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

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0320%3A20

## Record

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

## Text

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

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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.

10
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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0320%3A20. Public record. Not legal advice.