Amicus Curiae Brief — Chandler ex rel. Chandler v. Siegelman

Supreme Court, U.S. |

FILED

2) JAN 21 2000

No. 99-935 nce

IN THE

SUPREME COURT OF THE UNITED STATES

MICHAEL CHANDLER, et al.,

Petitioners,

FORREST H. “FOB” JAMES, et a/.,

Respondents.

On Petition for Writ of Certiorari to the United States

Court of Appeals for the Eleventh Circuit

BRIEF AMICUS CURIAE OF THE INTERFAITH

ALLIANCE AND THE HORACE MANN LEAGUE IN

SUPPORT OF PETITION FOR WRIT OF CERTIORARI

PROF. FRANK S. RAVITCH*

Oldfield Law Building

6441 East Colonial Drive

Orlando, FL 32807-3673

(407) 275-2000 ext. 245

*Counsel of Record

i

TABLE OF CONTENTS

Page

py) Fe hy) 8 oy. ill

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

REI Fastina cee ire a ti ee 2

I. THE ELEVENTH CIRCUIT’S DECISION

CONFLICTS WITH THIS COURT’S FREE

SPEECH CLAUSE DECISIONS............ b

A. The Decision Sanctions Viewpoint

I cts ge ee ee 4

B. Public School Are Not Public

NS Sho as i ee eee ae wa es 7

I]. THE ELEVENTH CIRCUIT’S DECISION

CONFLICTS WITH THIS COURT’S

ESTABLISHMENT CLAUSE DECISIONS .. 9

A. The Panel’s Decision Contradicts This

Court’s Decision In Lee v. Weisman,

And Places The Burden Of Avoiding

Religious Compulsion On

Nonconforming Students............... 9

il

B. The Activities At Issue Pose A Special

Threat To Religious Minorities And

Dissenters, And Are Exceptionally «

COORAUE ... cond xcdandn Crees 11

C. The Eleventh Circuit’s Focus On

Whether Officials “Permitted Or

“Commanded” The Religious

Exercises Is Misplaced ............... 15

D. The Eleventh Circuit’s Treatment

Of “Proselytizing” Prayer Is

Ereeeeeee 60k kikee ee eee 18

CONCLUSION |... 64.0550 eee eee ee 20

ill

TABLE OF AUTHORITIES

Cases: Page

ACLU v. Black Horse Pike Reg. Bd. of Educ.,

84 F.3d 1471 (3d Cir. 1996)(en banc)............. 9,16

Bell v. Little Axe Indep. Sch. Dist. No. 70,

766 F.2d 1391 (10" Cir. 1985) ...............0.. 12

Bethel School Dist. No. 403 v. Fraser,

re ee 7

Board of Education of Westside Community Schools

v. Mergens, 496 U.S. 226, 250 (1990). ............ 3

Capitol Square Review & Advisory Bd. v. Pinette,

arr 5,18

Chandler v. James, 180 F.3d 1254 (11" Cir. 1999).... passim

City Council of Los Angeles v. Taxpayers for

Vincent, 466 U.S. 789 (1984)................02. 18

County of Allegheny v. ACLU, 492 U.S. 573 (1989)... 17

Edwards v. Aguillard, 482 U.S. 578 (1987). ......... 17

Engel v. Vitale, 370 U.S. 421 (1962)............... 13,16

Gearon v. Loudoun County Sch. Bd., 844 F.Supp.

i a a daw da wees saat ae 16

Grand Rapids v. Ball, 473 U.S. 373 (1985) .......... 13

Hague v. C.I.0., 307 U.S. 496 (1939) ...........0.. 7,8

Hazelwood School Dist. v. Kuhlmeier,

RI PE TUIEEN so ik vn caw sa scdereceesacaens 7,8

Lamb's Chapel v. Center Moriches Union Free

Sch. Dist., 508 U.S. 384 (1993) ..............0.. 7

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

1V

Lynch v. Donnelly, 465 U.S. 668 (1971)............. 17

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

ee ee NO os 0650s oo eee ee es 7, 8

Rosenberger v. Rector & Visitors of Univ. of Virginia,

Fe ee ee 5 he Mae Kea adKe 5,18

School District of Abington Township v. Schempp,

ea re a eer re rrr 10

Tinker v. Des Moines Indep. Sch. Dist.,

Pe es ED 5.5 eed a ne kd we 7

Turner Broadcasting System, Inc. v. F.C.C.,

ee Ae ek ck a eee kek eae es 5,18

Wallace v. Jaffree, 472 U.S. 38 (1987) .............. 17

Widmar v. Vincent, 454 U.S. 263 (1981)............. 8

Miscellaneous:

James Madison, “Federalist No. 10,” in

THE FEDERALISIF PAPERS (Clinton Rossiter ed.,

er er ne re 14

James Madison, “Federalist No. 51,” in

THE FEDERALIST PAPERS (Clinton Rossiter ed.,

PT NN IID i ae sa ka Fn GA ee eked keen 13,14

JAMES HENNESEY, AMERICAN CATHOLICS: A

HISTORY OF THE ROMAN CATHOLIC COMMUNITY

IN THE UNITED STATES (Oxford Univ. Press 1981)..... 11

V

LLOYD P. JORGENSON, THE STATE AND THE

NON-PUBLIC SCHOOL, 1825-1925

(Univ. of Missouri Press 1987)................00000- 11

LEO PFEFFER, GOD, CAESAR, AND THE

CONSTITUTION (Beacon Press 1975)..............4.. 11

THE OXFORD DESK DICTIONARY (American ed.,

Oxford Univ. Press 1995)........... cece cece eee eeee 16

FRANK S. RAVITCH, SCHOOL PRAYER AND

DISCRIMINATION: THE CIVIL RIGHTS OF

RELIGIOUS MINORITIES AND DISSENTERS

(Northeastern Univ. Press 1999).................. 11,12,13

U.S. DEPT. OF FDUCATION, PRESIDENTIAL GUIDELINES

ON RELIGIOUS EXPRESSION IN PUBLIC SCHOOLS (Aug.

1995, revised May 1998) .......... ccc ecccccceces 3

«=?

1

INTEREST OF THE AMICUS CURIAE'

THE INTERFAITH ALLIANCE

The Interfaith Alliance is a national grassroots organization headed

by clergy and concerned lay people of faith. The Interfaith Alliance

and its 109 local alliances and aligned groups in 35 states uphold the

positive role that religion can play in public life. We recognize that

diversity and tolerance are essential components of our democratic

tradition and that they must be promoted, preserved, and

celebrated. Mainstream religious leaders from across the country

organized the Interfaith Alliance in 1994 to speak out against the

divisive use of religion in the public square.

THE HORACE MANN LEAGUE

The Horace Mann League of the United States of America was

founded by a group of leading educators in 1922 to perpetuate the

ideals of Horace Mann, founder of the American public school

system. The League believes that the public school system of the

United States is an indispensable agency for the perpetuation of the

ideals of our democracy and a most necessary unifying and dynamic

influence in American life. Our public schools should be free, class

.less, non-sectarian, and open to all children. Accordingly, the

League believes that the American tradition of separation of church

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

letters of consent have been filed 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 amicus curiae, their members, and

their counsel, made a monetary contribution to the preparation and

submission of this brief.

2

and state must be preserved inviolate and should be most vigorously

and zealously safeguarded.

ARGUMENT

The Eleventh Circuit’s decision allowing organized, student

initiated prayer at school controlled forums such as graduation

ceremonies, sporting events, and assemblies, threatens both

freedom of speech and religion. This is so because the Eleventh

Circuit decision ignores this Court’s carefully laid out public forum

doctrine, and in the process fails to recognize the difference

between government toleration of private speech and government

sponsorship of it. This is a classic case of a government entity

favoring the viewpoint of the majority, while excluding other

viewpoints. Cloaking religious favoritism in the garb of free speech

may disguise it, but it does not undo it.

The Eleventh Circuit’s decision also undermines this Court’s

Establishment Clause precedents. It overlooks the very real

coercive effects that exist when adherents of the majority faith

commandeer school events and equipment to exercise their beliefs

with the tacit approval of government officials. Moreover, it fails to

recognize that endorsement can exist at school controlled events

regardless of whether prayers are “commanded” or “permitted” by

those with the power to do so.

3

I. THE ELEVENTH CIRCUIT’S DECISION

CONFLICTS WITH THIS COURT’S FREE

- SPEECH CLAUSE DECISIONS

This case is about organized prayer at school events, and

not about censorship of “private” prayer. It is axiomatic that

students may pray privately and even proselytize their fellow

students at school during free periods, or whenever they may speak

freely about non-curriculum related subjects. Board of Education

of Westside Community Schools v. Mergens, 496 U.S. 226, 250

(1990); U.S. DEPT. OF EDUCATION, PRESIDENTIAL GUIDELINES ON

RELIGIOUS EXPRESSION IN PUBLIC SCHOOLS (Aug. 1995, revised

May 1998); See also Lee v. Weisman, 505 U.S. 577, 629-630

(1992)(Souter, J., concurring)(graduating students “may express

their religious feelings” before and after commencement, and at

privately sponsored baccalaureate ceremonies). The injunction the

Eleventh Circuit vacated explicitly acknowledged the same. (Pet.

App. D.) The prayer involved in this case is not of this "private"

type. Yet the Eleventh Circuit decision treats school-sponsored

sectarian prayer delivered over the intercom as “private” so long as

the supplicant is not a school board employee. No basis exists

among this Court's precedents for this remarkable conclusion.

The Eleventh Circuit’s decision suggests that even if a

school district has created an arena in which majoritarian religious

speech is clearly favored, it may justify such favoritism based on the

free speech rights of the speaker. Thus the panel’s decision distorts

the Free Speech Clause. If allowed to stand, it will wreak havoc

with the public forum doctrine established by this Court and will

foster an environment hostile to the speech and religion rights of

4

those required by law to go to school who do not share the majority

faith or viewpoint.

A. The Decision Sanctions Viewpoint Discrimination

By suggesting that students and others have a free speech

right to engage in organized, public prayer at school-sponsored

events, the Eleventh Circuit draws an artificial line between

government speech and private speech. Chandler v. James, 180

F.3d 1254, 1257n.6, 1264(11" Cir. 1999). Having extracted the

prayer in question from the realm of government action (even when

government facilities are used to deliver it in a captive audience

setting), the opinion suggests that preventing such prayer somehow

reflects hostility toward religion and interferes with private speech

rights. /d. at 1261. Thus, the reasoning goes, allowing such

organized prayer at school events does not run afoul of the

Establishment Clause, but in fact, prevents violations of the Free

Speech Clause.

This reasoning is specious, and when carefully analyzed it

leads to violations not only of the Establishment Clause, but of the

Free Speech Clause. That is the ultimate irony of the decision.

A simple review of the record in this case when evaluated

under this Court’s free speech doctrines demonstrates the massive

flaws in the Eleventh Circuit’s analysis. Both in their substance and

application, DeKalb County’s policies and practices favored

religious speech and favored the speech of the religious majority.

DeKalb County permitted sectarian Christian prayers over

loudspeakers at school events. It permitted Christian ministers to

5

deliver religious remarks at school assemblies. It permitted New

Testament distributions by Gideons, and permitted numerous other

sectarian, always Protestant, practices. (See Pet. Br. at 3-7.)

The record is devoid of any evidence that DeKalb County

made its events or equipment available to persons wishing to

express any other viewpoint. No Catholic, Jewish, Muslim, or

other non-favored prayer was ever given, and the environment

fostered by school officials was not conducive to the expression of |

minority religious views.

Sponsorship of, and favoritism toward, religious speech is

the net effect of DeKalb County’s permitting prayers and religious

exercises to the exclusion of other speech. This results in

discrimination against non-majoritarian religious speech and non-

religious speech.” This type of government sanctioned viewpoint

discrimination is prohibited by the Free Speech Clause.

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

515 U.S. 819, 828-830 (1995); Turner Broadcasting System,

Inc. v. F.C.C.,512 U.S. 622, 641-6143 (1994); See also Capital

Square Review & Advisory Bd. v. Pinette, 515 U.S. 753, 766

(1995)(acknowledging that when government favors religious

speech in a public forum it endorses that speech and engages in

content discrimination).

2 As this Court has acknowledged, even ina traditional public forum

one kind of speech can so dominate that content discrimination

results. Cf Capital Square Review & Advisory Bd. v. Pinette, 515

U.S. 753, 766 (1995)(“giving sectarian religious speech preferential

access to a forum....would violate the Establishment Clause” and the

Free Speech Clause because “it would involve content

discrimination’).

6

Conversely, if the decision is read as envisioning school-

sponsored events as equal access events for free speech purposes

(thus putting the best face on the decision), the Eleventh Circuit has

created a regime of chaos rather than viewpoint discrimination.’

Imagine a graduation ceremony where a speaker is on stage

surrounded by school officials and teachers, with parents and happy

graduates in the audience. The speaker, who may be a student or

nonschool “other,” says a prayer to which several persons, including

students, object for different reasons. Each wants the opportunity

to respond and walks on-stage to offer an alternative prayer or

statement. Or imagine a pre-game prayer at a sporting event that

causes twenty students or others with differing viewpoints to want

equal time to state their prayers or objections. None should have

his prayer curtailed since the Eleventh Circuit declared a general

free speech right for students and others to pray. This situation,

which the decision might well create, would drastically change the

understood nature of graduation ceremonies and kickoff times, not

to mention other school activities.

Constraints of time and the risk of coercion or attribution of

the speaker’s message to the government sponsoring it exist

because public schools are not public squares. The Eleventh

Circuit, by sanctioning either viewpoint discrimination or chaos,

ignored these realities or failed to recognize them. The result

distorts both freedom of speech and religion.

3 Such equal access never occurred in DeKalb County. Only

tongue-in-cheek could one contend that DeKalb County school

officials have or will create a generalized platform for non-favored

speech.

”

B. Public Schools are not Public Squares

The Eleventh Circuit decision seems to assume that a public

forum existed at the events in question, but does not directly

address the issue, despite the fact that the existence of a public

forum is a prerequisite to the free speech analysis upon which the

court purported to rest its decision.* Absent a public forum, for

example, nonschool others do not have the right of access to public

schools for speech purposes conferred on them by the Eleventh

Circuit. Lamb’s Chapel v. Center Moriches Union Free School

District, 508 U.S. 384, 390, 392-393 (1993); Perry Ed. Assn. v.

Perry Local Educators’ Assn., 460 U.S. 37, 46, 48-49 (1983).

In the public square a citizen may freely express his or her

views without government officials controlling the event, and without

a captive audience. Hazelwood School Dist. v. Kuhlmeier, 484

U.S. 260, 266-267 (1988); Perry, 460 U.S. at 45; Hague v.

C.1.O., 307 U.S. 496, 515 (1939). Those who oppose the views

may use the same forum for stating their opposition or they may

4 Since the Eleventh Circuit never identifies the basis for the right to

engage in such expressive activity at school controlled events, the

court must have assumed either a public forum, a designated public

forum, or some sort of “super-7inker” right. As this sub-section

demonstrates, the first two options are inconsistent with the record

and this Court’s public forum doctrine. The third possibility is in

direct conflict with Hazelwood, 484 U.S. 260, 266-267, 270-273 (in

school-controlled fora the school need not tolerate all student speech),

and, Bethel School Dist. No. 403 v. Fraser, 478 U.S. 675, 685

(1986)(same).

8

simply walk away. Inthe public school context, quite the opposite

is true because of the unique constraints of the school setting. If, for

example, students opposed prayers given at an assembly, over the

loudspeaker at a football game, or from the podium at a graduation

ceremony, they could not simply walk up and commandeer the

podium and respond.

Aschool controlled event is not a public forum unless the

school so designates. When a school creates a designated public

forum, the rules ofa traditional public forum apply.’ Perry, 460

U.S. at 45-46. Under these circumstances, opposing speakers

must be given equal time and resources. The state may not favor

religious speech, and must allow open communication and debate,

absent a regulation narrowly drawn to achieve acompelling state

interest. Perry, 460 U.S. at 45; Widmar v. Vincent, 454 U.S. 263

(1981); Hague, 307 US. at 515.

Herein lies the paradox. If DeKalb County suggests that

its school events were some sort of a public forum, they undermine

their own case. For ifa public forum ora designated public forum

existed at the events in question, DeKalb County engaged in a

systematic pattern of viewpoint discrimination against minority views

and discrimination against nonreligious speech generally. The

record, of course, belies any pretense ofa public forum up until the

time the Eleventh Circuit seemingly created one (without reference

to the record). What DeKalb County had was in fact a platform for

prayer that other speech did not share. Of course, this violates the

Establishment Clause, but it also violates the Free Speech Clause.

5 The school can limit the types of speakers to those relevant to the

forum, such as students. Perry, 460 U.S. at 48.

9

Thus, the Eleventh Circuit’s decision cloaking religious favoritism as

Free Speech is especially dangerous and troubling.

Il. THE ELEVENTH CIRCUIT’S DECISION CONFLICTS

WITH THIS COURT’S ESTABLISHMENT

CLAUSE DECISIONS

A. The Panel’s Decision Contradicts This Court’s Decision

in Lee v. Weisman, and Places the Burden of Avoiding

Religious Compulsion on Nonconforming Students

The Eleventh Circuit's decision inverts the principles

underlying this Court's Establishment Clause jurisprudence. In Lee

v. Weisman, 505 U.S. 577 (1992), this Court held that graduation

prayer at school-sponsored events violates the Establishment Clause

because it coerces dissenting students to participate in a religious

exercise. The Eleventh Circuit found organized prayer at school-

controlled events that is led by persons other than school officials

distinguishable from the unconstitutional prayer in Lee because in

Lee aschool official chose a member of the clergy to deliver the

prayer and issued guidelines for it. Chandler v. James, 180 F.3d

1254,1257, 1263-64 n.13, n.16. (11" Cir. 1999).

The artificial distinction drawn by the Eleventh Circuit is

spurious when judged against Lee. The prayer in Lee was not

coercive merely because a principal influenced it; it was coercive

because it occurred at a school-sponsored, controlled, and funded

event that was essentially obligatory. Lee, 505 U.S. at 593-597;

ACLU v. Black Horse Pike Regional Bd. of Educ., 84 F.3d

1471, 1478-83 (3d Cir. 1996)(en banc). Had this Court meant in

10

Lee that religious exercises at a school-sponsored event were

unconstitutional only to the extent that a school official gave

guidelines, this Court would have had no need to ground its holding

in large measure on the effect of the prayers on persons who were

compelled to participate. See Lee, 505 U.S. at 592-597.

The remainder of the Eleventh Circuit's treatment of Lee is

even less respectful. The Eleventh Circuit transformed Lee's

concern with the rights of captive dissenters to nothingness: "Those

who do not espouse a speaker's religious beliefs are free not to

listen, and to express their disagreement by not participating in any

way." Chandler, 180 F.3d at 1263. The panel indicated its belief

that Lee sanctioned "social isolation or even anger" as "the price of

conscience or nonconformity." Jd. (quoting Lee, 505 US. at

597).° This, the Eleventh Circuit has decreed, is the price of liberty

in America. Chandler, 180 F.3d at 1263.

The Eleventh Circuit also overlooked the aniline of the

school setting and the coercive pressures operating there. See Lee,

505 U.S. at 592-594. This Court has never required silent

participation or standing in the hallway in order to escape religious

compulsion in the public schools. Lee, 505 USS. at 594-596;

School District of Abington Township v. Schempp, 374 U.S.

203, 287-90 (1963)(Brennan, J., concurring).

6 How thoroughly this language is ripped from its context is apparent

from reading the very next sentence in Lee, not to mention the entire

opinion. Lee does not sanction callousness toward dissenting

schoolchildren.

1]

B. The Activities at Issue Pose a Special Threat to

Religious Minorities and Dissenters, and

are Exceptionally Coercive

The Eleventh Circuit's decision ignores history, social

context, and common sense by finding that it is not coercive or an

endorsement of religion to favor the prayer of the religious majority,

even when that prayer occurs at school sponsored and controlled

events. Unfortunately, there is a long and tortured history in this

nation of religious exercises in the public schools facilitating violence

against religious minorities and dissenters, either because they did

not participate or because they objected to those exercises. See

generally FRANK S. RAVITCH, SCHOOL PRAYER AND

DISCRIMINATION: THE CIVIL RIGHTS OF RELIGIOUS MINORITIES

AND DISSENTERS (Northeastern Univ. Press 1999). From the anti-

Catholic violence of the 1840's to cases in the last few years,’

7 In the Nineteenth Century violence against Catholics was

facilitated by school prayer and bible reading. Ravitch, SCHOOL

PRAYER AND DISCRIMINATION at 4-7; Lloyd P. Jorgenson, THE

STATE AND THE NON-PUBLIC SCHOOL, 1825-1925 (Univ. of

Missouri Press 1987) at 76-83; James Hennesey, AMERICAN

CATHOLICS: A HISTORY OF THE ROMAN CATHOLIC COMMUNITY IN

THE UNITED STATES (Oxford Univ. Press 1981) at 122-125; Leo

Pfeffer, GOD, CAESAR, AND THE CONSTITUTION (Beacon Press

1975). Sadly, while ‘the level of bloodshed may be lower today,

recent cases demonstrate the violent conflict that can be facilitated

by school prayer. See Ravitch, SCHOOL PRAYER AND

DISCRIMINATION at 7-18.

12

school prayer has called attention to difference, and it has frequently

been peers at school who have exploited that difference in a

persecutorial fashion. /d. (documenting a number of cases, both

reported and unreported, of discrimination against religious

minorities and dissenters facilitated by school prayer); Bell v. Little

Axe Independent School Dist. No. 70, 766 F.2d 1391, 1397 (io*

Cir. 1985)(documenting vitriolic incidents of harassment and

discrimination aimed at two families that objected to majoritarian

religious activity in a public school). The discrimination and violence

has been especially pronounced when school officials have fostered

an environment such as that in DeKalb County.*

A vast array of data indicates that religious harassment and

discrimination against members of religious minonities are reinforced

when student adherents of the majority religion perceive that their

religious views are favored by school officials. Thus, when school

officials permit school-controlled settings to be used for religious

exercises the effects may extend beyond endorsement and coercion

to discrimination.

Moreover, the pressure, ostracism, and marginalization that

caused this Court to strike the rabbi's prayer in Lee may be

magnified when the prayer is given by a peer with the support ofa

majority of one’s peers,’ at an event controlled by the government.

8 See discussion of the Herring, Herdahl, Bell, and Bauchman

cases in Ravitch, SCHOOL PRAYER AND DISCRIMINATION at 8-16.

9 This does not minimize the fact that the Eleventh Circuit’s opinion

allows prayer by either clergy or a student. Under that decision,

clergy may demand the podium upon a claim of generalized First

Amendment rights to the same extent that a student may. Chandler,

13

See generally Ravitch, SCHOOL PRAYER AND DISCRIMINATION. |

Numerous studies from a variety of disciplines demonstrate that the

peer pressure and coercion discussed in Lee is far more

pronounced when a student’s peers are engaging in religious activity

with the direct or tacit permission of school authorities.'° Although

often dependent upon the religious demographics in a given location,

the dynamics, and the attendant discrimination and harassment, are

relatively predictable.

All of this data makes one point painfully obvious- school

prayer generally, and especially when supported by a majoritarian

sentiment with tacit government approval, is especially coercive,

alienating, and potentially violence- producing. Therefore, both

from an endorsement and coercion perspective, organized public

prayer at school-controlled events, even if student-initiated,

produces the divisiveness from the government’s pulpit the

Establishment Clause was designed to prevent. Lee, 505 U.S. at

591-592; Id. at 606-607 & n.10 (Blackmun, J. concurring); Id. at

630 (Souter, J., concurring); Grand Rapids v. Ball, 473 U.S. 373,

382-383 (1985); Engel v. Vitale, 370 U.S. 421 (1962). :

The Eleventh Circuit failed to recognize what this Court

180 F.3d at 1257 n.6.

10 Fora discussion of, and citation to, numerous studies from the

social sciences demonstrating the impact of peer pressure and

authority figure behavior on students, as well as the connection

between religious orientation and discrimination, See Ravitch,

SCHOOL PRAYER AND DISCRIMINATION at Chapter Four.

14

recognized in Lee and what James Madison recognized in his

famous Federalist No. 51:

In a free government the security for civil rights

must be the same as that for religious rights. It

consists in the one case in the multiplicity of

interests, and in the other in the multiplicity of sects.

The degree of security in both cases will depend on

the number of interests and sects......In a society

under the forms of which the stronger faction can

readily unite and oppress the weaker, anarchy may

as truly be said to reign as in the state of nature,

where the weaker individual is not secured against

the violence of the stronger...

James Madison, “Federalist No. 51,” in THE FEDERALIST PAPERS

(Clinton Rossiter ed., Penguin Books 1961).

Madison understood that a central aspect of religious

freedom is that government may not choose among the multiplicity

of sects that which it will favor. An environment such as that

fostered by DeKalb County, where a majority can dictate the

religious exercises the minority must explicitly or implicitly

participate in at school-controlled events, where school policies

foster majoritarian religious rule at school-controlled events, where

such practices were formally endorsed by a state statute, and where

religious harassment may be aimed at those who oppose the

prevailing views, subverts Madison’s vision. He understood both

the danger to individual freedom posed by factional domination and

that in the religious context factional domination is especially

15

dangerous. James Madison, “Federalist No. 10,” in THE

FEDERALIST PAPERS (Clinton Rossiter ed., Penguin Books 1961 ).

The hostility toward those who do not share the dominant faith in the

present case demonstrates the salience of Madison’s vision.

To the extent that the Religion Clauses embody Madison’s

vision of equal protection for minority religious sects, DeKalb

County’s policies are more dangerous to religious freedom than the

prayer struck in Lee, because they empower a majoritarian religious

faction to routinely use the machinery of the state to force a captive

audience to participate explicitly or implicitly in sectarian religious

activity in school-controlled settings. This is the type of situation

Madison feared, this Court has proscribed, and the Eleventh Circuit

now allows.

C. The Eleventh Circuit’s Focus On Whether

Officials “Permitted” Or “Commanded”

The Religious Exercises Is Misplaced

The Eleventh Circuit tries to avoid the logical result of Lee

and this Court’s other Establishment Clause precedents by

creating a dichotomy between “permitting” prayer and

“commanding” it in the closed environment of the school setting.

Chandler, 180 F.3d at 1264. Thus, the panel held that it is

acceptable for a school to “permit” students and others to give

organized, public prayers in classrooms, at assemblies, and over

loudspeakers at football games and graduations. According to the

Eleventh Circuit, even ministers may speak at school-controlled

events so long as the school does not “command” prayer. Jd. at

16

1257n.6, 1264. This dichotomy is especially troubling because it

not only flies in the face of this Court’s F irst Amendment holdings,

but is exceptionally formalistic and ignores the overwhelming and

uncontested facts of the case."

The word “permit” does not imply the passivity that the

Eleventh Circuit suggests it does, especially when the literal

definition is considered in context. The Oxford Desk Dictionary

defines “permit” as follows: “1. Give permission or consent to;

authorize; allow. 2. Give an opportunity (to).....” THE OXFORD

DESK DICTIONARY (American Ed., Oxford U. Press 1995). Thus,

“permitting” organized prayer at school controlled events is

‘authorizing’ that prayer, consenting to it, and giving permission for

it to occur in settings where government officials exercise plenary

control. Both doctrine and common sense tell us that a public

school cannot authorize prayer at school-controlled events, using

school equipment, without both endorsing that prayer and coercing

non-believers. Lee, 505 U.S. at 593-597; Engel, 370 U.S. at

430-431, 435; Black Horse Pike, 84 F.3d at 1478-88; Gearon

v. Loudoun County Sch. Bd., 844 F.Supp. 1097 (E.D.Va. 1993).

For this reason, the “permit/command” dichotomy does not

save DeKalb County’s policies and practices under any of the tests

used by this Court in Establishment Clause cases. The

permit/command distinction cannot solve the coercion problem. It

does not matter whether a speaker is picked by the principal,

11 The record demonstrates that school officials carved out time at

graduations for invocations and benedictions. (Pet. App. E40-47).

Further, the statute at issue used the word "permit," so it is natural

that in enjoining applications, the injunction should speak in terms of

what is not permitted.

17

students, or self-selects by laying claim to generalized First

Amendment rights. When prayer occurs in a captive audience

setting controlled and sponsored by the school coercion exists.

Similarly, the permit/command dichotomy is at odds with

this Court’s precedents on government endorsement of religion.

County of Allegheny v. ACLU, 492 U.S. 573, 592-594 (1989);

Wallace v. Jaffree, 472 U.S. 38, 59-61 (1985); Lynch vy.

Donnelly, 465 U.S. 668, 690-691 (1984 (O’Connor, J.,

concurring). A significant focus of the endorsement test is whether

government appears to take “‘a position on questions of religious

belief,” makes adherence “to a religion relevant in any way to a

person’s standing in the political community,” Allegheny, 492 U.S.

at 594; Lynch, 465 U.S. at 687 (O’Connor, J., concurring), or

sends the message that a particular religion, or religion in general is

“favored,” “preferred,” or “promoted” over irreligion or other

religious beliefs. Allegheny, 492 U.S. at 593-594; Edwards v.

Aguillard, 482 U.S. 578, 593 (1987). If DeKalb County

“permitted” activities from the schools’ pulpit that promoted religion

generally, promoted majoritarian religious beliefs, or fostered an

environment hostile to nonadherents, its practices fail the

endorsement test. “Permitting” students or others to engage in

religious exercises in school-controlled captive audience settings is

the essence of endorsement.

The Eleventh Circuit expressed its belief that dissenters

should express their tolerance for majoritarian prayer by silently

enduring it. Chandler, 180 F.3d at 1263. When this Court’s

teachings that government may not make adherence to a reli gion

relevant to a person’s standing in the political community are

ignored, however, tolerance does not follow. Discrimination does.

18

Finally, the artificial dichotomy between permit and

command allows a school to engage in viewpoint discrimination and

favoritism, aresult completely at odds with this Court’s holdings.

Rosenberger, 515 U.S. at 828-830; Turner Broadcasting, Inc. v.

F.C.C., 512 U.S. at 641-643; City Council of Los Angeles v.

Taxpayers for Vincent, 466 U.S. 789, 804 (1984); See also

Capital Square Review Bd., 515 U.S. at 766 (acknowledging that

when government favors religious speech it engages in content

discrimination). The result of the Eleventh Circuit’s decision will be

especially painful for dissenters whose speech is effectively silenced

by Dekalb County’s policies and the atmosphere they foster, and

who are further marginalized by the government’s endorsement of

majoritarian religious views.

D. The Eleventh Circuit’s Treatment of

“Proselytizing” Prayer is Erroneous

Closely related to the permit/command dichotomy is the

Eleventh Circuit's limitation of "coercion" to proselytizing speech.

Not only is this inconsistent with this Court's endorsement

precedents, but it is also fundamentally at odds with Lee, which

focused on subtle coercive pressures that inhere in the environment,

not in the content of the speech. Lee, 505 U.S. at 592-597.

The Eleventh Circuit panel writes:

[A] student’s right to express his personal religious

beliefs does not extend to using the machinery of

the state as a vehicle for converting his audience.

i can td: Be 2

19

The Constitution requires that schools permit

religious expression, not religious proselytizing.......

Proselytizing speech is inherently coercive and, the

Constitution prohibits it from the government’s

pulpit. (Citations omitted).

Chandler, 180 F.3d at 1265.

This statement illustrates the lack of depth in the panel’s

analysis. Since the Eleventh Circuit justified its decision to permit

prayer at school-sponsored events based on the free speech rights

of students and nonschool others, and on the absence of state

action, it is especially odd that the panel would turn around and

suggest that the same government which supposedly lacks control

over any speakers except its own employees could censor the

speech of "non-state actors" for proselytizing material. How may a

student be a state actor for purposes of proselytizing speech but not

sectarian speech, when the sectarian speech is also issued from the

government's pulpit?

Moreover, divorcing the words ofa prayer from its social

context is either disingenuous or counterproductive. When a

religious faction uses the machinery of the state to regularly reiy*“Urce

its beliefs in captive audience settings, the effect is proselytizing,

regardless of the words used. To pretend otherwise is to ignore the

impact that constant reinforcement ofa religious message (especially

a majoritarian one) via the machinery of the state has on

impressionable students subject to peer pressure. One need not

utter the word “convert” to suggest that conversion to the dominant

faith is the best path. It is no secret to most non-Christians that

there is a proselytizing message inherent in a sectarian Christian

20

prayer aimed at a captive audience.

Ironically, the Eleventh Circuit’s holding in this regard serves

to underscore that the schools have significant control over the

supposedly "private" free speech at issue in this case. That

government control reinforces the absence ofa public forum, the

endorsement of the religious views expressed, and the government’s

influence over the environment in which those views are expressed.

CONCLUSION

For the reasons stated above, amicus curiae respectfully

request that this Court grant the petition for wnt of certiorari in this

case.

Respectfully submitted,

PROF. FRANK S. RAVITCH

Oldfield Law Building

6441 East Colonial Drive

Orlando, FL 32897-3673

(407) 275-2000 ext. 245

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