d at 811-13.

'' See id. at 812.

"2 The Fifth Circuit mistakenly concludes that the Santa Fe

policies only allow students to deliver “very circumscribed statements that

under any definition are prayers.” /d. at 820. But the graduation policy

allows students to deliver an “invocation” or “benediction,” which are not

necessarily prayers, while the football policy allows students to give an

“invocation” or “message.” Petition for Writ of Certiorari at 4,6, App. F,

App. G, Santa Fe 1.S.D. v. Doe, (U.S. July 6, 1999) (No. 99-62).

According to Webster’s, the definition of “invocation” includes “the act or

process of petitioning for help or support . . . a prayer of entreaty ...a

calling upon for authority or justification . . . a formula for conjuring:

INCANTATION . . . [and] an act of legal or moral implementation:

ENFORCEMENT.” WEBSTER’S NINTH NEW COLLEGIATE DICTIONARY

637 (1983). The definition of “benediction” is “an expression of good

wishes . . . the invocation of a blessing . . . [and] something that promotes

goodness or well-being.” /d. at 143; see also supra note 7 (noting Judge

Jolly’s dissent on this issue). Regardless of the definition, however, the

fact remains that students not only determine whether to have an

invocation, benediction, or any message at all, but they also decide what

the content of their message will be.

6

potentially religious speech not only destroys neutrality, but

requires the school districts to engage in constitutionally

forbidden viewpoint discrimination.

B. The Santa Fe I.S.D. Test Requires School Districts

to Engage in Viewpoint Discrimination.

The Fifth Circuit’s holding that religious speech under the

Santa Fe I.S.D. graduation policy must be nonsectarian and

nonproselytizing requires school officials to engage in

religious viewpoint discrimination. See Santa Fe 1.S.D., 168

F.3d at 833-34 (Jolly, J., dissenting). The majority opinion

permits one type of religious speech—ecumenical—to the

exclusion of all others. But once ecumenical religious speech

is permitted, the state must neutrally accommodate all

religious viewpoints. See Lamb's Chapel v. Center Moriches

Union Free Sch. Dist., 508 U.S. 384, 394 (1993) (quoting

Cornelius v. NAACP Legal Defense & Educ. Fund, Inc., 473

U.S. 788, 806 (1985)); Widmar v. Vincent, 454 U.S. 263

(1981).

The Fifth Circuit rejected Santa Fe I1.S.D.’s argument that

governmental review and approval of only certain kinds of

prayer is impermissible viewpoint discrimination, reasoning

that the graduation ceremony is not a limited public forum

subject to viewpoint discrimination. Santa Fe 1.S.D., 168 F.3d

at 818-21. Remarkably, the majority admitted that if the

graduation program did create a limited public forum, then its

proscription of sectarian, proselytizing prayer would constitute

unconstitutional viewpoint discrimination. Jd. at 821.'° This

"’ The majority concluded: “Thus, if public forum analysis were

applicable, then Clear Creek’s proscription of prayer that is sectarian and

proselytizing would violate the First Amendment after all, but would do so

on grounds we never considered in Clear Creek II.” Santa Fe .S.D., 168

F.3d at 821 (citing Jones v. Clear Creek 1S. D., 977 F.2d 963 (CAS 1992),

7

admission is fatal to the Fifth Circuit’s logic, however. The

Santa Fe 1.S.D. graduation policy creates a limited public

forum because it places no barriers on speech other than the

reasonable time, place, and manner restriction limiting the

class of potential speakers to graduating students. Jd. at 832-

33 (Jolly, J., dissenting). Regardless of the type of forum,

however, viewpoint discrimination is constitutionally

prohibited. Jd. at 833. Once the state creates a forum of any

kind and allows some religious speech, it may not exclude

other religious viewpoints. Jd.

The Court could not be more clear on this subject. “[S]tate

regulation of speech should be content-neutral . . . .”. Widmar,

454 U.S. at 277. But the Fifth Circuit’s decision requires just

the opposite—content-based state regulation of speech. This

decision puts the school districts on an unavoidable collision

course with the Constitution, and it must be reversed.

C. The Fifth Circuit’s Decision Requires School

Officials to Become Excessively Entangled in

Private Religious Speech.

Instead of enforcing the Establishment Clause, the Fifth

Circuit’s decision will actually force school districts to violate

it. By requiring school officials to preview student messages

to determine whether they are overly sectarian or proselytizing,

the Fifth Circuit will force school officials to excessively

entangle themselves in private religious speech in violation of

the Establishment Clause. Not only would review of student

prayers by school officials prove unwieldy and unmanageable,

it would also cause officials to wade into the constitutional

quagmire of editing students’ religious speech.

There is no doubt that the Fifth Circuit's content-based

cert. denied, 508 U.S. 967 (1993)).

restrictions will force school officials to require students to

submit their prayers for review prior to school events. The

Fifth Circuit acknowledged that its holding would require a

school district to review the content of student-initiated,

student-led prayers. Santa Fe 1.S.D., 168 F.3d at 821 n.12

(citing Jones v. Clear Creek 1.S.D., 977 F.2d 963, 967 (CAS

1992)). This new requirement will have perverse and

unconstitutional effects, however. Impromptu remarks would

have to be discouraged to avoid uncensored speech. Officials

must then make the inherently subjective determination of

what language in a student’s prayer crosses the line. Every

determination made by a school official—whether to censor a

prayer or to approve it—will subject the school district to

potential liability. Rather than face this unpleasant and

unconstitutional task, school officials may ultimately prohibit

all student speech at school events that could have potential

religious overtones.

The Court has repeatedly recognized that government

oversight of student-initiated religious speech entangles the

State in religion. In Lemon v. Kurtzman, 403 U.S. 602, 619

(1971), the Court held that a state statute providing aid to

church-related elementary and secondary schools excessively

entangled church and state because it would require

“comprehensive, discriminating, and continuing state

surveillance” to meet the requirements of the First

Amendment.

This kind of state inspection and evaluation of the

religious content of a religious organization is fraught

with the sort of entanglement that the Constitution

forbids. It is a relationship pregnant with dangers of

excessive government direction of church schools and

hence of churches.

Id. at 620.

The Court recognized again in Widmar v. Vincent, 454

U.S. 263, 277 (1981), that a university policy that required the

content-based exclusion of religious speech violated the

fundamental principle that state regulation of speech should be

content-neutral. The Court observed that requiring the

university and ultimately the courts “to inquire into the

significance of words and practices to different religious faiths

_... would tend inevitably to entangle the State with religion

in a manner forbidden by our cases.” /d. at 270 n.6.

And in Rosenberger v. Rector & Visitors of University of

Virginia, 515 U.S. 819, 845-46 (1995), the Court held that a

university policy excluding financial support to a student

religious newspaper violated the First Amendment. The Court

expressly disapproved the argument that the school was

required, “in order to avoid a constitutional violation, to

scrutinize the content of student speech, lest the expression in

question—speech otherwise protected by the

Constitution—contain too great a religious content.” /d. at

844. “[O}fficial censorship would be far more inconsistent

with the Establishment Clause,” the Court observed. /d. at

845.

Requiring school officials to censor student prayers is

essentially the same as having an official compose the prayer

in the first place. The Court long ago recognized that

government “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.” Engel v. Vitale, 370

U.S. 421, 435 (1962). Indeed, “[t}he First Amendment was

added to the Constitution to stand as a guarantee that neither

the power nor the prestige of the Federal Government would

be used to control, support or influence the kinds of prayer the

American people can say.” /d. at 429.

10

Instead of following this Court’s admonitions against state

censorship of religious speech, the Fifth Circuit elevated the

“nonsectarian,” “nonproselytizing” requirement of some

school prayer policies to the level of a constitutional mandate.

However, this Court has rejected the notion that nonsectarian

prayers could resurrect an otherwise unconstitutional

government-sanctioned prayer. See Lee v. Weisman, 505 U.S.

577, 588-90 (1992); id. at 616 (Souter, J., concurring); Engel,

370 U.S. at 430.

The Court in Lee observed that “though the First

Amendment does not allow the government to stifle prayers

which aspire to [nonsectarian]} ends, neither does it permit the

government to undertake that task for itself.” 505 U.S. at 589.

By forcing school districts to police student speech to stamp

out sectarian or proselytizing messages, the Fifth Circuit is

requiring officials to undertake a sectarian agenda in violation

of the Establishment Clause.

The Fifth Circuit’s logic extends beyond student-initiated

invocations and benedictions, and ultimately could apply to all

speech at school-sponsored events. Will school officials have

to preview the contents of a speech any time a speaker could

potentially inject a sectarian or proselytizing comment into it?

Speakers at graduations, awards ceremonies, speech classes.

anti-drug programs, student plays. and football banquets will

be potentially subject to the nonsectarian, nonproselytizing

requirements imposed by the Fifth Circuit.

A student could give a speech to his class discussing his

belief or disbelief in God. A recovering drug addict might

testify at a mandatory anti-drug program that he owes his

recovery to Jesus Christ. Students could decide to put on a

play celebrating religion, such as Jesus Christ Superstar or

Godspell. All of these activities could potentiaily fal! under

the ambit of the Fifth Circuit’s decision. If school officials do

not censor this speech beforehand, will they have to decide

whether to pull the plug on the microphone or use the

proverbial cane to pull the offending speaker offstage? Either

way, school districts are faced with an unconstitutional Catch-

22. This Court should grant certiorari to correct the Fifth

Circuit’s grievous error.

D. The State Can Advance Other Secular Purposes for

a Student-Led Invocation Other than

Solemnization.

Deciding that an invocation is only appropriate at “solemn”

events, the Fifth Circuit reaches the remarkable conclusion that

ceremonial prayer is never appropriate at football games

because football games are not solemn.'* Not only does this

holding underestimate the devotion some have to high school

football, it mistakenly and unnecessarily limits the category of

acceptable secular purposes that can support ceremonial

prayer. Solemnization is not the only permissible secular

purpose. It is simply “a legitimate secular purpose of

ceremonial prayer.”"° Clear Creek, 977 F.2d at 966 (emphasis

added).

As Judge Jolly pointed out in his dissent, there are

legitimate secular purposes underlying student-given

'* “Now we come to the remarkable holding of the majority that,

for the most curious reasons, the First Amendment allows speech at

graduation ceremonies but bars speech at sporting events. In short, there

is a total absence of merit to the contention that the Football Policy might

be constitutionally deficient when the graduation policy is not.” Santa Fe

LS.D., 168 F.3d at 834 (Jolly, J., dissenting).

'* Although the majority in Santa Fe .S.D. scoffed at the idea

that there could be a secular purpose in having sectarian or proselytizing

prayers, see Santa Fe 1.S.D., 168 F.3d at 816-17, states have an interest in

having a nondiscriminatory policy that does not restrict the content of

prayers.

12

invocations before football games, such as promoting honest

and fair play in an otherwise rough and dangerous sport,

encouraging clean competition and team work, and striving for

individual excellence. See Santa Fe LS.D., 168 F.3d at 835

(Jolly, J., dissenting). Indeed, these are values that public

schools seek to instill in students on a daily basis.

The Fifth Circuit’s condemnation of Santa Fe’s football

policy underscores the majority’s basic misunderstanding of

prior Supreme Court authority. The content of the speech is

not the focus of the Court’s inquiry. Instead, it is whether

school officials neutrally accommodate all speech in a

nondiscriminatory fashion. The first paragraph of the Santa Fe

football policy achieves exactly that. The policy does not

require a prayer at all, but allows students to determine

whether “to deliver a brief invocation and/or message.”

Petition for Writ of Certiorari at 4, App. F, Santa Fe 1.S.D. v.

Doe, (U.S. July 6, 1999) (No. 99-62). The Fifth Circuit erred

here, and this Court should hold that the policy is

constitutional.

II. THis CASE REQUIRES REVIEW TO RESOLVE A SPLIT IN

THE CIRCUITS ON THIS IMPORTANT ISSUE.

Since the petition for certiorari was filed in this case, the

Eleventh Circuit handed down an opinion that directly

conflicts with the Fifth Circuit’s decision in Santa Fe LS D.

In Chandler v. James, Nos. 97-6898, 97-6953, 1999 WL

493495 (CA11 July 13, 1999), the Eleventh Circuit considered

a district court’s permanent injunction prohibiting vocal prayer

or other devotional speech in schools. Although the injunction

did not prohibit voluntary prayer at school so long as it was

purely private, it did prohibit all public prayer or devotional

speech by students or other private individuals at school or

school-related events, such as in the classroom, at school

assemblies, and at sporting events.

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The Eleventh Circuit vacated the injunction and held that

“genuinely student-initiated religious speech is private speech

endorsing religion” and is “fully protected Ly both the Free

Exercise and the Free Speech Clauses of the Constitution.” /d.

at *6. “*Students do not shed their constitutional rights . . . at

the schoolhouse gate.” Jd. at *6 (quoting Tinker v. Des

Moines Indep. Community Sch. Dist., 393 U.S. 503, 506

(1969)).

In contrast to the Fifth Circuit, the Eleventh Circuit

rejected the argument that the state has a positive duty to

censor student speech if it is religious. Jd at *5. “The

suppression of student-initiated religious speech is neither

necessary to, nor does it achieve, constitutional neutrality

towards religion. For that reason, the on does —

it its suppression.” Jd. Recognizing governmen

— be neutral toward religion, the court found that the

discriminatory suppression of student-initiated religious

speech demonstrates hostility toward religion, not neutrality.

Id. at *6. The court concluded that permitting students to

engage in religious speech signifies neither state approval nor

disapproval of that speech. /d."°

'© Interestingly, the parties in Chandler did not contest a ruling

by the district court that declared unconstitutional an Alabama statute that,

like the ruling of the Fifth Circuit in this case, discriminated against

student-initiated prayers that are proselytizing and sectarian. Chandler v.

James, 958 F.Supp. 1550, 1559-62 (M.D. Ala. 1997), aff'd in part and

vacated in part, Nos. 97-6898, 97-6953, 1999 WL 493495 (CAI July 13,

1999). The district court concluded: “The Alabama legislature has defined

its public school students’ free speech and prayer rights too narrowly. To

the extent that students’ free speech rights attach, they are free to engage

in sectarian, proselytizing religious speech.” Jd. at 1560 (emphasis in

original); see also Ingebretson v. Jackson Pub. Sch. Dist., 88 F.3d 274, 278

(CAS), cert. denied, 519 U.S. 965 (1996) (holding unconstitutional

Mississippi statute allowing nonsectarian, nonproselytizing student-

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In reaching its decision, the Eleventh Circuit addressed a

fundamental question that was glossed over by the Fifth

Circuit: who is the state actor? Is it the student? Is the

student speech attributable to the state?

Answering these questions in the negative, the Eleventh

Circuit correctly noted that the government must remain

neutral and play no role in the speech; the fact that the speech

is permitted does not run afoul of the First Amendment.

Unless the school is using the student as a “surrogate” or is

commanding the speech, there is no state action. “Religious

speech by students does not become forbidden ‘state action’

the moment the students walk through the schoolhouse door.”

Chandler, 1999 WL 493495, at *6.

The Fifth Circuit’s decision, however, implicitly assumes

that students are somehow transformed into state actors.'” This

astonishing conclusion conflicts with this Court’s established

initiated prayer at school events and observing that the statute would

“inevitably . . . force” the state “to decide who prays and which prayers

qualify as nonsectarian and nonproselytizing”).

” In Adler v. Duval County School Board, 174 F.3d 1236, 1251

(CAI! 1999), reh'g en banc granted and opinion vacated, 1999 WL

354889 (CA11 June 3, 1999), the Eleventh Circuit panel held that a school

policy allowing unrestricted student-initiated “messages” at ihe beginning

and end of high school graduation ceremonies violated the Establishment

Clause. Unlike the Fifth Circuit, the Adler court explicitly relied on its ~

determination that students became state actors because the school

delegated one portion of the ceremony to students. /d. at 1246-47. The

Eleventh Circuit apparently has reconsidered this conclusion and has

granted the petition for rehearing and vacated this opinion. Although the

Fifth Circuit never says so directly, it apparently reached the same

conclusion as the panel in Adler, as it revealed in a footnote stating that

student-led graduation prayers “do not constitute private speech.” Santa

Fe 1S.D., 168 F.3d at 821 n.12.

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First Amendment precedent, as well as the Eleventh Circuit's

decision in Chandler.

The issues addressed in these cases touch on some of our

most treasured and profound rights. As noted in the petition

for certiorari, other circuits have grappled with these issues

and will continue to do so. Guidance from the Court is

necessary.

CONCLUSION

For these reasons, amici respectfully request that the Court

grant the petition for writ of certiorari.

Respectfully submitted,

JOHN CORNYN

Attorney General of Texas

ANDY TAYLOR

First Assistant Attorney General

LINDA S. EADS

Deputy Attorney General for Litigation

GREGORY S. COLEMAN

Solicitor General

JULIE CARUTHERS PARSLEY

Deputy Solicitor General

Counsel of Record

MEREDITH B. PARENTI

Assistant Solicitor General

P.O. Box 12548 (MC 059)

Austin, TX 78711-2548

(512) 936-1896

COUNSEL FOR AMICI

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