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

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0320%3A11

## Record

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

## Text

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

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I. RESPONDENTS MAKE ONLY A
FACIAL CHALLENGE TO THE
SANTA FE FOOTBALL POLICY.............

II. RESPONDENTS DO NOT DISPUTE
THE CONTROLLING CONSTITUTIONAL
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Ill. A STUDENT’S SPEECH PURSUANT
TO THE SANTA FE FOOTBALL
POLICY IS NOT ATTRIBUTABLE TO
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A. _ The Santa Fe Football Policy
Has a Legitimate Secular Purpose ........

B. — There is No Majoritarian Imposition
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C. Approving the Football Policy
Would Not Open the Doors to
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D. Respondents’ Theory of the Case
is Rife with Constitutional
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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) , 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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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0320%3A11. Public record. Not legal advice.