Petitioners Brief — Santa Fe Independent School Dist. v. Doe

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SANTA FE INDEPENDENT SCHOOL DISTRICT A

Petitioner,

vs.

JANE DOE, individually and as next friend for her minor

children Jane and John Doe, Minor Children; JANE DOE #2,

individually and as next friend for her minor child, John Doe,

Minor Child; and JOHN DOE, individually,

Respondents.

On Writ of Certiorari to the United States

Court of Appeals for the Fifth Circuit

BRIEF FOR PETITIONER

JOHN G. STEPANOVICH JAY ALAN SEKULOW*

THOMAS P. MONAGHAN COLBY M. MAY

STUART J. ROTH JAMES M. HENDERSON, SR.

JOHN P. TUSKEY MARK N. TROOBNICK

JOEL H. THORNTON WALTER M. WEBER

DAVID A. CORTMAN AMERICAN CENTER FOR

AMERICAN CENTER FOR LAW & JUSTICE

LAW & JUSTICE Suite 609

1000 Regent Univ. Drive 1000 Thomas Jefferson St., NW

Virginia Beach, VA 23464 Washington, DC 20007

(757) 226-2489 (202) 337-2273

KELLY SHACKELFORD PAUL D. CLEMENT

509 Cutter Lane KING & SPALDING

Allen, TX 75013 1730 Pennsylvania Ave., NW

(972) 423-8889 Washington, DC 20006

*Counsel of Record

DEC 2 9 1999

OFFICE OF THE CLERK

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PARTIES

All of the parties to the proceeding in the Court of Appeals

are listed in the caption. Petitioner Santa Fe Independent

School District is a public school district in Galveston County,

Texas. The respondents are individuals suing pseudonymously.

Their true names have been listed on a separate document filed

under seal with the Court.

There are no parent or subsidiary corporations required to be

disclosed under Rule 29.6.

TABLE OF CONTENTS

Page

QUESTION PRESENTED. ...........cccccccecceeees i

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TABLE GP ALTTROOII EES occ ccc ccc cccccccccces Vv

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CONSTITUTIONAL PROVISIONS & POLICY ........ l

STATEMENT OF THE CASE .............0sceeeees 2

SUMMARY OF ARGUMENT ..............-.5555: 12

I. THIS CASE PRESENTS A FACIAL CHALLENGE

TO SANTA FE’S POLICY PERMITTING

STUDENT SPEECH AT FOOTBALL GAMES .... 16

Il. THE SANTA FE FOOTBALL POLICY DOES

NOT VIOLATE THE ESTABLISHMENT

eh. eS ee oss webe whe beeececesec 18

A. Asa Neutral Policy that Permits Secular or

Religious Speech Only as a Consequence of the

Independent, Intervening Choices of Individual

Students, the Santa Fe Football Policy Does Not

Violate the Establishment Clause ............. 18

B. Asa Neutral Policy that Permits Secular or

Religious Speech Only as a Consequence of the

Independent, Intervening Choices of Individual

Students, the Santa Fe Football Policy Passes

EEE ccdccacepedencesscceseecene 22

1. The Santa Fe Football Policy Has an Explicit

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(iii)

2. The Santa Fe Football Policy’s Neutrality

and the Critical Intervening Roles of

Students Ensure that the Policy Does Not

Have the Primary Effect of Advancing

Gs weccccvecesecaseseancssnnecas 28

3. The Santa Fe Football Policy Avoids, Rather

Than Engenders, Excessive Entanglement . . . 31

C. Asa Neutral Policy that Permits Secular or

Religious Speech Only as a Consequence of the

Independent, Intervening Choices of Individual

Students, the Santa Fe Football Policy Neither

Endorses Religion Nor Coerces Religious

a ans 34

1. The Santa Fe Football Policy Does Not

Dd vcedeeccdediceccccces 35

2. The Santa Fe Football Policy Does Not

Coerce Participation in Religious

Ill. TO INVALIDATE THE MERE ALLOWANCE OF

STUDENT SPEECH ON THE BASIS THAT THE

STUDENT’S SPEECH COULD BE RELIGIOUS

WOULD AFFIRMATIVELY CAUSE

CONSTITUTIONAL DIFFICULTIES............ 44

Re, TRB CD ocecccdntcccccéccces 45

B. The Free Exercise Clause ..................: 46

me |) (+ rrr 47

CUE cahudcded once dviececeneeenesaeser 48

TABLE OF AUTHORITIES

Cases Page

Agostini v. Felton, 521 U.S. 203 (1997) .......... passim

Board of Educ. v. Allen, 392 U.S. 236 (1968) .......... 31

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

Bowen v. Kendrick, 487 U.S. 589 (1988)... .. 16, 17, 24, 26

Capitol Square Review & Advisory Bd. v. Pinette,

ee ee SE veddbu dbus ctévebentens passim

Church of the Lukumi Babalu Aye v. City of Hialeah,

Ee ceedecdbusoesedececcxes 46, 47

Committee for Public Educ. & Religious Liberty v.

Regan, 444 U.S. 646 (1980)... 2.2.0.6... eee eee 33

Corporation of Presiding Bishop v. Amos,

I 23, 24, 32

County of Allegheny v. ACLU, 492 U.S. 573 (1989) . . 33, 35

Doe v. Santa Fe Indep. Sch. Dist., 168 F.3d 806

MSS hectic ckcvdenesvensuds 1, 5, 8, 9, 16

Doe v. Santa Fe Indep. Sch. Dist., 171 F.3d 1013

i Ci ccokeacsuehbeeveb basen. 1,11, 12

Doe v. Santa Fe Indep. Sch. Dist., 933 F Supp. 647

te an in iid ee ieee ee cenecet l

Edwards v. Aguillard, 482 U.S. 578 (1987). ........... 16

Employment Div. v. Smith, 494 U.S. 872 (1990) ........ 46

Everson v. Board of Educ., 330 U.S. 1 (1947) ....... 19, 47

Hunt v. McNair, 413 U.S. 734 (1973) ................ 23

Jones v. Clear Creek Indep. Sch. Dist., 977 F.2d 963 (Sth

Cir. 1992). cert. denied, 508 U.S. 967 (1993) ... passim

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

Dist., 508 U.S. 384 (1993) .......... 13, 19, 23, 45, 46

Lee v. ISKCON, 505 U.S. 830 (1992) ................ 43

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

(v)

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

Lynch v. Donnelly, 465 U.S. 668 (1984) ........... 24, 26

McDaniel v. Paty, 435 U.S. 618 (1978) ............ 46, 47

Mueller v. Allen, 463 U.S. 388 (1983) .... 13, 20, 24, 35, 36

Roemer v. Board of Public Works, 426 U.S. 736 (1976) . . 16

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

Fee Dh ou 60 badbaeesevesdeest< passim

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

CE TE Ee 15, 43

United States v. Salerno, 481 U.S. 739 (1987) ... 12, 16,17

Wallace v. Jaffree, 472 U.S. 38 (1985) ...... 25-27, 36, 37

Walz v. Tax Comm'n, 397 U.S. 664 (1970) ......... 32, 33

Widmar v. Vincent, 454 U.S. 263 (1981) .......... passim

Wisconsin v. Yoder, 406 U.S. 205 (1972) ............. 42

Witters v. Washington Dep't of Servs. for the Blind,

474 U.S. 481 (1986) ............ 13, 20, 21, 28, 35, 36

Wolman v. Walter, 433 U.S. 229 (1977) ..........645. 24

Zobrest v. Catalina Foothills Sch. Dist.,

Sy SEN 55h cetinhbasdoeeesdace 13, 20, 31

Zorach v. Clauson, 343 U.S. 306 (1952). .......... 39, 44

Constitutional and Statutory Provisions

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(vi)

- — . a ——

DECISIONS BELOW

The opinion of the U.S. Court of Appeals for the Fifth

Circuit is reported as Doe v. Santa Fe Indep. Sch. Dist., 168

F.3d 806 (Sth Cir. 1999). The Fifth Circuit’s denial of

rehearing and rehearing en banc, and the dissent therefrom, are

reported at 171 F.3d 1013 (Sth Cir. 1999). The pertinent orders

of the District Court are unreported. See JA 28 (dkt. 4), 41(dkt.

13), 42 (dkt. 16); Pet. App. at El (dkt. 29), D1 (dkt. 66).' A

published decision of the District Court on confidentiality

matters appears as Doe v. Santa Fe Indep. Sch. Dist., 933 F.

Supp. 647 (S.D. Tex. 1996).

JURISDICTION

The U.S. Court of Appeals for the Fifth Circuit rendered its

panel decision on February 26, 1999, and denied a timely

petition for rehearing and rehearing en banc on April 7, 1999.

Petitioner timely filed its petition for a writ of certiorari on July

2, 1999. This Court granted the petition on November 15,

1999. This Court has jurisdiction under 28 U.S.C. § 1254(1).

CONSTITUTIONAL PROVISIONS AND POLICY

The pertinent part of the First Amendment to the U.S.

Constitution is as follows:

“JA” means Joint Appendix, “dkt.” refers to the District Court

docket number, and “Pet. App.” means the Appendix to the Petition for

Certiorari. Other abbreviations used herein include “Pet.” for the Petition

for Writ of Certiorari and “Tr.” for a hearing transcript (e.g., Tr. 11/3/95

means “transcript of the hearing held on Nov. 3, 1995”).

(1)

Congress shall make no law respecting an establishment of

religion, or prohibiting the free exercise thereof, or

abridging the freedom of speech . . . .

U.S. Const. amend. I.

The first section of the Fourteenth Amendment to the U.S.

Constitution provides as follows:

No State shall make or enforce any law which shall abridge

the privileges or immunities of citizens of the United States;

nor shall any State deprive any person of life, liberty, or

property, without due process of law; nor deny to any

person within its jurisdiction the equal protection of the

laws.

U.S. Const. amend. XIV, § 1.

The school district policy governing pre-game ceremonies

at football games is set forth in its entirety in the Appendix to

the Petition, Pet. App. at F1-F2, and in relevant part below.

STATEMENT OF THE CASE

In October 1995, the Santa Fe Independent School District

(“Santa Fe”) adopted the contested policy, entitled Pre-Game

Ceremonies at Football Games (“Football Policy”). The

Football Policy provides as follows:

PRE-GAME CEREMONIES AT FOOTBALL GAMES

The board has chosen to permit students to deliver a brief

invocation and/or message to be delivered during the pre-

game ceremonies of home varsity football games to solem-

nize the event, to promote good sportsmanship and student

safety, and to establish the appropriate environment for the

competition.

Upon advice and direction of the high school principal,

each spring, the high school student council shall conduct

an election, by the high school student body, by secret

ballot, to determine whether such a statement or invocation

will be a part of the pre-game ceremonies and if so, shall

elect a student, from a list of student volunteers, to deliver

the statement or invocation. The student volunteer who is

selected by his or her classmates may decide what message

and/or invocation to deliver, consistent with the goals and

purposes of this policy.

Pet. App. at Fl. The policy goes on to specify that if it “is

enjoined by a court order,” then an identical policy will

automatically take effect, with the following language added:

“Any message and/or invocation delivered by a student must be

nonsectarian and nonproselytizing.” Jd. at F1-F2.

The school district adopted the Football Policy pursuant to

a District Court order in the present litigation. See JA 32

(Interim Order, May 10, 1995); Tr. 8/4/95 at 12, 48; JA 42

(Interim Order Pertaining to Prayer at Football Games, Aug. 17,

1995). The school district initially adopted an “invocation-

only” policy in accordance with the District Court’s directive

and the governing Fifth Circuit precedent which allows for a

prayer-only policy. Jones v. Clear Creek Indep. Sch. Dist.,977

F.2d 963 (Sth Cir. 1992), cert. denied, 508 U.S. 967 (1993). JA

99-101. Jones v. Clear Creek upheld a policy permitting

nonsectarian, non-proselytizing, student-initiated, student-led

invocations at graduation ceremonies. /d. Thus, under Jones

v. Clear Creek, a school district may adopt an “invocation-

only” policy that permits students to vote to have a student-led

invocation.

Shortly thereafter, however, the school district revised and

expanded its policy to the current Football Policy, which

permits students to deliver both “invocations” and “messages.”

Pet. App. at F1; JA 103-05. This current Football Policy was

reviewed in the courts below, see infra pp. 11-12, and is now

before this Court.

Respondents - plaintiffs in the District Court - are two

parents and four students, all suing pseudonymously. JA 43-44.

When the complaint was filed in April of 1995, the students

attended schools in Santa Fe Independent School District. JA

1, 44.2 Respondents brought suit under 42 U.S.C. §1983

challenging various incidents and practices in the public

schools that were alleged to violate the Establishment Clause of

the First Amendment. JA 15-27 (Complaint).

?At that time, one of the plaintiffs was a high school student and

an adult, JA 44 (Stipulations), who presumably has since graduated. One

of the minor plaintiffs was in seventh grade in 1993, JA 57, and presumably

has also graduated. Another of the minor plaintiffs was in third grade in

May of 1994, JA 59, and is now presumably in ninth grade. The final

minor plaintiff was in third grade in the 1994-95 school year, see JA 60; Tr.

7/25/96 at 79-80, 183-84, and is now presumably in eighth grade.

Among the matters respondents challenged in their

complaint was Santa Fe’s allowance of student-led prayers at

football games. JA 24. Respondents broadly requested

injunctive relief against “the religious acts, customs, policies,

and practices set forth” in the complaint. JA 25.°

In addition, respondents challenged Santa Fe’s allowance

of prayer at graduation ceremonies. JA 19-20. Although Santa

Fe’s commencement policy is not before this Court, the

conditions imposed by the District Court on the commencement

policy were later incorporated into its order governing Santa

Fe’s football policy. JA 42. Respondents sought immediate

relief with respect to the upcoming commencement exercises.

In light of the approaching graduation date, the District Court

promptly held a hearing on respondents’ motion for temporary

injunctive relief. Dkt. 3,6. The District Court then issued an

Interim Order, JA 28 (dkt. 4), allowing student invocations

based on the Jones v. Clear Creek model.

In particular, the District Court allowed Santa Fe to permit

a “non-denominational,” “non-proselytizing” “invocation

and/or benediction” at the upcoming (1995) graduation

ceremony. JA 31-32. The District Court specifically required

that the students would first determine, by secret ballot held

outside business hours, which student would speak as part of

*The complaint also attacked certain specific incidents of alleged

misconduct by school officials. JA 21-24. The District Court concluded

after trial that Santa Fe had already taken appropriate remedial steps

regarding these incidents and that the respondents had demonstrated neither

compensable injury nor legal liability on the part of Santa Fe. Pet. App. at

D14, D15, D17. The Fifth Circuit affirmed the denial of monetary

damages, 168 F.3d at 824, and respondents did not cross-petition for review.

in this Court.

the ceremonies. The District Court also specified that the

students would have exclusive responsibility for the

“mechanics of the election,” and no campaigning would be

allowed on school property. Next, the Court ordered that Santa

Fe would have no “substantive input into this process

whatsoever” and limited the school’s involvement to

“maintain[ing] order, and to provid[ing] for the reasonable

safety and security of the proceedings.” Finally, the District

Court ordered that the selected students would prepare the text

themselves and the school district would have no power of

scrutiny or pre-approval over the texts. JA 31-32.

The District Court further ordered Santa Fe to

establish or clarify existing policies to deal with either

banning all prayer, or firmly establishing reasonable

guidelines to allow nonsectarian and non-proselytizing

prayer at all relevant school functions.

JA 32.*

At that time, Santa Fe had no formal policy specifically

addressing prayers at football games. The practice had been for

a “student council chaplain” to say a prayer over the public

address system before varsity home football games. JA 64.

‘The District Court repeatedly expressed its discomfort with the

content limitations on student speech entailed in the “nonsectarian, non-

proselytizing” requirement, but declared itself bound by Fifth Circuit

precedent, namely, Jones v. Clear Creek. See Tr. 8/4/95 at 3-5; Tr. 11/3/95

at 11-12.

At a subsequent hearing on August 4, 1995, the District

Court addressed the particular question of prayers at football

games. Tr. 8/4/95. The District Court directed the parties to

submit to me a joint proposed order to allow a Jones

sanctioned type order before football games. ... I want an

order that will allow a Jones type -- in other words, non-

proselytizing/nonsectarian prayer to solemnize and dignify

the football game. And let me have that within ten days.

Id. at 48.°

On August 17, 1995, the District Court accordingly entered

an Interim Order Pertaining to Prayer at Football Games. JA

42. This order incorporated the key elements of the District

Court’s previous order regarding commencement exercises.

The order provided in pertinent part as follows:

It is hereby ORDERED:

The District’s school board may permit the students at

the District’s high school to vote to include a pre-game

prayer at varsity home football games and to select a

student volunteer to deliver the prayer. All high school

students may participate in the selection process if they so

choose; however, the selection procedures previously

outlined by the Court in its May 10, 1995 order concerning

prayer at graduation must be followed. The pre-game

*The District Court further directed that “by October the 13th, the

defendant [Santa Fe] will finalize a unified First Amendment religion

expression policy addressing all issues . . . set out in this case.” Tr. 8/4/95

at 56.

prayer delivered by the volunteer student must be

nonsectarian and nonproselytizing. See Jones v. Clear

Creek Indep. School Dist., 97{7] F.2d 963 (Sth Cir. 1992),

cert. denied, 113 S.Ct. 2950 (1993).

JA 42.

In response to this order, Santa Fe initially adopted a Jones

v. Clear Creek-type policy governing “Prayer at Football

Games.” JA 99-101. Santa Fe’s interim policy - allowing

student-led, student-initiated prayer, but specifying that the

selected student deliver an invocation - complied with the

District Court’s direction (at least in its “back-up” form).°

Nonetheless, Santa Fe was not satisfied with a football

policy that limited student speech to an “invocation.” As a

result, Santa Fe adopted a new policy, entitled “Pre-Game

Ceremonies at Football Games,” to permit students to deliver

speeches that need not be in any way religious. JA 104 (“brief

invocation and/or message,” “statement or invocation”). This

policy was adopted in October of 1995. See Doe v. Santa Fe

Indep. Sch. Dist., 168 F.3d 806, 812 (Sth Cir. 1999); dkt. 20 at

14 n.5; Tr. 11/3/95 at 11. This is the current Football Policy,

see Pet. App. at F1-F2, which is at issue before this Court.

*Employing the model used in its new graduation policy, Tr. 8/4/95

at 5-6, Santa Fe adopted a “back-up policy” approach. Under this approach,

the policy was set forth without the problematic “nonsectarian,

nonproselytizing” restrictions on student speech; however, in the event a

court invalidated that policy, a back-up policy containing the “nonsectarian,

nonproselytizing” requirement would automatically take effect. JA 100-01.

Under the current Football Policy, Santa Fe students have

sole authority over pre-game messages. Each spring, Santa Fe

students vote, first, “whether such a statement or invocation

will be part of the pre-game ceremonies.” Pet. App. at Fl. If

the vote is affirmative, any student can volunteer to deliver the

“statement or invocation.” Jd. Students then vote, in a second

election, to select which student, from the list of volunteers,

will give the “statement or invocation.” /d. At that point,

[t]he student volunteer who is selected by his or her

classmates may decide what message and/or invocation to

deliver, consistent with the goals and purposes of this

policy.

Id. As with the predecessor policy, tre new Football Policy

included a back-up provision. /d. at F1-F2.

There is no record evidence concerning the actual

operation of the policy, the results of any student votes, or the

content of any messages or invocations given at football games

under the current Football Policy at issue here. See 168 F.3d at

810 n.3.’ Nonetheless, the Football Policy, on its face, makes

clear that decisions whether to have a student speaker and the

content of any student messages or invocations rest with the

students.* In addition, further insights about the operation of

’The stipulations contained in the Joint Appendix, JA 65-66

(Stipulations 129-31), refer to events predating the October 1995 Football

Policy and relate instead to the Jones v. Clear Creek-type pre-game football

policy that was only in effect from August to October 1995.

*The school district has no control over the content of the student

speaker’s “message and/or invocation.” See JA 32 (Interim Order of May

(continued...)

the current policy come from the District Court’s orders, with

which the policy was designed to comply.

When the policy is read in conjunction with the District

Court’s orders, the following aspects of its operation become

clear, JA 31-32, 42, 104-05:

@ students first determine, by secret ballot held outside

business hours, whether or not to include a student

speaker as part of the ceremonies, JA 31;

@ ifthe vote is in favor of having a student speaker, the

students vote again, by secret ballot held outside

business hours, to select who will speak at the

ceremonies, JA 104;

@ students have exclusive responsibility for the

“mechanics of the election,” with Santa Fe providing

*(...continued)

10, 1995); JA 42 (order of August 17, 1995 incorporating Interim Order of

May 10, 1995); Tr. 5/10/96 at 9 (District Court: “the kids can use anybody

they want, to say anything they want”). Indeed, Santa Fe has consistently

maintained that it has ceded all content control to the student speaker. See,

e.g., Defendants’ Motion for Summary Judgment (dkt. 20) at 14 (“the

policy prevents school officials from dictating the content of any student

statement or prayer”); Brief of Appellant at 21 (policy “allows amy

statement, message, or prayer that achieves the goal of the policy”); Reply

Brief of Appellant/Cross-Appellee Santa Fe Independent School District at

8 (“The pre-game ceremony policy removes any school officials from the

decisions of whether a message will be given, whether thai message will be

secular or prayerful, or what the actual content of the message or invocation

will be”); Pet. at 18 (the pre-game policy “prohibits school officials from

controlling the content of student speech if the students choose to take

advantage of the opportunity offered”).

no “substantive input into this process whatsoever,” JA

31;

@ school officials’ involvement is limited to

“maintain{ing] order, and to provid{ing] for the

reasonable safety and security of the proceedings,” JA

31-32;

@ no campaigning is allowed on school property, JA 31;

@ any student volunteer who is selected by his or her

classmates may decide what message and/or invocation

to deliver, consistent with the goals and purposes of

this policy, JA 104;

@ the school district has no power of scrutiny or pre-

approval of the student speakers’ texts, JA 32.

With no record evidence of the current policy’s

application, the District Court addressed the facial

constitutionality of the current Football Policy in its ruling on

summary judgment. Pet. App. at ES. See also id. at E13 n.13

(recognizing that respondents retain the right to challenge the

policy, as applied, in a separate lawsuit). The court held that

the Football Policy as written was unconstitutional, but that the

“back-up” policy containing the “nonsectarian, non-

proselytizing” requirement passed constitutional muster under

the Establishment Clause. Pet. App. at El1-12. The District

Court subsequently “adopted” its summary judgment ruling into

its final order and entered final judgment. Pet. App. at D2,

D19.

The parties filed cross-appeals. JA 11. A divided panel of

the Fifth Circuit held the Football Policy unconstitutional both

as written and in its “back-up” version. 168 F.3d at 822-23.

The Fifth Circuit denied rehearing and, over seven dissenting

votes, denied rehearing en banc. Pet. App. at C1. This Court

then granted certiorari limited to the following question:

“Whether petitioner’s policy permitting student-led, student-

initiated prayer at football games violates the Establishment

Clause.”

SUMMARY OF ARGUMENT

“(There is a crucial difference between government speech

endorsing religion, which the Establishment Clause forbids, and

private speech endorsing religion, which the Free Speech and

Free Exercise Clauses protect.” Board of Educ. v. Mergens,

496 U.S. 226, 250 (1990) (plurality) (emphasis in original).

Santa Fe’s Football Policy simply permits private speech by

students.

Respondents bring a facial challenge to the Football Policy.

That challenge cannot succeed absent a showing that under “no

set of circumstances” the policy would pass constitutional

muster. United States v. Salerno, 481 U.S. 739, 745 (1987).

Respondents cannot make such a showing.

As a neutral policy that permits secular or religious speech

only as aconsequence of the independent, intervening decisions

of individual students, the Football Policy clearly satisfies

Establishment Clause analysis. This Court has repeatedly held

that neutrality and deference to private decisionmakers are key

elements of a constitutionally permissible program. Neutrality

ensures that the government neither favors nor disfavors

religion, while deference to private choice ensures that

government neither establishes a religious view itself nor

suppresses the religious freedom of private citizens.

Pursuit of this middle course - fostering private liberty

while maintaining governmental neutrality - characterizes

numerous decisions of this Court. Eg , Widmar v. Vincent, 454

U.S. 263 (1981) (neutral accommodation of college student

speech); Mueller v. Allen, 463 U.S. 388 (1983) (neutral tax

deduction for education expenses); Witters v. Washington

Dep't. of Servs. for the Blind, 474 U.S. 481 (1986) (neutral

provision of educational grants); Board of Educ. v. Mergens,

496 U.S. 226 (1990) (neutral protection for high school student

clubs); Lamb's Chapel v. Center Moriches Union Free Sch.

Dist., 508 U.S. 384 (1993) (neutral access to school facilities);

Zobrest v. Catalina Foothills Sch. Dist., 509 U.S. 1 (1993)

(neutral provision of services to disabled students);

Rosenberger v. Rector & Visitors of Univ. of Virginia, 515 U.S.

819 (1995) (neutral access to student fees); Agostini v. Felton,

521 U.S. 203 (1997) (neutral provision of remedial education).

This “middle course” properly respects the twin guarantees

of the Establishment and Free Exercise Clauses of the First

Amendment. The Football Policy embraces this “middle

course” and easily satisfies the various tests this Court has

employed in its Establishment Clause analysis.

The Football Policy satisfies the purpose, effect, and

entanglement inquiries of Lemon v. Kurtzman, 403 U.S. 602

(1971). ‘he Football Policy reflects a number of legitimate

secular purposes. It was adopted in response to a court order.

It fosters the free expression of private persons, a purpose this

Court approved in Widmar. And it serves a number of other

explicitly stated secular purposes as well - solemnizing sporting

events, promoting good sportsmanship and student safety, and

establishing an appropriate environment for competition. Pet.

App. at F1.

The primary effect of the Football Policy is to achieve the

secular purposes identified above. Any religious speech that

takes place under the policy will result only from the

independent, intervening choices of students and ultimately the

individual student speaker. Had the school district desired that

students offer only invocations, it simply could have followed

the District Court’s direction to that effect under governing

Fifth Circuit precedent. Instead, the school district chose a

broader, neutral course in which students could present a

message or invocation.

Santa Fe’s Football Policy is the antithesis of excessive

entanglement. By embracing a “hands-off” approach, the

school district avoided any role as censor or monitor of

religious or secular student speech.

Under the “endorsement” test, it is clear that the

reasonable, informed observer would perceive no improper

endorsement of religion. Any religious speech a student utters

at a pre-game ceremony will result from that student’s private

choice, not from governmental intervention. Indeed, the

students will have been involved in the very process of

deciding, first, whether there would be a pre-game speech at all,

and second, which volunteer speaker would be chosen to

compose and deliver a message or invocation. These students

therefore will be personally aware of the neutrality of the policy

and the student-initiated, student-composed nature of any

speech delivered.

Finally, there is no unconstitutional government “coercion”

here. Unlike Lee v. Weisman, 505 U.S. 577 (1992), where

school officials decided that there would be a prayer, who

would give the prayer, and what its contents would be, id. at

587-88, Santa Fe exercises no control over whether there would

be a message or invocation, who would deliver it, and what its

contents would be. Pet. App. at Fl. These key features of

student choice and neutrality preclude any state coercion.

While some students may object to hearing a secular or

religious message they disagree with, the Establishment Clause

creates no affirmative right to silence student speech. Indeed,

cases like Rosenberger, Mergens, and Tinker v. Des Moines

Indep. Comm. Sch. Dist., 393 U.S. 503 (1969), presuppose that

students will encounter speech from classmates with which they

may not agree.

Respondents’ contrary position - that allowing student

speech violates the Establishment Clause because that speech

might be religious - is meritless. Furthermore, adoption of

respondents’ contention would impose an affirmative duty on

school officials to censor student religious speech in contexts

where student secular speech is allowed. Such censorship

would raise a host of constitutional difficulties under the Free

Speech, Free Exercise, and Establishment Clauses of the First

Amendment.

ARGUMENT

Il. THIS CASE PRESENTS A FACIAL CHALLENGE

TO SANTA FE’S POLICY PERMITTING STUDENT

SPEECH AT FOOTBALL GAMES.

The Football Policy at issue here was enacted during the

pendency of the litigation and in response to court orders

mandating the parameters of that policy. Respondents

presented no evidence concerning the actual operation of the

Footbal! Policy. Doe v. Santa Fe Indep. Sch. Dist., 168 F.3d

806, 810 n.3 (Sth Cir. 1999) (“the record contains no examples

of the football game prayers”). Therefore, this case presents

only a facial challenge to the Football Policy. See Bowen vy.

Kendrick, 487 U.S. 589, 600 (1988) (explaining that in

Edwards v. Aguillard, 482 U.S. 578, 581 n.1 (1987), “it was

clear that only a facial challenge could have been considered,

as the Act had not yet been implemented”). See also Pet. App.

at E13 n.13 (District Court noted in its final order that

respondents remain free to challenge the school district’s

policies, as applied, in a separate lawsuit).

“A facial challenge” to a statute, ordinance, or policy “is,

of course, the most difficult challenge to mount successfully,

since the challenger must establish that no set of circumstances

exists under which the Act [or policy] would be valid.” United

States v. Salerno, 481 U.S. 739, 745 (1987). “It has not been

the Court’s practice, in considering facial challenges to statutes

. . . , to strike them down in anticipation that particular

applications may result in unconstitutional [government

actions].” Bowen v. Kendrick, 487 U.S. at 612 (quoting Roemer

v. Board of Public Works, 426 U.S. 736, 761 (1976)

(plurality).

For respondents to prevail on their facial challenge, they

would have to show that Santa Fe’s Football Policy allowing “a

statement or invocation” would be unconstitutional even if, for

example, the student body always voted not to have any student

message, or even if on each occasion the student speaker simply

chose to deliver a secular message, such as a tribute to Walter

Payton. Santa Fe’s Football Policy cannot be invalidated on the

basis of some “possibility or even likelihood” of an

unconstitutional application. Bowen, 487 U.S. at 613. Accord

id. at 623 (O’Connor, J., concurring) (facial challenge must be

rejected where statute “need not result in constitutional

violations, despite an undeniably greater risk than is present in

[other contexts]”). “The fact that the [policy] might operate

unconstitutionally under some conceivable set of circumstances

is insufficient to render it wholly invalid.” Salerno, 481 U.S.

at 745.

As established herein, respondents “have failed to shoulder

their heavy burden to demonstrate that the [policy] is ‘facially’

unconstitutional.” Jd On the contrary, the Santa Fe Football

Policy easily passes facial constitutional muster.

Il. THE SANTA FE FOOTBALL POLICY DOES NOT

VIOLATE THE ESTABLISHMENT CLAUSE.

A. As a Neutral Policy that Permits Secular or

Religious Speech Only as a Consequence of the

Independent, Intervening Choices of Individual

Students, the Santa Fe Football Policy Does Not

Violate the Establishment Clause.

The Santa Fe Football Policy combines two features which

together ensure that the program does not run afoul of the

Establishment Clause. First, the Football Policy is neutral as

between secular and religious speech. By its express terms, the

Football Policy “permit[s] students to deliver a brief invocation

and/or message.” The Football Policy does not favor

invocations Over messages or vice-versa. The choice is left to

the student.

Second, and equally important, the Football Policy does

not permit uny religious speech to take place absent the

independent, intervening choices of individual students.

Indeed, the Football Policy permits student-led, student-

initiated, secular or religious speech only after a series of

independent student choices. Initially, students must choose

whether to have a speaker. (Students do not vote whether to

have a prayer.) If the students vote to have such a speaker,

individual students must then choose to volunteer to deliver the

pre-game speech. Next, the student body must choose by vote

which student volunteer will speak. Finally, that individual

student speaker must choose what message to give. Religious

speech will occur, if at all, only as a result of multiple

independent, intervening decisions of students.

This Court’s religion cases uniformly have stressed the

importance of government neutrality toward religion. The

neutrality principle has played a role in almost every effort to

interpret the Establishment Clause and to reconcile it with the

Free Exercise and Free Speech Clauses of the First

Amendment. See, e.g., Everson v. Board of Educ., 330 U.S. 1

(1947); Agostini v. Felton, 521 U.S. 203 (1997).

More recently, in the context of student speech, this Court

has emphasized that a policy of “neutrality” in no way requires

or justifies the exclusion of religious speakers or religious

topics. A neutral policy that puts religious speech on an equal

footing with other speech does not violate the Establishment

Clause. Indeed, this Court repeatedly has held that a public

school that opens its facilities to secular groups and speakers,

not only may, but must, offer those facilities to religious groups

and speakers on an equal basis. See, e.g., Lamb’s Chapel v.

Center Moriches Union Free Sch. Dist., 508 U.S. 384 (1993):

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

Vincent, 454 U.S. 263 (1981). By treating secular and religious

speech equally, the government ensures that “the message is

one of neutrality rather than endorsement.” Mergens, 496 U.S.

at 248 (plurality).

In addition to neutrality, this Court consistently has

emphasized the distinction between direct government

involvement in religious speech and government toleration of

religious expression that results from the independent,

intervening choices of individuals. Speech that is student-led

and student-initiated results from the individual speaker’s

choices. The message does not flow from the government. As

Mergens recognized, “there is a crucial distinction between

government speech endorsing religion, which the Establishment

Clause forbids, and private speech endorsing religion, which

the Free Speech and Free Exercise Clauses protect.” 496 U.S.

at 250 (plurality) (emphasis in original).

This Court also has recognized the importance of

independent, intervening choices in other Establishment Clause

contexts. In Mueller v. Allen, 463 U.S. 388 (1983), for

example, this Court upheld Minnesota’s tax deduction for

educational expenses, including those incurred at sectarian

schools, with the observation that “public funds become

available only as a result of numerous, private choices of

individual parents of school-age children.” Jd at 463.

Likewise, Justice Marshall, writing for a unanimous Court in

Witters v. Washington Dep't of Servs. for the Blind, 474 U.S.

481 (1986), emphasized that “[a]ny aid provided under

Washirgton’s program that ultimately flows to religious

institutions does so only as a result of the genuinely

independent and private choices of aid recipients.” /d. at 488;

see also id. at 490-91 (Powell, J., concurring) (underscoring

this point); id. at 493 (O’Connor, J., concurring in part and

concurring in judgment) (same); see also Zobrest v. Catalina

Foothills Sch. Dist., 509 U.S. 1, 12 (1993).

This Court returned to both these themes - neutrality and

the importance of intervening, individual choice - in

Rosenberger v. Rector & Visitors of Univ. of Virginia, 515 U.S.

819 (1995). First, the Court observed that “a significant factor

in upholding governmental programs in the face of an

Establishment Clause attack is their neutrality towards

religion.” /d. at 839. In addition, the Court highlighted the

critical “distinction between the University’s own favored

message and the private speech of students.” /d. at 834. The

majority then applied these principles to conclude that a neutral

policy of reimbursing the printing costs of student magazines,

whose content was entirely the product of student decisions, did

not violate the Establishment Clause.

Although the dissent disagreed with the application of

these principles in a context that arguably involved direct aid to

religious institutions, no member of the Court quarreled with

the importance of these two principles. The dissent recognized

the importance of neutrality or “evenhandedness.” /d. at 877-

79 (Souter, J., dissenting). Likewise, the dissent recognized the

emphasis prior cases had placed on the fact that any attenuated

religious effect was “the result of the genuinely independent

and private choices of aid recipients.”” /d. at 880 (Souter, J.,

dissenting) (quoting Witters, 474 U.S. at 487). The dissent also

emphasized that there must be a “third party standing between

the government and the ultimate religious beneficiary to break

the circuit by its independent discretion.” 515 U.S. at 886

(Souter, J., dissenting).

The Santa Fe Football Policy satisfies these key principles.

The Football Policy, of course, involves no direct aid and so

presents a much easier case than Rosenberger. This is a case of

speech without aid. Nonetheless, even applying the standard of

the dissent in Rosenberger, the “independent discretion” of the

student speaker in deciding whether to give a message or

invocation clearly suffices to “break the circuit” between the

government and any religious content of the student speech. In

addition, the Football Policy’s facial neutrality underscores that

the individual student’s speech is the result of student choice,

not school direction. Pet. App. at F1.

Under these circumstances, especially in the context of a

pre-implementation facial challenge, the Santa Fe Football

Policy does not run afoul of the Establishment Clause. What is

more, the neutrality and important role of individual choice that

characterize the Football Policy make clear that the policy

passes muster under the various tests this Court has employed

to guide its Establishment Clause jurisprudence.

B. As a Neutral Policy that Permits Secular or

Religious Speech Only as a Consequence of the

Independent, Intervening Choices of Individual

Students, the Santa Fe Football Policy Passes the

Lemon Test.

The neutrality and the important role of independent,

intervening choices that characterize Santa Fe’s Football Policy

ensure that it passes all three prongs of the test announced in

Lemon vy. Kurtzman, 403 U.S. 602 (1971). The familiar Lemon

test imposes three requirements:

First, the statute must have a secular legislative purpose;

second, its principal or primary effect must be one that

neither advances nor inhibits religion . . . ; finally, the

statute must not foster “an excessive government

entanglement with religion.”

Id. at 612-13 (citation omitted). This Court has not applied

Lemon with regularity and has most recently suggested that the

entanglement test is best understood “‘as an aspect of the inquiry

into the statute’s effect.” Agostini, 521 U.S. at 233.” In any

event, the Lemon test poses no obstacle to Santa Fe’s Football

Policy.

1. The Santa Fe Football Policy Has an Explicit

Secular Purpose.

The Football Policy serves the secular purpose of

encouraging and accommodating student speech. The desire of

an educational institution to permit student speech itself reflects

a constitutionally sufficient secular purpose. Widmar vy.

Vincent, 454 U.S. 263, 271 & n.10 (1981). Formulation of the

policy also served the pressing secular need to comply with

court orders directing the adoption of such a policy. Here,

Santa Fe went beyond the requirements of the District Court

order permitting a prayer-only policy by ultimately adopting the

policy at issue here, which allows students to deliver a

“message and/or invocation.” By going beyond the demands of

the District Court order and Fifth Circuit precedent and

expressly including secular speech, Santa Fe furthered

indisputably legitimate secular purposes.

The policy’s facial neutrality, permitting both religious

invocations and secular messages, further guarantees a secular

purpose. As this Court has noted, “Lemon’s ‘purpose’

*At times, this Court has referred to the factors enumerated in

Lemon as “no more than helpful signposts.” Hunt v. McNair, 413 U.S. 734,

741 (1973). In other cases, this Court’s analysis has ignored Lemon and its

three-prong test entirely. See, e.g., Rosenberger; Capitol Square Review &

Advisory Bd. v. Pinette, 515 U.S. 753 (1995); but see Lamb's Chapel, 508

U.S. at 395 n.7 (“there is a proper way to inter an established decision and

Lemon, however frightening it might be to some, has not been overruled”).

requirement aims at preventing the relevant government

decisionmaker . . . from abandoning neutrality.” Corporation

of Presiding Bishop v. Amos, 483 U.S. 327, 335 (1987).

The Football Policy also serves the more specific

“legitimate secular purposes of solemnizing public occasions,

expressing confidence in the future, and encouraging the

recognition of what is worthy of appreciation in society,” as

well as fostering an atmosphere of sportsmanship at football

games. Lynch v. Donnelly, 465 U.S. 668, 693 (1984)

(O’Connor, J., concurring). On its face, the Football Policy

articulates the secular purpose for student speech and, by

extension, for the policy as a whole: “to solemnize the event,

to promote good sportsmanship and student safety, and to

establish the appropriate environment for the competition.”

Pet. App. at F1.

Santa Fe’s stated secular purposes ensure that it does not

run afoul of the first prong of Lemon. This Court has stressed

its “reluctance to attribute unconstitutional motives to states,

particularly when a plausible secular purpose for the state’s

program may be discerned from the face of the statute.”

Mueller v. Allen, 463 U.S. 388, 394-95 (1983). What is more,

a challenged provision violates the “purpose” prong of Lemon

“only if it is motivated wholly by an impermissible purpose.”

Bowen v. Kendrick, 487 U.S. at 602 (and cases cited). Indeed,

the Court repeatedly has found a secular purpose even for

programs that failed to comply with another aspect of Lemon.

See, e.g., Wolman v. Walter, 433 U.S. 229, 236 (1977); Lemon,

403 U.S. at 613.

The Football Policy does not direct any student to offer an

invocation. Any religious speech, if it occurs at all, will take

place only as a result of the multiple independent, intervening

choices of individual students. Supra pp. 8-11. This crucial

fact underscores the secular purpose of the policy. The best

proof of these abiding secular purposes is that the Football

Policy’s goals would be satisfied even if not a single student

chooses to deliver a religious invocation. If every student

message is secular, the policy can still achieve its stated goals

“to solemnize the event, to promote good sportsmanship and

student safety, and to establish the appropriate environment for

the competition.” Pet. App. at F1.

Certainly, the express inclusion of invocations among the

permissible forms of student speech does not cast any doubt on

the Football Policy’s secular purposes. To the contrary, the

Football Policy’s express neutrality ensures a secular purpose.

No rule of construction can convert the policy’s express

neutrality into express favoritism.

The Football Policy’s inclusion of invocations among the

permissible forms of student speech reflects the same secular

purpose as the express inclusion of “religious” content among

the forbidden grounds for discriminating against student speech

in the Equal Access Act. See 20 U.S.C. § 4071(a) (forbidding

the denial of equal access “on the basis of the religious,

political, philosophical, or other content of the speech”). The

express inclusion of religious speech in the statute did not

trouble the Court in Mergens. Moreover, the conclusion in

Mergens applies with full force to the Santa Fe Football Policy:

“Because the Act on its face grants equal access to both secular

and religious speech, we think it clear that the Act’s purpose

was not to ““endorse or disapprove of religion.”’” Mergens,

496 U.S. at 249 (quoting Wallace v. Jaffree, 472 U.S. 38, 56

(1985), quoting Lynch v. Donnelly, 465 U.S. 668, 690 (1984)

(O’Connor, J., concurring)). Likewise, this Court upheld the

Adolescent Family Life Act against a facial challenge in Bowen

v. Kendrick, 487 U.S. 589 (1988), despite four separate express

references in the statute to the role of religious organizations in

addressing the problems associated with adolescent sexuality.

See id. at 606-07.

Nothing in Wallace v. Jaffree, 472 U.S. 38 (1985),

undermines the Football Policy’s secular purpose. Indeed, the

Football Policy is in many ways the converse of Wallace. In

Wallace, this Court struck down an Alabama statute that

layered a moment of silence “for meditation or voluntary

prayer’ on top of an existing statute providing for a moment of

silence “for meditation.” 472 U.S. at 59. Although the order of

the two statutes was not dispositive,'° the Court concluded that

the addition of voluntary prayer to an existing baseline of

meditation reflected a “legislative intent to return prayer to the

° Wallace involved the unusual situation in which the “unrebutted

evidence” pointed to a wholly religious purpose, 472 U.S. at 58, and in

defending the statute, Alabama “conceded in the courts below that the

purpose of the statute was to make prayer part of daily classroom activity,”

id. at 77-78 (O'Connor, J., concurring in judgment). The addition of an

express reference to prayer when an existing statute already permitted a

moment of silence for meditation was only one piece of evidence. Indeed,

Justice O'Connor specifically noted that the decision in Wallace would not

invalidate the 1954 congressional amendment expressly adding “under

God” to the pre-existing text of the Pledge of Allegiance. See id at 78 n.5

(O'Connor, J., concurring in judgment). “Even if a statute specifies that a

student may choose to pray silently during a quiet moment, the State has not

thereby encouraged prayer over other specified alternatives.” /d at 73

(O'Connor, J., concurring in judgment).

public schools,” which was “quite different from merely

protecting every student's right to engage in voluntary prayer

during an appropriate moment of silence during the schoolday.”

Id.

Here, by contrast, the relevant baseline was not a policy

that permitted any and all messages at football games,

implicitly including invocations. Instead, the relevant baseline

was a policy expressly accommodating prayer, and prayer

alone, at football games. As explained above, the District

Court ordered the school district to formulate a football game

policy consistent with Fifth Circuit precedent. That precedent

allows a school district to have a policy permitting only

prayer.'' The District Court created a baseline of an explicit

prayer-only policy. Despite this clear precedent, and despite

the District Court’s order to formulate a policy consistent with

Fifth Circuit precedent, Santa Fe eventually settled on a policy

that expressly gives the student speaker a choice to deliver

either an invocation or message. Santa Fe decided to permit not

just religious speech, but secular speech - not just invocations,

"Governing Fifth Circuit precedent clearly gave Santa Fe the

option of adopting an invocation-only policy. In Jones v. Clear Creek

Indep. Sch. Dist, 977 F.2d 963 (Sth Cir. 1992), on remand for

reconsideration in light of this Court’s decision in Lee v. Weisman, 505

U.S. 577 (1992), the Fifth Circuit upheld an invocation-only policy for

commencement ceremonies. Under the Jones v. Clear Creek policy,

students decided whether or not to have an individual student deliver a

nonsectarian, nonproselytizing invocation at the commencement exercise.

Jones v. Clear Creek, 977 F.2d at 964-65. The Fifth Circuit approved this

policy without indicating that the policy created any constitutional

difficulties by limiting students to invocations - as opposed to invocations

or messages. Accordingly, if Santa Fe had wanted to establish a policy

giving students only the option of delivering invocations, Fifth Circuit

precedent gave them a green light.

but messages. Under these circumstances, the Football Policy

clearly reflects a secular purpose.

2. The Santa Fe Football Policy’s Neutrality and

the Critical Intervening Roles of Students

Ensure that the Policy Does Not Have the

Primary Effect of Advancing Religion.

The Santa Fe Football Policy’s neutrality and the important

role of independent, intervening student decisions prevent the

program from having the primary effect of advancing religion.

Instead, the program has the primary effect of advancing the

neutral, secular goals that are achieved regardless of whether

students choose to deliver a message or an invocation - namely,

accommodation of student speech, solemnization of public

occasions, and promotion of sportsmanship. In Witters, for

example, empowering handicapped students to choose a

suitable education - secular or sectarian - ensured that the

policy’s primary effect was promoting vocational education for

handicapped students. Any benefit to the sectarian or secular

institutions chosen by individual students was the secondary

result brought about by the independent choices of private

persons. As Justice O’Connor explained for a plurality of this

Court in Mergens,

there is a crucial difference between government speech

endorsing religion, which the Establishment Clause

forbids, and private speech endorsing religion, which the

Free Speech and Free Exercise Clauses protect. 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 nondis-

criminatory basis. ... The proposition that schools do not

endorse everything they fail to censor is not complicated.

496 U.S. at 250 (rejecting “primary effect” challenge)

(emphasis in original; citations omitted).

In the present case, as in Mergens, any religious or secular

message is chosen and delivered by the student speaker, not a

government official. The student speaker has unreviewable

discretion to compose a message from virtually any religious or

secular perspective, and any student can volunteer. Hence, the

“broad spectrum” of potential messages, cf id. at 252, supplies

an “important index of secular effect,” id. (quoting Widmar,

454 U.S. at 274). In addition, because this is a facial challenge,

there is no evidence of any unconstitutional primary effect.

Here, if the school district’s primary goal were to promote

prayer, it would have been content to direct students to vote

only on the question whether to offer prayers, as Fifth Circuit

precedent allows. The District Court’s invitation to follow this

course provided the perfect opportunity for the school district

to adopt a “prayer-only” policy. Supra note 11. Instead, Santa

Fe empowered students to choose whether to have any speech

at all, and let the individual student speakers decide whether to

deliver a message or invocation. Empowering students in this

fashion is entirely consistent with accommodating student

speech and promoting sportsmanship, but not with promoting

prayer.

The analysis in Mergens likewise refutes any notion that

the Football Policy has the impermissible primary effect of

advancing religion. The same safeguards emphasized in

Mergens are present here. First and foremost, the critical role

students play in decisions whether and how to speak ensures

that students “understand that a school does not endorse or

support student speech that it merely permits on a

nondiscriminatory basis.” 496 U.S. at 250 (plurality). In

addition, like the programs authorized by the Equal Access Act,

any student speech that occurs here would take place without

the involvement of teachers and during football games, a

decidedly non-instructional time. As Mergens recognized,

“there is little if any risk of official state endorsement or

coercion where no formal classroom activities are involved and

no school officials actively participate.” Jd. at 251 (plurality).

Finally, the program’s neutrality plays an important role in

maintaining a permissible primary effect. As in Mergens, “a

school that permits a student-initiated and student-led religious

[speech], just as it permits any other student [speech], does not

convey a message of state approval or endorsement of the

particular religion.” /d. at 252 (plurality); accord Rosenberger,

515 U.S. at 841-42.

This Court’s recent analysis of the effects test in Agostini

v. Felton, 521 U.S. 203 (1997), reinforces the conclusion that

the Santa Fe Football Policy does not have the primary effect of

advancing religion. In Agostini, this Court identified the “three

primary criteria we currently use to evaluate whether

government aid has the primary effect of advancing religion.”

Id. at 234. The Court upheld the Title I program at issue

because “it does not result in government indoctrination; define

its recipients by reference to religion; or create an excessive

entanglement.” /d. The Santa Fe Football Policy likewise does

not raise any of these concerns. By relinquishing to students

the power to decide whether and how to engage in speech,

Santa Fe removes itself from any position to indoctrinate

religious beliefs.

Similarly, the policy does not define speakers by reference

to religion or create any incentive for the individual speaker to

choose a religious theme over a secular one. It is perhaps

imaginable that a school could administer such a policy in a

manner that would create incentives to choose religious topics.

But that is particularly unlikely here in light of the school

district’s choice of a neutral speech policy over the invocation-

only policy permitted under Fifth Circuit precedent and

authorized by the District Court.

In any event, the remote possibility that someone could

pervert a facially neutral policy to favor religion is not a fit

consideration for a pre-implementation facial challenge. Supra

§ I. As this Court has noted on a number of occasions, “public

employees will not be presumed to inculcate religion.”

Agostini, 521 U.S. at 225; accord Zobrest, 503 U.S. at 13;

Board of Educ. v. Allen, 392 U.S. 236, 245 (1968) (“Absent

evidence, we cannot assume that school authorities . . . will not

honestly discharge their duties under the law”). Finally, as

demonstrated in the following section, the Football Policy

avoids excessive entanglement, the final factor identified in

Agostini.

3. The Santa Fe Football Policy Avoids, Rather

Than Engenders, Excessive Entanglement.

Whether properly analyzed a* a stand-alone factor or as

part of the effects test, the “entanglement” inquiry poses no

constitutional obstacle to the Santa Fe Football Policy. Indeed,

the policy’s facial neutrality and its decis'on to leave the choice

of message or invocation up to the individual student is the

antithesis of entanglement.

By adopting a “hands-off” approach and leaving it to the

student speaker to select the message (and to the student body

both to select the speaker and to decide whether even to have

a message at football games in the first place), Santa Fe has

removed itself several steps from any potential religious

message. By deliberate policy design, there is no monitoring of

religion or censoring of religious speech that could trigger

entanglement concerns. See Mergens, 496 U.S. at 253

(plurality) (“school officials may not promote, lead, or

participate” in students’ religious speech, and “custodial

oversight . . . does not impermissibly entangle government in

. religious activities”). As in Corporation of Presiding

Bishop v. Amos, 483 U.S. 327 (1987), it “cannot be seriously

contended that [the challenged enactment] impermissibly

entangles church and state; the [enactment] effectuates a more

complete separation of the two and avoids . . . intrusive inquiry

into religious belief,” id. at 339. Indeed, the rule respondents

urge - mandatory censorship of student religious messages -

would create precisely the entanglement concerns the present

policy avoids. See infra § III(C).

In this regard, the Santa Fe Football Policy has the same

virtues as the program upheld in Walz v. Tax Comm'n, 397 U.S.

664 (1970). In that case, a tax exemption for religious

organizations along with other charitabie organizations avoided

entanglement concerns. The contrary policy would have forced

tax authorities into innumerable decisions as to whether an

organization qualified as “religious” and then obligated them to

monitor organizations to ensure that the resulting classifications

were not circumvented. See id. at 674. Both are roles for

which government authorities are uniquely ill-suited. See, e.g.,

Widmar v. Vincent, 454 U.S. 263, 272 n.11 (1981).

Likewise, in the specific context of student speech, this

Court has recognized that neutral policies serve to avoid

entanglement problems. See Rosenberger, 515 U.S. at 844-45;

Mergens, 486 U.S. at 253 (plurality); Widmar, 454 U.S. at 269-

70 n.6, 272 & n.11. As Mergens aptly summarized, “a denial

of equal access might well create greater entanglement

problems in the form of invasive monitoring to prevent

religious speech.” 486 U.S. at 253 (plurality). Such “official

censorship would be far more inconsistent with the

Establishment Clause’s dictates than would government

provision of [an opportunity for student speech] on a religion-

blind basis.” Rosenberger, 515 U.S. at 845; see also County of

Allegheny v. ACLU, 492 U.S. 573, 677-78 (1989) (Kennedy, J..

concurring in part and dissenting in part).'”

In sum, the Santa Fe Football Policy’s facial neutrality

between messages and invocations, and the authority of

students to make independent decisions, make clear that the

policy survives all three prongs of the Lemon test. The policy

serves secular purposes and has the primary effects of

accommodating student speech, solemnizing public occasions,

"Respondents bear a particularly heavy burden in establishing

excessive entanglement in a facial challenge. When a program does not

involve excessive entanglement “on its face,” courts will not assume that

bad faith in implementation will necessitate excessive monitoring. See

Committee for Public Educ. & Religious Liberty v. Regan, 444 U.S. 646,

660-61 (1980).

and fostering sportsmanship. Moreover, far from engendering

excessive entanglement between church and state, the policy

grants students freedom from government monitoring and

censorship.

C. As a Neutral Policy that Permits Secular or

Religious Speech Only as a Consequence of the

Independent, Intervening Choices of Individual

Students, the Santa Fe Football Policy Neither

Endorses Religion Nor Coerces Religious

Observances.

The neutrality and the role of individual students provide

the keys to the Santa Fe Football Policy’s compliance with

Lemon. These same features also ensure that the policy does

not run afoul of the other tests this Court has employed in

applying the Establishment Clause. The facial neutrality of the

program precludes any message of government endorsement of

religion, and the choices exercised by students preclude

government coercion. With these guarantees of neutrality and

student choice, “there is no real likelihood that the speech in

question is being either endorsed or coerced by the State.”

Rosenberger, 515 U.S. at 841-42. What is more, the fact that

the speech occurs on the football field at night, rather than in

the classroom during the school day, avoids coercion or

endorsement. As noted above, “there is little if any risk of

official state endorsement or coercion where no formal

classroom activities are involved and no school officials

actively participate.” Mergens, 496 U.S. at 251.

1. The Santa Fe Football Policy Does Not Endorse

Religion.

The question whether the government’s actions

impermissibly endorse religion is one yardstick this Court has

employed in determining whether those actions have the

impermissible primary purpose and effect of advancing

religion. See, e.g., Agostini, 521 U.S. at 235; Allegheny, 492

U.S. at 592. Accordingly, Santa Fe’s Policy does not endorse

religion for the same reasons that it does not have the primary

purpose and effect of advancing religion.'°

In particular, the Football Policy involves student, rather

than government, speech and is neutral between religious and

secular speech. These factors preclude any government

endorsement, or appearance of endorsement, of religion. Any

religious speech that occurs under the policy will be “the result

of [the student’s] private choice. No reasonable observer is

likely to draw from the facts before us an inference that the

State itself is endorsing a religious activity.” Witters, 474 U.S.

at 493 (O’Connor, J., concurring); accord Agostini, 521 U.S. at

226 (noting that when religious activity occurs only because of

independent, individual decisions it cannot be attributed to state

decisionmaking); Rosenberger, 515 U.S. at 848 (O’Connor, J.,

concurring) (same); Mueller v. Allen, 463 U.S. 388, 399 (1983)

"See Agostini, 521 U.S. at 235 (stating at the conclusion of its

Lemon analysis,“[t}he same considerations . . . require us to conclude that

this . . . program also cannot reasonably be viewed as an endorsement of

religion”); Mergens, 496 U.S. at 252 (plurality) (“students should perceive

no message of government endorsement of religion. Thus, we conclude that

the Act does not. . . on its face . . . have the primary effect of advancing

religion”).

(“no imprimatur of state approval” of religion where religious

choice is made by private individuals).'*

Although this Court has recognized that intervening,

individual choices avoid endorsement problems in other

contexts, see, e.g., Witters,474 U.S. at 488-89, this is especially

true when student speech is at issue. The “crucial distinction

between government speectk. endorsing religion, which the

Establishment Clause forbids, and private speech endorsing

religion, which the Free Speech and Free Exercise Clauses

protect,” applies with particular force to the question of

endorsement. Mergens, 496 U.S. at 250 (plurality) (emphasis

in original); see also Lee v. Weisman, 505 U.S. 577, 630 n.8

(1992) (Souter, J., concurring) (“If the State had chosen its

graduation day speaker according to wholly secular criteria, and

if one of those speakers (not a state actor) had individually

chosen to deliver a religious message, it would have been

harder to attribute an endorsement of religion to the State”).

Here, Santa Fe employs secular criteria and leaves the choice of

whether or not to have a message and decisions concerning its

content to the student speaker. Pet. App. at Fl. By providing

an opportunity for student speech, the school “does not thereby

endorse or promote any of the particular ideas aired.” Widmar

v. Vincent, 454 U.S. 263, 272 n.11 (1981).

Moreover, by specifying that a “statement” and

“invocation” are both permissible options, “the State has not

thereby encouraged prayer over other specified alternatives.”

Wallace v. Jaffree, 472 U.S. 38, 73 (1985) (O’Connor, J.,

‘““Indeed, we note that Congress specifically rejected the argument

that high school students are likely to confuse an equal access policy with

state sponsorship of religion.” Mergens, 496 U.S. at 250 (plurality).

—* oe ee

o_eas- <=

concurring in judgment). As Mergens made clear, “secondary

school students are mature enough and are likely to understand

that a school does not endorse student speech that it merely

permits on a nondiscriminatory basis.” 486 U.S. at 250

(plurality). “The proposition that schools do not endorse

everything they fail to censor is not difficult to understand.” /d.

Indeed, that straightforward proposition is particularly easy

to comprehend in the context of a football game. Unlike

Mergens, in which most student speech targeted an audience

consisting almost entirely of students, a football crowd will

include a substantial number of parents, who are even more

“likely to understand that a school does not endorse student

speech that it permits on a nondiscriminatory basis,” and can

reinforce that message to their children. The mixed nature of

the crowd also underscores how far removed a football game is

from the classroom setting. The football field is a physically

separate, open-air venue. As a result, “the fortuity of

geography” and “the nature of the particular public space”

substantially lessen the risks of endorsement. Pinette, 515 U.S.

at 778 (O’Connor, J., concurring in part and concurring in

judgment). Unlike the classroom setting in which students

routinely hear speech directed by the school, students do not

routinely receive instruction on the football field or in the

stands, and have no preconception that the speech they are

about to hear will be directed by the school.

To the contrary, the students in attendance will know to a

moral certainty that the speech they are about to hear is private

student speech, rather than speech directed and endorsed by the

school. The students will know this because they will have

participated in both the process of deciding whether to have a

speaker and the separate process of selecting a speaker.

Participating in those processes will reinforce what is clear

from the face of the policy: that the decisions whether to have

a speaker, and which speaker to have, rest with students, not the

school. Likewise, the decision whether the student speaker will

offer an invocation or a secular message rests with that

individual student, not the school. Any decision by a student

speaker to offer an invocation stands several intervening,

student-made decisions removed from the school. Having

participated in the decisionmaking process themselves, the

students cannot possibly view the school as endorsing the

resulting student speech.

This same knowledge should be attributed to others in the

crowd who have not participated in the selection process

themselves. A program does not become unconstitutional

because someone ignorant of its actual operation perceives an

endorsement. “Private religious speech cannot be subject to

veto by those who see favoritism where there is none.” Pinette,

515 U.S. at 766 (plurality). “It is for this reason that the

reasonable observer in the endorsement inquiry must be

deemed aware of the history and context of the community and

forum in which the religious [speech] appears.” Jd. at 780

(O’Connor, J., concurring in part and concurring in

judgment).'’ A reasonable observer, well-acquainted with the

mechanics of the Santa Fe Football Policy and the context of

the football game, would perceive student speech, not

'*For this reason, an observer seeing only one student message of

a religious character could not find endorsement in light of the neutrality of

the program, the fact that the decision to offer an invocation was the

student’s, not the school’s, and the fact that a student may have offered a

secular message in the previous home game.

government endorsement. This is particularly true because

speech, unlike the permanent, unattended display in Pinetfe, is

uniquely associated with the speaker, as opposed to the forum.

See id. at 786 (Souter, J., concurring) (“When an individual

speaks in a public forum, it is reasonable for an observer to

attribute the speech, first and foremost, to the speaker, while an

unattended display (and any message it conveys) can naturally

be viewed as belonging to the owner of the land on which it

stands”).

Finally, the facial, pre-implementation nature of

respondents’ challenge has important implications for the

endorsement test. This Court’s precedents, new and old,

recognize that it will not condemn a policy simply because of

the possibility that it could be administered in bad faith to

create an endorsement of religion. See, e.g., Agostini, 521 U.S.

at 225; Zorach v. Clauson, 343 U.S. 306, 311 (1952).

Accordingly, that possibility cannot provide a basis for striking

down a policy on its face in a pre-implementation challenge. In

addition, the facial posture of the case provides an opportunity

for the Court to give guidance as to how the policy can be

implemented to minimize constitutional concerns.

2. The Santa Fe Football Policy Does Not Coerce

Participation in Religious Observances.

A neutral program that allows students to choose whether

to engage in secular or religious speech does not result in

impermissible government coercion. The Santa Fe Football

Policy is distinguished by the important role that student

choices play. The decisions whether to have a speaker, which

speaker to have, and whether to deliver an invocation or speech

lie with students, not with the school. Such student choices are

the antithesis of coercion.

In Lee v. Weisman, 505 U.S. 577 (1992), this Court

concluded that a school-directed commencement prayer was

coercive in violation of the Establishment Clause. However,

the Santa Fe Football Policy distinguishes itself at every turn

from the prayer policy struck down in Lee. First, in Lee, “{a]

school official, the principal, decided that an invocation and a

benediction should be given; that is a choice attributable to the

State.” 505 U.S. at 587. Here, by contrast, students decide, at

the outset, whether or not students will speak at the next

season’s home football games. That choice is clearly

attributable to the students. Next, in Lee, “[t]he principal chose

the religious participant, . . . a rabbi, and that choice is also

attributable to the State.” Jd Here, by contrast, students pick

the speaker from among a list of students who choose to

volunteer. The school plays no role; the choice is attributable

to the students. Moreover, in Lee, “[t]he State’s role did not

end with a decision to include a prayer and with the choice of

a clergyman,” id. at 588; instead, “the principal directed and

controlled the content of the prayers,” id at 588. Here, by

contrast, the individual student speaker decides whether to

deliver an invocation or message and controls the content of the

speech without regard to whether it is religious or secular. The

school exercises no control over content, and so the content is

attributable to the student, not the State.

These critical distinctions suffice to avoid the coercive

effects of the school-directed prayer invalidated in Lee. The

coercion in Lee resulted from the State directing a religious

exercise with one hand, while forcing student attendance with

the other. The Court repeatedly observed that under the

challenged program “State officials direct the performance of

a formal religious exercise,” “creating a state-sponsored and

state-directed religious exercise in a public school.” /d. at 586,

587. The state involvement in the prayer was critical to the

Court’s conclusion. See id.; see also id. at 630 n.8 (Souter, J.,

concurring). This Court has never found coercion when the

State simply provided a neutral opportunity for religious and

secular speech. See, e.g., Rosenberger, 515 U.S. at 841-42.

Indeed, the Lee Court recognized that “the First Amendment

does not allow the government to stifle [the offering of]

prayers,” even though the Constitution does not “permit the

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

The distinctions between Lee and this case do not end with

the crucial difference between government prayer and private

speech. The context of a home football game differs

dramatically from that of a high school commencement in ways

that further dissipate any coercion. The Court went out of its

way in Lee to stress the unique compulsion present in a

commencement, for which attendance and participation “are in

a fair and real sense obligatory.” /d at 586. The Court

described commencement as “one of life’s most significant

occasions” and “an event of singular importance to every

student.” /d. at 595, 598. The same cannot be said for a high

school football game. Unlike a commencement that involves

every member of the graduating class, football games are of no

more than passing interest to many students. Moreover, while

commencement is intimately related to - indeed the culmination

of - the school’s curriculum, football is decidedly extra-

curricular.

Football games differ from commencements not only in

these broad strokes, but also in the details. For example, during

commencement exercises the graduating class generally sits

together in a monolith that magnifies peer pressure and

exaggerates the failure of a single student to stand. The crowd

at football games, by contrast, is a random mix of students,

parents, and the community at large. While students at

commencement exercises generally must arrive on time and

stay in their assigned places for the duration of the ceremony,

students at football games remain free to arrive late, move

about, and visit the concession stand or other facilities.'®

Collectively, these myriad differences between football games

and commencements underscore the absence of any coercion in

the Santa Fe Football Policy.

It is of course true that some members of the audience may

disagree with the eventual message, if any, given before a

football game. Indeed, disagreement will not likely be limited

to the religious aspect, if any, of the messages. Fans of the

visiting team, for example, may object strenuously to wishes for

'°To be sure, some students may have to attend football games by

virtue of their participation in the band, as a cheerleader, or on the football

team. This factor does not change the result here. First, such a fact-based,

individualized objection lies outside the scope of this facial challenge and

would instead properly belong in an “as applied” challenge, not to the

Football Policy, but to the mandatory attendance requirement. Cf

Wisconsin v. Yoder, 406 U.S. 205 (1972). Second, and most important, the

Establishment Clause does not license one person to silence or censor the

speech of another student speaker on the basis of objection to the content

or viewpoint of the student’s message. /nfra at p. 43. The key difference

between Lee and the present case is that in Lee the objectionable speech

came from the government itself, not from an individual student speaker

whose decision to speak is the result of independent, intervening decisions

of students.

the success of the home team. But this Court’s precedents

recognize that

throughout the course of the educational process, there will

be instances when religious values, religious practices, and

religious persons will have some interaction with the

public schools and their students.

Lee, 505 U.S. at 598-99. “People may take offense at all

manner of religious as well as nonreligious messages, but

offense alone does not in every case show a violation.” /d. at

597.

Neither the Establishment Clause nor any other

constitutional provision guarantees that one student will never

hear another student say something to which the student

objects. Indeed, cases like Tinker v. Des Moines Indep. Comm.

Sch. Dist., 393 U.S. 503 (1969), Mergens, Pinette, and Lee v.

ISKCON, 505 U.S. 830 (1992), allowed freedom of speech

despite the inevitable fact that some persons who have to be

present may well object to the speaker's message. The

possibility that some persons may unavoidably encounter

religious speech cannot require affirmative silencing of private

speakers without overruling these and countless other

precedents.

The student choices and neutrality that characterize the

Football Policy distinguish it from the state-directed prayers

and coercive atmosphere of Lee. Indeed, these same factors

ensure that the program complies with all the tests this Court

has employed in evaluating claims under the Establishment

Clause. What is more, the Santa Fe Football Policy neutrally

accommodates student speech in a way that avoids the myriad

problems inherent in direct government involvement with

speech and religion. By keeping the school several steps

removed from the student speech, the school complies with the

Establishment Clause and avoids potential conflicts with the

remainder of the First Amendment. Far from violating the First

Amendment, the Santa Fe Football Policy accommodates

student speech and “follows the best of our traditions.” Zorach

v. Clauson, 343 U.S. 306, 314 (1952).

Ill. TO INVALIDATE THE MERE ALLOWANCE OF

STUDENT SPEECH ON THE BASIS THAT THE

STUDENT’S SPEECH COULD BE RELIGIOUS

WOULD AFFIRMATIVELY CAUSE

CONSTITUTIONAL DIFFICULTIES.

Santa Fe “has chosen to permit” student-initiated, student-

delivered speech during pre-game ceremonies of home varsity

football games. Pet. App. at Fl. To strike that policy down

would be to interpret the Establishment Clause as imposing an

affirmative obligation on the states to censor religious speech

where other speech is allowed. Such a rule runs counter to this

Court’s settled “equal access” jurisprudence. Indeed, such a

mandatory censorship rule would raise grave constitutional

difficulties under the First Amendment’s Free Speech, Free

Exercise, and Establishment Clauses. The consistent, bedrock

principle derived from these various constitutional provisions

is that government may not impose discriminatory . ‘dens on

religious expression.'’ See generally Rosenberger, 515 U.S. at

844-45.

A. The Free Speech Clause

Religious speech is constitutionally protected speech.

Widmar v. Vincent, 454 U.S. 263, 269 n.6 (1981). “[P]rivate

religious speech, far from being a First Amendment orphan, is

as fully protected under the Free Speech Clause as secular

private expression.” Capitol Square Review & Advisory Bd. v.

Pinette, 515 U.S. 753, 760 (1995) (plurality) (and cases cited).

Indeed, in Anglo-American history, at least, government

suppression of speech has so commonly been directed

precisely at religious speech that a free-speech clause

without religion would be Hamlet without the prince.

Accordingly, we have not excluded from free-speech

protections religious proselytizing . . . or even acts of

worship.

Id. (citations omitted) (emphasis in original). The Free Speech

Clause therefore generally precludes discrimination against

religious speech. /d. at 761 (strict scrutiny applies where

expression was rejected “precisely because its content was

religious”). Indeed, such discrimination may well constitute

"Petitioner does not contend that a school district is under any

constitutional compulsion to allow a student pre-game message in the first

place. Once the school extends such an opportunity to speak, however,

constitutional considerations determine the legitimacy of any government

control over the message. Here, the Establishment Clause and the Free

Speech and Free Exercise Clauses all militate in the same direction, namely,

noninterference by the government.

viewpoint discrimination, the most egregious form of content-

based censorship. Lamb's Chapel, 508 U.S. at 394;

Rosenberger, 515 U.S. at 832 (“discriminating against religious

speech was discriminating on the basis of viewpoint’).

Thus, as a general matter, for example, if a governmental

agency allows a private speaker to offer a secular message of

inspiration, it must allow the speaker to take a religious

perspective as well.

B. The Free Exercise Clause

The Free Exercise Clause forbids discriminatory

restrictions of religious expression. Such restrictions target

speech because it is religious and thus strike at the very heart

of the constitutional protection of religious freedom.

Employment Div. v. Smith, 494 U.S. 872, 877 (1990) (“The

government may not... impose special disabilities on the basis

of religious views or religious status” or ban acts “only because

of the religious belief that they display”).

At a minimum, the protections of the Free Exercise Clause

pertain if the law at issue discriminates against some or all

religious beliefs or regulates or prohibits conduct because —

it is undertaken for religious reasons.

Church of the Lukumi Babalu Aye v. City of Hialeah, 508 U.S.

520, 532 (1993). See also McDaniel v. Paty, 435 U.S. 618

(1978).

Respondents would in effect rewrite the Santa Fe Football

Policy explicitly to forbid religious speech and only religious

speech. However, as this Court made clear in Lukumi, “the

minimum requirement of neutrality is that a law not

discriminate on its face.” 508 U.S. at 533. The express

discrimination envisioned by respondents raises the precise

concerns identified in Lukumi.

C. The Establishment Clause

The Establishment Clause requires neutrality and forbids

hostility toward religion. As this Court explained in Everson,

the Establishment Clause requires the state to be “neutral in its

relations with groups of religious believers and non-believers;

it does not require the state to be their adversary.” Everson v.

Board of Educ., 330 U.S. 1, 18 (1947). The discriminatory

suppression of religious speech “would demonstrate not

neutrality but hostility toward religion.” Mergens, 496 U.S. at

248. As in McDaniel, such a discriminatory “exclusion

manifests patent hostility toward, not neutrality respecting

religion, and, in sum, has a primary effect which inhibits

religion,” 435 U.S. at 636 (Brennan, J., concurring in

judgment).

Moreover, discriminatory suppression of religious speech

requires the censor to judge what is and is not religious speech.

This creates additional constitutional problems:

[School officials] would need to determine which words

and activities fall within “religious worship and religious

teaching.” This alone could prove an impossible task in an

age where many and various beliefs meet the constitutional

definition of religion. . .. There would also be a continuing

need to monitor group meetings to ensure compliance with

the rule.

Widmar, 454 U.S. at 272 n.11 (internal quotation marks and

citations omitted).'* Thus, treating religious expression on

equal terms with secular expression “would in fact avoid

entanglement with religion,” Mergens, 496 U.S. 248 (plurality)

(emphasis in original; citation omitted); see also id. at 253.

CONCLUSION

In light of the foregoing, the meritlessness of respondents’

position becomes clear. Respondents would condemn the Santa

Fe Football Policy because it allows the possibility of student

prayer. But the alternative - selective censorship and suppres-

sion of the religious message any student might choose - would

create obvious constitutional problems. Fortunately, as

demonstrated previously, no such censorship is required. As

Justice O’Connor wrote for the plurality in Mergens,

[t]he Establishment Clause does not license government to

treat religion and those who teach or practice it, simply by

virtue of their status as such, as subversive of American

ideals and therefore subject to unique disabilities.

'*These same entanglement problems plague any attempt to impose

a “nonsectarian, nonproselytizing” requirement on private speech. For

precisely that reason, the school district adopted a policy that omitted any

such requirement unless and until a court ordered that it be imposed. Pet.

App. at F1-F2. See also Tr. 8/4/95 at 3-7 (District Court and counsel for the

school district voicing concern about enforcing a “nonsectarian,

nonproselytizing” requirement).

PRET Paha:

496 U.S. at 248 (internal quotation marks and citation omitted).

This Court should reverse the judgment of the Fifth

Circuit.

John G. Stepanovich

Thomas P. Monaghan

Stuart J. Roth

John P. Tuskey

Joel H. Thornton

Respectfully submitted,

Jay Alan Sekulow

Counsel of Record

Colby M. May

James M. Henderson, Sr.

Mark N. Troobnick

David A. Cortman Walter M. Weber

American Center for American Center for

Law & Justice Law & Justice

1000 Regent Univ. Drive Suite 609

Virginia Beach, VA 23464 1000 Thos. Jefferson St. NW

(757) 226-2489 Washington, DC 20007

(202) 337-2273

Kelly Shackelford Paul D. Clement

509 Cutter Lane King & Spalding

Allen, TX 75013 1730 Pennsylvania Ave. NW

(972) 423-8889 Washington, DC 20006

(202) 626-2640

December 29, 1999

Attorneys for the Petitioners

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