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

-_ Supreme Court, U.S.

Dic 30 57] dy FILED

No. 99-62 pec SO 99 :

|

In the Supreme Court of the Ure f eo

SANTA FE INDEPENDENT SCHOOL DISTRICT, PETITIONER.

V.

JANE DOE, ET AL., RESPONDENTS.

On Writ of Certiorari to the

United States Court of Appeals

for the Fifth Circuit

BRIEF FOR THE CHRISTIAN LEGAL SOCIETY AS

AMICUS CURIAE IN SUPPORT OF PETITIONER

MICHAEL W. MCCONNELL**

STEFFEN N. JOHNSON*

104 Law Building

Mayer, Brown & Platt

332 South 1400 East Front 190 South LaSalle Street

Salt Lake City, Utah 84112 Chicago, Illinois 60603

(801) 581-6342 (312) 782-0600

KIMBERLEE W. COLBY STEPHEN M. SHAPIRO

Christian Legal Society Mayer, Brown & Platt

4208 Evergreen Lane 1909 K Street, N.W.

Annandale, Virginia 22003 Washington, D.C. 20006

(703) 642-1070 (202) 263-3000

**Of Counsel

*Counsel of Record

Counsel for Amicus Curiae

a 2S a a

i

i

:

district to allow student volunteers selected on the basis of

secular and neutral criteria to deliver a message or invocation

of their choice as part of the pre-game activities at high

TABLE OF CONTENTS

Page

QUESTION PRESENTED ......sccscsectouns i

INTEREST OF THE AMICUS CURIAE .......... 1

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

ARGUMENT . occ 0005045 eee ee eee 3

I. THE DISTINCTION BETWEEN STATE

ACTION ADVANCING RELIGION AND

PRIVATE ACTION ADVANCING RELIGION

IS CRITICAL TO THE PROTECTION OF

RELIGIOUS LIBERTY ..........2002-. 3

A. This Court’s Decisions Confirm That The

State Itself May Not Engage In Religious

Exercise Or Advance Inherently Religious

Perrrrrre 5

B. This Court’s Decisions Also Confirm That

The Establishment Clause Provides No

Warrant For Interfering With Private

Religious GeGSGR .. wc c eet eeenwes 9

1. Use of public property or resources

does not itself make private speech

attributable to the state ......... 13

2. Private religious speech may not be

censored simply because it is

“offensive” to those in attendance .. 14

Il.

It

ee.

TABLE OF CONTENTS-Continued

Page

3. If private religious speech were

misattributed to the state, the proper

remedy would be to require a neutral

disclaimer, not to censor the speech

C. Two Standards Govern Whether Religious

Speech Is Attributable To The State: The

Neutrality Of The State’s Selection Criteria

And The Degree Of State Control Over The

1. The neutrality of the selection criteria

2. The degree of state control over the

OO a

POLICIES THAT PERMIT SPEAKERS

SELECTED ON A NEUTRAL BASIS TO

DELIVER A MESSAGE OF THEIR CHOICE

AT PUBLIC EVENTS DO NOT VIOLATE

THE ESTABLISHMENT CLAUSE ......

THE DISTRICT’S POLICY FACIALLY

SATISFIES THE REQUIREMENTS OF

NEUTRAL SELECTION CRITERIA AND

PRIVATE CONTROL OVER CONTENT

A. Holding An Election Is A Facially Neutral

Means Of Selecting A Speaker .......

15

17

18

20

21

Vv

iv

TABLE OF AUTHORITIES

TABLE OF CONTENTS-Continued

Cases: Page

Page

ACLU v. Black Horse Pike Regional Board of Education,

B. The District's Policy Facially Satisfies 84 pes 1471 Gd Ci bh o 23

The Requirement Private Control Over Mt ea ek oe

RT nc 3 a6 c & Ge eee Se a as 28 Adler v. Duval County School Board, 851 F. Supp. 446

.D. Fla. 1994), vacated as moot, 112 F.3d 147

C. If There Is No Reading Of The District's ro Pg a lamacaaig aoe

Policy Under sta trae es I h)

“Student-Initiated” And “Student-Led,” The

Gun Diemics The Wr Aa Blum v. Yaretsky, 457 U.S. 991 (1982) ........ 3, 21

improvidemtly Gramted ............ 0 Board of Education v. Mergens, 496 U.S. 226 (1990) . passim

GE. ib So he We ee es oe ee 30 Bowen v. Kendrick, 487 U.S. 589 (1988) ........... 5

Capitol Square Review & Advisory Board v. Pinette, 515 U.S.

ots baked se Cate tb << 9, 11, 13, 14, 16, 19

Carey v. Brown, 447 U.S. 455 (1980)... 2... 2.22... 4

Chandler v. James, 180 F.3d 1254 (11th Cir. 1999)... 23

Church of Lukumi Babalu Aye v. City of Hialeah, 508 U.S.

Eo 2s we 0b bs oe CE ae he Ke 60a é< 4

City of Cleburne v. Cleburne Living Center, 473 U.S. 432

EE, do hd neiand biidd @ a: 0% 6 oe 6 O's 23

Civil Rights Cases, 109 U.S. 3 (1883) ............. 3

Corporation of Presiding Bishop v. Amos, 483 U.S. 327

Sn Oe eres os eile b We ben 6 ob s WON ee 4

vi

TABLE OF AUTHORITIES-Continued

Page

Doe v. Duncanville School District, 70 F.3d. 402 (Sth Cir.

| PERE PE ey OO ee eee 24

Doe v. Madison School District, 147 F.3d 832 (9th Cir.

1998), vacated as moot, 177 F.3d 789 (1999) ..... 22

Edwards v. Aguillard, 482 U.S. 578 (1987) .......... 20

Engel v. Vitale, 370 U.S. 421 (1962) ....... 6, 9, 21, 23

Eu v. San Francisco County Democratic Central Committee,

Gy as SE So he cata ic 48 Cins bees 4

Everson v. Board of Education, 330 U.S. 1 (1947)... ... 8

Gitlow v. New York, 268 U.S. 652 (1925) ......... 15

Guidry v. Broussard, 897 F.2d 181 (Sth Cir. 1990) ... 23

Harris v. Joint School District, 41 F.3d 447 (9th Cir. 1994),

vacated as moot, 515 U.S. 1154 (1995) ......... 23

Harris v. McRae, 448 U.S. 297 (1980) .......... 5

Hedges v. Wauconda Community School District, 9 F.3d

ee ee es DD. 6.4 hd needeneaeaeeee 15

Hurley v. Irish-American Gay, Lesbian and Bisexual

Gua, StS GU.B. S50 GGGD one het wreessess 4

Jones v. Clear Creek Independent School District, 977

- ) ft: ee) ee ee 23, 25

vii

TABLE OF AUTHORITIES-Continued

Page

Lamb's Chapel v. Center Moriches School District, 508

De nD «4b e eee +0 060d We 10, 11, 13

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

Lynch v. Donnelly, 465 U.S. 668 (1984) ........ 29

McCollum v. Board of Education, 333 U.S. 203

6b ae 6 oe CBRN ects eee ecco 5,7

McDaniel v. Paty, 435 U.S. 618 (1978) ......... 20

McGowan v. Maryland, 366 U.S. 420 (1961) ...... 5

Rosenberger v. Rector of University of Virginia, 515

rn? bb's ods ee¥0e b baw 4. passim

Rust v. Sullivan, 500 U.S. 173 (1991) ............ 4

School District v. Schempp, 374 U.S. 203 (1963) . 6, 7, 18, 23

Shelley v. Kramer, 334 U.S. 1 (1948) ........... 3

Street v. New York, 394 U.S. 576 (1969) ........ 15

Texas v. Johnson, 491 U.S. 397 (1989) ......... 15

Tinker v. Des Moines School District, 393 U.S. 503

Se rd oe eR ee 14

United States v. Salerno, 481 U.S. 739 (1987) .... 26

Vili

TABLE OF AUTHORITIES-Continued

Page

Wallace v. Jaffree, 472 U.S. 38 (1985) ... 17, 20, 27, 29

Walz v. Tax Commission, 397 U.S. 664 (1970) .... 21

Whitney v. California, 274 U.S. 357 (1927) ...... 15

Widmar v. Vincent, 454 U.S. 263 (1981) ..... 6, 9, 10

Witters v. Washington Dep't of Servs., 474 U.S. 481

POOP PreraTT rT Tee? Tee ee 18

Statutes:

Equal Access Act, 20 U.S.C. §§ 4071-4074 ...... 10

Miscellaneous:

Carl H. Esbeck, The Establishment Clause as a Structural

Restraint on Governmental Power, 84 IOWA L. REV. 1

EP dtes & dee’ ie Gk a0 atk we ae 12, 17

David Heinzmann, Jackson Warns Youths to Avoid

Violence, CHI. TRIB., Nov. 24,1999 ........ 27

Douglas Laycock, Equal Access and Moments of Silence:

The Equal Status of Religious Speech by Private

Speakers, 81 Nw. U. L. REV. 1 (1986) ........ 16

Douglas Laycock, Religious Liberty as Liberty, 7 J.

CONTEMP. LEGAL ISSUES 313 (1996) ........ 12

ix

TABLE OF AUTHORITIES-Continued

Page

James Madison, Memorial and Remonstrance Against

Religious Assessments, attached as Appendix to

dissenting opinion of Rutledge, J., in Everson v.

Board of Education, 330 U.S. 1 (1947) ........ 8

Michael W. McConnell, “God is Dead and We

Have Killed Him!”: Freedom of Religion in the

Post-Modern Age, 1993 B.Y.U. L. REV. 163 .... 4

ROBERT L. STERN ET AL., SUPREME COURT PRACTICE

a ft rere re ae ea eee ee ee 30

The Bible in Public Schools: A First Amendment Guide

RR a ao a Ea a ary ay oye eee 6

LAURENCE H. TRIBE, AMERICAN CONSTITUTIONAL LAW

oT & Perec rereeerreereree 12, 15

— SS

INTEREST OF THE AMICUS CURIAE'

The Christian Legal Society (“CLS”), founded in 1961,

is a nonprofit interdenominational association of more than

4,000 Christian attorneys, law students, law professors, and

judges. CLS has chapters in nearly every State and at more

than 140 accredited law schools.

Since 1975, CLS’s legal advocacy and information arm,

the Center for Law and Religious Freedom, has worked to

protect the religious liberty of all individuals and organiza-

tions, both Christian and non-Christian, in courts across the

Nation. Using a network of volunteer attorneys and law

professors (along with its full-time staff), the Center provides

accurate information to the public and political branches

concerning the interaction of law and religion. Since 1980,

the Center has filed amicus briefs in virtually every case

before this Court involving church-state relations.

CLS has been particularly active in efforts to protect the

rights of those who wish to engage in private religious

expression on equal terms with other private speakers. CLS’s

staff was instrumental in drafting the Equal Access Act, 20

U.S.C. §§ 4071-4074, which this Court sustained in Board

of Education v. Mergens, 496 U.S. 226 (1990). See 128

CONG. REC. 11784-11785 (1982) (Sen. Hatfield). Similarly,

CLS was a principal author of Religion in the Public Schools:

A Joint Statement of Current Law, which served as the basis

for the U.S. Department of Education’s guidance letters on

Religious Expression in Public Schools. For these reasons,

CLS has a vital interest in the outcome of this case.

' The parties have consented to the filing of this brief. Copies of

the letters of consent have been lodged with the Clerk of the

Court. This brief was not authored in whole or in part by counsel

for a party, and no person or entity, other than the amicus curiae,

its members, and its counsel has made a monetary contribution to

the preparation and submission of this brief.

2

SUMMARY OF ARGUMENT

This brief addresses one of the most difficult issues

arising under the First Amendment: in what circumstances is

speech that takes place in the context of a public event fairly

attributable to the state? This question is vitally important to

a coherent theory of the Religion Clauses. An overly broad

view of government speech would impose the restraints of the

Establishment Clause on private speakers—thus requiring the

elimination of private religious voices from public life. An

overly broad view of private speech would nullify constitu-

tional restraints on the power of government—thus permitting

the state to engage in religious activity. A proper resolution

of cases such as this therefore requires recognition of 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.” Board of Educ. v. Mergens, 496

U.S. 226, 250 (1990) (plurality opinion).

Two inquiries determine whether religious speech is

attributable to the state. First, this Court asks whether the

criteria by which speakers are selected are genuinely secular

and neutral toward religion. Where the means of selecting

speakers are “skewed toward religion” or tip the balance in

favor of religious speech, they violate the principle that the

state may not favor religion over nonreligion. Second, the

Court asks whether the speakers retain control over their

messages, and in particular the selection of religious content.

When the state controls the content of a message, one may

fairly say that the state itself is speaking. In contrast, when

private speakers retain control over their remarks, the state

cannot be said to have approved them—regardless of whether

their content is religious.

We believe that the football policy here, on its face,

satisfies these mandates. Nothing in the policy encourages

3

students to elect speakers on the basis of non-neutral criteria;

there has been no showing that Petitioner (the “District”)

reviews student messages for religious content; and insofar

as the students retain control over their statements, they are

free to make either secular or religious remarks. Without

more, this does not violate the Establishment Clause.

ARGUMENT

I. THE DISTINCTION BETWEEN STATE ACTION

ADVANCING RELIGION AND PRIVATE ACTION

ADVANCING RELIGION IS CRITICAL TO THE

PROTECTION OF RELIGIOUS LIBERTY.

It is well settled that the provisions of the Constitution,

with the exception of the Thirteenth Amendment, run solely

against the state. The very language of the Fourteenth

Amendment—‘“No State shall * * * deprive any person of

life, liberty, or property, without due process of law” —by

which the First Amendment is made applicable to the States,

bespeaks its application to the government. In keeping with

this language, this Court has always maintained, ever since

the issue first arose in the Civil Rights Cases, 109 U.S. 3

(1883), that “‘the action inhibited by the first section of the

Fourteenth Amendment is only such action as may fairly be

said to be that of the States."” Blum v. Yaretsky, 457 U.S.

991, 1002 (1982) (quoting Shelley v. Kraemer, 334 U.S. 1,

13 (1948)). The Fourteenth Amendment “erects no shield

against merely private conduct.” Shelley, 334 U.S. at 13.

The distinction between private and governmental action

(the “state action” doctrine) serves important constitutional

purposes. Most important, it recognizes that constitutional

norms that are liberty-enhancing when applied to the state

may be liberty-infringing when applied to private parties.

Just as imposing an obligation of content neutrality upon the

state enhances the expressive liberty of private citizens,

4

Carey v. Brown, 447 U.S. 455 (1980), imposing such an

obligation on private parties would interfere with such

liberty, Hurley v. Irish-American Gay, Lesbian & Bisexual

Group, 515 U.S. 557 (1995). Likewise, while imposing a

religious nondiscrimination requirement on the state increases

religious freedom, Church of Lukumi Babalu Aye v. City of

Hialeah, 508 U.S. 520 (1993), imposing such a requirement

on private religious organizations diminishes such freedom,

Corporation of Presiding Bishop v. Amos, 483 U.S. 327

(1987). Limitations that make sense when applied to the

state—which possesses substantial coercive power over its

citizens—would be highly disruptive if applied to private

citizens or other organizations that lack such power.’

The distinction between state and private action is parti-

cularly important to a coherent view of the Religion Clauses:

The very same conduct can be either constitutionally pro-

tected or constitutionally forbidden, depending on wheth-

er those who engage in it are acting in their “private” or

their “public” capacities. If a group of people get

together and form a church, that is the free exercise of

religion. If the government gets together and forms a

church, that is an establishment of religion. One is

protected; one is forbidden. It is inconceivable that we

could construct a theory of freedom of religion which

does not distinguish at some level between the activities

of the individual believer and the activities of the

sovereign.

* See also Rust v. Sullivan, 500 U.S. 173, 193-194 (1991) (where

private parties are enlisted to convey the government’s message,

free speech guarantees do not apply); Eu v. San Francisco County

Democratic Central Comm., 489 U.S. 214, 224-225 (1989)

(applying political neutrality requirements to a political party

would interfere with private advocacy).

5

Michael W. McConnell, “God is Dead and We Have Killed

Him!” : Freedom of Religion in the Post-Modern Age, 1993

B.Y.U. L. REv. 163, 184, 185.

We do not mean that there are no hard cases at the

margins. Our point is simply that much is at stake whenever

this Court draws a line between private and governmental

religious activity, because the Constitution protects one and

forbids the other. E.g., Mergens, 496 U.S. at 250. Our

primary aim in filing this brief is thus to propose reliable

principles to guide this determination as it relates to religious

speech at public events.

A. This Court’s Decisions Confirm That The State

Itself May Not Engage In Religious Exercise Or

Advance Inherently Religious Messages.

This Court has long held that the Establishment Clause

bars the state from engaging in religious exercise.’ Some 50

years ago, the Court struck down a program granting clergy

special access to public school students, to offer curricular

“classes in religious instruction.” See McCollum v. Board of

Educ. , 333 U.S. 203, 207 (1948). Noting that the state may

not “‘pass laws which aid one religion, aid all religions, or

prefer one religion over another,’” the Court held that this

principle was violated by providing clergy the “invaluable

aid” of preferential access to public school stuuents. /d. at

> In acknowledging that the state may not advance religious

messages or engage in religious exercises, we mean those messages

and exercises that are inherently religious. The Court has

_ repeatedly made clear that “the ‘Establishment’ Clause does not

ban federal or state regulation of conduct whose reason or effect

merely happens to coincide or harmonize with the tenets of some

or all religions.” See McGowan v. Maryland, 366 U.S. 420, 442

(1961); see also Harris v. McRae, 448 U.S. 297, 319-320 (1980);

Bowen v. Kendrick, 487 U.S. 589, 604 n.8, 613 (1988).

6

210, 212. As the Court later explained, McCollum is a case

in which school officials “permitt[ed] schoc! facilities to be

used for instruction by religious groups, but nor by others.”

Widmar v. Vincent, 454 U.S. 263, 272 n.10 (1981).

Similarly, in Engel v. Vitale, 370 U.S. 421, 423 (1962),

the Court invalidated state laws “direct[ing] the use of prayer

in public schools.” The founders recognized that “one of the

greatest dangers to the freedom of the individual to worship

in his own way lay in the Government’s placing its official

stamp of approval upon one particular kind of prayer or one

particular form of religious services.” Jd. at 429. Applying

this principle, the Court held that “neither the power nor the

prestige” of the state may “be used to control, support or

influence the kinds of prayer the American people can say.”

Id. at 429. The state is “without power to prescribe by law

any particular form of prayer which is to be used as an

official prayer in carrying on any program of governmentally

sponsored religious activity.” Jd. at 430.

One year later, the Court addressed the validity of laws

requiring public schools to begin the day with Bible readings

and prayer. School Dist. v. Schempp, 374 U.S. 203, 205,

223 (1963). Again stating that “the Government [must]

maintain strict neutrality, neither aiding nor opposing

religion,” the Court explained that “the concept of neutrality

* * * does not permit a State to require a religious exercise.”

Id. at 225. The Court had no objection to “study of the Bible

or of religion, when presented objectively as part of a secular

program of education,”* but invalidated making “religious

* For a statement on appropriate use of the Bible for educational

purposes, see The Bible & Public Schools: A First Amendment

Guide (1999), which CLS co-authored, and which is endorsed by

President Clinton and some twenty religious and civil liberties

organizations. See www.freedomforum.org.

7

exercises” a part of “curricular activities” conducted “under

the supervision and with the participation of teachers.” Jd. at

223, 225. Such activity was “state action,” and therefore

barred by the Establishment Clause. /d. at 205.

Most recently, in Lee v. Weisman, 505 U.S. 577 (1992),

this Court addressed an establishment challenge to a district's

practice of inviting clergymen to deliver invocations and

benedictions at its middle school graduation ceremonies. In

addition to the obligatory nature of such events, the Court

explained that “[t}hese dominant facts mark and control the

confines of our decision: State officials direct the

performance of a formal religious exercise at promotional

and graduation ceremonies for secondary schools.” /d. at

586. The Court was especially troubled by the principal's

involvement in deciding to include prayers in the ceremony,

in selecting clergy to deliver them, and in directing their

content. Jd. at 586-590. In such circumstances, the prayers

“bore the imprint of the State,” and the “constitutional

constraints applied to state action” required invalidating the

practice. Jd. at 590, 595.

The Weisman decision was careful, however, to

distinguish between governmental prayer and prayer that is

privately initiated. The “Religion Clauses mean that religious

beliefs and religious expression are too precious to be either

proscribed or prescribed by the State,” the Court stated, and

it follows that “school officials [may not] assist in composing

prayers as an incident to a formal exercise for their

students.” 505 U.S. at 590. “[T]hough the First Amendment

does not allow the government to stifle praye[r],” “neither

does it permit the government to undertake that task for

itself.” Id. at 589.

From McCollum to Weisman, this Court’s decisions have

consistently recognized that it is harmful to genuine religious

exercise for the state to engage in religious activity. As

James Madison wrote in his Memorial and Remonstrance

Against Religious Assessments:

[E}xperience witnesseth that ecclesiastical establishments,

instead of maintaining the purity and efficacy of Religion,

have had a contrary operation. During almost fifteen

centuries, has the legal establishment of Christianity been

on trial. What have been its fruits? More or less in all

places, pride and indolence in the Clergy; ignorance and

servility in the laity; in both, superstition, bigotry and

persecution. Enquire of the Teachers of Christianity for

the ages in which it appeared in its greatest lustre; those

of every sect, point to the ages prior to its incorporation

with Civil policy.

Quoted in Appendix to dissenting opinion of Rutledge, J., in

Everson v. Board of Educ., 330 U.S. 1, 63, 67-68 (1947).

One need look no further than Weisman for a case in

point. To ensure that Rabbi Gutterman offered a prayer that

was “[a]ppropriate” to a graduation ceremony, the principal

provided him “with a pamphlet entitled ‘Guidelines for Civic

Occasions’”—which “recommend{ed] that public prayers at

nonsectarian civic ceremonies be composed with ‘inclusive-

ness and sensitivity’”—and “advised him the invocation and

benediction should be nonsectarian.” 505 U.S. at 581.

It is easy to see the corrupting influence of the state in

these circumstances. Government officials’ views on what is

“proper” in prayer are understandably driven not by religious

concerns but by civic and political concerns regarding the

perceived sensibilities of those attending. What is inclusive

today may be exclusionary tomorrow, and what one official

deems tolerant or appropriate may strike another as

offensive. No one should be asked (let alone required) to

conform his prayer to the wishes of the governing authority.

And religious citizens, no less than secular ones, should be

9

alarmed by governmental control over religious expression

such as prayer.

The notion that the state may establish a “civic religion”

is as much an affront to religious liberty as an outright

preference for one sect over another. See Weisman, 505 U.S.

at 590. Since the government is “without power” to declare

which types of prayer are appropriate (Engel, 370 U.S. at

430), it is no less (and no more) of an establishment of

religion for the state to direct performance of “nonsectarian”

and “nonproselytizing” prayer than it would be for the state

to direct performance of “exclusionary” and “offensive”

prayer. If the state is speaking, it may not offer a prayer.

B. This Court’s Decisions Also Confirm That The

Establishment Clause Provides No Warrant For

Interfering With Private Religious Speech.

While holding fast to the principle that the state may not

itself engage in religious exercise or favor religious over

secular speech, this Court’s “precedent [also] establishes that

private religious speech, far from being a First Amendment

orphan, is as fully protected under the Free Speech Clause as

secular private expression.” Capitol Square Review &

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

In its landmark decision in Widmar v. Vincent, 454 U.S.

263 (1981), the Court expressly rejected arguments that a

public university could “discriminate against religious speech

on the basis of its content,” or provide such speech with

“less protection than other types of expression.” Jd. at 267.

The state’s asserted interest “in achieving greater separation

of church and State than is already ensured under the

Establishment Clause of the Federal Constitution,” the Court

explained, “is limited by the Free Exercise Clause and in this

case by the Free Speech Clause as well.” /d. at 276. Thus,

the state may not deny religious students equal access to its

10

property because they seek to use the property “‘for purposes

of religious worship or religious teaching.’” Jd. at 265.

In 1990, the Court turned away establishment challenges

to the Equal Access Act, 20 U.S.C. §§ 4071-4074, which

requires public secondary schools to grant religious noncurri-

cular groups the same privileges that they grant to secular

groups. Mergens, 496 U.S. at 247. Writing for a four-Justice

plurality, Justice O’Connor rejected claims that recognizing

a “Christian club” “would effectively incorporate religious

activities into the school’s official program” or “provide the

club with an official platform to proselytize other students.”

Id. at 247-248 “The proposition that schools do not endorse

everything they fail to censor is not complicated,” the

plurality stated, and “secondary school students are mature

enough and are likely to understand that a school does not

endorse or support student speech that it merely permits on

a nondiscriminatory basis.” /d. at 250. “Although a school

may not itself lead or direct a religious club,” it continued,

“a school that merely permits a student-initiated and student-

led religious club to meet after school, just as it permits any

other student group to do, does not convey a message of state

approval or endorsement of the particular religion.” Jd. at

252 (emphasis added). See also id. at 260-261 (Kennedy, J.,

concurring in part and in judgment).

In 1993, this Court unanimously held that “it discrimi-

nates on the basis of viewpoint”—and thus “violates the Free

Speech Clause of the First Amendment”—“to permit school

property to be used for the presentation of all views about

family issues and child rearing except those dealing with the

subject matter from a religious standpoint.” Lamb’s Chapel

v. Center Moriches Sch. Dist., 508 U.S. 384, 387, 393

(1993). There, state officials sought to keep a church from

obtaining after-hours access to its schools “on the ground that

to permit its property to be used for religious purposes would

11

be an establishment of religion forbidden by the First

Amendment.” Jd. at 394. But given the “variety of private

organizations” that used the school for comparable purposes,

the Court held that mere “fears of an Establishment Clause

violation” provided no warrant for discriminating against

privately initiated religious speech. Jd. at 395.

In 1995, the Court rejected a claim that the state “violates

the Establishment Clause when, pursuant to a religiously

neutral state policy, it permits a private party to display an

unattended religious symbol in a traditional public forum

located next to its seat of government.” Pinette, 515 U.S. at

757. Noting that “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,” the Court again reaffirmed that “private

expression” may not be curtailed to serve some purportedly

“compelling interest in complying with the Establishment

Clause” or “avoiding official endorsement of Christianity.”

Id. at 760, 761, 762.

Justice Scalia, writing for a four-Justice plurality, stated

that the Establishment Clause “applies only to the words and

acts of government. It was never meant, and has never been

read by this Court, to serve as an impediment to purely pri-

vate religious speech connected to the State only through its

occurrence in a public forum.” Pinette, 515 U.S. at 767.

Writing for three concurring Justices, Justice O’Connor

stated a similar view: the Establishment Clause is satisfied

“where truly private speech is allowed on equal terms in a

vigorous public forum that the government has administered

properly.” Jd. at 775.°

* The Court in Pinette commented that “[tjhere is no doubt that

compliance with the Establishment Clause is a state interest

sufficiently compelling to justify content-based restrictions on

12

Finally, on the same day that it decided Pinette, the Court

held that the Establishment Clause does not permit “‘a state

university to exclude an otherwise eligible student publication

from participation in the student activities fund, solely on the

basis of its religious viewpoint, where such exclusion would

violate the Speech and Press Clauses if the viewpoint of the

publication were nonreligious.’” Rosenberger v. Rector of

Univ. of Va., 515 U.S. 819, 837 (1995). There, school

officials sought to deny funding to Wide Awake, a newspaper

that addressed campus issues from a “Christian viewpoin{t],”

claiming this was “excused by the necessity of complying

with the Constitution’s prohibition against state establishment

of religion.” Jd. at 826, 837. Once again, the Court “rejected

the position that the Establishment Clause even justifies,

much less requires, a refusal to extend free speech rights to

religious speakers.” /d. at 839.

The Court agreed that the Establishment Clause applies

where “the State is the speaker”—either because it “enlists

private entities to convey its own message” or “determines

speech.” 515 U.S. at 761-762. As discussed in text (at 17), we

believe this analysis misses the point: if speech that is attributable

to the state advances religion, the Establishment Clause compels

the state to stop; but if private speakers advance religion, the

mandates of the Establishment Clause are not even triggered.

Properly interpreted, therefore, there would never be a situation

where the Establishment Clause requires one result and the Free

Speech Clause requires another, forcing the Court to choose

between the Clauses. See Carl H. Esbeck, The Establishment

Clause as a Structural Restraint on Governmental Power, 84 lOWA

L. REV. 1, 83-86 (1998); Douglas Laycock, Religious Liberty as

Liberty, 7 J. CONTEMP. LEGAL ISSUES 313, 331 (1996). Cf.

LAURENCE H. TRIBE, AMERICAN CONSTITUTIONAL LAW § 14-8, at

1201 (2d ed. 1988) (in case of conflict, “the free exercise prin-

ciple should be dominant [over] the anti-establishment principle”).

13

[its] content.” But “[i}t does not follow * * * that viewpoint-

based restrictions are proper when the [state] does not itself

speak or subsidize transmittal of a message it favors.”

Rosenberger, 515 U.S. at 833, 834. When the state allocates

speech opportunities on the basis of “neutral criteria and

evenhanded policies,” “the guarantee of neutrality is

respected, not offended.” /d. at 839. Absent proof that it

“created [such criteria] to advance religion or adopted some

ingenious device with the purpose of aiding a religious

cause,” “[t}here is no Establishment Clause violation in [the

State’s] honoring its duties under the Free Speech Clause.”

Id. at 840, 846.

1. Use of public property or resources does not it-

self make private speech attribuiable to the state.

In none of these cases, from Widmar to Rosenberger, did

this Court find an establishment because a speaker wished to

express a religious message on public property or by using

other public resources. The Court in Mergens held that

religious students were entitled to equal “access to the school

newspaper, bulletin boards,” and “public address system”

(496 U.S. at 247), and the Court in Rosenberger held that

religious students were entitled to equal access to the campus

“computer facility,” “printer,” and “copy machine.” 515

U.S. at 843. To be sure, speech given at public events is less

“private” than speech in homes or churches. But when

“permission [is] requested through the same application

process and on the same terms required of other private

groups,” the fact that “expression [is] made on government

property” is of no moment. Pinette, 515 U.S. at 763; id. at

765-766 (plurality opinion).

If using state resources made a private speaker's message

the state’s, all of these cases would have come out the other

way. Widmar and Lamb’s Chapel involved use of public

property for worship and/or religious teaching; Mergens

14

involved use of a public high school and its amenities for a

Christian club; Pinette involved an unattended religious

display near the very seat of government; and Rosenberger

involved public funding of an evangelical newspaper. The

court below thus erred in ruling that the policy here is invalid

because it allows use of “government-owned appliances and

equipment, on government-controlled property.” Pet. App.

A24. Student speech is protected whether it occurs “in the

cafeteria,” “on the campus,” or “on the playing field.”

Tinker v. Des Moines Sch. Dist., 393 U.S. 503, 512-513

(1969).

2. Private religious speech may not be censored

simply because it is “offensive” to those in

attendance.

It is also untenable to suggest that religious messages may

be censored because they might be offensive to those in

attendance. The Establishment Clause protects citizens from

the offense of being “subjected to state-sponsored religious

exercises.” Weisman, 505 U.S. at 592 (emphasis added).°

But privately initiated speech is another matter. As the Court

held in Tinker, “[i)n order for * * * school officials to justify

prohibition of a particular expression of opinion, it must be

able to show that its action was caused by something more

than a mere desire to avoid the discomfort and unpleasant-

ness that always accompany an unpopular viewpoint.” 393

* Any claim that the policy here is invalid because it applies to

football games rather than graduations (or vice versa) strikes us as

unrelated to the purposes of the First Amendment. Private speech

may not be censored solely on account of the sensitivity of the

audience, which is likely to vary greatly from setting to setting.

The important question is whether the government has given

preference to religious speakers or enlisted otherwise private

speakers to deliver its own religious message.

15

U.S. at 509. “People may take offense at all manner of

religious as well as nonreligious messages,” but “offense

alone” does not violate the Establishment Clause. Weisman,

505 U.S. at 597.’

3. If private religious speech were misattributed to

the state, the proper remedy would be to require

a neutral disclaimer, not to censor the speech.

Even if the Court perceives an unreasonable risk that

observers will wrongly attribute to the state speech that is

privately initiated, the proper remedy is not to silence private

speakers, but to make the state disclaim sponsorship of their

messages. As the Seventh Circuit has observed:

Public belief that the government is partial does not

permit the government to become partial. * * * The

school’s proper response is to educate the audience rather

than squelch the speaker. * * * Schools may explain that

they do not endorse speech by permitting it. If pupils do

not comprehend so simple a lesson, then one wonders

whether the * * * schools can teach anything at all.

” See also Street v. New York, 394 U.S. 576, 592 (1969) (“It is

firmly settled that under our Constitution the public expression of

ideas may not be prohibited merely because the ideas are

themselves offensive to some of their hearers”); Texas v. Johnson,

491 U.S. 397, 409 (1989); Whitney v. California, 274 U.S. 357,

377 (1927) (Brandeis, J., concurring); Gitlow v. New York, 268

U.S. 652, 673 (1925) (Holmes, J., dissenting). See also

LAURENCE H. TRIBE, AMERICAN CONSTITUTIONAL LAW § 12-10,

at 852 (2d ed. 1988) (“One must begin with the premise that

government may not justify the suppression of speech because its

content or mode of expression is offensive to some members of the

audience”).

16

Hedges v. Wauconda Community Sch. Dist., 9 F.3d 1295,

1299-1300 (7th Cir. 1993).

Here, for example, a court might require the District to

place a written disclaimer in its game program, explaining

how students are selected and stating that the District is not

the sponsor of their pre-game messagés. See Pinette, 515

U.S. at 782 (O’Connor, J., concurring in judgment) (a

“reasonable observer * * * would certainly be able to read

and understand an adequate disclaimer”); accord id. at 794

(Souter, J., concurring in judgment). Or the District might

be asked to announce that speakers have been elected by their

peers to deliver a message of their choice, which it does not

endorse. Such disclaimers would notify “informed member{s]

of the community” that the state is not responsible for what

is said (id. at 781 (O’Connor, J., concurring in judgment)),

while ensuring that restrictions on speech are the “most

‘narrowly drawn’” means of achieving this objective. Jd. at

793 (Souter, J., concurring in judgment).

We do not believe that disclaimers are constitutionally

required where speakers are selected on a secular, neutral

basis and retain control over their speech. Such speakers are

not state actors, and the commands of the First Amendment

run solely against the state. If the state wishes to disclaim

private religious speech, however, it should disclaim secular

speech as well. Pinette, 515 U.S. at 769 (plurality opinion)

(state may not “discriminate against [private religious speech]

by requiring religious speech alone to disclaim public

sponsorship”); id. at 794 (Souter, J., concurring in

judgment) (approving disclaimer of all “private speech” as

“carrying no endorsement from the State”). The government

“must treat religious speech by private speakers exactly like

secular speech by private speakers.” Douglas Laycock, Equal

Access and Moments of Silence: The Equal Status of

17

Religious Speech by Private Speakers, 81 Nw. U. L. REv. 1,

3 (1986).

C. Two Standards Govern Whether Religious Speech

Is Attributable To The State: The Neutrality Of

The State’s Selection Criteria And The Degree Of

State Control Over The Message.

The foregoing cases make two things clear: the state itself

may not advance religious messages, but private religious

messages are fully protected by the Free Speech and Free

Exercise Clauses. This is not to say that the provisions of the

First Amendment can ever be in “conflict.”* Rather, both

provisions serve to limit state influence on religious

decisionmaking. Just as the state may not use its power to

advance religious causes (or encourage private citizens to do

so), neither may it discriminate against those who express

religious messages on equal terms with other private

speakers. The unifying principle is that the First

Amendment’s commands run solely against the government

and its agents. The Court thus needs reliable means of

determining whether speech given at public events falls on

the governmental or private side of the equation.

A review of the two lines of decisions discussed above

reveals that two principles explain how the Court determines

whether to attribute religious speech in public settings to the

* It is anachronistic to view the Free Exercise Clause as protecting

religion from the government and the Establishment Clause as

protecting the government from religion. See Esbeck, supra n.4,

at 11-12, 82-84, 88. Cf. Wallace v. Jaffree, 472 US. 38, 68

(1985) (O’Connor, J., concurring in judgment) (noting that the

“common purpose” of the Free Exercise and Establishment

Clauses “is to secure religious liberty”).

18

state. If both principles are satisfied, the Establishment

Clause has not been violated.°

1. The neutrality of the selection criteria

First, the Court has asked whether the state’s means of

selecting speakers is genuinely neutral toward religion. When

speakers are chosen based on “evenhanded” and “neutral

criteria” that do not “promote,” “encourage,” or otherwise

“favor one speaker over another,” Rosenberger, 515 U.S. at

828, 833, 839, courts may be confident that the state is not

favoring religion. Over time, if not immediately, neutral

criteria should result in expression representing “the whole

spectrum of speech, whether it manifests a religious view, an

antireligious view, or neither.” Jd. at 841.

In contrast, where the government’s selection criteria are

“skewed towards religion,” Witters v. Washington Dep’t of

Servs., 474 U.S. 481, 488 (1986), “subsidize transmittal of

a message it favors,” or amount to “some ingenious device

with the purpose of aiding a religious cause,” Rosenberger,

515 U.S. at 834, 840, such criteria violate the neutrality that

animates both the Establishment and Free Speech Clauses.

* We do not suggest that these principles apply in every context.

There are times when the state may properly act to facilitate

voluntary religious exercise either by removing a burden on such

exercise or without imposing burdens on nonadherents. In the

military context, for example, the state “regulates the temporal and

geographic environment of individuals to a point that, unless it

permits voluntary religious services to be conducted with the use

of government facilities” (and perhaps chaplains), “military

personnel would be unable to engage in the practice of their

faiths.” Schempp,.374 U.S. at 226 n.10. We therefore urge the

Court not to rule in a manner that addresses these issues.

19

Requiring the government to select speakers on the basis

of neutral criteria permits the courts to determine whether

such criteria are a pretext or subterfuge designed to enable

government to favor religious speech. Both the plurality and

concurring opinions in Pinette expressed concern over the

prospect that terms of access to a public arena might not be

genuinely neutral. Justice Scalia noted that “one can conceive

of a case in which a governmental entity manipulates its

administration of a public forum * * * in such a manner that

only certain religious groups take advantage of it.” 515 U.S.

at 766 (plurality opinion).'° Likewise, Justice O’Connor

stated that the Establishment Clause is implicated by

“preferential” treatment of religious expression, and that

courts must take care to prevent “government manipulation

of the forum.” /d. at 776 (concurring opinion).

In light of these concerns, the Weisman Court held that

when a public school “principa[l] decided that an invocation

and a benediction should be given” at its middle school

graduation, and “chose the religious participant” to deliver

them, those choices were fairly “attributable to the State.”

505 U.S. at 587. Rabbi Gutterman was chosen not on an

evenhanded basis, but precisely because he would deliver a

prayer. This is hardly neutral. Where the state “enlists

private [persons] to convey its own message,” it is as though

“the State is the speaker.” Rosenberger, 515 U.S. at 833.

On the other hand, secular criteria do not favor religion

if the state is merely aware that religious speech may result

from its policy. That would require state policymakers to

'© See also 515 U.S. at 766 (holding that “giving sectarian

religious speech preferential access to a forum close to the seat of

government (or anywhere else for that matter) would violate the

Establishment Clause (as well as the Free Speech Clause, since it

would involve content discrimination)” ).

20

adopt criteria designed not to result in religious speech.

Moreover, “[e]ven if some legislators were motivated by a

conviction that religious speech in particular was valuable

and worthy of protection, that alone would not invalidate [a

statute], because what is relevant is the legislative purpose of

the statute, not the possibly religious motives of the

legislators who enacted the law.” Mergens, 496 U.S. at 249

(plurality opinion). If a policy reveals “a plausible secular

purpose,” “courts should generally defer to that stated

intent.” Jaffree, 472 U.S. at 74-75 (O’Connor, J., concurring

in judgment)."!

2. The degree of state control over the message

In addition to requiring the state to select speakers based

on neutral criteria, this Court has examined the degree of

state control over their speech. Where a government official

“determines the content” of speech, or substantially

“regulate[s] the content of what is or is not expressed,” such

expression is attributable to the state. Rosenberger, 515 U.S.

at 833. In such a case, the problem is that the state has put

its thumb on the scales to tilt otherwise private speech in a

religious direction—which both places the state’s imprimatur

on the views expressed and interferes with the speaker's free

speech rights. “[NJeither the power nor the prestige” of the

state may “be used fo control, support or influence the kinds

of prayer the American people can say.” Engel, 370 U.S. at

429 (emphasis added)."*

'' See also Edwards v. Aguillard, 482 U.S. 578, 615-616 (1987)

(Scalia, J., dissenting); McDaniel v. Paty, 435 U.S. 618, 641

(1978) (Brennan, J., concurring in judgment).

'2 In other state action contexts, the Court asks whether the state

has compelled an activity or provided “significant encouragement”

to act in a certain manner, so as to warrant the conclusion that the

21

Weisman illustrates the use of state power to bend speech

in a particular religious direction. As noted above (at 8), the

school principal both decided to have prayers at graduation

and hand picked a clergyman to deliver them. But “[t}he

State’s role did not end with the decision to include a prayer

and with the choice of a clergyman.” 505 U.S. at 588. The

principal also provided Rabbi Gutterman with “a pamphlet

entitled ‘Guidelines for Civic Occasions,’” and advised him

that an “[a)ppropriate” prayer “should be nonsectarian.” Jd.

at 581. Thus, even if Rabbi Gutterman had been selected

based on neutral criteria, the principal’s decision to “direc[t]

and contro[!] the content of the prayers” still rendered them

“attributable to the State.” /d. at 587, 588. As the Court

noted in Engel, the state “is without power to prescribe by

law any particular form of prayer which is to be used as an

official prayer,” and “the fact that the prayer may be

denominationally neutral” is irrelevant. 370 U.S. at 430.

II. POLICIES THAT PERMIT SPEAKERS SELECTED

ON A NEUTRAL BASIS TO DELIVER A MESSAGE

OF THEIR CHOICE AT PUBLIC EVENTS DO NOT

VIOLATE THE ESTABLISHMENT CLAUSE.

As we have shown, Weisman rightly invalidated a school

district’s practice of inviting hand-picked clergy to deliver

what it deemed an “appropriate” prayer at its graduation

ceremonies. The district’s criteria for selecting the speaker

state is responsible for the resultant activity. Blum, 457 U.S. at

1004. A neutrality inquiry under the Free Speech and Establish-

ment Clauses, however, “requires an equal protection mode of

analysis.” Walz v. Tax Commission, 397 U.S. 664, 696 (1970)

(Harlan, J., concurring). Thus, it is appropriate that the Court ask

not only whether the state has compelled religious activity, but

whether it has intentionally favored private religious expression

over private secular expression.

22

were decidedly non-neutral, and the state virtually dictated

the content of the message. It is no exaggeration to say that

Rabbi Gutterman was enlisted to deliver a state message.

This is not to say, however, that religious speech offered

at public events is necessarily unconstitutional. Where private

speakers are selected on a genuinely neutral basis and retain

control over their remarks, principles of both free speech and

nonestablishment require the state not to meddle with their

messages. As Justice Souter observed in Weisman, a different

case would have been presented “[i]f the State had chosen its

graduation day speakers according to wholly secular criteria,

and if one of those speakers (not a state actor) had

individually chosen to deliver a religious message.” 505 U.S.

at 630 n.8 (concurring opinion). In those circumstances, one

cannot reasonably infer “that the government brought prayer

into the ceremony ‘precisely because some people want a

symbolic affirmation that government approves and endorses

their religion.’” Jd. at 630.

For example, if a school principal regularly invited the

student valedictorian to deliver a message of her choice at

graduation, it would not violate the Establishment Clause if

she prayed or made religious remarks. Academic standing is

a secular basis for choosing a speaker, and the state is

exercising no influence on her message. Thus, the Ninth

Circuit properly sustained a policy permitting students chosen

on academic grounds to deliver “an address, poem, reading,

song, musical presentation, prayer, or any other

pronouncement” at their graduation. Doe v. Madison Sch.

Dist., 147 F.3d 832 (9th Cir. 1998), vacated as moot, 177

F.3d 789 (1999). Since each speaker “decide[d] individually

the content of her pronouncement,” and school administrators

23

did not “censor any presentation or require any content,” any

religious speech was not attributable to the state. Jd. at 834."

By the same token, the Third and Ninth Circuits have

properly invalidated policies authorizing students to vote on

whether to have prayer at graduation. ACLU v. Black Horse

Pike Regional Bd. of Educ., 84 F.3d 1471 (3d Cir. 1996) (en

banc); Harris v. Joint Sch. Dist., 41 F.3d 447 (9th Cir.

1994), vacated as moot, 515 U.S. 1154 (1995). Holding a

vote on whether to have a prayer is not neutral—there will be

prayer or there will be no speech at all. See Chandler v.

James, 180 F.3d 1254, 1259 (11th Cir. 1999) (distinguishing

a policy treating secular and religious speech alike from one

“which ‘permits’ private parties to speak, but then limits

their speech to prayer or other devotional speech”), pet’n for

cert. filed (Dec. 2, 1999) (No. 99-935). By definition,

speakers are not free to direct their remarks, and such a

practice merely delegates to the student body a decision the

state itself may not lawfully make. See City of Cleburne v.

Cleburne Living Center, 473 U.S. 432, 448 (1985); of.

Engel, 370 U.S. at 429 (“the ballot box” does not excuse an

establishment); accord Weisman, 505 U.S. at 596; Schempp,

374 U.S. at 225-226.

By contrast, the Fifth Circuit erroneously sustained a

policy permitting students to vote to have a “nonsectarian,

nonproselytizing prayer” at graduation. Jones v. Clear Creek

Indep. Sch. Dist., 977 F.2d 963 (Sth Cir. 1992). Such

policies are doubly invalid: in limiting the vote to whether to

have prayer, the state favors religious speech; and in

requiring prayer to meet “inclusiveness” standards, the state

'? For similar reasons, we believe Guidry v. Broussard, 897 F.2d

181 (Sth Cir. 1990), which upheld a school district’s decision to

censor a valedictorian’s religious graduation speech, was wrongly

decided.

24

controls its content. A view of the Establishment Clause that

“require[s] the [state], in order to avoid a constitutional

violation, to scrutinize the content of student speech, lest the

expression in question—speech otherwise protected by the

Constitution—contain too great a religious content,” “raises

the specter of governmental censorship, to ensure that all

student [statements] meet some baseline standard of secular

orthodoxy.” Rosenberger, 515 U.S. at 844. “[O}fficial

censorship” is “far more inconsistent with the Establishment

Clause’s dictates than [is] governmental [authorization] of

[student messages] on a religion-blind basis.” Jd. at 845.

As discussed below (at 28), however, the Fifth Circuit

erred in holding that the District’s football policy here was

“essentially identical” (Pet. App. A10) to its graduation

policy. The football policy permits a vote on whether to have

a message or invocation, and it appears to let students control

what they say. Students are as free to use their time to extol

the virtues of the late Walter Payton as a great sportsman as

to pray for the players’ safety. They may suggest a moment

of silence out of respect for the students who recently lost

their lives at Texas A&M, or they may talk about the value

of teamwork. Any religious remarks are not attributable to

the state in these circumstances.

Finally, we would note that nothing in the Establishment

Clause stands in the way of high school football players who

wish to join together and pray, on their own initiative, prior

to or after a game. We are not suggesting that public school

football coaches may lead such prayers. See Doe v.

Duncanville Sch. Dist., 70 F.3d 402 (Sth Cir. 1995). But just

as Reggie White or Cris Carter might gather after the buzzer

to give thanks to God for the chance to play, so may students

at a public high school. The fact that such prayers take place

on a public playing field does not render them attributable to

the state, and the Fifth Circuit plainly erred in holding that

25

the government is responsible for “spontaneously initiated”

prayers simply because “school officials are present and have

the authority to stop [them].” Pet. App. A38. -

Il. THE DISTRICT’S POLICY FACIALLY SATIS-

FIES THE REQUIREMENTS OF NEUTRAL

SELECTION CRITERIA AND PRIVATE CON-

TROL OVER CONTENT.

Prior to this lawsuit, the District had “no written policy”

on statements at football games. Pet. App. A6. In response

to a district court order, it promulgated a policy “to permit

students to deliver a brief invocation and/or message to be

delivered during the pre-game ceremonies of home varsity

football games.” Jd. at F1. The policy’s stated purposes are

“to solemnize the event, to promote good sportsmanship and

student safety, and to establish the appropriate environment

for the competition.” /bid. To this end, “the high school

student council shall conduct an election, by secret ballot, to

determine whether such a statement or invocation will be a

part of the pre-game ceremonies and if so, shall elect a

student, from a list of student volunteers, to deliver the

statement or invocation.” Jbid. “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.” Jbid."*

The Fifth Circuit invalidated this policy on its face, based

on a per se rule that “[t}he prayers are to be delivered at

football games—hardly the sober type of annual event that

'* This differs from the policy approved in Jones v. Clear Creek

Ind. Sch. Dist., 977 F.2d 963 (Sth Cir. 1992), which requires that

graduation prayers be “nonsectarian” and “nonproselytizing.” The

District adopted a Jones policy as a fallback, which takes effect if

a court enjoins its primary policy. App. F1-F2.

26

can be appropriately solemnized with prayer.” Pet. App.

A38. Apart from the “singularly serious nature of a gradua-

tion ceremony,” the court could conceive of no “‘event that

could appropriately be marked with a prayer.’” Jd. at A37,

A38. According to the court of appeals, the policy was

invalid because any “[p]rayers that a school ‘merely’ permits

will still be delivered to a government-organized audience,

by means of government-owned appliances and equipment,

on government-controlled property, at a government-

sponsored event, thereby clearly raising substantial

Establishment Clause concerns.” /d. at A24.

Contrary to the reasoning of the Fifth Circuit, the fact

that students might deliver a prayer over a “public address

system” does not make this a difficult case. Mergens, 496

U.S. at 247. Nor is it the least bit troubling that this case

involves football games rather than graduation ceremonies.

What matters is whether speakers are selected on a neutral

basis and retain control over their remarks. On its face, the

District’s policy satisfies these requirements. See United

States v. Salerno, 481 U.S. 739, 745 (1987) (plaintiff must

show that “no set of circumstances exists under which the

[policy] would be valid”).

A. Holding An Election Is A Facially Neutral Means

Of Selecting A Speaker.

Holding a student election to determine who will deliver

a message or invocation at District football games is, on its

face, a neutral means of selecting a speaker. The policy does

not prescribe factors that students should consider in voting,

and any student may run for election to speak. Students are

free to cast their votes for any number of reasons—including

popularity, public speaking ability, and athleticism. Such

criteria are more subjective than selecting speakers based on

factors such as their grades. But it would be improper, in

analyzing a facial challenge, to speculate that primarily non-

27

neutral factors would motivate student voting. Cf. Jaffree,

472 U.S. at 74 (O’Connor, J., concurring in judgment)

(stating that “a court has no license to psychoanalyze the

legislators”). Insofar as the policy allows students to vote for

neutral reasons, it must be upheld on its face.

One cas: conceive of circumstances where an election is

nothing more than a pretext for a vote on having prayer. But

the Establishment Clause does not erect a bar preventing

students from voting on a speaker for a school event simply

because the speaker might make religious remarks. If, based

on neutral criteria (e.g., public reputation), the students

voted to invite the Reverend Jesse Jackson to deliver a pre-

game address, it would not violate the Establishment Clause

if his message had openly religious themes. See David

Heinzmann, Jackson Warns Youths to Avoid Violence, CHI.

TRIB., Nov. 24, 1999, at 1. Nor would it be unconstitutional

if the students, again based on neutral criteria (e.g.,

popularity or athleticism), voted to invite the captain of the

football team to make a statement, and he chose to deliver a

prayer. The decisive point is that speakers are selected on a

neutral basis, and there is no evidence on this record that the

policy—adopted during the course of this litigation—has been

implemented so as to violate this standard."

'S Whether the policy is constitutional on an “as applied” basis is a

separate question, and the record in this case, as it now stands, provides

no basis for evaluating it. We would note, however, that the District’s

former practice of inviting the “student council chaplain” to pray before

games (Stip., { 123) is not, standing alone, dispositive of whether its

current policy is constitutional. If it were, no government body could ever

correct an unconstitutional practice. In addition, in any “as applied”

challenge, the burden would be on the plaintiffs to prove that the election

was intended by the authorities (or understood by the students) as

tartamount to a referendum on prayer rather than, as it appears on its face

to be, a neutrally structured opportunity for speech.

28

B. The District’s Policy Facially Satisfies The

Requirement Of Private Control Over Content.

The District’s policy also facially satisfies the require-

ment of private control over content. As noted above, the

policy permits student speakers to “decide what message

and/or invocation to deliver, consistent with the goals and

purposes of this policy.” Pet. App. Fl. Students may recite

a poem on school spirit, or they may remind the players that

“It doesn’t matter whether you win or lose; it’s how you play

the game.” They may denounce taunting and cheating, or

they may note the importance of respecting one’s opponent.

They may discuss the value of physical fitness to a well-

rounded education, or they may encourage the players to

shake hands after the game. Over time, it is reasonable to

expect that the policy will result in messages representing the

“whole spectrum” of student views—some “religious,” some

“antireligious,” and some that are “neither.” Rosenberger,

515 U.S. at 841."° That prayer is one option does not mean

the District has violated the Establishment Clause."’

'© In Adler v. Duval County School Board, 851 F. Supp. 446, 453

n.9 (M.D. Fla. 1994), vacated as moot, 112 F.3d 1475 (11th Cir.

1997), for example, the court reported that during the year after

Weisman was decided, a school district’s policy permitting students

to vote on whether to have a student “message” at their graduation

resulted in both secular and religious messages.

'’ We acknowledge that the District's policy could be applied so as to

authorize District officials to judge whether student remarks are

“appropriate” to “solemnize the event.” Pet App. Fl. For example,

if the District were to pre-screen religious content to ensure that it met

this standard, this would raise constitutional concerns under the Free

Speech and Establishment Clauses. See pp. 20-21, supra. Here again,

however, there is no evidence in this record that the policy has been

applied to interfere with student control of religious content.

29

We believe that it would improve the policy to omit the

term “invocation.” Yet this may be read as nothing more

than a clarification that both types of speech, secular and

religious, are allowed. Moreover, the District deliberately

broadened its policy beyond that required by governing Fifth

Circuit precedent—to permit messages or invocations. Insofar

as the Court is concerned that the policy have a secular

purpose, it thus appears to be a good faith effort to ensure

that religious and secular speech are treated evenhandedly.

Cf. Mergens, 496 U.S. at 249 (plurality opinion) (“Congress’

avowed purpose—to prevent discrimination against religious

and other types of speech—is undeniably secular.”)."*

The fact that only one student speaks at each game does

not make the chosen speaker a state actor. Cf. Mergens, 496

U.S. at 236 (Equal Access Act is triggered “even if a public

secondary school allows only one ‘noncurriculum related

student group’ to meet”). That there is a limited opportunity

for speech does make it more important that the state “ration

or allocate the scarce resources on some acceptable neutral

principle.” Rosenberger, 515 U.S. at 835. But the state has

an obligation to be neutral in either event, and the “premise

that the [state] could discriminate based on viewpoint if

demand for [time to speak] exceeded its availability is

wrong.” /bid. Just as “government cannot justify viewpoint

discrimination among private speakers on the economic fact

of scarcity” of space or money, neither can it justify unequal

treatment because of scarcity of time. /bid.

'® The policy further serves “the legitimate secular purpos[e] of

solemnizing public occasions.” Lynch v. Donnelly, 465 U.S. 668,

693 (1984) (O’Connor, J., concurring); see Jaffree, 472 U.S. at

75, 78 n.S (O’Connor, J., concurring in judgment).

30

C. If There Is No Reading Of The District’s Policy

Under Which Permitted Speech Is “Student-

Initiated” And “Student-Led,” The Court Should

Dismiss The Writ As Improvidently Granted.

Finally, if the Court finds that there is no reading of the

District’s policy under which permitted speech is genuinely

“student-led” and “student-initiated,” it should dismiss the

writ as improvidently granted. The Court dismisses a petition

as improvidently granted where “[a]n important issue [is]

found not to be presented by the record,” or where “the

record may not be ‘sufficiently clear and specific to permit

decision of the important constitutional questions involved in

th[e] case.”” ROBERT L. STERN ET AL., SUPREME COURT

PRACTICE 259 (7th ed. 1993) (citing authorities).

In its order granting the petition for certiorari, the Court

reformulated the question presented as follows: “Whether

petitioner’s policy permitting student-led, student-initiated

prayer at football games violates the Establishment Clause.”

It can only resolve this question if speech under the policy is

truly “student-led” and “student-initiated.” Thus, if the Court

finds that there is no reading of the policy under which this

is true—i.e., if the state initiates or directs all speech under

the policy—then “the basis upon which review was permitted

is in fact nonexistent.” STERN, supra, at 258. In such

circumstances, the proper remedy is to dismiss the writ as

improvidently granted.

CONCLUSION

For the foregoing reasons, the judgment of the court of

appeals should be reversed, and the policy upheld on its face.

Alternatively, the writ should be dismissed as improvidently

granted.

31

Respectfully submitted.

MICHAEL W. MCCONNELL** STEFFEN N. JOHNSON*

104 Law Building Mayer, Brown & Platt

332 South 1400 East Front 190 South LaSalle Street

Salt Lake City, Utah 84112 Chicago, Illinois 60603

(801) 581-6342 (312) 782-0600

KIMBERLEE W. COLBY STEPHEN M. SHAPIRO

Christian Legal Society Mayer, Brown & Platt

4208 Evergreen Lane 1909 K Street, N.W.

Annandale, Virginia 22003 Washington, D.C. 20006

(703) 642-1070 (202) 263-3000

**Of Counsel *Counsel of Record

Counsel for Amicus Curiae