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

DEC 30 PY

5) OF SO B99

No. 99-62

In The

Supreme Court of the United States

¢

SANTA FE INDEPENDENT SCHOOL DISTRICT,

Petitioner,

JANE DOE, ET AL.,

Respondents.

+

On Writ Of Certiorari

To The United States Court Of Appeals

For The Fifth Circuit

+

BRIEF OF AMICI CURIAE SPEARMAN

INDEPENDENT SCHOOL DISTRICT, CARTHAGE

INDEPENDENT SCHOOL DISTRICT, DILLEY

INDEPENDENT SCHOOL DISTRICT, IRAAN-

SHEFFIELD INDEPENDENT SCHOOL DISTRICT,

McCAMEY INDEPENDENT SCHOOL DISTRICT,

MADISONVILLE INDEPENDENT SCHOOL

DISTRICT, NEWTON INDEPENDENT SCHOOL

DISTRICT and LORENA INDEPENDENT SCHOOL

DISTRICT, IN SUPPORT OF PETITIONER

7

Rocer D. HepwortH

HeENSLEE, Fow._er, HepwortH &

ScHWARTZ, L.L.P.

800 Frost Bank Plaza

816 Congress Avenue

Austin, Texas 78701

(512) 708-1804

Counsel of Record for Amici

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

a

——

TABLE OF CONTENTS

Page

EE ee SG kc cx henesidocseseeseceeccee i

pri PB Ge Bitsy. 6 oy) . eee ii

STATEMENT OF AMICI INTEREST ................ 1

SUMMARY OF THE ARGUMENT ................. 2

ES de ide0sestd dat eeeseedecedcéivesccecess 4

I. THE FIFTH CIRCUIT’S DECISION FORCES

SCHOOLS TO ABANDON THEIR CONSTITU-

TIONALLY REQUIRED NEUTRALITY AND

SHOW HOSTILITY TO SECULAR RELIGION

WHILE ADVANCING ECUMENICAL RELI-

Me ES Sere Sesccesecdecuseescesces 4

Il. THE FIFTH CIRCUIT’S DECISION IMPROP-

ERLY FINDS THAT STUDENT SPEECH AUTO-

MATICALLY BEARS THE IMPRIMATUR OF

THE GOVERNMENT AND THUS BECOMES

ee SET wa te cnaghhcesesekeebundeen sess 9

III. REQUIRING A SCHOOL DISTRICT TO EDIT

OR CENSOR STUDENT-INITIATED AND STU-

DENT-LED GRADUATION PRAYERS CONSTI-

TUTES DISCRIMINATION BASED ON

VIEWPOINT AND NECESSARILY FORCES

DEEP ENTANGLEMENT IN PRIVATE RELI-

Es no 564.0 0-6656066 00600 00600608 11

ED .Cce se cnecnees bas eidkbebeeneduscecees 13

il

TABLE OF AUTHORITIES

Page

Cases

Board of Educ. of Westside Comm. Sch. v. Mergens,

496 US. Zab (IGGE) «ce cscoseusecssveensenn 8, 9, 10, 11

Capital Square Review and Advisory Bd. v. Pinette,

SIS US. 753 (190G) . nw ccccccccsvesecevessusseuneaean 9

Chandler v. James, 180 F.3d 1254 (11th Cir. 1999)... 8, 9, 10

Doe v. Santa Fe Indep. Sch. Dist., 168 F.3d 806 (5th

Cir. 1999) cert. granted, 120 S.Ct. 494 (1999) ........ 3

Edwards v. Aguillard, 482 U.S. 578 (1987) ............. 9

Engel v. Vitale, 370 U.S. 421 (1962) .............. 6, 7, 8

Everson v. Board of Educ. of Ewing Township, 330

US. 1 (2067) ..ccvcccccsseuscseussaueeeeeenenee 4,7

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

(5th Cir. 1992) cert. denied, 508 U.S. 967 (1993) .... 11

Lee v. Weisman, 505 U.S. 577 (1992)................ 6, 11

Lynch v. Donnelly, 465 U.S. 668 (1984)........ 5, 6, 8, 10

Marsh v. Chambers, 463 U.S. 783 (1983) ............. 6, 7

Rosenberger v. Rector and Visitors of Univ. of Va., 515

US. SID (2906)... ccccccvessecsstseesncveneneeeeen 12

School Dist. of Abington Township, Pa. v. Schempp,

374 U.S. 203 (1GGR) . oo scvcccsscosenecusenee 6, 7, 8, 9

Tinker v. Des Moines, 393 US. SOS CEOS? ovscecenncten )

Wallace v. Jaffree, 472 U.S. 38 (1985) ............008- 6, 7

Walz v. Tax Comm'n of New York City, 397 U.S. 664

yo. ,ececeeesevis.e ewe eine iannneliinn 6

TABLE OF AUTHORITIES - Continued

Page

Ward v. Santa Fe Indep. Sch. Dist., Civil Action

G-99-556, Southern District of Texas, Galveston

Division (not reported) ...... 6.6.6.6. cece ee eeeees 13

Widmar v. Vincent, 454 U.S. 263 (1981)............ 11, 12

Zorach v. Clauson, 343 U.S. 306 (1952)......... 4,5, 7,8

OtTHER AUTHORITIES

i Sch SGbSecesocccescecccococcceccees 2

I.

STATEMENT OF AMICI INTEREST

Spearman Independent School District, Carthage

Independent School District, Dilley Independent School

District, Iraan-Sheffield Independent School District,

McCamey Independent School District, Madisonville

Independent School District, Newton Independent School

District and Lorena Independent School District appear

as amici curiae and urge the Court to reverse the decision

of the Fifth Circuit.'! Amici curiae have an interest in the

case because the Fifth Circuit's judgment will require

them to review and essentially censor student-initiated

and student-given speech even though there is no state

involvement in the decision that the speech occur or in

the selection of the speaker. Amici’s interest here is sub-

stantial and direct, because the holding directly governs

decisions and policies adopted by these school boards.

Under this decision:

e School officials will be subjected to potential

litigation by students who feel their First

Amendment rights are violated by requiring

administration or school boards to exercise

control over allowance of or the content of

their pre-activity statements or graduation

solemnization.

e Officials will be required to demonstrate hos-

tility toward sectarian religion in favor of

' Counsel for a party did not author this brief, in whole or

in part. No person or entity, other than amici curiae, or its

counsel, made a monetary contribution to the preparation and

submission of this brief.

ecumenical religion, resulting in establish-

ment of a state religion, that of atheism or

ecumenical religion.

e The decision will require the school to exert

control over the student prayers, resulting in

(a) violating their First Amendment right to

freedom of speech, and (b) excessive entan-

glement.

e The decision will require the school to out-

law student-initiated and student-led prayer,

even though that is not governmental action

by any definition.

This decision places the school districts in an unten-

able position, despite established precedent to the con-

trary.

The parties have given their consent to the filing of

this brief, as shown in the blanket consent letter already

on file with the Court. Sup. Ct. R. 37.2(a).

S

SUMMARY OF THE ARGUMENT

“God save the United States and this Honorable Court.”

Thus begins each session of the United States

Supreme Court since the days of Chief Justice Marshall.?

If a student at a football game or graduation ceremony

used this phrase, but substituted the phrase “school dis-

trict” for the phrase “Honorable Court,” has that student

2 J.C. Warren, The Supreme Court in the United States

History 469 (1922).

eS ee aie

~

violated the Establishment Clause of the First Amend-

ment? In fact, the Fifth Circuit has ignored the general

tradition of prayer at public ceremonies that has existed

since the beginning of this nation and struck down stu-

dent-initiated prayer for all activities except for gradua-

tion.

If the Fifth Circuit’s decision in Doe v. Santa Fe ISD,

168 F.3d 806 (5th Cir. 1999), is not overturned, school

officials will be put in the untenable position of having to

show hostility toward religion by barring any religious

speech except at graduation. School officials may be

forced to deny students their freedom of speech at gradu-

ation ceremonies as well since any prayers that are

offered are subject to the guidelines and editing require-

ments of the Fifth Circuit - namely, that the prayers be

nonsectarian and nonproselytizing. This decision cannot

be allowed to stand for three main reasons:

1. The Fifth Circuit’s decision violates the require-

ment that governments be neutral in the realm of reli-

gion. This decision demonstrates hostility toward secular

religion and favors ecumenical religion or non-religion

(atheism) over sectarian religions. This results in estab-

lishment of a state religion, that of atheism or ecumenical

religion, thus violating the Establishment Clause.

2. The prayers in question at football games or

other school activities or at graduation are not govern-

mental action. They are student-initiated and student-led.

The Fifth Circuit’s decision requires a school district to

edit the content of graduation prayers, in violation of

student constitutional rights.

3. The Fifth Circuit’s decision requires that school

officials exert control over the content of student prayers

at graduation (in addition to not allowing them at foot-

ball games or other activities). This violates the freedom

of speech rights of the students, and it results in excessive

entanglement of school districts with religion.

e

ARGUMENT

I. THE FIFTH CIRCUIT’S DECISION FORCES

SCHOOLS TO ABANDON THEIR CONSTITU-

TIONALLY REQUIRED NEUTRALITY AND SHOW

HOSTILITY TO SECULAR RELIGION WHILE

ADVANCING ECUMENICAL RELIGION OR

ATHEISM.

The Fifth Circuit’s decision ignores a long history of

prayer at public gatherings and crosses the line that

Justice Black warned of when he stated that courts must

“be sure that [they] do not inadvertently prohibit [gov-

ernment] from extending its general . . . benefits to

all . . . citizens without regard to their religious belief” by

being overzealous in their enforcement of the Establish-

ment Clause. Everson v. Board of Educ. of Ewing Township,

330 U.S. 1, 16 (1947). As mentioned in Judge Jolly’s dis-

sent in the Fifth Circuit’s decision, this concern has been

expressed eloquently by Justice Douglas in Zorach v.

Clauson, as follows:

We are a religious people whose institutions

presuppose a Supreme Being. We guarantee the

freedom to worship as one chooses. We make

room for as wide a variety of beliefs and creeds

as the spiritual needs of man deem necessary.

We sponsor an attitude on the part of govern-

ment that shows no partiality to any one group

and that lets each flourish according to the zeal

of its adherents and the appeal of its dogma.

When the state . . . cooperates with religious

authorities by adjusting the schedule of public

events to sectarian needs, it follows the best of

our traditions. For it then respects the religious

nature of our people and accommodates the

public service to their spiritual needs. To hold

that it may not would be to find in the Constitu-

tion a requirement that the government show a

callous indifference to religious groups. That

would be preferring those who believe in no

religion over those who do believe. Government

may not finance religious groups nor undertake

religious instruction nor blend secular and sec-

tarian education nor use secular institutions to

force one or some religion on any person. But

we find no constitutional requirement which

makes it necessary for government to be hostile

to religion and to throw its weight against

efforts to widen the effective scope of religious

influence.

Zorach v. Clauson, 343 U.S. 306, 313-14 (1952).

Justice Scalia’s dissent in Lee v. Weisman contains an

extensive discussion of the importance of history in the

analysis of Establishment Clause jurisprudence.

As we have recognized, our interpretation of the

Establishment Clause should “compor[t] with

what history reveals was the contemporaneous

understanding of its guarantees.” Lynch v. Don-

nelly, 465 U.S. 668, 673 (1984). “[T]he line we

must draw between the permissible and the

impermissible is one which accords with history

and faithfully reflects the understanding of the

Founding Fathers.” School Dist. of Abington v.

Schempp, 374 U.S. 203, 294 (1963) (Brennan, J.,

concurring). “[H]istorical evidence sheds light

not only on what the draftsmen intended the

Establishment Clause to mean, but also on how

they thought that Clause applied” to contempo-

raneous practices. Marsh v. Chambers, 463 U.S.

783, 790 (1983). Thus, “[t]he existence from the

beginning of the Nation’s life of a practice,

[while] not conclusive of its constitutionality

... L] is a fact of considerable import in the

interpretation” of the Establishment Clause.

Walz v. Tax Comm'n of New York City, 397 U.S.

664, 681 (1970) (Brennan, J., concurring).

The history and tradition of our Nation are

replete with public ceremonies featuring prayers

of thanksgiving and petition. Illustrations of this

point have been amply provided in our prior

opinions, see, e.g., Lynch, supra, 465 U.S., at

674-678; Marsh, supra, 463 U.S., at 786-788; see

also Wallace v. Jaffree, 472 U.S. 38, 100-103 (1985)

(REHNQUIST, J., dissenting); Engel v. Vitale, 370

U.S. 421, 446-450, and n. 3 (1962) (Stewart, J.,

dissenting).

Lee v. Weisman, 505 U.S. 577, 632 (1992).

Justice Scalia went on to quote references or prayers

to deity in the Declaration of Independence, inaugural

addresses by George Washington, Thomas Jefferson,

James Madison and congressional establishment of a day

of thanksgiving and prayer (the day after passage of the

First Amendment). Nearly every President has issued a

Thanksgiving Proclamation, with a religious theme of

prayerful gratitude to God. Lynch v. Donnelly, 465 U.S.

—

668, 675, n. 2 (1984); Wallace v. Jaffree, 472 U.S. 38, 100-103

(1985).

Justice Scalia also observed that, as detailed in Marsh

v. Chambers, Congressional sessions have opened with a

ch-plain’s prayer ever since the First Congress, 463 U.S.

783, 787 (1983), and that this Court’s own sessions have

opened with the invocation “God save the United States

and this Honorable Court” since the day of Chief Justice

Marshall. Lee, 505 U.S. at 635. In addition, prayers at high

school graduations have occurred, by one account, since

the first high school graduation in July of 1868. Id.

Additionally, our money is emblazoned with the

motto “In God We Trust,” and the pledge of allegiance

includes the phrase “under God.” Yet, the Fifth Circuit

Court of Appeals refuses students (not district employees

or agents) the opportunity to pray at any and all school

events other than graduation, and then only after the

school has edited out any reference to deity or sectarian

religion.

If there is one point of law in this case that is clearly

established, it is that the government must be neutral

when it comes to religion. Zorach, 343 U.S. at 314. The

government may not favor religion, but neither may it be

hostile to religion. Engel v. Vitale, 370 U.S. 421, 443 (1962)

(Douglas, J., concurring). “In the relationship between

man and religion, the State is firmly committed to a

position of neutrality.” School Dist. of Abington Township v.

Schempp, 374 U.S. 203, 226 (1963).

The Fifth Circuit’s holding goes well beyond the

established constitutional requirement of neutrality and

requires schools to show hostility to religion. See Everson,

330 U.S. 1; Zorach, 343 U.S. 306; Engel, 370 U.S. 421;

Schempp, 374 U.S. 203; Board of Educ. of Westside Comm.

Sch. v. Mergens, 496 U.S. 226 (1990). This is constitu-

tionally impermissible. The Eleventh Circuit addressed

this same issue and found that “[t]he prohibition of all

religious speech in our public schools implies, therefore,

an unconstitutional disapproval of religion. If endorsement

is unconstitutional because it ‘sends a message to non-

adherents that they are outsiders,’ disapproval is uncon-

stitutional because it ‘sends the opposite message.’ ”

Chandler v. James, 180 F.3d 1254 (11th Cir. 1999) (quoting

Lynch v. Donnelly, 465 U.S. 668 at 688 (1984) (O’Connor, J.,

concurring)) (emphasis in original).

The prohibition of all religious speech by students

during their pre-game activities implies an unconstitu-

tional disapproval of religion. As the Eleventh Circuit

stated in Chandler, “’[c]leansing’ our public schools of all

religious expression . . . inevitably results in the ‘estab-

lishment’ of disbelief —- atheism —- as the State’s religion.

Since the Constitution requires neutrality, it cannot be the

case that government may prefer disbelief over religion.”

Chandler, 180 F.3d at 1261.

In Schempp, Justice Goldberg warned that an:

untutored devotion to the concept of neutrality

can lead to invocation or approval of results

which partake not simply of that noninter-

ference and noninvolvement with the religious

which the Constitution demands, but of a

brooding and pervasive dedication to the secu-

lar and a passive, or even active, hostility to the

religious. Such results are not only not com-

pelled by the Constitution, but, it seems to me,

are prohibited by it.

Schempp, 374 U.S. at 306 (Goldberg, J., concurring). “The

discriminatory suppression of student-initiated religious

speech demonstrates not neutrality but hostility toward

religion. . . . ” Chandler, 180 F.3d at 1261. For these

reasons, this decision must be reversed.

Il. THE FIFTH CIRCUIT’S DECISION IMPROPERLY

FINDS THAT STUDENT SPEECH AUTOMAT-

ICALLY BEARS THE IMPRIMATUR OF THE GOV-

ERNMENT AND THUS BECOMES STATE

ACTION.

The Fifth Circuit may not constitutionally require

school districts to forbid student speech. As stated by this

court 30 years ago in Tinker v. Des Moines, “[i}t can hardly

be argued that... students . . . shed their constitutional

rights to freedom of speech or expression at the school-

house gate.” Tinker v. Des Moines, 393 U.S. 503, 506 (1969).

The Supreme Court has made it very clear that “[p]rivate

religious speech, far from being a First Amendment

orphan, is as fully protected under the Free Speech

Clause as secular private expression.” Capital Square

Review and Advisory Bd. v. Pinette, 515 U.S. 753, 760 (1995).

“There is a crucial difference between government speech

endorsing religion, which the Establishment Clause for-

bids, and private speech endorsing religion, which the

Free Speech and Free Exercise Clauses protect.” Mergens,

496 U.S. at 250 (quoting Edwards v. Aguillard, 482 U.S. 226,

250 (1990)) (emphasis in original). The Establishment

Clause does not ban prayer, it bans state prayer. The

10

prayer involved in this case is not state prayer, but pri-

vate prayer.

It is true that government cannot control, dictate,

direct or supervise prayer. That was the basis of the

constitutional infirmity in both Engel and Lee. It is the

element of governmental control or direction that prayer

would occur that violates the Constitution. However, that

element is lacking in this case. The school does not

merely use students as a surrogate to accomplish state

sponsored prayer, as in Lee. The policies here clearly give

a student a limited public forum to begin or solemnize

school activities in any manner deemed appropriate. The

student then exercises his or her choice of message,

whether secular or religious.

“Because genuinely student-initiated religious speech

is private speech endorsing religion, it is fully protected

by both the Free Exercise and the Free Speech Clauses of

the Constitution.” Chandler, 180 F.3d at 1261; see also

Mergens, 496 U.S. at 250. The Constitution “affirmatively

mandates accommodation, not merely tolerance, of all

religions, and forbids hostility toward any.” Lynch, 465

U.S. at 673.

Quoting the court in Chandler:

How, then, does a school accommodate religious

expression without commanding it? . . . [T]he

answer is simple — it is to be ‘permitted.’ Not

required. Not commanded. Not even suggested.

Simply permitted. ... The first principle must

always be that genuinely student-initiated reli-

gious speech must be permitted. A student's

individual decision to pray or otherwise speak

11

religiously is not the State’s command. Such

speech is fully protected.

Chandler, 180 F.3d at 1264 (citing Jones v. Clear Creek Indep.

Sch. Dist., 977 F.2d 963, 965 (5th Cir. 1992)). See also

Mergens, 496 U.S. at 252.

This Honorable Court should find, as the Eleventh

Circuit did in Chandler, that this student-initiated speech

is not state action, but constitutionally protected private

speech, and should be permitted.

lil. REQUIRING A SCHOOL DISTRICT TO EDIT OR

CENSOR STUDENT-INITIATED AND STUDENT-

LED GRADUATION PRAYERS CONSTITUTES

DISCRIMINATION BASED ON VIEWPOINT

AND NECESSARILY FORCES DEEP ENTANGLE-

MENT IN PRIVATE RELIGIOUS SPEECH.

The Fifth Circuit’s ruling on graduation prayer places

a tremendous burden on school officials to determine

what words in a graduation prayer are nonsectarian and

nonproselytizing. This certainly forces officials into deep

entanglement in violation of Lee. This requirement places

the school in the position of reviewing and editing the

graduation prayers to ensure that they are nonsectarian

and nonproselytizing. Such a task would be unwieldy,

unmanageable and excessively entangle school officials in

religious issues. This would place officials in the same

type of impermissible entanglement that was struck

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

a university policy required content-based exclusion of

religious speech. This required university officials and

12

ultimately the courts to determine which words con-

tained religious expression in a manner that would inev-

itably lead to entangle State with religion in an

impermissible manner.

The same was true for regulation of speech in a

student newspaper in Rosenberger v. Rector and Visitors of

Univ. of Va., 515 U.S. 819 (1995). This Court struck down

the practice of requiring the university to scrutinize the

content of the newspaper and interpret whether it con-

tained religious content. The Fifth Circuit’s decision,

however, requires school officials to do what was forbid-

den officials in Widmar and Rosenberger — scrutinize the

proposed speech and decide what is religious. This

requires excessive entanglement and is constitutionally

prohibited.

It also places the district officials at great legal peril.

The slightest misstep can plunge a school district into

divisive expensive litigation whichever way they choose.

No better example exists than the case at bar. Litigation

arose and culminated in the Fifth Circuit’s decision when

the school attempted to fashion an acceptable policy

regarding prayer. When the school subsequently

attempted to follow the Fifth Circuit’s ruling and forbid

prayer, a lawsuit was filed by a student who claims her

right to freedom of speech and freedom of religion have

been violated. As a result of the student’s lawsuit, the

school has been enjoined by a federal district court from

disciplining the student who chose to pray, yet the school

is compelled to follow the Fifth Circuit’s ruling and not

13

permit her to pray.* She claims her right to Freedom of

Speech has been violated. The school is caught in a

“Catch 22.”

CONCLUSION

For these reasons, amici respectfully request that the

Court reverse the judgment of the Fifth Circuit Court of

Appeals.

Respectfully submitted,

Rocer D. HerwortH

Henstee, Fowrer, Hepwortu &

Scuwartz, L.L.P.

800 Frost Bank Plaza

816 Congress Avenue

Austin, Texas 78701

(512) 708-1804

Counsel of Record for Amici

3 Ward v. Santa Fe ISD, Civil Action G-99-556, Southern

District of Texas, Galveston Division (not reported).