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

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0320%3A06

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2000
- **Citation:** 530 U.S. 290

## Text

Supreme Cauxk, HEEL
| FIDE
\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.

15

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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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0320%3A06. Public record. Not legal advice.