Opposition Brief — Joint School District No. 241 v. Harris

Nos. 94-1268 & 94-1314

IN THI

Suprene Court of the Tnited States

{ BI TERM, 199

JOINT SCHOOL DISTRICT NO. 24]

PHYLLIS WRIGHT HARRIS

ind on behalf of her child SAMUEL HARRI

CITIZENS PRESERVING AMERI

HERITAGE, IN¢

PHYLLIS WRIGHT HARRI

rnd on behalf of her child SAMUEL HARRI

BRIEF IN OPPOSTTION

Steven R yshapiro rt |

American Civil Liberties |

Foundation \met n ¢

13) West 43 Street } maat

New York. New York 100% HR75 |

(212) 944-9800 Denver. (

BEST AVAILABLE'COPY

QUESTIONS PRESENTED

1. Whether public school officials, who must and do

retain a high degree of control over the precise contents of a

school commencement program, can authorize students to

transform this government program into a religious service

without thereby violating the Establishment Clause.

2. Whether a government program in which only one

religious group is allowed to speak can be Considered a

public forum.

3. Whether the Free Speech Clause authorizes a reli-

gious group to use a government program for proselytizing,

even though this clearly violates the Establishment Clause.

LIST OF PARTIES

Phyllis Wright Harris filed this case, as her complaint

states, “on her own behalf and on behalf of her three minor

children, Beverly, Billy, and Samuel Harris." At the time of

filing, all three children were students in the defendant

school district. However, Beverly has since graduated from

high school and Billy no longer matriculates in this school

district. The only remaining student with standing to pursue

this case is Samuel Harris, and Samuel graduates on June 2,

1995.

The caption used by the Harrises on this brief in oppo-

sition reflects the current status of the parties. For some un-

explained reason, petitioners and cross-petitioners have de-

leted Billy from their captions, but not Beverly.

atin a.

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TABLE OF CONTENTS

py Ps Bis) ey: Ree

STATEMENT OF THE CASE.............

REASONS FOR DENYING THE WRIT ..........

I. THERE IS NO CONFLICT AMONG THE

CIRCUITS ON THE ISSUE PRESENTED

SR ee rl a

Il. THE DECISION BELOW IS CORRECT

AND CONSISTENT WITH THIS

CORMRE © PRREUMOINED® «0. ee eee

A. Petitioners’ Policy Violates The

Establishment Clause ..............

B. The Free Speech And Free Exer-

cise Claims Raised In This Case

By Cross-Petitioners Have Been

Repeatedly Rejected By This

Court And Were Properly Reject-

ed By The Court Of Appeals .....

a ee ‘Sree ee

TABLE OF AUTHORITIES

Cases

Abington School District v. Schempp,

374 U.S. 203 (1947)

Bethel School District v. Fraser,

478 U.S. 675 (1986)

Board of Education v. Mergens,

496 U.S. 226 (1990) .

Committee for Public Education and

Religious Liberty v. Nyquist,

413 U.S. 756 (1973)

Cornelius v. NAACP Legal Defense

& Educ. Fund, Inc.,

473 U.S. 788 (1985)

County of Allegheny v. American

Civil Liberties Union,

492 U.S. 573 (1989)

Edwards v. Aguillard.,

482 U.S. 578 (1987)

Engel v. Vitale,

370 U.S. 421 (1962)

Epperson v. Arkansas,

493 U.S. 907 (1968)

Jackson v. Metropolitan Edison Co.,

419 U.S. 345 (1974)

Jones v. Clear Creek Independent

School District,

97% F.2d 963 (1992),

cert. denied, 113 S.Ct. 2950 (1993)

Page

9

Lebron v. National Railroad

Passenger Corp.,

63 U.S.L.W. 4109 (Feb. 21, 1995)

Lee v. Weisman,

$65 U.S.

112 S.Ct. 2649 (1992)

Shelton v. Tucker,

364 U.S. 479 (1960) .

Stone v. Graham,

449 US. 39 (1980)

Tinker v. Des Moines Independent

Community School District,

393 U.S. 503 (1969)

Weinstein v. Bradford,

423 US 147 (1979)

West Virginia Board of

Education v. Barnette,

319 US. 624 (1943)

Page

6,

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10

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Respondents submit this brief in opposition to the peti-

tion and cross-petition for certiorari in Nos. 94-1268 and

94-1314.

STATEMENT OF THE CASE

Petitioners’ statement of the case is incomplete. Several

critical facts are omitted, and some statements are erroneous.

A more accurate statement follows.

1. This case was filed on April 12, 1991, by Phyllis

Wright Harris on behalf of herself and her three children,

Beverly, Billy, and Samuel Harris. Beverly graduated in

1991 from Grangeville High School; Billy no longer attends

school in this district, and Samuel, a senior this year, gradu-

ates on June 2, 1995. Thus, after that date, none of the

Harris children will any longer be a student in petitioners’

school district.’

2. Beverly Harris was a senior at Grangeville High

School when this case was filed in 1991. School officials

permitted Beverly’s class to vote on whether religious prac-

tices would be inserted into the school’s upcoming com-

mencement ceremony. Beverly's class opted to insert two

prayers and one religious hymn into the program. On

Beverly’s behalf, a preliminary injunction was sought in dis-

trict court to halt these religious activities, but the court

denied the injunction. Beverly, therefore, had no choice but

to endure religious practices in order to participate in one of

' According to cross-petitioners, this case presents a “timely opportunity"

to decide certain First Amendment issues. Cross-Pet. at 14. Given

Samuel's graduation date, this is not necessarily true. Indeed, under this

Court’s decision in Weinstein v. Bradford, 423 U.S. 147 (1979), it

would appear that this case may well become moot when Samuel grad-

uates.

the most important events of her life.’

3. This Court has held that “:eachers and principals

must and do retain a high degree of control over the precise

contents of the [graduation] program." Lee v. Weisman, 505

U.S. __, 112 S.Ct. 2649, 2660 (1992). It is therefore signif-

icant that the school district in this case concedes that it "al-

low[s] the students to dictate the content of graduation," and

that "[n]o implied restrictions are placed on the graduating

seniors" in this regard. Pet. at 6. The principal of Grange-

ville High School testified that, under the school district’s

written policy, students are authorized to transform the

school’s graduation program into “a religious service." CR

5] at 112.° The superintendent of schools, who wrote this

policy, testified that the policy authorizes students to dictate

the content of these ceremonies, "no matter how religious

they are." CR 50 at 58.

4. As the court below noted, the public school under-

writes these commencement programs with taxpayer funds,

providing “the building, chairs, platform for speakers, sound

system, secretarial help, and janitorial staff," and also de-

frays the cost of the written Program in which the prayers

and hymns are listed. Pet.App. B-21, B-19. Thus, the most

important facts are not in dispute: Children are allowed, by

a simple majority vote, to transform a government program

into a religious service (containing as much denominational

dogma as they wish); paid for by government funds; spon-

sored by the school district; in which school officials partic-

ipate, and over which these officials have ultimate control.

5. The prayers that were given during Beverly’s cere-

* Petitioners state that "Mrs. Harris’ oldest child [Beverly] left Grange-

ville High before graduating." Pet. at 7-8. This is erroneous.

* The designation "CR" refers to the clerk’s record in the district court.

2

a

ene een. on

mony* were Christian prayers. They invoked Jesus and the

Holy Spirit. They used the word "Lord" 15 times. CR 48

at 7. The religious hymn that also was inserted into Bever-

ly’s graduation program contained such messages as "We

want You to find us living what is true. Lord, remind us

who we are in You." No evidence was introduced in the

district court indicating that this hymn had anything other

than a religious purpose and effect.

6. In support of her motion for a preliminary injunc-

tion in 1991, Beverly testified: "I feel like school officials

are telling me that I am not as good as the other students. |

also feel as if I am being pressured to conform, and to ac-

cept someone else’s version of what is an acceptable reli-

gious belief." Beverly also testified that, when she voiced

her opposition to these religious activities during the

school’s voting process, she was retaliated against by other

students. “Now I am being treated like an outcast." CR

1(F).

7. Petitioners state that Grangeville’s 1990 senior class

(when Beverly was a junior) "declined to include any non-

secular music, prayer or speech" in the school graduation

program. Pet. at 7. This is erroneous. As the written Pro-

gram records, this event contained an invocation delivered

by clergy and students sang a "Musical Benediction." CR

48, p. 8, No. 10.

8 Cross-petitioners (the student-intervenors) claim

that "no one who attends a graduation ceremony in District

No. 241 is ever asked to participate in any prayer during the

graduation ceremony." Cross-Pet. at 3. This statement is

‘ The only hearing held in this case occurred in 1991. Accordingly, the

facts adduced at this hearing constitute the record. All parties concede

that the religious activities that occurred during Beverly's ceremony are

illustrative of the religious activities authorized by the school district’s

policy.

misleading. Remaining respectfully silent during prayer is

conventionally viewed as “signif[ying] .. . participation or

approval of it." Lee v. Weisman, 112 S.Ct. at 2658. In this

sense, Beverly was not only asked to -- she was compelled

to -- participate in two prayers and a religious hymn at her

graduation. Similarly, Samuel’s classmates have voted to

compel him to participate in religious activities this June 2.

Any notion that these children were not asked to participate

in religious activities "is formalistic in the extreme." /d. at

2659.

9. Cross-petitioners claim that the Grangeville High

School graduation ceremony is a public forum. The record

refutes this claim. It is undisputed that a religious majority

dictates the ceremony’s content and monopolizes the po-

dium. Only one view is heard, and all others are barred.

Pet.App. B-27. Therefore, this is not a public forum. Even

the school district does not contend that its graduation cere-

mony is a public forum.

REASONS FOR DENYING THE WRIT

Public school students have no independent right to dic-

tate the content of a school’s commencement program. No

one in this case disputes that fact. See Lee v. Weisman, 112

S.Ct. at 2660 (school officials "must and do retain a high

degree of control over the precise contents of the [gradua-

tion] program").*

Without abdicating its ultimate authority, the Grange-

ville school district has nonetheless allowed students to “dic-

tate" the school’s graduation program. Students have even

been delegated the authority to transform the school’s pro-

* Cf Bethel School District v. Fraser, 478 U.S. 675, 683 (1986)("The

determination of what manner of speech in the classroom or in school

assembly is inappropriate properly rests with the school board").

4

gram into a religious service. Armed with this power,

Grangeville students have fashioned graduation programs

that would make the activity in Lee v. Weisman appear ster-

ile. These programs have included denominational, clergy-

delivered prayers; denominational prayers offered by stu-

dents; and religious hymns -- sometimes all in the same

program.

The Ninth Circuit was clearly correct in declaring this

scheme unconstitutional. There is no reason for this Court

to review this decision.

Il. THERE IS NO CONFLICT AMONG THE CIR-

CUITS ON THE ISSUE PRESENTED BY THIS

CASE

Petitioners and cross-petitioners contend that the deci-

sion of the Ninth Circuit in Harris conflicts with the Fifth

Circuit’s decision in Jones v. Clear Creek Independent

School District, 977 F.2d 963 (1992), cert. denied, 113 S.Ct.

2950 (1993). However, these decisions are significantly dis-

tinguishable. True, both cases involve the broad question of

school sponsorship of student-initiated prayer in school com-

mencement exercises. But the actual issue in Jones was the

facial validity of a school policy that permitted high school

seniors to deliver "nonsectarian, nonproselytizing invocations

at their graduation ceremonies." /d. at 964, 969 n.10. In

upholding this policy, the court admonished that the plain-

tiffs could seek further relief if this policy were violated.

Id. at 969 n.10.

In sharp contrast, Harris considered a policy that allows

high school seniors to inject all of the following religious

activities into the school ceremony: (1) as many denomina-

tional, proselytizing prayers as the students wish, (2) all de-

livered by clergy, and (3) an unlimited number of religious

hymns and other religious messages. As petitioners con-

cede, the Grangeville policy "does not attempt to insure

non-sectarian or non-proselytizing content" of the school’s

graduation program, and there are "[n]o implied restrictions"

on the amount of religious content it can contain. Pet. at 5.

In fact, the school district “allow[s] the students to dictate

the content of graduation." /d. at 6. There is nothing in

Jones suggesting that the Fifth Circuit would -- or that any

court would -- sustain a policy such as this. In any event,

Jones did not consider such a policy.

il. THE DECISION BELOW IS CORRECT AND CON-

SISTENT WITH THIS COURT’S PRECEDENTS

A. Petitioners’ Policy Violates The Establish-

ment Clause

Petitioners’ policy contains an inherent constitutional

flaw. It rests on an erroneous concept: that a government

activity ceases to be a government activity when a religious

majority is allowed to control it. The framers of the Consti-

tution chose a different path for our nation. "The very pur-

pose of a Bill of Rights was to withdraw certain subjects

from the vicissitudes of political controversy, to place them

beyond the reach of majorities and officials and to establish

them as legal principles to be applied by the courts." West

Virginia Board of Education v. Barnette, 319 U.S. 624, 638

(1943).

Hundreds of activities long recognized as unconstitu-

tional would be officially sanctioned under Grangeville’s

scheme. All that government officials need do is bind

themselves to the outcome of a vote. If the majority then

votes to usurp the government activity for a private religious

purpose, the government would be obligated to finance and

sponsor it. In the school context, majorities could vote to

begin every class with prayer, and vote to post the Ten

Commandments in every classroom. Indeed, this same prin-

o ee ne eh aed

SS a ae eee

ciple would permit each agency of government to allow

constituents to insert their own religious activities into every

government program.

The prayers (and other religious activities) inserted by

students into Grangeville’s official graduation program con-

stitute state action in every relevant sense. They are adver-

tised on the state’s Program, included as an integral part of

the government event, and are able to be offered from this

podium only because the government has provided the fi-

nancial and supervisory resources. Moreover, given that the

government has the ultimate authority to prohibit these

prayers from the official program, the decision to include

them precludes any claim of government neutrality” To

paraphrase the Court’s most recent state action decision: "It

surely cannot be that government, state or federal, is able to

evade the most solemn obligations imposed in the Constitu-

tion by simply [deferring to a majority vote]." Lebron v.

National Railroad Passenger Corp., 63 US.L.W. 4109,

4116 (Feb. 21, 1995).

Petitioners contend that a school district can somehow

"remain neutral [while] allow[ing] the students to dictate the

content of graduation." Pet. at 6 This cannot be true

Every time children dictate the insertion of religious activity

into a school program, the school loses its neutrality. It 1s

not the prayers, of course, that violate the Constitution, it 1s

their placement into an official government program. Com-

pare Engel v. Vitale, 370 U.S. 421 (1962), with Board of

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

Students at Grangeville High who desire it are free to

organize a private, religious baccalaureate service before or

after graduation. But, contrary to petitioners’ assertion,

° Thus, cases such as Jackson v. Metropolitan Edison Co., 419 U.S. 345

(1974), are patently inapposite

school officials violate their constitutional obligation of

neutrality when they allow prayers to be included in the

government program. “The Constitution mandates that the

government remain secular, rather than affiliating itself with

religious beliefs or institutions ...." County of Allegheny

v. American Civil Liberties Union, 492 U.S. 573, 610

(1989). See also Abington School District v. Schempp, 374

U.S. 203, 226 (1947)("In the relationship between man and

religion, the State is firmly committed to a position of neu-

trality").

Government neutrality is particularly important in the

public school. "“‘[T]he vigilant protection of constitutional

freedoms is nowhere more vital than in the community of

American schools." Epperson v. Arkansas, 493 U.S. 907,

104 (1968), quoting Shelton v. Tucker, 364 U.S. 479, 487

(1960). See also Edwards v. Aguillard, 482 U.S. 578, 583

(1987)("The Court has been particularly vigilant in monitor-

ing compliance with the Establishment Clause" in public

schoois).

Petitioners’ religious activities -- and these prayers are

the school district's -- violate the Establishment Clause.

The fact that students initiate them does not change the fact

that they are being offered as part of the government’s own

program, thereby forfeiting government neutrality. Church

and state have been joined.

B. The Free Speech And Free Exercise Claims

Raised In This Case By Cross-Petitioners

Have Been Repeatedly Rejected By This

Court And Were Properly Rejected By The

Court Of Appeals

Petitioners make no Free Speech or Free Exercise argu-

ment, but cross-petitioners do. Cross-petitioners contend

that, even if these religious activities otherwise constitute

Establishment Clause violations, they are saved by the free

speech and free exercise rights of the students who want

these prayers included in the school program.

This argument is wrong on the facts and wrong on the

law. It is wrong on the facts because cross-petitioners are

not merely seeking the right to engage in private religious

expression. They are demanding that the state promote,

sponsor and finance that religious expression by including it

in an official school program. It is also wrong on the law.

As this Court pointedly noted in Abington School District v.

Schempp, 374 US. at 226, "jw)hile the Free Exercise

Clause clearly prohibits the use of state action to deny the

rights of free exercise to anyone, it has never meant that a

majority could use the machinery of the state to practice its

beliefs" (emphasis in original).

Cross-petitioners’ only response to this well-established

law is to argue that a tension exists in this case between

their individual rights and the Establishment Clause. But a

similar tension exists in a// Establishment Clause cases. By

definition, the Establishment Clause restricts a certain man-

ner of expression: namely, religious expression sponsored

by the state. Free speech stops at this wall. Simply put,

there is no right to compel a violation of the Establishment

Clause. See Committee for Public Education and Religious

Liberty v. Nyquist, 413 U.S. 756, 788 (1973)(citations

omitted).

[TJhis Court repeatediy has recognized that ten-

sion inevitably exists between the Free Exer-

cise and Establishment Clauses .... As a re-

sult of this tension, our cases require the State

to maintain an attitude of "neutrality," neither

"advancing" nor "inhibiting" religion.

See also West Virginia Board of Education v. Barnette, 319

U.S. at 638, Lee v. Weisman, 112 S.Ct. at 2657-58, 2660.

Cross-petitioners either ignore or fail to grasp the dis-

tinction between private religious speech and state-sponsored

religious activity. Thus, they claim: "Where the impetus

for religious activity is purely of private initiative and de-

sign ... there is no state action and the Establishment

Clause does not proscribe the conduct." Cross-Pet. at 19.

The flaw in that reasoning is apparent. A majority can

initiate and design religious practices, but it cannot use the

machinery of the state to promote them. Prayers (and other

religious practices) inserted into a public school graduation

program cross the line from private speech to public ritual.’

The notion that publicly sponsored prayers become constitu-

tional whenever the majority wants them is to say, in effect,

that our constitutional safeguards, including the Establish-

ment Clause, can be overruled by majority vote. That is not

the premise of the Constitution and it has never been this

Court’s view.

Cross-petitioners make a similarly flawed argument

when they contend that the disclaimer that appears on the

written graduation Program somehow cleanses the constitu-

tional violation occurring on the podium. However, this ar-

gument too has been consistently rejected by the Court,

which has properly recognized that no amount of disclaim-

’ Cross-petitioners make the same fundamental error in relying on

Tinker v. Des Moines Independent Community School District, 393 U.S

503 (1969), in support of their free speech claim as when they rely on

Board of Education v. Mergens, 496 U.S. 226, in the context of free

exercise. In both Tinker and Mergens, schools were constitutionally ob-

ligated to tolerate certain student speech on a nondiscriminatory basis.

Nothing in those cases support what the students want to do here: com-

pel the school to sponsor and finance their religious activity and include

it in the school’s own program. Indeed, Tinker and Mergens il\ustrate

what Grangeville’s response to this request should be.

10

ing "can blind us" to a clear Establishment Clause violation.

Stone v. Graham, 449 U.S. 39, 41 (1980).

Finally, cross-petitioners argue that Grangeville’s gradu-

ation ceremonies are public fora and, consequently, the stu-

dents’ religious practices cannot be subjected to "viewpoint-

based speech restrictions." Cross-Pet. at 20. There is no

basis in fact for claiming that this podium is a public forum.

Indeed, the school district itself eschews the notion that it

has created a public forum, given the responsibility the dis-

trict would then have to open it to unfettered discourse.

"The government does not create a public forum by in-

action or by permitting limited discourse, but only by inten-

tionally opening a nontraditional forum for public dis-

course." Cornelius v. NAACP Legal Defense & Educ. Fund,

Inc., 473 U.S. 788, 802 (1985). Neither by word nor deed

has Grangeville opened its graduation podium to unlimited

discourse. Public discourse does not occur. The only

speech permitted is the religous majority's speech. As the

Ninth Circuit correctly noted, "[n]o matter what message a

minority of students may wish to convey, the graduation

forum is closed to them." Pet.App. at B-27. This critical

fact is not in dispute, and this fact precludes the graduation

ceremony from being considered a public forum

1]

CONCLUSION

An undercurrent in the petition and cross-petition is that

barring students from having the option to include religious

activities in school programs is inimical to religion. On the

contrary, the Establishment Clause is designed to safeguard

religion from government (at the same time it safeguards

government from religious strife). "[A] union of govern-

ment and religion tends to destroy government and degrade

religion." Engel v. Vitale, 370 U.S. at 431. Students who

today vote to insert prayer can tomorrow vote to denigrate

prayer, and the strife that is likely to erupt in the school

(and in the community) is precisely what the Establishment

Clause intends to prevent.

The decision below is a faithful application of a funda-

mental principle. Accordingly, respondents respectfully re-

quest that this Court deny the petition and cross-petition for

certiorari.

Respectfully submitted,

Stephen L. Pevar

(Counsel of Record)

American Civil Liberties Union

Foundation

6825 East Tennessee, Suite 530

Denver, Colorado 80224

(303) 321-4828

Steven R. Shapiro

American Civil Liberties Union

Foundation

132 West 43 Street

New York, New York 10036

(212) 944-9800

Dated: February 24, 1995

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