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

Mov f 2900

N THE '

ee

Supreme Court of the United States

SANTA FE INDEPENDENT SCHOOL DISTRICT,

-

Petitioner,

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

REPLY BRIEF FOR PETITIONER

JOHN G. STEPANOVICH

THOMAS P. MONAGHAN

STUART J. ROTH

JOHN P. TUSKEY

JOEL H. THORNTON

DAVID A. CORTMAN

AMERICAN CENTER FOR

LAW & JUSTICE

1000 Regent Univ. Drive

Virginia Beach, VA 23464

(757) 226-2489

KELLY SHACKELFORD

509 Cutter Lane

Allen, TX 75013

(972) 423-8889

*Counsel of Record

JAY ALAN SEKULOW*

COLBY M. MAY

JAMES M. HENDERSON, SR.

MARK N. TROOBNICK

WALTER M. WEBER

AMERICAN CENTER FOR

LAW & JUSTICE

Suite 609

1000 Thomas Jefferson St.. NW

Washington, DC 200€7

(202) 337-2273

PAUL D. CLEMENT

KING & SPALDING

1730 Pennsylvania Ave., NW

Washington, DC 20006

(202) 626-2640

Attorneys for the Petitioner

TABLE OF CONTENTS

TARE GP AAT THEEEED occ ccvvcccnscusessecees iil

po POTEET ORT TTT TTT ree er ee

I. RESPONDENTS MAKE ONLY A

FACIAL CHALLENGE TO THE

SANTA FE FOOTBALL POLICY.............

II. RESPONDENTS DO NOT DISPUTE

THE CONTROLLING CONSTITUTIONAL

FORD o ve cevecesslevapncceausiaansess

Ill. A STUDENT’S SPEECH PURSUANT

TO THE SANTA FE FOOTBALL

POLICY IS NOT ATTRIBUTABLE TO

GERD WER s PUES sce cecvinccccssses

A. _ The Santa Fe Football Policy

Has a Legitimate Secular Purpose ........

B. — There is No Majoritarian Imposition

GPE 6a vn cccnakisdcee teen

C. Approving the Football Policy

Would Not Open the Doors to

IEE 6 ov045 66b4508c0n0nus

D. Respondents’ Theory of the Case

is Rife with Constitutional

EE o6ab sexe cancadenistegeaaen

2

aah adie 6s ces<s céecccececece 20

ill

TABLE OF AUTHORITIES

Page

Cases

Agostini v. Felton, 521 U.S. 203 (1997) ............ 8.12

Board of Education v. Mergens,

496 U.S. 226 (1990) 0... ccc cccceces 4, 13, 16,17, 19

Capitol Square Review & Advisory Bd. v. Pinette,

SPs CPUS 660d séndccucodveutsckes 11, 15

City of Madison, Joint School Dist. No. 8 v.

Wisconsin Employment Relations Comm'n,

Ps SPEED no 004460sneesacueseees 11,12

Cornelius v. NAACP Legal Defense and Educ. Fund,

i Geer es CD 0.60.00 0640006 coesadenes 11

County of Allegheny v. ACLU, 492 U.S. 573 (1989) ..... 16

Doe v. Santa Fe Independent School District,

168 F.3d 806 (Sth Cir. 1999) .............. 3,6, 7,9

Edwards v. Aguillard, 482 U.S. 578 (1987)... 2... ..... 16

Ingebretsen v. Jackson Public School Dist.,

88 F.3d 274 (Sth Cir.), cert. denied,

nD oo. one skedecueneésené ee 17, 18

Lee v. Weisman, 505 U.S. 577 (1992) .......... 14, 15, 16

iv

Lynch v. Donnelly, 465 U.S. 668 (1983) .............. 16

Mueller v. Allen, 463 U.S. 388 (1983) ................ 12

Rosenberger v. Rector & Visitors of the University

of Virginia, 515 U.S. 819 (1995) ............. 15,19

School District of Abington Township v. Schempp,

Pe eh EE Ba Ke edcudcasdcasdccenéaees 16

Southeastern Promotions, Ltd. v. Conrad,

Se ED sb ocinusedanccedscevidinss 11

Wallace v. Jaffree, 472 U.S. 38 (1985) ............. 5, 10

Widmar v. Vincent, 454 U.S. 263 (1981) .............. 19

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

See NEED 6.566.06ccb cs bacecdneseves 3,12

Comstiontionsl Proviel

Ss GI © co veccicctveccvcsdecensen 1, passim

Other Materials

Douglas Laycock, Equal Access and Moments of

Silence: The Equal Status of Religious Speech by

Private Speakers, 81 Nw. U.L. Rev. 1 (1986) ... 10, 13

——— A rT

v

Secretary’s Statement on Religious Expression

(U.S. Dep’t of Educ., Dec. 20, 1999)

<www.ed.gov/speeches/08-1995/religion.html> . .

. 10

— — — rari,

ARGUMENT

The Santa Fe Football Policy is facially constitutional.

This policy permits a student, at home football games, to give

the message or invocation of that student’s choosing. There is

no vote on having a prayer. Prayer or other religious speech

occurs, if at all, only as a consequence of the student speaker's

independent choice. Respondents concede that if the speech of

the student is not attributable to the school, there is no

constitutional violation. /nfra § Il. Here, the student speaker’s

intervening, independent choice of what to say suffices alone to

break any chain of attribution connecting the student’s speech

to the school district. Pet. Br. at 19-21, 28-29; infra § Ill. But

Santa Fe goes even further to distance itself from the student

speaker's speech. The student speaker is selected by a neutral

process — first, students vote whether to have any speaker at

all: next, if the vote is affirmative, any interested students can

volunteer to serve as speaker; and third, students elect a speaker

from among the volunteers. Pet. Br. at 9; Pet. App. at F1.

Consequently, neither the possibility, nor the actuality, of a

student speaker’s inclusion of religious content or viewpoint in

a pre-game speech, violates the Establishment Clause.

Petitioner Santa Fe has taken the proper constitutional

course: selection of student speakers by neutral, secular criteria,

and noninterference with the student speaker’s decision

whether to use secular or religious (or both) elements in a pre-

game message. This middle course respects both students’ free

speech (and free exercise), and the non-establishment

guarantee. See Pet. Br. § III; infra § III(D). Respondents’

contrary arguments ultimately amount to a constitutional duty

of schools to prevent the mere possibility of student-initiated

religious speech. No such constitutional duty of censorship

exists.

2

I. RESPONDENTS MAKE ONLY A FACIAL CHAL-

LENGE TO THE SANTA FE FOOTBALL POLICY.

This case presents only a facial challenge to the Santa Fe

Football Policy. Pet. Br. § 1. As respondents concede, this

challenge can succeed only if the Football Policy “was

unconstitutional when the school board promulgated it, whether

Or not any student ever delivered a prayer pursuant to the

policy.” Resp. Br. at 43-44.

Respondents claim that they “also challenge the Football

Policy as applied to the extent that evidence of the policy's

implementation is available.” Resp. Br. at 47 (emphasis

added). On the contrary, no such challenge is properly before

this Court.

First, respondents did not bring an as applied challenge to

the Football Policy below. (Indeed, they could not, as the suit

was filed prior to adoption and implementation of the current

Football Policy.) Tellingly, respondents do not cite to their

lower court briefs to demonstrate that respondents had brought

an as applied challenge to the Football Policy. The district

court stated that a ruling on the policy (i.e., facial

constitutionality ) would not preclude respondents from bringing

an as applied challenge in a future, different case. Tr. 11/3/95

at 10-15; Tr. 5/10/96 at 13. See Pet. App. at E13 n.13 (“Should

Plaintiffs or other interested parties feel that the actual policies

of the School District differ from the newly stated policies in

such a manner as to be violative of the Establishment Clause,

a new cause of action may be commenced in a Court of

competent jurisdiction”) (emphasis added). On appeal,

respondents did not contend that the district court erroneously

failed to adjudicate the constitutionality of the Football Policy

as applied. See Plaintiffs-Appellees/Cross-Appellants’, Jane

Doe, et al’s [sic] Brief on Appeal, pp. 20-26.

3

Second, there is no record to support an “as applied”

challenge to the Football Policy. Pet. Br. at 9 & n.7; id. at 16;

see also Doe v. Santa Fe Indep. School Dist., 168 F.3d 806, 810

n.3 (Sth Cir. 1999). Respondents can only point to events

predating the October, 1995 Football Policy, Resp. Br. at 47;

see also Pet. Br. at 9 n.7, or to anecdotal material taken from

amicus briefs, Resp. Br. at 5, 47-48.' Respondents themselves

admit that “{t]he record in this case closed before the 1996

football season,” id. at 5 — the first season which the (October

1995) Football Policy would govern — and that “[t}he judicial

record does not document how the policy was implemented in

1996, 1997, or 1998,” id at 48. Nor is the 1999 season

representative of the policy. Supra note 1.

Third, it would be fundamentally unfair to adjudicate an as

applied challenge in such circumstances. Respondents cannot

obtain a ruling here on an as applied challenge they neither

brought nor preserved below. Petitioner would in any event be

entitled to assemble a factual record in opposition to such a

fact-based challenge. Reliance upon snippets taken from

amicus briefs as evidence cannot substitute for a fully

developed record. Cf Witters v. Washington Dep't of Servs. for

'The anecdotal material refers to the Fail 1999 football season. But this

season came after the Fifth Circuit had issued its ruling of Feb. 26, 1999,

invalidating the Football Policy. The 1999 season therefore operated under

a policy of no religious messages. See Brief Amici Curiae for Marian Ward

et al., p. D1 (in wake of Fifth Circuit’s decision, Santa Fe pre-game

message guidelines banned “(p]rayers, blessings, invocations, and

references to a deity”). Hence, even this anecdotal material demonstrates,

not the operation of the Sante Fe Football Policy as written, but rather the

untoward consequences of the Fifth Circuit's ruling requiring the

elimination of religious speech by student speakers. (Respondents’

misguided attempt to use the 1999 season as exemplifying the challenged

policy, when in fact the policy had been struck down prior to that season,

pointedly illustrates the danger of straying outside the record in this case.)

4

the Blind, 474 U.S. 481, 486 n.3 (1986) (“this Court must

affirm or reverse upon the case as it appears in the record” and

should not “consider claims that have not been the subject of

factual development in earlier proceedings”).’

Il. RESPONDENTS DO NOT DISPUTE THE

CONTROLLING CONSTITUTIONAL PREMISES.

“Both sides . . . agree that genuinely private religious

speech is constitutionally protected.” Resp. Br. at 9.

“Protection for private religious speech protects individual

choices.” Jd. Respondents concede the “‘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,” id. at 10 (quoting Petitioner’s Brief, which in turn

quotes Board of Education v. Mergens, 496 U.S. 226, 250

(1990) (plurality)). Thus, respondents concede that this case

turns on “the distinction between governmental and private

prayer, which is fundamental to the First Amendment and

which plaintiffs fully accept.” Resp. Br. at 11 (footnote

omitted).

Of course, the Santa Fe Football Policy authorizes, not

“prayer,” but a “statement or invocation,” which may or may

not include prayer. This distinction is important. See infra §

I1I(B). But the critical point here is that respondents’

*The sparse facts respondents identify do not in any event support an as

applied challenge. For example, the fact that in 1999 the students “voted

for a message at football games,” Resp. Br. at 47, is constitutionally

unproblematic. Likewise, the fact that the runner-up student, see Brief of

Amici Curiae Marian Ward ef al., p. C2, was so determined to fend off

censorship that she filed suit, Resp. Br. at 47, suggests not a school district

that “is working desperately to preserve prayer,” id at 15, but rather a

school district caught in the middle of competing constitutional claims

“working desperately” to comply with the latest governing court order.

5

concessions of constitutional principle reduce their argument to

one essential contention: that any potential religious speech by

a student speaker at a school event is attributable to Santa Fe

and therefore must be prohibited on pain of an Establishment

Clause violation. If respondents cannot establish that

proposition — and they cannot, see infra § III — respondents’

challenge fails by its own terms.

Ill. A STUDENT’S SPEECH PURSUANT TO THE

SANTA FE FOOTBALL POLICY IS NOT

ATTRIBUTABLE TO THE SCHOOL DISTRICT.

The heart of respondents’ case is the contention that any

student speech under the Football Policy is attributable to the

school district. In elaborating this theory, respondents urge

three principal arguments for invalidating the Football Policy:

first, Santa Fe’s real purpose is to perpetuate student prayer at

football games; second, the Football Policy permits a religious

majority to force prayer on an objecting audience; and third,

approving the Football Policy would open the doors to formal,

student-led prayers in the classroom. As demonstrated below,

these arguments fail.

A. The Santa Fe Football Policy Has a Legitimate

Secular Purpose.

The Santa Fe Football Policy serves a legitimate secular

purpose — indeed, several such purposes. Pet. Br. at 23-24.

Respondents object that a student speaker is “not needed”

because other methods of solemnization are available. Resp.

Br. at 10; see also id. at 36. The question, however, is not

whether the Football Policy is necessary, but rather whether it

is a permissible response to legitimate secular concerns. It is

sufficient that a school may legitimately conclude that having

a student speaker deliver a pre-game message or invocation will

further the stated purposes of the policy. See Pet. Br. at 24; see

also Wallace v. Jaffree, 472 U.S. 38, 74-75 (1985) (O’Connor,

6

J., concurring) (where a governmental body “expresses a

plausible secular purpose” for an enactment, “courts should

generally defer to that stated intent”).

Respondents would impugn Santa Fe’s stated purposes by

reference to the constitutional equivalent of “prior bad acts.”

Resp. Br. at 1-2, 12-13. There are several reasons, both factual

and legal, for rejecting this argument.

In fact, Santa Fe was diligent in complying with, not

evading, the governing constitutional law.’ See Order Denying

Attorney Fees (S.D. Tex. Dec. 13, 1996) (dkt. 65) at 3 (Santa

Fe “went to great lengths to abolish unacceptable practices even

before suit was filed, and it came, in the Court’s view, into

voluntary full compliance with applicable Fifth Circuit law very

early in the case”) (emphasis in original). See also Pet. Br. at

3-4; id. at 5 n.3.

The district court found, after trial, that “no Plaintiff has

suffered a compensable injury because of any actions of the

[Santa Fe] District.” Pet. App. at D14. See also 168 F.3d at

824 (affirming denial of damages). The district court further

found that the incidents respondents complained of were

isolated, not authorized by Santa Fe, and promptly remedied by

Santa Fe. See Pet. App. at D5-D15; see, e.g., id. at DS (Santa

Fe’s response to incident “was prompt, sincere, and reasonably

calculated to prevent future violations”).

The district court found that Santa Fe had promptly enacted

new policies to bring the school district into compliance with

Establishment Clause precedent. Pet. App. at E4-E5, E11-E13.

The district court concluded that “injunctive relief is not needed

*Indeed, Santa Fe has faced the accusation that it has been overzealous in

deferring to court mandates, as demonstrated by the student lawsuit

challenging Santa Fe’s efforts to comply with the Fifth Circuit’s ruling in

this case. See Resp. Br. at 5; Brief Amicus Curiae of Marian Ward et ai.

7

to ensure the School District's compliance with the

Establishment Clause,” id. at E12 (footnote omitted), and the

court of appeals affirmed the denial of injunctive relief, 168

F.2d at 823. In short, Santa Fe has undertaken prompt, good

faith compliance with legal directives.

As a legal matter, respondents’ approach would make it

difficult, if not impossible, to predict the constitutional

consequences of action taken in the face of some prior history

of violations. How, for example, could school officials predict

when such unquantifiable factors as prior practices or the

degree of religiosity among students will be regarded as “too

much” for an otherwise permissible student speaker policy to

pass constitutional muster?*

One way to avoid this problem would be to take

respondents’ approach to its logical conclusion — that is, to

conclude simply, “Once a constitutional offender, always a

constitutional offender.” But that would be to say that a

government body that has committed past Establishment Clause

violations cannot correct itself. Any action the government

body takes that touches on religion would be suspect,’ no

matter how neutral in reality that action is. It would be far

“Respondents would further complicate the analysis by asking how much

free speech the school district allows to students in other contexts. Resp.

Br. at 14. First of all, respondents are incorrect in portraying Santa Fe as

hostile to student speech in generei. See, e.g., Stipulations Ex. 2 (Policy

FMA) (“material that is merely offensive, unpopular, or that stimulates

controversy shall not be restricted or forbidden”). Moreover, even leaving

aside the complete unworkability of respondents’ standard, there is no

constitutional rule that says a school may only allow student free speech in

one setting if it also allows it in others.

‘Respondents’ invocation of what “everyone” knows, e.g., Resp. Br. at 19,

seems little more than an appeal to the kind of stereotyping and regional

prejudice that has no proper place in court.

8

better, and far more consistent with this Court’s precedents, to

apply the presumption that government actors are faithful to

constitutional norms, e.g., Agostini v. Felton, 521 U.S. 203,

226-27, 229, 234 (1997).

B. There is No Majoritarian Imposition of Prayer.

Respondents appear to be litigating a policy different from

the one before the Court. Repeatedly, respondents attack a

policy that authorizes a majority of students to “vote for prayer”

at school events. Resp. Br. at 27. See, e.g., id. at 8, 24, 50.

The district court allowed Santa Fe to adopt such a policy, Pet.

Br. at 3-4, 7-8, but Santa Fe ultimately chose a more expansive

approach, permitting an “invocation and/or message,” Pet. App.

at Fl; Pet. Br. at 3-4, 8. Thus, the Football Policy does not

entail a vote on whether to have a prayer. Pet. Br. at 18; Pet.

App. at Fl. The only one who decides whether the student

speaker's message will include a prayer is the individual

student speaker. Pet. App. at Fl (“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”) (emphasis added). Neither the school

district nor the student body makes that decision. This central

fact renders irrelevant respondents’ insistence that a majority

vote cannot abrogate constitutional rights. Resp. Br. at 20-26.°

Respondents contend that the student speaker “will reliably

represent the majority’s views,” Resp. Br. at 22. This

contention is speculative and implausible. As anyone who has

°All that students vote for under the Football Policy is to have a student

speaker at a school event. If it were unconstitutional to let a student address

a school assembly because the speech the student utters might be religious,

the federal courts would need to strike down policies permitting student

talent shows, student club fairs, student government speeches, and virtually

any other opportunity for students to address their assembled classmates.

9

been through high school should recall, student votes — such

as student government elections — are at least as likely

(perhaps more so) to reflect the elected student’s admirable

character, engaging personality, or sheer popularity, than any

particular views.’ In the present case, moreover, the district

court forbade campaigning on school property, JA 31,° so it is

even less likely than otherwise that the speaker’s views will

decide the election.

This is not a case in which the school district has

gerrymandered the election to ensure prayer. On the contrary,

Santa Fe explicitly ceded control over the student speaker’s

message to the elected student speaker. Pet. App. at F1 (“The

student volunteer . . . may decide what message and/or

invocation to deliver’); see also Pet. Br. at 9 & n.8; Doe v.

Santa Fe, 168 F.3d at 812 (aside from the statement of

purposes, terms of the Football Policy “provide no further

guidance as to content”). Moreover, while the district court

permitted Santa Fe to adopt a “prayer” policy, JA 42, Santa Fe

deliberately chose the more expansive, more explicitly neutral

course of allowing the student speaker, if any, to deliver an

Furthermore, since any student may volunteer to be a speaker but no one

must volunteer, there is no guarantee that any of the volunteer candidates

will “reliably represent the majority’s views.” Nor is it at all clear that it

even makes sense to speak of a “majority’s views,” when viewpoints come

in as many distinct varieties as students do.

‘Respondents point out that the district court’s interim orders (e.g., against

campaigning) are not, strictly speaking, part of the Football Policy and that,

moreover, those orders are no longer in effect. Resp. Br. at 4n.3. But the

Football Policy was adopted to comply with the district court’s directives,

Pet. Br. at 3, and there is no reason to believe that, once the court orders

were no longer in effect, the school district altered its practices. In any

event, were that the case (and respondents do not allege that it is), it would

be grist for an as applied challenge, not the present facial challenge.

10

“invocation and/or message.” Pet. App. at Fl. See generally

Pet. Br. at 3-4, 7-8, 27-28 & n.11.

That the policy explicitly mentions an “invocation” as one

possibility does not detract from this conclusion. Pet. Br. at 36-

37. An invocation need not be religious, see Pet. at 12 n.6, but

even if it were religious, merely listing prayer as one option

does “not thereby encourage[] prayer over other specified

alternatives,” Wallace v. Jaffree, 472 U.S. at 73 (O’Connor, J.,

concurring in judgment). Santa Fe does not thereby

“effectively favor the child who prays over the child who does

not.” Jd.° When even the federal government perceives the

need to distribute national guidelines assuring school officials

that genuinely student-initiated speech may include religious

contents or viewpoints, see Secretary’s Statement on Religious

Expression (and accompanying guidelines) (U.S. Dep’t of

Educ., Dec. 20, 1999) <www.ed.gov/speeches/08-1995/

religion.html>, a school district is surely justified in spelling

out, for the sake of clarity in an often confused area, that

students may also pray when they are otherwise free to select

their own message.

Respondents make much of the supposed narrowness of

the student speaker’s opportunity to speak. Resp. Br. at 17-

18.'° Respondents’ premises are erroneous. There is hardly

*Accord Douglas Laycock, Equal Access and Moments of Silence: The

Equal Status of Religious Speech by Private Speakers, 81 Nw. U.L. Rev. 1,

58-59 (1986) (“Use of the word ‘prayer’ should not be fatal in a statute that

neutrally accomodates each student’s right to private prayer”).

‘Respondents also emphasize that only one speeker has the floor for a

given period. Resp. Br. at 11-12. The Football Policy on its face is not

incompatible with a system whereby different students rotate as speakers for

each of the home games. But even if only one student spoke at all of the

(continued...)

ll

anything “narrow” about the range of possible messages which,

for example, “establish the appropriate environment for the

competition.” Pet. App. at Fl. It is inaccurate to claim, as

respondents do, that a “message questioning the existence of

God . . . could not plausibly be connected to . . . any of the three

authorized purposes of the invocation or message.” Resp. Br.

at 18."

Moreover, there is nothing incompatible between topical

limits on a speaking opportunity and the private speaker’s

ultimate personal responsibility for the message. Just because

a governmental body imposes germaneness and time

restrictions on private speakers does not convert speech from

private to governmental. £.g., City of Madison, Joint School

Dist. No. 8 v. Wisconsin Employment Relations Comm'n, 429

U.S. 167 (1976). See Cornelius v. NAACP Legal Defense and

Educ. Fund, Inc., 473 U.S. 788, 802 (1985) (government may

designate forum “for use by certain speakers, or for the

discussion of certain subjects”); id. at 803 (citing Madison Joint

'°(...continued)

games (there are “at least three to six” home games, JA 65 (Stipulation

125)), this would not distinguish the present case from other settings for

genuinely free speech, such as a municipal stage featuring one production

(or production company) for weeks at a time, cf, Southeastern Promotions,

Ltd. v. Conrad, 420 U.S. 546 (1975), or a government plaza featuring a

single display, see Capitol Square Review & Advisory Bd. v. Pinette, 515

U.S. 753, 792-93 (1995) (Souter, J., concurring in part and concurring in

judgment). The student speaker selection criteria are secular and content-

neutral. It is not a matter of constitutional dimension whether the speaker

is chosen by grade point average, first-come/first-serve, majority vote, or a

lottery, to mention a few options.

"An atheist could compose a message exalting, for example, man’s

abandonment of the “shackles of religion” in favor of humanistic

achievement reflected in the ideals of sportsmanship.

12

School District as example of designated forum).'? A school

may certainly permit a student to speak within the parameters

of some germaneness limitations (such as sportsmanship,

student safety. and the appropriate environment for

competition) without transforming student speech into school

district speech. For example, at a club fair, a school could

instruct club representatives speaking in turn to confine their

remarks to describing and promoting their clubs. The school

would be no more responsible for the Fellowship of Christian

Athletes’ spiritual pitch than for the Young Republicans’

political pitch."”

"In Madison Joint School District, this Court recognized the free speech

rights of a speaker from the audience who addressed a topic on the agenda

of a school board’s public meeting. That the speaker presumably was

sharply limited by considerations of germaneness (the meeting agenda) and

time (the speaker spoke for about 2'2 minutes, 429 U.S. at 172) did not

deter this Court from concluding that the private speaker had independent

free speech rights.

A limitation on the scope of permissible messages to those that promote

sportsmanship is analogous to limitations on the permissible use of funds

in cases like Witters. If respondents were correct, then the program in

Witters could not have limited the use of aid to vocational education. But

the Court did not find fault with that limitation, nor did it inquire whether

too many of the permissible uses were religious. Mueller v. Allen, 463 U.S.

388 (1983), provides even stronger support. There, although the restrictions

on the tax deductions meant that they primarily benefitted parents of

students at religious schools, see Witters, 474 U.S. at 491 n.3 (Powell, J.,

concurring) (“Over 90% of the tax benefits in Mueller ultimately flowed to

religious institutions”), the Court expressly rejected that as a basis for

invalidating the statute, 463 U.S. at 401; accord Agostini, 521 U.S. at 229-

30. These cases teach that as long as the restrictions on the purpose of the

message (or the use of the funds) serve secular ends and do not foreclose

the possibility of a secular message (or use), there is no Establishment

Clause violation.

13

Nor does Santa Fe’s control of the program as a whole

make a difference. Mergens expressly rejected the argument

that meetings pursuant to the Equal Access Act were

unconstitutional because “the student religious meetings are

held under school aegis.” Mergens, 496 U.S. at 249.

Respondents emphasize that Santa Fe “schedules the event,”

Resp. Br. at 15, but schools also set the time (and place) for

noncurricular student clubs to meet. This does not make speech

at the Bible Club attributable to the school. See Mergens.

Respondents assert that Santa Fe “fully controls the pre-game

ceremonies,” Resp. Br. at 15, but this is inaccurate. Santa Fe

does not control the student pre-game speaker's choice of

content, see Pet. Br. at 9 & n.8, or even whether there is a

student speaker at all, Pet. App. at F1. Respondents charge that

Santa Fe “attracts the crowd” and “controls the public address

system,” Resp. Br. at 15, but the same is true for student

government speeches, school talent shows, homecoming, senior

proms, club fairs, and so forth. It is unreasonable to contend

that all student speech at such events is attributable to the

school district. On the contrary, it should be common

knowledge that the class president delivers a speech which that

student composed; that the student singer at a talent show

selected the song (be it “The Impossible Dream” or “Amazing

Grace”); that the representative of a student club speaks, not for

the school, but for the club.'* A school’s control of the venue

does not mean that the school controls the words a student

speaks.

‘See also Laycock, supra note 9, at 41 (“That the orator represents the

school in an inter-school competition does not make his speech an official

school speech; many schools probably would deny endorsing the

substantive positions taken by their contestants”).

14

Respondents accuse Santa Fe of adopting an “express

preference for sectarian and proselytizing prayer.” Resp. Br. at

37; see also id. at 41 n.11. This is both wrong and unfair. The

policy contains no such preference, express or implied.

Respondents presumably extract this contention from Santa

Fe’s two-tiered approach, whereby Santa Fe included an

express prohibition on sectarian and proselytizing speech only

in its back-up version of the policy. See Pet. App. at F1-F2;

Pet. Br. at 3, 9. But this two-tiered approach simply

represented a prudent response to a legal dilemma. On the one

hand, under Fifth Circuit precedent, a nonsectarian,

nonproselytizing limitation appeared both permissible and,

perhaps, obligatory. Pet. Br. at 3-5; id at6n.4; id at 7-8. The

district court so concluded. Pet. App. at El 1-E12. On the other

hand, this Court had clearly condemned the imposition of such

nonsectarian content and viewpoint restrictions on a private

speaker. Lee v. Weisman, 505 U.S. 577, 589-90 (1992).

Ironically, respondents agree that a nonsectarian,

nonproselytizing restriction on private speakers,

constitutionally, “makes no sense,” Resp. Br. at 31, and would

be unconstitutional, id. at 31, 41 n.11. Respondents, then, can

hardly fault Santa Fe for choosing the constitutional course —

“hands off” on content — while installing a back-up provision

to comport with the peculiarities of Fifth Circuit precedent.

Respondents’ contention that the Santa Fe Football Policy

coerces both band members and students in the stands depends

on the premise — refuted above — that any student “football

prayers” given pursuant to the Football Policy “are attributable

to the school.” Resp. Br. at 31. Respondents do not appear to

argue that there is any unconstitutional coercion if the prayers

or messages given by individual students are attributable to the

students, and for good reason. Lee v. Weisman expressed

—_—_— —_ =... Oe. i“ =e ree. _

=

15

concern over coercing students to participate in “a state-

sponsored and state-directed religious exercise in a public

school.” But there is no unconstitutional coercion when

religious speech results from (and is attributable to) the

independent decisions of individual students. See Pet. Br. at

39-44. That is all that is involved here.

C. Approving the Football Policy Would Not Open the

Doors to Classroom Prayer.

Respondents suggest that if this Court upholds the Santa Fe

Football Policy then it necessarily must also approve student-

led, student-initiated prayer in the classroom during the school

day. Resp. Br. at 26-31. But the Football Policy does not apply

to the classroom; indeed, other Santa Fe policies already

prohibited prayer and other religious activities in the

classrooms, see Pet. App. at D6, D9; Stipulations Exs. | (Policy

EMI), 9 (Policy EMI (Local)). Furthermore, respondents’

suggestion ignores both this Court’s precedents and the unique

characteristics of the classroom setting.

First, it is far too late in the day to suggest that context is

irrelevant under the Establishment Clause. This Court

repeatedly has emphasized the importance of context and the

need for nuance in Establishment Clause analysis, especially in

applying the endorsement test. See, e.g., Lee v. Weisman, 505

U.S. at 598 (“Our jurisprudence in this area is necessarily one

of line drawing”); accord Capitol Square Review & Advisory

Bd. v. Pinette, 515 U.S. 753, 778 (1995) (O’Connor, J.,

concurring) (recognizing that the endorsement test may turn on

“the fortuity of geography, the nature of the particular public

space, or the character of the religious speech at issue”); id. at

788-90 (Souter, J., concurring); Rosenberger v. Rector &

Visitors of the University of Virginia, 515 U.S. 819, 847 (1995)

(O’Connor, J., concurring) (noting that the Establishment

16

Clause “requires courts to draw lines, sometimes quite fine,

based on the particular facts of each case”).

In County of Allegheny, for example, the Court stated

plainly that “the effect of a creche display turns on its setting.”

County of Allegheny v. ACLU, 492 U.S. 573, 598 (1989). The

Court concluded that a display on the Grand Staircase of the

seat of county government raised more troubling questions than

a display in a private park in a city’s commercial district. Jd. at

598-600 (distinguishing Lynch v. Donnelly, 465 U.S. 668

(1983)); see also 492 U.S. at 624-26 (O’ Connor, J., concurring)

(same). As Justice O’Connor underscored in her concurrence.

““[e]very government practice must be judged in its unique

circumstances to determine whether it constitutes an

endorsement or disapproval of religion."” Jd at 624-25

(O’Connor, J., concurring) (quoting Lynch, 465 U.S. at 694

(O’Connor, J., concurring)).

Second, this Court specifically has noted the unique risks

of endorsement and coercion in the classroom setting. More

difficult issues arise when the questioned conduct occurs “as

part of the curricular activities of students who are required by

law to attend school.” School District of Abington Township v.

Schempp, 374 U.S. 203, 223 (1963). In the classroom setting,

compulsory attendance laws and small numbers magnify

problems of coercion. Moreover, it is in the classroom that

students routinely receive instruction from their teachers. See

also Edwards v. Aguillard, 482 U.S. 578, 584 (1987) (noting

the “students’ emulation of teachers as role models”). The

challenge of segregating out certain speech as purely private

and the risk of mistakenly inferring government endorsement

are greater in the classroom. Thus, Mergens emphasized that

the Equal Access Act applied only to meetings held during

“noninstructional time.” Mergens, 496 U.S. at 251 (plurality).

_——— ee

17

By allowing student religious speech to take place in the same

classrooms in which students received secular instruction only

during noninstructional time, the Equal Access Act avoided any

concerns with coercion or mistaken inferences of endorsement.

See id.

The Santa Fe Football Policy puts even greater distance

between any student religious speech that occurs and the

classroom. It allows the possibility of such speech only at

football games, which are separated from the classroom by

time, space, and subject matter. A football game features large

crowds with parents interspersed. Students sit in self-selected

groups in the stands, and the event takes place long after the

end of the school day. Although it remains a school event, the

football game is an extracurricular event in an extracurricular

setting during noninstructional time. On the spectrum of

school-related events, a football game sits at one extreme, with

the classroom at its polar opposite. For all these reasons, the

football game poses far less risk of coercion and endorsement

than the classroom.'’ As noted in Mergens, “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.” 496 U.S. at 251."°

'*In its opening brief, petitioner pointed out the numerous factors that

distinguish football games from the classroom. Pet. Br. at 34, 37-38, 41-42.

Rather than refute these differences, respondents dismiss them as irrelevant.

By failing to differentiate football games from classrooms, respondents

demonstrate the breadth and rigidity of their position. By lumping together

football games and physics class, Resp. Br. at 26-27, 30, respondents

necessarily imply that all school functions pose identical risks of

establishment and that all must be free from private religious expression.

‘Respondents also suggest that the facts of Ingebretsen v. Jackson Public

School Dist., 88 F.3d 274 (Sth Cir.), cert. denied, 519 U.S. 965 (1996),

(continued...)

18

D. Respondents’ Theory of the Case is Rife with

Constitutional Difficulty.

The unstated premise of respondents’ theory — that any

speech by a student speaker at a school event is attributable to

the school district — not only is meritless, but raises a host of

constitutional difficulties.

There is no principled limitation of respondents’ theory to

pre-game student speeches at high school football games. A

football game is just one among many school events at which

students may have an opportunity to address, in their own

words, their assembled classmates (and others). The class

president at a student government assembly, the student

competitor at a school talent show, the student athlete at a

school awards ceremony — all these, and others, enjoy a

“moment in the sun” in which they alone command the podium

or microphone and, for that brief moment, can individually

express themselves. Respondents would presumably ban all

such occasions because, after all, the student might voice a

religious sentiment. The only alternative would be for the

school strictly to censor any religious content and viewpoint

from the student’s speech. Yet respondents cannot reconcile

the latter option with this Court’s precedents shielding private

speech from content and viewpoint censorship.

Imposing upon schools an affirmative duty to gag student

religious speech at school events would force upon school

'°(...continued)

somehow demonstrate the implications of upholding Santa Fe’s Football

Policy. Resp. Br. at 28-29. However, /ngebretsen involved a Mississippi

statute that gave a blanket authorization for prayer in school, including

prayer by teachers and schooi officials. The Fifth Circuit had no difficulty

concluding that the statute violated the Establishment Clause. See 88 F.3d

at 279-80. That result will not change if this Court upholds Santa Fe’s

Football Policy.

19

districts the intractable task of deciding what is and is not

impermissible “religious” speech, a task unsuitable for any

branch of government. Widmar v. Vincent, 454 U.S. 263, 272

n.11 (1981); cf Rosenberger, 515 U.S. at 835-37. See Pet. Br.

§ III (outlining constitutional difficulties with discriminatory

school censorship of student religious speech).

In essence, respondents’ approach blurs the very

distinction respondents concede is fundamental: between

government speech and private (student) speech. Once that line

is blurred, the challenge of complying simultaneously with the

Establishment Clause (barring government establishment of

religion) and the Free Speech and Free Exercise Clauses

(barring government suppression of religious expression)

becomes an administrative nightmare, if not a downright

impossibility, for school districts. See Brief of Amici Curiae

Spearman Independent School District et al. at 12-13. The far

better approach — the one endorsed by this Court — is to

uphold the “crucial difference” between government speech and

private speech, Mergens, 496 U.S. at 250 (plurality).

Adherence to that distinction allows school districts to follow

a constitutionally permissible and readily identifiable middle

course: neither prescribing nor proscribing student religious

speech, but simply allowing such speech on equal terms with

secular student speech.

CONCLUSION

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

David A. Cortman

American Center for

Law & Justice

1000 Regent Univ. Drive

Virginia Beach, VA 23464

(757) 226-2489

Kelly Shackelford

509 Cutter Lane

Allen, TX 75013

(972) 423-8889

Respectfully submitted,

Jay Alan Sekulow

Counsel of Record

Colby M. May

James M. Henderson, Sr.

Mark N. Troobnick

Walter M. Weber

American Center for

Law & Justice

Suite 609

1000 Thos. Jefferson St. NW

Washington, DC 20007

(202) 337-2273

Paul D. Clement

King & Spalding

1730 Pennsylvania Ave. NW

Washington, DC 20006

(202) 626-2640

Attorneys for the Petitioner

March 8, 2000

(K,

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