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

FILED

DEC 0 (73) at VEL 3.0 1999

& OF THE CLERK

Ney pane courT, U.S.

IN THE

Supreme Court of the United States

SANTA FE INDEPENDENT SCHOOL DISTRICT,

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 OF THE NORTHSTAR LEGAL CENTER

AS AMICUS CURIAE IN SUPPORT OF PETITIONER

JORDAN W. LORENCE

NORTHSTAR LEGAL CENTER

P.O. Box 2074

Fairfax, VA 22031

(703) 359-8619

Counsel for Record

TABLE OF CONTENTS

THE SCHOOL DISTRICT HAS CREATED

A LIMITED FORUM FOR STUDENT

SPEECH WITH ITS FOOTBALL GAME

A. The School District Has Followed

First Amendment Standards To

Establish A Limited Forum For

B. The School District’s Forum For

Student Speech Is Not A Pretext

Or Subterfuge To Violate The

Establishment Clause

Vote Is Consistent With the Public

Forum Doctrine. ............. 6

THERE IS NO ESTABLISHMENT CLAUSE

VIOLATION WHEN THE GOVERNMENT

ACCOMMODATES PRIVATE SPEECH IN

A LIMITED PUBLIC FORUM

ii

A. The First Amendment Prohibits

The Government From Singling

Out Religious Speech For

Exclusion From Its Forum. .... 8

B. The School District Does Not

Endorse The Religious

Views Expressed By Speakers

In A Public Forum. ......... 1]

CONCLUGION ....00ccensoncos eeu e eee 14

-

ee

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iil

TABLE OF AUTHORITIES

Board of Educ. v. Mergens,

ee cc cde eccancccces 9,12

Capitol Square Review Board v. Pinette,

ee oc kc edcccecces 9, 13

Cornelius v. NAACP Legal Defense and Education Fund, Inc.,

ces cen checcccecceces 5,10

Doe v. Santa Fe Independent School District,

168 F.3d 806 (Sth Cir. 1999) .............. 4,5,9

Hazelwood School District v. Kuhimeier,

ee lence cc ccncecese cs 3

Lamb's Chapel v. Center Moriches Union Free School District,

ee occ ceeeacese 9,12

Lee v. Weisman,

Tee ces ccc ceces 7-8

Lynch v. Donnelly,

ede kes ckecccecccees 2,8

Perry Education Assn. v. Perry Local Educators’ Assn.,

nh i awadnccececcececes 3, 4, 10

Rosenberger v. Rectors and Visitors of the Univ. of Virginia,

EE 9,12, 13

Southeastern Promotions, Ltd. v. Conrad,

EEE 4

iv

Tinker v. Des Mcines School Dist.,

FEO Gee BE CH ccc tcdcecoess

Widmar v. Vincent,

454 U.S. 263 (1981) .............

l

INTEREST OF AMICUS!

Northstar Legal Center is a public interest legal

organization located in Fairfax, Virginia that litigates cases

involving constitutional law nationally. The Northstar Legal

Center recently appeared before this Court representing the

respondents in Board of Regents of the University of Wisconsin

v. Southworth, No. 98-1189 (oral arguments November 9,

1999). The Northstar Legal Center has litigated a number of

public forum - equal access cases in which government has

excluded private speakers from a forum because of the

religious content of the speakers’ speech. The Northstar Legal

Center supports the policy of the Santa Fe Independent School

District which protects religious speech from discriminatory

exclusion from a limited forum for student speech. To affirm

the Fifth Circuit’s judgment will discourage governmental units

from enacting equal access policies that protect religious

speech expressed by private speakers.

SUMMARY OF ARGUMENT

The Santa Fe Independent School District has properly

established a limited public forum for student speech.

Although this Court need not resolve the public forum issue to

decide this case, it is an additional grounds for reversing the

judgment below and upholding the policy. This is the speech

' Both counsels of record have filed letters with the Clerk of Court

consenting to the filing of all amicus curiae briefs in this case. Pursuant to

Rule 37.6, counsel for amicus states that no counsel for a party authored this

brief in whole or in part and no person, other than amicus, its members and

its counsel have made a monetary contribution to the preparation or

submission of this brief. Amicus has submitted a request for funding with

the Alliance Defense Fund of Scottsdale, Arizona, but that group has not yet

acted on the request at the time this brief was filed.

2

of private, individual students, not government speech. See

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

The policy is consistent with the public forum doctrine

with its mechanism allowing students to select whether to have

student speakers at the football games and then select who the

speakers will be. Because the forum allows only one speaker

at the few home football games, there needs to be some

content-neutral selection process to determine which students

will speak in this forum, which the school district uses here.

The policy’s selection mechanism here is similar to the

situation of American voters electing the President of the

United States, whose duties include giving an inauguration

speech. Over the centuries, Presidents have prayed or made

references to God during their inauguration speeches, yet this

does not violate the Establishment Clause. “Presidential

references to God during an Inaugural Address ... present no

risk of establishing religion.” Lynch v. Donnelly, 465 U.S. 668,

717 (1984).

There is no Establishment Clause violation when

private individual speakers express themselves with religious

speech in a limited forum they are eligible to speak in. In fact,

the school district would violate the students’ freedom of

speech and engage in unconstitutional content or viewpoint

discrimination if it excluded students’ religious expression

while permitting all other student expression in the forum. The

Fifth Circuit’s judgment should be reversed.

ARGUMENT

THE SCHOOL DISTRICT HAS CREATED

A LIMITED FORUM FOR STUDENT SPEECH

WITH ITS FOOTBALL GAME POLICY

A. The School District Has Followed

First Amendment Standards To Establish

A Limited Forum For Student Speech.

The Santa Fe Independent School District (“Santa Fe”)

has created a limited forum for student speech with its policy

permitting students to speak before the football games. This

Court need not resolve the public forum issue to decide this

case. This Court can answer the question presented that

student-led, student-initiated prayer does not violate the

Establishment Clause without reference to the public forum

doctrine. However, the court below analyzed the case in terms

of the public forum doctrine, which this Court spelled out in

Widmar v. Vincent, 454 U.S. 263 (1981) and other cases.

When applied properly, the public forum doctrine gives

an additional ground to reverse the holding of the Fifth Circuit

and to uphold the Santa Fee policy at issue in this case. Santa

Fe has designated a small portion of the time before the home

football games as a limited forum for student speech.

Public schools may create a forum by policy or

practice. Hazelwood School District v. Kuhimeier, 484 U.S.

260, 267 (1988); Perry Education Assn. v. Perry Local

Educators’ Assn., 460 U.S. 37, 47 (1983). Government, like

the Santa Fe school district, may also create a “limited forum,”

4

-- “created for a limited purpose such as use by certain groups,

e.g., Widmar v. Vincent (student groups) or for the discussion

of certain subjects, e.g., City of Madison Joint District v.

Wisconsin Public Employment Relations Commission (school

board business).” Perry, 460 U.S. at 45 n.7.

Here, the school district has created a limited forum for

student speakers to speak for a short period of time before the

home football games. The Fifth Circuit characterized the

football game prayer policy as providing “for a student-

selected, student-given ‘brief invocation and/or message to be

delivered during the pre-game ceremonies of home varsity

football games ...."” Doe v. Santa Fe Independent School

District, 168 F.3d 806, 825 (Sth Cir. 1999). Therefore, by

policy, Santa Fe has carved out a period of time for private

speech by individual students. The limit on the forum is by

identity of the speaker, not the content of the speaker’s

message.

Because the school district has not limited the forum on

the basis of subject matter, it cannot prohibit otherwise eligible

student speakers from speaking because their messages contain

religious content. If Santa Fe allowed all student speech

except religious speech, it would violate the freedom of speech

rights of the student speakers. “Where the State has opened a

forum for direct citizen involvement,’ exclusions bear a heavy

burden of justification.” Widmar, 454 U.S. at 268, quoting

Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546,

555-559 (1975).

B. The School District’s Forum For Student Speech

Is Not A Pretext Or Subterfuge To Violate The

Establishment Clause.

The Fifth Circuit rejected Santa Fe’s argument that it

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5

had created a limited forum for student speech. Instead, the

court below found the policy to be an underhanded attempt to

violate the Establishment Clause by having the students do

what the school district could not do openly - promote religion.

Doe, 168 F.3d at 822.

The Fifth Circuit placed much emphasis on its view that

the forum created by the Santa Fe School Board was not a

limited public forum, as asserted by the school district, but was

“no forum at all.” Doe, 168 F.3d at 822. It reasoned that the

limited number of speakers, the “monolithically

non-controversial nature” of the forum, and the tightly

restricted and “highly controlled form of ‘speech’ involved,”

id., all militated against labeling such ceremonies as any type

of public forum. Therefore, the Fifth Circuit reasoned, because

the student speakers were not independent private actors but

mere shills for the state, the Santa Fe policy violated the

Establishment Clause. Jd.

The Fifth Circuit erred by assuming that private

speakers are not really private actors if the forum is

significantly regulated as it is here. Whether a forum is high

regulated does not convert private speakers into government

actors. Even a private speaker speaking in a nonpublic forum

has protected First Amendment rights. See, e.g., Cornelius v.

NAACP Legal Defense and Education Fund, Inc., 473 U.S. 788

(1985) (Combined Federal Campaign is a nonpublic forum for

private charities to solicit contributions from federal

employees, and the solicitations are “protected speech

occurring in the context of a nonpublic forum.” Jd. at 797.

Therefore, even though the school district has regulated

its limited forum, the First Amendment protects the rights of

the chosen students to speak at the home football games. The

fact that a forum is highly regulated does not eliminate all First

6

Amendment protections of the private persons speaking there.

The Fifth Circuit erred by misconstruing the critical

components of the Santa Fe policy that made the messages the

end result of many private decisions that are not directed by the

state. In other words, if the school district were trying to

ensure that the students would invariably vote for prayer at the

football games, the school district created a policy that does not

achieve that goal.

The policy builds at least three breakpoints separating

the decisionmaking from the guvernment and giving it into the

hands of private individuals. First, the students decide whether

there is a student speaker or not. Application to the Petition for

Certiorari at F1. If the students decide that there shall be a

speaker, then the students vote again to select the speaker. Jd.

Then the speaker can choose what to say at the football game.

Id. The policy does not guarantee that there will be a speaker,

and does not guarantee that the message delivered will contain

religion. Therefore, this policy is not a surreptitious attempt by

the school district to have the students promote religion. There

is no pretext or subterfuge here. This is the case of a school

district’s efforts to accommodate private student speech.

C. The Selection Process of a Majority Vote Is

Consistent With the Public Forum Doctrine.

The fact that a majority of students decide whether there

will be speakers at the football games, and who those speakers

will be, is consistent with the public forum doctrine. The

typical equal access case has private individuals or groups

select themselves to speak at various times in a place the

government opens for expressive activities. See, e.g., Widmar

v. Vincent, 454 U.S. 263 (1981) (university students decided on

their own whether to use campus meeting space).

7

There is nothing inconsistent with having a public

forum, or a limited public forum, where the speakers are

selected by popular vote. If the nature of the forum allows only

one speaker at a time, then the government needs some

selection method to choose who gets the opportunity to speak.

The school district could have chosen a random lottery, or

class rank to determine the speakers, but it chose a student vote.

There is no concern that this policy allows the majority

to impose a consistent religious message on all other students

and those attending the football games. Nothing in the plain

language of policy insures that the student speakers will give

religious messages. In fact, the policy does not even insure that

there will be a student speaker at all. The policy does not

dictate the content of the message spoken by the student

selected. The policy does not contain any viewpoint or contest-

based restrictions on the student’s speech. The students could

vote to have no message at all. If they did decide to have a

message and select a student to give it, the student has the

independent discretion to choose what he or she will say. This

is not a situation in which a majority imposes its ideological

views on a dissenting minority.

This situation is analogous to the selection of the United

States President, who then delivers his Inaugural Address.

Only one person can be President at a time, and only one

President can deliver the Inaugural Address. American voters

select the President knowing that one thing he will do is give a

nationally-televised speech at his inauguration. Although the

President is the head of the United States government’s

executive branch, his Inaugural Address expresses his personal

thoughts and is protected under the First Amendment.

Presidents from George Washington to George Bush

have prayed during their inaugural addresses. Lee v. Weisman,

8

505 U.S. 577, 634 (1992) (Scalia, J., dissenting). Although the

Inauguration is a government event, there is no Establishment

Clause violation when the new President refers to religion in

his Inaugural Address or requests everyone assembled to bow

and pray. “Presidential references to God during an Inaugural

Address ... present no risk of establishing religion.” Lynch v.

Donnelly, 465 U.S. 668, 717 (1984). The reason that there is

no Establishment Clause violation is because the Inaugural

Address is the private speech of the President and is protected

under the First Amendment’s Freedom of Speech Clause.

Similarly, the student body selects individuals to speak

at the football games. Those selected students speak the

message they have chosen free of governmental influence or

control at a limited forum created by the school district. Santa

Fe could not constitutionally prohibit religious speech from

these speakers without violating the First Amendment nghts of

the student speakers. “It can hardly be argued that either

students or teachers shed their constitutional rights to freedom

of speech or expression at the schoolhouse gate.” Tinker v. Des

Moines School Dist., 393 U.S. 503, 506 (1969).

Il.

THERE IS NO ESTABLISHMENT CLAUSE

VIOLATION WHEN THE GOVERNMENT

ACCOMMODATES PRIVATE SPEECH IN A

LIMITED PUBLIC FORUM

A. The First Amendment Prohibits The Government

From Singling Out Religious Speech For

Exclusion From Its Forum.

Santa Fe’s policy allowing students to select a speaker

to “deliver a brief invocation and/or message” before the home

9

football games is a “neutral accommodation” of private student

speech, as Judge Jolly stated in his dissent. Doe, 168 F.3d at

825. If the school district were to amend its policy to permit all

speech by the student speakers except that with religious

content, it would engage in unconstitutional content-based or

viewpoint-based discrimination. This would violate the

constitutional principles laid out in such cases as Widmar,

Board of Educ. v. Mergens, 496 U.S. 226 (1990), Lamb’s

Chapel v. Center Moriches Union Free School District, 508

U.S. 967 (1993) and Rosenberger v. Rectors and Visitors of the

University of Virginia, 515 U.S. 819 (1995). These cases all

held that the government may not exclude speakers from a

forum they are eligible to speak in because of the religious

content or viewpoint of their messages. “Where the State has

opened a forum for direct citizen involvement, exclusions bear

a heavy burden of justification.” Widmar, 454 U.S. at 268.

Most of the cases that have come before this Court

involving content-based and viewpoint-based exclusions from

public forums have excluded religious speech. One major

purpose of the First Amendment, this Court has stated, was to

protect religious speech from governmental suppression. In

Capitol Square Review Board v. Pinette, 515 U.S. 753 (1995),

this Court stated in the majority opinion:

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,

Heffron, supra, at 647, or even acts of worship,

Widmar, supra at 269, n. 6.

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Pinette, 515 U.S. at 760.

Of course, the school district can constitutionally

exclude people from the forum, like non-students, because

they do not meet the initial eligibility standards. Cornelius,

473 U.S. at 806. If a student is otherwise eligible to speak, the

school district may not limit the message he or she gives at the

football game because it is religious. Santa Fe’s policy creates

a limited forum based on identity of the speaker, not on content

of the message. The policy permits only students selected by

the student body to speak, but does not limit the content of their

messages. It would violate the First Amendment for the school

district to limit the speech of the student speakers because of

their content. “[T]he government violates the First Amendment

when it denies access to a speaker solely to suppress the point

of view he espouses on an otherwise includible subject.” Jd.

Even if this Court were to find that Santa Fe operated

a nonpublic forum, it still could not prohibit eligible speakers

from giving a religious message, because this would be

unreasonable viewpoint discrimination. “Control over access

to a non-public forum can be based on subject matter and

speaker identity so long as the distinctions drawn are

reasonable in light of the purpose served by the forum and are

viewpoint neutral.” Cornelius, 473 U.S. at 806. See also Perry

Education Association v. Perry Local Educators’ Association,

460 U.S. 37, 46 (1983).

Therefore, the school district’s policy conforms with the

First Amendment by allowing all speech by eligible students.

It would violate the First Amendment to single out religious

speech for exclusion from this forum.

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B. The School District Does Not Endorse

The Religious Views Expressed By Speakers

In A Public Forum.

When a school district sets up a public forum, it does

not endorse the views of any of the private speakers who speak

there. Therefore, Santa Fe’s policy does not violate the

Establishment Clause by permitting students to deliver

messages with religious content, when it allows the student

speakers to speak on all other topics. Government does not

endorse the speech of private citizens simply by allowing them

to speak. In Widmar, this Court stated:

An open forum in a public university does not

confer any imprimatur of state approval on

religious sects or practices. As the Court of

Appeals quite aptly stated, such a policy “would

no more commit the University . . . to religious

goals” than it is “now committed to the goals of

the Students for a Democratic Society, the

Young Socialist Alliance,” or any other group

eligible to use its facilities. 635 F.2d, at 1317.

Widmar, 454 U.S. at 274. This Court also said in Widmar:

But by creating a forum the University does not

thereby endorse or promote any of the particular

ideas aired there. Undoubtedly many views are

advocated in the forum with which the

University desires no association.

Widmar, 454 U.S. at 271-72, n.10.

Again, in Mergens, this Court clearly stated that public

12

schools do not violate the Establishment Clause when they

allow student religious groups to meet on campus. See

Mergens, 496 U.S. at 248-253. This Court in Mergens made

the helpful observation that government accommodation of

private religious speech does not equal government sponsorship

of that speech:

[T]here is a crucial difference between

government endorsing religion, which the

Establishment Clause forbids, and private

speech endorsing religion, which the Free

Speech and Free Exercise Clauses protect.

Mergens, 496 U.S. at 250 (emphasis in the original).

This Court in Lamb's Chapel reiterated the basic

holding of Widmar that permitting private speakers to express

religious speech in a forum open for secular speech does not

violate the Establishment Clause:

We have no more trouble than did the Widmar

Court in disposing of the claimed defense on

the ground that the posited fears of an

Establishment Clause violation are unfounded.

Lamb's Chapel, 508 U.S. at 395.

This Court’s decision in Rosenberger repeated the

principle that religious groups may not be excluded from

government forums because of the religious content of their

speech:

More than once have we rejected the position

that the Establishment Clause even justifies,

much less requires, a refusal to extend free

13

speech rights to religious speakers who

participate in broad-reaching government

programs neutral in design. See Lamb's Chapel,

508 U.S. at 393-394; Mergens, 496 U.S. at

248, 252; Widmar, supra at 274-275.

Rosenberger, 515 U.S. at 839.

Also this Court explained in Pinette, why it did not

violate the Establishment Clause for the Ku Klux Klan to erect

a cross in an area near the Ohio state capitol:

Quite obviously, the factors that we considered

determinative in Lamb's Chapel and Widmar

exist here as well. The State did not sponsor

respondents’ expression, the expression was

made on government property that had been

opened to the public for speech, and permission

was requested through the same application

process and on the same terms required of other

private groups.

Pinette, 515 U.S. at 763.

The government cannot make the right to exercise

speech within a forum contingent upon the viewpoint of the

speaker or the message. Santa Fe, well aware of its

constitutional duty to accommodate private speech in a limited

forum, drafted a policy to protect the rights of student speakers

from content and viewpoint based discrimination. The Fifth

Circuit wrongly ruled that such a policy violated the

Establishment Clause, when instead, it fulfilled the school

district’s duties under the Freedom of Speech Clause.

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CONCLUSION

Amicus curiae Northstar Legal Center respectfully

requests that this Court reverse the judgment of the Fifth

Circuit.

Date: December 30, 1999

Respectfully submitted,

JORDAN W. LORENCE

Northstar Legal Center

P.O. 2074

Fairfax, Virginia 22031 fr )

(703) 359-8619 fit]

Counsel of Record JY